JOINT AGREEMENT
THIS JOINT AGREEMENT (this "Agreement") is made as of March 27, 1997,
by and among XXXXXX X. XXXXX (also known as XXX XXXXX) and XXXXXXXX X. XXXXX,
individually and as trustees under declaration of trust dated August 16, 1989,
and XXXXXXXX X. XXXXX and XXXXXXX XXXXXXXX (also known as XXXXXXX XXXXXXXX), as
successor co-trustees of the testamentary trust of Xxxxxx Xxxxxxxx, deceased
(collectively, "Owners"), METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation ("Lender"), XXXXXX VINEYARDS AND MANAGEMENT CO., a California
corporation ("Xxxxxx"), CANANDAIGUA WEST, INC., a New York corporation ("CWI"),
CANANDAIGUA WINE COMPANY, INC., a Delaware corporation ("CWC" and, together with
CWI, "Canandaigua") (Canandaigua and Xxxxxx are together referred to herein as
"Lessees").
RECITALS
A. Owners and Lender have entered into that certain Loan Agreement
dated February 1, 1991 (the "Loan Agreement"), that certain Security Agreement
dated February 1, 1991 (the "Security Agreement"), that certain Assignment of
Bonuses, Rentals and Royalties dated February 1, 1991, recorded in the Official
Records of Monterey County, California on March 5, 1991, as Document No. 12551,
at Reel 2614, Page 240 (the "Assignment"), that certain Deed of Trust dated
February 1, 1991 by Owners, as trustor, Xxxxxx X. X'Xxxxx, as trustee, and
Lender, as beneficiary, recorded in the Official Records of Monterey County,
California on March 5, 1991, as Document No. 12550, at Reel 2614, Page 224 (the
"Deed of Trust"), that certain Note in the original principal amount of $908,000
dated February 1, 1991 executed by Owners in favor of Lender (the "Note"), and
those certain financing statement executed by Owners, as debtor, in favor of
Lender, as secured party, recorded in the Official Records of Monterey County,
California on March 5, 1991, as Document No. 12552, at Reel 2614, Page 251 and
filed in the Office of the Secretary of State of the State of California on
March 11, 1991, as Document No. 91052015 (as amended and continued, the
"Financing Statements" and, together with the Loan Agreement, Security
Agreement, Assignment, Deed of Trust, and Note, are hereinafter referred to as
the "Loan Documents"), with respect to the financing (the "Loan") of that
certain real property, improvements and other property (the "Property")
described in the Loan Documents.
B. Owners and Xxxxxx have entered into that certain Lease dated as
of January 1, 1997 (the "Xxxxxx Lease"), with respect to a portion of the
Property.
C. Owners and Canandaigua have entered into that certain Lease dated
as of January 1, 1997 ("Canandaigua Lease" and, together with the Xxxxxx Lease,
the "Leases"), with respect to a portion of the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. CONSENT TO LEASES. Lender hereby acknowledges the entry by
Owners into the Leases and agrees that such entry by Owners into the Leases
shall not, by itself, constitute a default or event of default by Owners under
the Loan Documents; provided, however, that Lender, by such acknowledgement and
agreement, shall not be construed as having subordinated or otherwise impaired
in any manner whatsoever its liens and interests pursuant to the Loan Documents
to any liens or interests evidenced by or related to the Leases, except as
otherwise specifically set forth in this Agreement. Except as otherwise
specifically set forth in this Agreement, it is understood and agreed that the
Leases are and shall remain fully junior and subordinate to the liens and
interests of Lender pursuant to the Loan Documents.
2. APPLICATION OF RENTALS. Upon payment of any rentals under the
Leases, Owners shall apply all or part of such payments (together with funds of
Owners, if necessary) to amounts due under the Loan such that all obligations
under or in connection with the Loan shall be kept current. Each Lessee shall
have the option of paying directly to Lender an appropriate amount of rentals
under its Lease for this purpose (with copies to Owners of checks or other
evidences of such payments). Upon the written request of any Lessee, Lender
shall supply such Lessee with appropriate statements showing the status of the
Loan, the amounts due thereunder and the outstanding balance thereof.
3. NOTICE OF DEFAULT AND OPPORTUNITY TO CURE. Upon the occurrence
of any default or event of default under the Loan documents (each, a "Loan
Event"), Lender shall (a) simultaneously provide Lessees with any written notice
provided to Owners with respect thereto or, in the event no notice to Owners is
required by the Loan Documents with respect thereto, provide Lessees with prompt
written notice thereof and (b) provide Lessees with the opportunity to cure such
Loan Event within a period of forty-five (45) days after the date of such notice
(the "Cure Period"). Notwithstanding any terms of the Loan Documents to the
contrary, during any such Cure Period, Lender agrees not to accelerate the
maturity of the Loan nor to assert any other rights or remedies available to it
under the Loan Documents, at law or in equity, other than as may be necessary or
desirable in the reasonable business judgment of Lender to preserve and protect
(but not enforce) its liens and interest pursuant to the Loan Documents or any
other collateral serving as security for the Loan.
4. CURE BY LESSEES. Owners and Lessees hereby agree that, in the
event that either or both Lessees elect to cure any Loan Event, such Lessee
shall be entitled to a credit against the next succeeding installment(s) of
rentals due under its Lease with Owners in an amount equal to (a) the payment
made by such Lessee to cure such Loan Event, plus (b) interest thereon, from the
date of such cure payment to the date(s) of the rental installment(s) against
which such cure payment is credited, at a rate of ten percent (10%) per annum.
Solely as an agreement between Lessees, in the event either Lessee elects to
cure any Loan Event, Lessees shall jointly make such cure payment and agree that
the amount of the cure payment shall be prorated between them as follows: 60%
to Xxxxxx and 40% to Canandaigua.
5. DISCLAIMERS OF CROP LIENS OR INTERESTS. Each of Lender and
Owners hereby disclaim any lien or interest in the crops growing or to be grown
and owned by the Lessees on the Property in accordance with the Leases; Lender
specifically retains its liens and
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interests upon crops owned by Owners. Lender agrees to execute, deliver, record
and file such further documents and instruments (including, without limitation,
amendments to the Financing Statements) as may be reasonably requested from time
to time by Lessees to evidence the foregoing disclaimer. Lender represents and
warrants that Lender is the sole holder of the security interests evidenced by
the Financing Statements and has the power and authority to agree to the
foregoing disclaimer.
6. NOTICES. Any notices to be given hereunder will be deemed to
have been given if (a) personally served upon the party to whom it is directed
or (b) deposited in the United States mail, registered or certified, addressed
to the party to whom it is directed at the address shown below its signature
hereto, or at such other address as such party hereafter may designate for
notices hereunder.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
8. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California without application of the conflicts of laws provisions thereof.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and assigns.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement by and among the parties hereto with respect to the subject matter
hereof, and may not be amended, modified, or terminated, in whole or in part,
except by an instrument in writing signed by the parties hereto or their
respective successors or assigns. It is understood and agreed that nothing
contained in this Agreement shall be construed in any manner whatsoever as
limiting or otherwise impairing Lender from modifying or amending the Loan
Documents or otherwise servicing the Loan, including, without limitation,
releasing or otherwise modifying any collateral therefor, nor shall any notice
to or consent of Lessees be required with respect thereto except as otherwise
specifically set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
XXXXXX X. XXXXX, individually and as trustee
under declaration of trust dated August 16,
1989
Address: P. O. Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------------
XXXXXXXX X. XXXXX, individually, and as
trustee under declaration of trust dated
August 16, 1989, and as successor co-trustee
of the testamentary trust of Xxxxxx Xxxxxxxx,
deceased
Address: P. O. Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
XXXXXXX XXXXXXXX as successor co-trustee of
the testamentary trust of Xxxxxx Xxxxxxxx,
deceased
Address: c/o Xxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
METROPOLITAN LIFE INSURANCE COMPANY
By /s/
-----------------------------------------
Name:
Title:
Address: 0000 X. Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Manager
With a copy to:
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
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XXXXXX VINEYARDS AND MANAGEMENT CO.
By /s/
----------------------------------------
Name:
Title:
Address: 00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx xxx Xxx, Xxxxxxxxxx
CANANDAIGUA WEST, INC.
By /s/
----------------------------------------
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn: President
CANANDAIGUA WINE COMPANY, INC.
By /s/
----------------------------------------
Name:
Title:
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn: President
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