LEASE
THIS LEASE ("Lease") is made as of January 1, 1997, by and between XXX
XXXXX and XXXXXXXX X. XXXXX, as trustees under declaration of trust dated August
16, 1989, and XXXXXXXX X. XXXXX and XXXXXXX XXXXXXXX (also known as Xxxxxxx
Xxxxxxxx) successor co-trustees of the testamentary trust of Xxxxxx Laberere,
deceased, and XXX XXXXX, also known as Xxxxxx X. Xxxxx, Xx., and XXXXXXXX X.
XXXXX, husband and wife, hereinafter collectively called "Lessor," and XXXXXX
VINEYARDS AND MANAGEMENT CO., a California corporation, hereinafter called
"Lessee."
Lessor hereby leases to Lessee, and Lessee hereby takes and hires from
Lessor, up to 1100 acres (or such amount of acres deemed to be plantable as
determined by a survey (the "Survey"), at the expense of Lessee, of the property
and agreed to by Lessor and Lessee) of farming land located in Monterey County,
California, as more specifically described on "Exhibit A" attached hereto and
made a part hereof. Said land is hereinafter referred to as the "Property" and
the portion of the Property leased from time to time, as determined pursuant to
Paragraph 1 below, is hereinafter referred to as the "Premises."
The terms and conditions of this Lease are as follows:
1. PREMISES. Lessor hereby grants to Lessee the option to lease all
or any portion of the Property on the terms of this Lease, to be exercised as
follows: (a) on or before March 31, 1997, Lessee shall have the option to lease
not less than 100 acres of the Property (the "Initial Takedown") and (b) on or
before March 31 of each of 1998, 1999 and 2000, Lessee shall have the option to
lease additional acres of the Property (each, a "Subsequent Takedown") in an
amount not less than the lesser of (i) the balance of the Property then subject
to this option to lease and (ii) (A) for the option to be exercised on or before
March 31, 1998, the excess (if
any) of 500 acres over the number of acres in the Initial Takedown, (B) for the
option to be exercised on or before March 31, 1999, the excess (if any) of 900
acres over the aggregate number of acres in the Initial Takedown and any prior
Subsequent Takedowns, and (C) for the option to be exercised on or before
March 31, 2000, 400 acres. Lessee shall exercise any such option by providing
written notice thereof to Lessor, which notice shall set forth the number of
acres subject to such option exercise and the legal description of such acreage.
In the event that Lessee shall fail to make the Initial Takedown, Lessor shall
have the right to terminate this Lease, in which event the parties shall have no
further rights or obligations under this Lease. In the event that Lessee shall
fail to make a Subsequent Takedown in any applicable year AND the amount of
acres determined under clause (b)(ii) above is greater than zero (0), the
aggregate maximum acres of the Property that Lessee may lease pursuant to this
option to lease shall be reduced by 100 acres.
Lessor acknowledges and agrees that Lessee may farm and manage all or
any portion of the Premises for one or more wineries and that any such winery
may require that the portion of the Premises allocable to such winery be leased
by Lessor directly to such winery. Lessor agrees that any such direct lease (on
terms substantially similar to the terms of this Lease) to a winery approved by
Lessor (which approval shall not be unreasonably withheld or delayed) shall be
deemed to constitute all or part of the Initial Takedown or any Subsequent
Takedown for purposes of this Paragraph. Lessor agrees to cooperate with Lessee
and any such winery in the negotiation, execution and delivery of any such
direct lease.
The portion of the Property that is not included in the Premises, at
any relevant time, is referred to hereinafter as the "Option Acreage." Lessor
agrees that Lessor shall not sell, lease or otherwise transfer all or any
portion of the Option Acreage, or agree to do any of the foregoing, on or prior
to the date (the "Option Termination Date") that is the earlier of (x)
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March 31, 2000 and (y) the date Lessee shall have made the final Subsequent
Takedown or shall have waived its option to make all unexercised Subsequent
Takedowns.
2. TERM. The term (as extended from time to time, the "Term") of
this Lease is thirty (30) years commencing as of the date hereof, and ending
December 31, 2026, subject to the options to extend referred to in Paragraph 24
below. Notwithstanding the foregoing, in the event that on or before March 31,
1997 (the "Sale Agreement Date"), Lessee shall not have entered into a sale
agreement (in form and substance acceptable to Lessee) with respect to the crops
to be grown on the Premises to be included in the Initial Takedown (a "Sale
Agreement"):
(a) Lessor or Lessee, by written notice provided to the other party,
may elect to terminate this Lease, in which event the parties shall have no
further rights or obligations under this Lease; or
(b) Lessor and Lessee may agree to extend the Sale Agreement Date
from March 31, 1997 to a later date.
3. USE. The Premises shall be used for the planting, growing and
harvesting of crops, including but not limited to wine grapes, and uses
incidental thereto as set forth in Paragraph 10 below, but for no other purpose.
All farming operations of Lessee shall be conducted in accordance with the
methods practiced in the vicinity, including the taking of necessary precautions
to prevent erosion or other damage to the Premises, so that at the termination
of this Lease said Premises will be returned to Lessor in the same condition as
when received at the beginning of this Lease or as improved pursuant to the
terms of this Lease, reasonable use, wear and damage by the elements excepted.
Lessee shall make diligent effort to prevent the spread of all noxious weeds and
crop-destroying rodents upon the Premises during the Term.
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Notwithstanding the foregoing provisions of this Section 3, the Lessor
hereby reserves for the benefit of Lessor, his immediate family and his heirs
(a) a right of way through the Property for reasonable ingress and egress to
adjacent property currently owned by Lessor; provided that the route of such
right of way shall be mutually agreed upon by Lessor and Lessee and (b) the
right to xxxx on the Property; provided that such activity does not interfere
with Lessee's use of the Premises or result in any damage to the improvements on
the Premises. In addition, from the date of execution hereof through December
31, 1999, Lessee hereby grants the following access to the Premises to Xx. Xxx
Xxxxx: (i) access to the existing shop (the "Shop") on the Premises during
normal business hours when personnel of Lessee are present and the Shop is open;
(ii) unlimited access to the concrete slab located immediately adjacent to the
Shop within the fenced area surrounding the Shop for the purpose of cleaning
Xx. Xxxxx'x cattle trucks; and (iii) unlimited access to the air compressor
located in the Shop area; provided that, in each such case, such access and
related activities of Xx. Xxxxx do not interfere with Lessee's use and operation
of the Premises and the Shop or result in any damages to the improvements on the
Premises.
4. RENT. As and for the rental of the Premises during the Term,
Lessee agrees to pay to Lessor (a) with respect to each of calendar years 1997
and 1998 the sum of $200.00 per acre, (b) with respect to each of calendar years
1999 and 2000, the sum of $225.00 per acre, and (c) with respect to each
calendar year thereafter, the sum of $250.00 per acre (subject, however to
adjustment as set forth in Paragraph 5 below), payable in advance without
deduction or offset, except as provided in Paragraphs 8 and 23 below. The
annual rental shall be paid (i) for calendar year 1997, in full on the date of
the Initial Takedown and (ii) for each calendar year thereafter, in equal
semi-annual installments on the 1st day of January and the 1st day of July of
each such year.
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5. PERIODIC RENT ADJUSTMENT. The annual rental to be paid by
Lessee, as set forth in Paragraph 4 above, shall be adjusted at the end of the
tenth (10th) full calendar year of the Term and, thereafter, at the end of each
successive five (5)-year period during the Term. The rent adjustment shall be
made to reflect the prevailing rental rate at the time of each adjustment for
land of like kind and quality with a comparable water supply and comparable
improvements, located in Monterey County, California south of San Ardo;
provided, that no consideration shall be given to the value of improvements made
by Lessee upon the Premises; provided further, that if at the time of a
particular adjustment the Premises are planted to vineyard, the lands to be used
for comparison purposes shall consist solely of Monterey County vineyards
located south of San Ardo ("Comparable Vineyards"), but only (i) those
Comparable Vineyards which have had a rent adjustment within the previous three
(3) years, and (ii) there shall be excluded from the rental rates of such
Comparable Vineyards any rental paid for the value of the vineyards thereon and
the value of any improvements thereon comparable to the improvements made by
Lessee upon the Premises. Lessor and Lessee acknowledge and agree that rental
rates on properties underlying Comparable Vineyards may include amounts being
paid in consideration of obligations and liabilities other than the rental of
such property (for example, the performance of services, contracts and other
agreements or the payment of fees, costs or other expenses), and consideration
paid for such other liabilities and obligations shall not be taken into account
in the determination of the prevailing rental rates.
6. ARBITRATION. If the parties hereto are unable to reach agreement
as to any rent adjustment to be made pursuant to the provisions of Paragraph 5
above, the matter shall be determined by arbitration. Except as otherwise
specifically provided in this lease, the arbitration proceedings shall be
conducted according to the rules and procedures set forth in Title 9 of Part III
(commencing with Section 1280) of the Code of Civil Procedure. A panel of three
(3)
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arbitrators shall be selected by mutual agreement of the parties, but if the
parties cannot agree on such selection, then each party shall appoint one (l)
arbitrator and the third or "neutral" arbitrator shall be appointed as provided
in Section 1281.6 of the Code of Civil Procedure upon the petition of either
party hereto. No person shall be appointed to serve as an arbitrator unless he
or she is qualified by membership in the American Institute of Appraisers of the
National Association of Realtors ("M.A.I.") and has been regularly engaged in
making appraisals of agricultural property in Monterey, San Xxxx Obispo and/or
San Xxxxxx Counties, California, during the previous five (5) years (a
"Certified Appraiser"). The decision of any two (2) of said arbitrators, made
and entered as provided in Sections 1282 and 1282.2 of the Code of Civil
Procedure, shall be conclusive and binding upon the parties hereto. Costs of
said arbitration proceedings shall be borne and paid by the parties hereto in
equal shares, except that attorneys' fees, fees paid to witnesses, and other
expenses incurred by a party for that party's own benefit, shall be paid by the
party incurring the same. Pending completion of said arbitration proceedings,
Lessee shall continue to make all rental payments as the same become due
hereunder, upon the understanding and agreement that when said proceedings have
been completed said rental payments will be adjusted, up or down, in accordance
with the arbitration award and the excess or deficient portion of said rental
payments shall be remitted by Lessor or Lessee, as applicable.
7. TAXES AND ASSESSMENTS; LAND CONSERVATION AGREEMENTS. Lessee
shall pay, prior to delinquency, all real and personal property taxes and
assessments levied on or assessed against the Premises and against improvements
now or hereafter located on the Premises, prorated for the Term of this Lease.
During the period commencing on the date hereof and ending on the Option
Termination Date, Lessee shall pay, prior to delinquency, all real property
taxes and assessments levied on or assessed against that portion of the Option
Acreage deemed
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to be plantable as determined by the Survey (the "Plantable Option Acreage") and
against improvements now located on the Plantable Option Acreage, prorated for
any partial tax year; provided that the amount of any such taxes and assessments
for any tax year shall not exceed $5.00 per acre, prorated for any partial tax
year. Lessor shall be liable for the payment of any taxes and assessments
levied on or assessed against the Plantable Option Acreage and against
improvements now located on the Plantable Option Acreage in excess of such
amount. Lessee shall have the right at Lessee's sole expense, to protest or
contest the validity or amount of any such taxes or assessment. If Lessee
protests or contests any such tax or assessment, Lessee may withhold or defer
payment thereof, but shall protect Lessor and the Premises or the Plantable
Option Acreage, as applicable, from any lien by adequate surety bond or other
appropriate security acceptable to Lessor. Lessor hereby appoints Lessee as
Lessor's attorney-in-fact for the purpose of making all payments to taxing
authorities and for the purpose of protesting or contesting any tax or
assessment payable by Lessee. Lessor shall, at Lessee's expense, cooperate with
Lessee in the contest or adjustment of taxes payable by Lessee. Without
Lessee's prior written consent, Lessor shall neither give any notice of
non-renewal of any land conservation agreement (executed under the California
Land Conservation Act of 1965) relating to the Premises or the Option Acreage,
nor agree with the County of Monterey to a mutual cancellation thereof.
8. REPRESENTATION AND WARRANTIES.
(a) Lessor represents and warrants to Lessee as follows: (i) Lessor
owns good title to the Property; and (ii) no zoning or other governmental
laws, ordinances, rules or regulations prohibit or restrict the use of the
Property by Lessee as contemplated by this Lease.
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(b) Each party hereto represents and warrants to the other party as
follows: (i) such party has full power and authority to execute and
deliver, and to perform the obligations of such party under, this Lease;
and (ii) the execution, delivery and performance of this Lease by such
party does not and will not constitute a breach or default under any
material agreement, lease or instrument to which such person is a party or
by which such person or the Property is bound.
(c) Lessee acknowledges that Lessor has not made any express or
implied warranty or representation concerning the availability of water or
water quality. Notwithstanding the foregoing, if water rights relating to
the Premises and the Option Acreage are challenged, Lessor and Lessee shall
jointly pursue the protection and preservation of said rights, and shall
equally bear the reasonable expenses thereof. Notwithstanding the
foregoing, if at any time there shall not be water of sufficient quantity
and quality from existing xxxxx to properly irrigate vineyards which Lessee
has placed on the Premises or to otherwise farm the Premises in a proper
manner, Lessee shall give notice thereof to Lessor and, thereafter, Lessee
may, at Lessee's option, make a reasonable effort (after consultation with
Lessor with respect thereto) to restore the water supply including, at
Lessee's option, the drilling of a new well or xxxxx; provided that Lessee
shall be entitled to a credit against the rental payable hereunder for all
costs incurred by Lessee in connection with the restoration of the water
supply (the "Water Costs"), as follows: (i) if the Water Costs are less
than the aggregate rental to be paid over the five-year period beginning
with the first semi-annual rental installment due after the commencement of
such restoration (the "Water Cost Recapture Period"), the credit for the
Water Costs shall be prorated against the rental installments payable
during the Water Cost Recapture Period; and (ii) if the Water Costs exceed
the aggregate rental to
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be paid during the Water Recapture Period, the credit for the Water Costs
shall be offset against each rental installment payable during the Water
Cost Recapture Period and each rental installment payable thereafter until
the aggregate offset equals the Water Costs. If Lessee's efforts to
restore the water supply are unsuccessful or Lessee does not elect to
undertake such efforts, Lessee shall have the right to terminate this Lease
by giving thirty (30) days prior written notice of such termination to
Lessor (any such termination being a "Water Deficiency Termination"). For
purposes of this Paragraph, "sufficient quantity" of water means a combined
production of 4,500 gallons of water per minute from the two (2) xxxxx
operating on the Property as of the date hereof.
9. REPAIRS. Subject to the terms of Paragraph 8(c), Lessee shall,
at Lessee's sole cost and expense, keep and maintain the Premises, including
improvements now or hereafter installed thereon while the same are reasonably
needed for agricultural purposes, in good order and condition at all times.
Except as provided in Paragraph 8(c), Lessor shall not be called upon to make
any repairs, replacements or improvements whatsoever upon the said Premises, or
any part thereof. Notwithstanding the foregoing, Lessee shall not be
responsible for, and Lessor shall indemnify and hold Lessee harmless from, any
environmental or other condition affecting the Premises which constitutes a
violation of any applicable law, regulation, rule or order; provided, however,
that Lessor shall not be required to indemnify and hold Lessee harmless from any
such condition that is caused by Lessee or its employees, agents or contractors.
10. IMPROVEMENTS. This Lease is executed with the understanding and
agreement that the Lessee is not obligated to make any improvements to the
Property, but that if Lessee elects to do so, said improvements shall consist of
the planting of a wine grape vineyard and the installation of buildings,
equipment and facilities which Lessee may require for the development and
operation of said property as a vineyard. Except as provided in
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Xxxxxxxxx 8(c), the full cost of said improvements shall be borne and paid by
Lessee, without any contribution whatsoever by Lessor. The construction and
installation of these or any other improvements made to the Property by the
Lessee shall be subject to the following conditions:
(a) At least ten (10) days but not more than thirty (30) days before
commencement of any construction on or improvement to the Property which
will cost in excess of $10,000.00, Lessee shall notify Lessor of Lessee's
intention to commence said work. The notice shall specify the approximate
location and nature of the intended improvements and shall state the
approximate date on or after which work is to commence. Lessor shall have
the right to post and maintain on the Property any notices of
nonresponsibility provided for under applicable law.
(b) Lessee shall not suffer or permit to be enforced against the
Property or any part thereof any mechanic's, materialman's, contractor's,
or subcontractor's lien arising from any work of improvement made by
Lessee, however it may arise. However, Lessee may in good faith and at
Lessee's own expense contest the validity of any such asserted lien,
provided Lessee has furnished the bond required in Civil Code Section 3143
(or any comparable statute hereafter enacted for providing a bond or other
assurance freeing the Property from the effect of such a lien claim.)
(c) Lessee shall indemnify Lessor against all liability and loss of
any type arising out of work performed on the Property by or for Lessee,
together with reasonable attorneys' fees and all costs and expenses
incurred by Lessor in negotiating, settling, defending, or otherwise
protecting against such claim should Lessee fail to do so.
(d) If Lessee does not cause to be recorded the bond described in
Civil Code Section 3143 or otherwise protect the property under any
alternative or successor statute, and if a final judgment is rendered
against Lessee by a court of competent jurisdiction
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for the foreclosure of a mechanic's, materialman's, contractor's or
subcontractor's lien claim, and if Lessee fails to stay an execution of the
judgment by lawful means or to pay the judgment, Lessor shall have the
right, but not the duty, to pay or otherwise discharge, stay, or prevent
the execution of any such judgment or lien or both. Lessee shall reimburse
Lessor for all sums paid by Lessor under this subparagraph (d), together
with all Lessor's reasonable attorneys' fees and costs, plus interest on
those sums, fees, and costs at the highest legal rate allowed under the
laws of California from the date of payment until the date of
reimbursement.
All improvements constructed or installed on the Property by Lessee shall be
owned by Lessee during the Term. At the conclusion of the Term, or upon any
earlier termination of this Lease however occurring, Lessee shall surrender the
Property and improvements, if any, to Lessor and as of said date said
improvements shall become part of the real property and shall belong solely to
Lessor; provided that, in the event of a Water Deficiency Termination, at the
option of Lessee, Lessee shall be entitled to retain ownership of and remove all
improvements constructed or installed on the Property by Lessee.
11. WATER. Lessee shall have the full use of any and all water
rights appurtenant to the Property and shall have the right, for its own use, to
develop such reservoirs and drill such xxxxx as it may deem necessary to furnish
sufficient water for agricultural use on the Premises; provided, however, that,
without the prior written consent of Lessor, no irrigation water produced by
Lessee on the Property shall be transported for use off the Premises. Lessor
shall be entitled to use a reasonable amount of water from the Property for a
water truck and/or a fire truck owned and operated by Xx. Xxxx Xxxxx for the
following purposes: (a) emergency fire fighting and (b) refilling the cattle
water trough of Xx. Xxxxx in the event of a failure of Xx. Xxxxx'x water system;
provided, however, that, in each such case, the use of such water by
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Xx. Xxxxx shall not result in Lessee having insufficient water for its own use
on the Premises. Xx. Xxxxx shall provide advance notice to Lessee of his
intended use of water for refilling his cattle water trough but shall not be
required to provide such notice with respect to emergency fire fighting use.
Lessee agrees that Lessor shall reserve an easement to extend a pipeline from
well sites existing as of the date hereof on the parcels of Messrs. Xxxx Xxxxx
and Xxxxxx Xxxxx (which parcels are referenced on "Exhibit A" hereto, but are
excluded from the Property described on "Exhibit A" hereto), or any replacement
well sites on such parcels, over a route to be mutually agreed upon by Lessee
and Lessor. Said pipeline easement shall provide for reasonable access to the
Property for the purposes of installation, repair, maintenance and replacement
of said pipeline, and said pipeline shall transport water only from such
existing or replacement well sites.
12. UTILITIES AND SERVICES. Lessee shall pay for all utilities and
services used by Lessee upon the Property during the Term.
13. INSURANCE. During the Term, Lessee shall, at Lessee's sole cost
and expense, maintain insurance with reputable insurance carriers against such
risks and in such amounts as is customarily carried by companies of established
reputation engaged in the same or similar business and similarly situated,
including public liability, property damage and workers' compensation; provided
that the public liability insurance shall be in an amount not less than
$1,000,000 for each occurrence. Lessee shall cause such policy or policies of
insurance to show Lessor as an additional insured thereunder and to provide that
such policy or policies may not be cancelled or amended without at least thirty
(30) days prior written notice to Lessor. Upon the request of Lessor, a
certificate of insurance evidencing such coverage shall be provided to Lessor.
Each party to this Lease waives any right of action such party may later acquire
against the other for the recovery of any loss or damage to any of such party's
property which
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is insured under valid and collectible insurance policies, to the extent of any
recovery collectible under such insurance.
14. ENTRY, INSPECTION AND USE BY LESSOR. Lessee shall permit Lessor,
and Lessor's agents and assigns, at all reasonable times, to enter the Premises
and to use the roads established on the Premises now or in the future for the
purpose of inspection, reasonable ingress and egress to and from public roads
and to and from other lands owned by the Lessor, the posting of notices, the
exercise of any right given to or retained by Lessor under the provisions of
this Lease, or any other lawful purpose. To facilitate such access, Lessee
shall supply Lessor, its agents and assigns, with keys to gates to the Premises.
15. OIL AND GAS LEASES. Notwithstanding anything to the contrary
contained in this Lease, Lessor shall have the right at any time or from time to
time to execute oil, gas or mineral leases with respect to the Premises;
provided, that neither Lessor nor said mineral lessee shall have the right,
without prior written consent of Lessee, to enter upon the surface of the
Premises or the upper 500 feet thereof to explore for, produce, or extract oil,
gas or other minerals. All oil, gas or mineral leases hereafter executed by
Lessor with respect to the Premises shall contain a provision making the lessee
therein primarily liable to Lessor and Lessee, as their respective interests may
appear, for all damages to livestock, crops, vines, trees, fences, roads,
ditches, buildings and other improvements on the Premises, caused by said
lessee's operations thereon. Lessor hereby agrees to indemnify and hold
harmless Lessee from and against all such damages.
16. NUISANCE; COMPLIANCE WITH LAWS. Lessee shall not knowingly do,
or permit to be done, or knowingly keep, or permit to be kept, in or about the
Premises, anything which shall be a nuisance or which shall be in violation of
any law, ordinance, rule or regulation of any governmental authority.
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17. CONDEMNATION. If during the Term all or any portion of the
Premises is condemned, or conveyed under threat of condemnation, for public use,
the parties hereto agree as follows:
(a) The respective rights of the parties shall depend upon whether
there is a "Total Taking," a "Substantial Taking," or a "Partial Taking,"
said terms being defined as follows:
TOTAL TAKING means the taking of the fee title to all of the
Premises and the improvements on said Premises;
SUBSTANTIAL TAKING means the taking of so much of the Premises or
improvements or both that the conduct of Lessee's business on the
Premises would be prevented or impaired to the extent that
agricultural operations could not be conducted on the Premises at an
economically feasible level of profit;
PARTIAL TAKING means any taking of the fee title that is not
either a total taking or a substantial taking.
(b) In the event of a Total Taking (or a Substantial Taking if Lessee
gives Lessor notice of intent to treat such taking as a Total Taking within
fifteen (15) days after the nature and extent of the taking have been
finally determined), Lessee's interest in the leasehold and Lessee's
obligations under this Lease, including but not limited to the obligation
to pay rent, shall continue until the date on which the condemnor takes
possession, and Lessee's right to apportionment of the award shall accrue
as of that date. Upon delivery of possession to the condemnor, this Lease
shall terminate.
(c) In the event of a Partial Taking (or a Substantial Taking if
Lessee does not elect to treat it as a Total Taking as provided in
subparagraph (b) of this paragraph), this Lease shall remain in full force
and effect with respect to the remaining property and
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Lessee's obligation to pay rent shall be reduced at the rate per acre then
payable under the provisions of Paragraphs 4 and 5 above for each acre so
taken.
(d) Upon a Total, Substantial, or Partial Taking, all sums, including
damages and interest, awarded for the fee or leasehold or both shall be
deposited with a bank, savings and loan association, or other mutually
agreeable escrow holder, with instructions to distribute the same as
follows:
(i) If the award separately values the interests of Lessee and
Lessor in the property taken:
TO LESSEE: that portion of the award allocable to the interests
of Lessee; and
TO LESSOR: that portion of the award allocable to the interests
of Lessor.
(ii) If the award values the property taken as a whole, the award
shall be prorated between Lessee and Lessor in accordance with (A) the
value of the interests of the Lessee in the property taken (including,
without limitation, the fair market value of the leasehold estate of the
Lessee therein for the then unexpired Term (including renewal option
periods)) and (B) the value of the interests of the Lessor in the property
taken (including, without limitation, the fair market value of the fee
estate of the Lessor therein). In the event that the parties are unable to
agree upon such proration within ten (10) days after the date of the award,
either party may give notice to the other party and submit the controversy
for arbitration under the Commercial Rules of Arbitration of the American
Arbitration Association. The venue for such proceeding shall be Monterey
County and any decision in such proceeding shall be binding and not
appealable.
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(e) The party receiving any formal or informal notice of intended
taking under eminent domain from a public agency shall give the other party
prompt notice of the contents of the notice received and the date on which
it was received.
(f) Lessor, Lessee, and all persons and entities holding under Lessee
shall each have the right to represent their respective interests in each
proceeding or negotiation with respect to a taking of all or any part of
the Premises under eminent domain, and to make full proof of their
respective claims. No agreement, settlement, sale, or transfer to the
condemning agency shall be made without the consent of Lessor and Lessee.
Lessor and Lessee each agree to execute and deliver to the other any
instruments that may be required to effectuate or facilitate the provisions
of this Lease relating to condemnation.
18. DEVELOPMENT FINANCING. If during the Term, Lessee elects to
develop or otherwise to construct improvements on the Premises, as set forth in
Paragraph 10 above, the parties hereto agree as follows:
(a) The total cost of the work shall be paid for by Lessee.
(b) Notwithstanding anything herein to the contrary, Lessee is hereby
given the absolute right without Lessor's consent to mortgage its interest
in this Lease for the purpose of securing any loan to be used by Lessee for
the development, improvement and operation of the Premises, but Lessor
shall not be required to join or participate in said loan, or to accept any
personal responsibility for the repayment of same. No such mortgage shall
extend to or affect the fee title or the reversionary interest of Lessor in
and to the Premises, or the reversionary interest of Lessor in and to any
improvements now or hereafter installed upon the Premises. No such
mortgage or assignment thereof shall be binding upon the Lessor in the
enforcement of its rights under this Lease, but
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Lessor will provide a copy of any notice of default by Lessee to the
mortgage holder and will accept performance by the mortgage holder of any
term of this Lease to be performed by Lessee. The mortgage holder shall
have thirty (30) days in which to cure any Event of Default by Lessee after
the time for Lessee to cure it has expired; provided, however, that if the
Event of Default cannot be cured by the payment of money, Lessor will not
terminate this Lease if the mortgage holder commences and thereafter
diligently pursues to completion foreclosure of its mortgage and pays to
Lessor all sums then due and unpaid under the terms of this Lease. The
loan documents shall contain a provision allowing, but not obligating,
Lessor to cure any default thereunder if Lessee fails to do so. Such
mortgage shall provide that a copy of any notice of default served
thereunder shall be sent by mail to Lessor at the address given in this
Lease for the service of notices hereunder. A duplicate original or
certified copy of such mortgage, showing recording data, shall be given to
Lessor within ten (10) days after the same is returned from the recorder's
office.
19. PERMANENT FINANCING; SUBORDINATION OF FEE. In the event Lessee
desires to obtain long-term financing of its improvements and operations on the
Premises (the "Loan"), it shall have the right to do so pursuant to this
Paragraph 19 at any time after not less than four hundred (400) acres of the
Premises is planted to vineyard and an irrigation system has been installed and
is operating on such portion of the Premises. The Loan shall be in the form of
a long-term loan from a bank, savings and loan association, insurance company or
other lending institution authorized to do business in the State of California.
Lessor agrees that if requested to do so by Lessee it will execute and
deliver to such lender a deed of trust sufficient to subordinate or encumber
Lessor's fee title to the Premises to the lien securing the Loan, together with
such other loan documents in the standard
-17-
form then in use by the lender as the lender may reasonably require as a
condition of making the Loan. Lessor and Lessee shall negotiate in good faith
with respect to such amendments to this Lease as the lender of each Loan
requires as a condition to providing the financing, and neither Lessee nor
Lessor shall unreasonably withhold its consent to such amendments.
Lessor represents, warrants and covenants as follows: (a) the
Property is encumbered solely by a deed of trust in favor of Metropolitan Life
Insurance Company ("MetLife") securing a loan in the principal amount, as of the
date hereof, of $800,000 (the "MetLife Loan"); (ii) upon payment of the rental
with respect to the Initial Takedown, Lessor shall apply all or part of such
payment (together with funds of Lessor, if necessary) to amounts due under the
MetLife Loan such that the MetLife Loan shall be brought current; (iii) Lessor
shall make all future payments on the MetLife Loan when due and shall perform
all other obligations of Lessor with respect thereto when due; (iv) as of the
date hereof, Lessor has provided Lessee with true and complete copies of all
documents evidencing the MetLife Loan; (v) Lessor shall not amend or otherwise
modify the terms of the MetLife Loan without the prior written consent of Lessee
(in its sole discretion); and (vi) Lessor shall provide, and shall cause MetLife
to provide, to Lessee copies of all notices sent or received by Lessor or Met
Life in connection with the MetLife Loan promptly following such sending or
receipt. In connection with the obtaining of the Loan and notwithstanding
Paragraph 23 below, Lessor agrees to cooperate with Lessee and the Loan lender
with respect to any requested refinancing of the MetLife Loan with such Loan
lender or any other lender requested by Lessee; provided that Lessor shall not
be required to refinance the MetLife Loan upon terms more onerous in the
aggregate than the then existing terms of the MetLife Loan. Such refinancing
shall be negotiated in good faith by Lessor, Lessee and the refinancing lender.
If requested by Lessee, Lessor
-18-
further agrees to consent to the purchase by Lessee of the MetLife Loan from
MetLife and to cooperate with Lessee and MetLife in connection with any such
purchase.
The foregoing provisions of this Paragraph 19 are subject, however, to
the following terms, conditions and agreements:
(a) No Event of Default shall have occurred and be continuing at the
time the Loan is to be made.
(b) The Loan shall be repaid in full on or before termination of this
Lease.
(c) The principal amount of the Loan shall not exceed sixty percent
(60%) of the appraised value of the Premises, as determined on or before
the date of the Loan, at the expense of Lessee, by a Certified Appraiser
(as defined in Paragraph 6 above) mutually acceptable to Lessor and Lessee.
(d) Lessor's obligation to subordinate their fee title to the
Premises to any financing is limited to the Loan and the deed of trust and
other loan documents for the Loan.
(e) The loan documents for each Loan shall contain provisions that
(i) Lessor has joined in the execution of the same solely for the purpose
of creating a lien against the fee title to the Premises in favor of the
lender, and that no personal judgment will be sought or obtained against
Lessor by reason of its having joined in the execution of said documents;
and (ii) require all notices of default to be served on both Lessor and
Lessee and provide that Lessor shall have the right to cure any default if
Lessee fails to do so.
(f) The proceeds of each Loan shall be applied by the lender: first,
to the full payment of any outstanding loan taken out by the Lessee
pursuant to the provisions of Paragraph 18 above; second to the payment of
any and all obligations then due and
-19-
owing by Lessee to Lessor under the terms of this Lease; and third, the
remaining proceeds, if any, shall be paid to Lessee.
20. EVENTS OF DEFAULT. Any of the following events shall
constitute a default (an "Event of Default") under the terms of this Lease:
(a) The nonpayment of rent or any other sum to be paid by Lessee to
Lessor under the terms of this Lease, and the failure of Lessee to make
such payment within ten (10) days after receipt of written notice to do so
is given to Lessee and to any lender then holding a security interest in
the leased land or in the leasehold estate of Lessee pursuant to the
provisions of Paragraph 18 or Paragraph 19 above.
(b) Default by Lessee in the performance of or compliance with any
other covenant, condition or restriction contained in this Lease, including
by way of this specific reference Paragraph 3 above, as xxxxx as other
covenants, conditions or restrictions contained herein, and the failure of
Lessee to perform or comply with the same within thirty (30) days after
receipt of written notice to do so is given to the Lessee and to any lender
then holding a security interest in the Premises or in the leasehold estate
of Lessee pursuant to the provision of Paragraph 18 or Paragraph 19 above;
provided, however, that if the nature of Lessee's default is such that more
than thirty (30) days are reasonably required for its cure, then no Event
of Default shall be deemed to have occurred if Lessee commences the cure
within that thirty (30)-day period and thereafter diligently prosecutes the
cure to completion.
(c) Abandonment or surrender of the Premises or of the leasehold
estate by Lessee.
(d) The subjection of any material right or interest of Lessee
hereunder to attachment, execution or other levy, or to seizure under legal
process (except a
-20-
foreclosure of security given by Lessee to a lender pursuant to the
provisions of Paragraph 18 or Paragraph 19 above), if not released within
thirty (30) days after receipt of written notice thereof.
(e) The filing by Lessee of a petition in bankruptcy or insolvency,
or for an arrangement or reorganization, or the making of an assignment for
the benefit of creditors.
(f) The filing against Lessee of a petition in bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver to
take possession of the Premises or improvements thereon or of Lessee's
interest in the leasehold or of Lessee's operations on the Premises for any
reason (other than a receivership pursuant to any security given by Lessee
to any lender referred to in Paragraph 18 or Paragraph 19 above), if not
dismissed within ninety (90) days.
(g) Any default by Lessee in the payment of any loan or other
monetary obligation secured by a mortgage or other security instrument
given to secure an obligation to any lender referred to in Paragraph 18 or
Paragraph 19 above provided that Lessee's default shall have continued
beyond any grace or cure period allowed by the applicable loan document.
21. REMEDIES OF LESSOR ON DEFAULT. Upon the occurrence and during
the continuance of any Event of Default, Lessor shall have the following
remedies in addition to all other rights and remedies, provided by law or
equity, to which Lessor may resort cumulatively or in the alternative:
(a) Lessor may at Lessor's election terminate this Lease by giving
written notice of termination. On the giving of the notice, all Lessee's
rights in the Premises shall terminate. Promptly after notice of
termination, Lessee shall surrender and vacate
-21-
the Premises and all improvements thereon, and Lessor may reenter and take
possession of the Premises and improvements and eject all parties in
possession. Termination under this subparagraph shall not relieve Lessee
from any claim for damages previously accrued or then accruing against
Lessee. Said damages shall include the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the award
exceeds the amount of such rental loss for the same period that Lessee
proves could be reasonably avoided.
(b) Lessor may at Lessor's election reenter the Premises and, without
terminating this Lease, at any time and from time to time relet said
Premises and improvements or any part or parts of them for the account and
in the name of Lessee or otherwise. Any reletting may be for the remainder
of the Term or for a longer or shorter period. Lessor may execute any
leases made under this provision either in Lessor's name or in Lessee's
name and shall be entitled to all rents from the use, operation, or
occupancy of the Premises and improvements. Lessee shall nevertheless pay
to Lessor on the due dates specified in this Lease the equivalent of all
sums required of Lessee under the terms of this Lease, plus Lessor's
expenses, less the net amount realized by Lessor upon any such reletting.
No act by or on behalf of Lessor under this provision shall constitute a
termination of this Lease unless Lessor gives Lessee written notice of
termination.
(c) Lessor shall be entitled at Lessor's election to each installment
of rent or to any combination of installments for any period before
termination, plus interest on delinquent installments at the highest
interest rate then allowable under the laws of the State of California.
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(d) Upon any reentry of the Premises by Lessor pursuant to the
provisions of subparagraphs (a) or (b) above, Lessor may at Lessor's
election take possession of all crops on the Premises, harvested and
unharvested, and shall thereupon become the owner of the same, without any
obligation to compensate Lessee or any other person therefor, except that
Lessor shall pay to Lessee all moneys received from the sale of said crops,
less all reasonable costs and expenses incurred or expended by Lessor in
cultivating, harvesting, processing, handling and selling said crops, less
amounts owed to the holder of a security interest given to secure crop
financing, and less all sums which may then be due to Lessor from Lessee
under the terms of this Lease. Lessor may at Lessor's election use any of
Lessee's machinery, equipment, trade fixtures or other personal property
left upon the Premises, without compensation and without liability for the
use or damage of the same, unless due to Lessor's negligence, or store said
property for the account of and at the cost of Lessee.
The waiver by Lessor of any Event of Default shall not be deemed or held to be a
waiver of any subsequent or other Event of Default.
22. SURRENDER AND REMOVAL BY LESSEE; QUITCLAIM. Upon the expiration
of the Term or any earlier termination thereof, Lessee shall surrender to Lessor
the possession of the Premises and all improvements located thereon. If no
Event of Default shall have occurred and be continuing at the time of such
termination, Lessee may remove or cause to be removed all of its machinery,
equipment, trade fixtures and other personal property located upon the Premises
and then owned by Lessee; any of said property not so removed within thirty (30)
days after the date of termination shall be considered to have been abandoned
and thereafter shall belong to Lessor without the payment of any consideration.
Upon such expiration or earlier termination of this Lease, the Lessee agrees to
execute, acknowledge and deliver to Lessor in
-23-
recordable form a proper instrument releasing and quitclaiming to Lessor all
right, title and interest of Lessee in and to the Premises and all improvements
located thereon. No holding over of the possession of the Premises by Lessee
beyond the Term shall be deemed an extension of the Term or create the right to
an additional term in the absence of a written agreement executed by Lessor.
23. LESSOR'S ENCUMBRANCES. Lessor shall not encumber (or refinance
any existing encumbrance on) the Premises, the Option Acreage, or any part
thereof during the Term without Lessee's prior written consent (in its sole
discretion). In the event of a default by Lessor under an encumbrance of
Lessor's interest in the Premises or the Option Acreage, or in the event
Lessor's interest in the Premises becomes subject to any lien for which Lessee
is not responsible under the terms of this Lease and which jeopardizes Lessee's
interest in the Premises, Lessee shall have the right, at its sole option, (i)
to cure the default or discharge the lien and to deduct the funds expended in
connection with such cure or discharge from subsequent rental payments becoming
due under the terms of this Lease or (ii) to terminate this Lease without
penalty. Lessor shall use its best efforts to cause holders of encumbrances on
Lessor's interest in the Premises to agree to accept performance thereunder by
Lessee.
24. OPTION TO EXTEND. So long as no Event of Default shall have
occurred and is then continuing, Lessee shall be entitled to extend the term of
this lease for four (4) successive five (5)-year terms upon giving to Lessor
written notice of Lessee's election to exercise the option to extend the term at
least ninety (90) days prior to the expiration of the then existing term hereof.
Such renewal shall be upon the same terms and conditions as are herein stated.
References in this Lease to the Term shall, to the extent exercised, include the
four (4) successive five (5)-year options provided for above.
-24-
25. FIRST RIGHT TO PURCHASE. During the Term and so long as no Event
of Default shall have occurred and is then continuing, Lessee shall have the
first right to purchase the Premises if Lessor receives a bona fide offer to
purchase the same from a third party which it desires to accept, or if Lessor
offers to sell the same. In either such case Lessor shall give Lessee written
notice of such offer and of all of the terms and conditions thereof, and
thereafter Lessee shall have twenty (20) days in which to exercise this first
right to purchase by giving to Lessor written notice of Lessee's election to do
so. If this first right to purchase is so exercised by Lessee within said
twenty (20)-day period, such purchase shall be consummated upon the material
terms and conditions specified in such offer; provided, however, that the date
for closing of such purchase shall be not less than sixty (60) days after the
date of Lessee's notice of election. If this first right to purchase is not so
exercised by Lessee within said twenty (20)-day period, it shall lapse and shall
be of no further force or effect and Lessor thereafter shall be free to sell the
Premises to a third party within one hundred and eighty (180) days after
Lessee's first right to purchase lapses, but not for a lesser price or on terms
more favorable in any material respect to the purchaser. Any such sale to a
third party shall be subject to this Lease, it being expressly understood and
agreed that this Lease shall continue in full force and effect notwithstanding
said sale.
26. ASSIGNMENT AND SUBLETTING. Lessee shall not assign this Lease or
any interest herein, or underlet the Premises or any part thereof, without the
prior written consent of Lessor, except to (a) an affiliate or affiliates of
Lessee (I.E., a partnership in which Lessee is a general partner, a joint
venture in which Lessee is a joint venturer, or a limited liability company in
which Lessee is a member) or (b) a winery in connection with a direct lease
pursuant to the provisions of Paragraph 1 above; and neither this Lease, nor any
interest herein of Lessee, shall be assignable in proceedings by or against
Lessee in bankruptcy, or in
-25-
insolvency, or in any other manner by operation of law; provided, that Lessor's
consent shall not be unreasonably withheld; provided further, that Lessor's
consent shall not be required in connection with the transfer of this Lease to
any lender who has provided financing under the provisions of Paragraph 18 or
Paragraph 19 above and who holds a security interest in the leasehold estate of
Lessee, in a foreclosure or other like proceedings instituted by the lender
under the terms of any such security instrument, or by an assignment or other
conveyance given in lieu of foreclosure. No assignment under the provisions of
this paragraph shall be effective, however, until (i) the assignee has given
written notice of such assignment to Lessor, stating the name and address of the
assignee and the date of transfer, accompanied by a copy of the assignment and
the written agreement of the assignee expressly assuming and agreeing to keep
and perform all of the obligations of Lessee under this Lease or (ii) the
provisions of Paragraph 1 above shall have been satisfied for a direct lease to
a winery.
27. TIME OF THE ESSENCE. Time and specific performance are of the
essence of this agreement and of every provision hereof.
28. SUCCESSORS AND ASSIGNS. Subject to the restriction on assignment
hereinabove set forth, this Lease and all of the provisions hereof shall inure
to the benefit of and shall be binding upon the heirs, legal representatives,
successors and assigns of the respective parties hereto.
29. ATTORNEYS' FEES. In case either party shall bring suit against
the other party or otherwise commence any proceeding to compel the performance
of, or to recover for the breach of, any covenant, agreement or condition herein
written, or, in the case of Lessor, to recover possession of the Premises or to
remove from the record this Lease or any lien or encumbrance thereon created by
Lessee, the prevailing party shall be entitled to a reasonable
-26-
attorneys' fee, to be fixed by the court or arbitrator, as applicable, and made
a part of any judgment or decision rendered thereby.
30. NOTICES. Any notice to be given hereunder will be deemed to have
been given if (a) personally served upon the person 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 said party hereafter may designate for
notices hereunder.
31. MEMORANDUM OF LEASE. The parties agree to execute and have
acknowledged a memorandum of lease for purposes of recording in Monterey County,
California, which said memorandum shall describe the Premises as being subject
to the rights, covenants and restrictions herein contained.
32. ESTOPPEL CERTIFICATE.
(a) Lessor shall at any time upon not less than fifteen (15) days
prior written notice from Lessee execute, acknowledge and deliver to Lessee
a statement in writing (i) certifying that this Lease is unmodified and in
full force and effect or, if modified, stating the nature of the
modification and certifying that this Lease, as modified, is in full force
and effect, and (ii) acknowledging that there are not, to Lessor's
knowledge, any uncured defaults on the part of Lessee hereunder, or
specifying the defaults if any are claimed. Any such statement may be
conclusively relied upon by any prospective encumbrancer of the Premises or
Lessee's interest therein.
(b) Lessor's failure to deliver such statement within the time
specified shall be conclusive upon Lessor (i) that this Lease is in full
force and effect, without modification except as may be represented by
Lessee, (ii) that there are no uncured
-27-
defaults in Lessee's performance, and (iii) that not more than one
semi-annual installment of rent has been paid in advance.
33. SEVERABILITY. If any term, covenant, condition or provision of
this Lease or the application thereof to any person or circumstances shall, at
any time or to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term or provision to persons or circumstances
other than those as to which such term or provision is held invalid or
unenforceable, shall not be affected thereby, and shall continue to be valid and
to be enforced to the fullest extent permitted by law.
34. INTERPRETATION. This Lease shall be construed in accordance with
the internal laws of the State of California without application of the
conflicts of laws provisions thereof. Whenever the contents of any provision
shall require, the singular number shall be deemed to include the plural number,
and vice versa, and the reference to any gender shall be deemed to include
reference to all other genders. For purposes of interpretation or construction
in the event of ambiguity, this Lease shall be deemed draft by both parties.
The captions and headings of the paragraphs of this Lease are solely for
convenience and shall not be deemed to be a part of this Lease for the purpose
of construing the meaning hereof or for any other purpose.
35. ENTIRE AGREEMENT. This Lease contains the entire agreement of
the parties hereto with respect to the letting and hiring of the Premises
described above and this Lease may not be amended, modified, released or
discharged, in whole or in part, except by an instrument in writing signed by
the parties hereto or their respective successors or assigns.
36. COUNTERPARTS. This Lease 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.
-28-
37. QUIET ENJOYMENT. Lessor covenants and agrees with Lessee that,
so long as no Event of Default shall have occurred and be continuing, Lessee may
peaceably and quietly have, hold, occupy and enjoy the Premises hereby demised,
for the Term of this Lease.
38. CONFIDENTIALITY. Lessor acknowledges and agrees that, except to
the extent set forth in the memorandum of lease recorded pursuant to Paragraph
31 above, this Lease, the terms and provisions set forth herein, and the matters
discussed in the negotiation of this Lease are confidential and shall not be
disclosed by Lessor without the prior written consent of Lessee, except that
Lessor may disclose such matters (a) to Lessor's immediate family members and
professional representatives (who shall be informed of and bound by this
confidentiality provision) and (b) to the extent compelled to do so by law.
39. LESSOR REPRESENTATIVE. Lessor hereby designates each of Xxx
Xxxxx and Xxxxxxxx X. Xxxxx as its representatives (each, a "Lessor
Representative"). Each Lessor Representative is hereby authorized to act
individually on behalf of Lessor, and Lessee is entitled to rely upon the
actions of any Lessor Representative on behalf of Lessor, for all purposes under
or in connection with this Lease, including, without limitation, the execution
and delivery of any amendment, waiver or other modification of the terms of this
Lease; provided, however, that each payment of rent or any other amount payable
by Lessee to Lessor under this Lease shall be delivered and made payable as
follows: (a) one-half (1/2) to Xxx Xxxxx and Xxxxxxxx X. Xxxxx, and (b)
one-half (1/2) to Xxxxxxx Xxxxxxxx, as successor co-trustee of the testamentary
trust of Xxxxxx Laberere, deceased. Lessor may replace any Lessor
Representative by providing five (5) days prior written notice (executed by all
members of Lessor) to Lessee, which notice shall set forth the name and address
of such replacement Lessor Representative.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above set forth.
LESSOR: LESSEE:
------ ------
XXXXXX VINEYARDS AND
/s/ Xxx Xxxxx MANAGEMENT CO., a California
----------------------------- corporation
XXX XXXXX, individually and as
trustee under declaration of
trust dated August 16, 1989
By /s/ Xxxxx X. Xxxxxx
---------------------------------
/s/ Xxxxxxxx X. Xxxxx Title: Vice President
------------------------------
XXXXXXXX X. XXXXX, individually Address:
and as trustee under declaration 00000 Xxxxxxxxxx Xxxxxxxxx
of trust dated August 16, 0000 Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Address:
X.X. Xxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxxx X. Xxxxx
------------------------------
XXXXXXXX X. XXXXX, as successor
co-trustee of the testamentary
trust of Xxxxxx Laberere,
deceased
/s/ Xxxxxxx Xxxxxxxx
------------------------------
XXXXXXX XXXXXXXX, as successor
co-trustee of the testamentary
trust of Xxxxxx Laberere,
deceased
Address:
c/o Xxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
-00-
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF ______________)
On _____________, before me, ________________, Notary Public, personally
appeared XXX XXXXX and XXXXXXXX X. XXXXX, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the persons whose names
are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their
signatures on the instrument the persons, or the entity upon behalf of which
the persons acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------------------
Signature
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF_______________)
On _______________, before me, __________________, Notary Public,
personally appeared ___________________, personally known to me or proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
---------------------------------------
Signature
[SEAL]
-00-
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF Monterey )
On Feb. 19, 1997, before me, Xxxxxxx Xxxxxxx, Notary Public, personally
appeared XXXXXXX XXXXXXXX, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Signature
[SEAL]
-32-
