ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated September 4, 1996
is by and between GOLDEN STATE VINTNERS, a California corporation, 00 Xxxx Xxx
Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx ("Buyer"), and VINTNERS
INTERNATIONAL COMPANY, INC., a New York corporation with an office at 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx ("Seller").
RECITALS
WHEREAS, Seller is the owner and operator of a winery facility located
near Soledad, California, including land and improvements, structures and
fixtures affixed thereon and machinery, equipment, cooperage, furnishings and
other tangible personal property used in connection therewith (the "Soledad
Facilities"); and
WHEREAS, Seller wishes to sell and Buyer wishes to purchase the Soledad
Facilities, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Buyer and Seller, intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 ASSETS TO BE PURCHASED. Subject to the terms and conditions set
forth in this Agreement, Seller shall sell, convey, transfer, assign and deliver
to Buyer, and Buyer shall purchase and accept delivery from Seller, on the
Closing Date (as hereinafter defined), the Soledad Facilities, including without
limitation the following assets:
(a) All of Seller's right, title and interest in and to certain
real property located near Soledad in the County of Monterey, State of
California which is described on Exhibit A attached hereto (the "Real
Property"), together with all rights and appurtenances pertaining to the Real
Property including, without limitation, any and all rights of Seller in and to
all roads, alleys, easements, streets and ways adjacent to the Real Property,
strips and gores and rights of ingress and egress thereto;
(b) All improvements, structures and fixtures placed, constructed
or installed on or affixed to the Real Property;
(c) All material items of machinery, equipment, cooperage,
furnishings, and other tangible personal property, which as of the date hereof
are owned by Seller and used by
Seller exclusively in the operation of the Soledad Facilities, excluding the
items of personal property currently stored on the Real Property and identified
on Schedule 1.1(c)(i) hereof that are to be retained by Seller, (the "Personal
Property"), which Personal Property shall include without limitation the items
of Personal Property set forth on Schedule 1.1(c)(ii) hereto; and
1.2 PURCHASE PRICE. The purchase price for the Soledad Facilities shall
be Four Million Four Hundred Fifty Thousand Dollars ($4,450,000.00) (the
"Purchase Price").
1.3 NO ASSUMPTION OF EMPLOYEE OBLIGATIONS. Buyer shall not assume any
liability or obligation of Seller with respect to any of Seller's employees
located at the Soledad Facilities, including, but not limited to, any of
Seller's obligations under any employee arrangements, union agreements or
benefit plans.
1.4 XXXXXXX MONEY DEPOSIT. Upon the execution and delivery to Seller of
this Agreement, Buyer shall deposit the sum of One Hundred Fifty Thousand
Dollars ($150,000) and, if and when Buyer exercises the Option (defined in
Section 9.1), Buyer shall deposit an additional One Hundred Thousand Dollars
($100,000) (collectively, the "Xxxxxxx Money") in escrow with Chicago Title
Company ("Chicago Title"). The Xxxxxxx Money shall be deposited by Chicago
Title in an interest bearing account, pursuant to the instructions of Seller and
on its behalf. The Xxxxxxx Money, together with all accumulated interest
thereon, shall be delivered by Chicago Title to Seller at the Closing (as
hereinafter defined) and shall be applied to the Purchase Price or delivered to
Seller pursuant to Section 10.2.
1.5 PAYMENT OF PURCHASE PRICE. Subject to all of the terms and
conditions of this Agreement, at the Closing, Buyer shall pay Four Million
Dollars ($4,000,000) of the Purchase Price (less the Xxxxxxx Money and
accumulated interest thereon delivered by Chicago Title) to Seller in
immediately available funds by wire transfer to an account specified by Seller,
and deliver to Seller its note in the form of Exhibit B for the balance of the
Purchase Price, after all prorations and adjustments provided for herein,
bearing interest at eight percent (8%) per annum, compounded monthly, with the
principal all due and payable in a lump sum at the end of the twenty-four (24)
month period from the date of the Closing ("Note").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, as of the date hereof and as of the
Closing, as follows:
2.1 ORGANIZATION, STANDING AND POWER. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. Seller has all necessary corporate power and authority to own, use
and transfer the Soledad Facilities.
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2.2 AUTHORITY OF SELLER. Seller has the corporate power and authority
to execute, deliver and perform under the terms of this Agreement. Seller's
execution and delivery of this Agreement, its compliance with the provisions
hereof and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
Seller, and this Agreement is the legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms.
2.3 NO CONFLICT. Neither the execution or delivery of this Agreement
nor the performance of the transactions contemplated hereby will conflict with
or violate any provision of the Certificate of Incorporation or By-laws of
Seller or of any indenture, mortgage, loan or other agreement, contract or
instrument, or any court or administrative order to which Seller is a party or
by which it may be bound or affected. No consent, waiver or approval by, notice
to or filing with any person or entity is required in connection with the
execution and delivery of this Agreement by Seller, compliance by Seller with
any of the provisions hereof or consummation of the transactions contemplated
hereby.
2.4 NO LITIGATION. There are no legal, equitable, administrative or
arbitration claims, actions, suits, proceedings or investigations pending or, to
Seller's knowledge, threatened against Seller to restrain or prevent the
carrying out of the transactions contemplated hereby.
2.5 TITLE TO ACQUIRED ASSETS. Seller has, or shall transfer to Buyer at
the Closing, good and marketable title to each item included in the Soledad
Facilities, free and clear of all encumbrances, other than encumbrances set
forth on Schedule 2.5 attached hereto (the "Permitted Encumbrances").
2.6 BROKERS AND FINDERS. Seller has not employed any broker or finder
or incurred any liability for any brokerage fees, commissions or finders' fees
in connection with the transactions contemplated hereby.
2.7 COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as may be disclosed in
Schedule 2.7, to Seller's knowledge, the Soledad Facilities comply with all
Environmental Laws in all material respects.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller, as of the date hereof and as of
the Closing, as follows:
3.1 DUE ORGANIZATION. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of California, and
Buyer has all necessary corporate power and authority to execute and deliver
this Agreement, to comply with the provisions hereof and to consummate the
transactions contemplated hereby.
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3.2 AUTHORITY FOR TRANSACTION. Buyer has the corporate power and
authority to execute, deliver and perform under the terms of this Agreement.
Buyer's execution and delivery of this Agreement, its compliance with the
provisions hereof and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on the
part of Buyer, and this Agreement is the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with its terms.
3.3 NO CONFLICT. Neither the execution or delivery of this Agreement
nor the performance of the transactions contemplated hereby will conflict with
or violate any provision of the Certificate of Incorporation or By-laws of Buyer
or of any indenture, mortgage, loan or other agreement, contract or instrument,
or any court or administrative order to which Buyer is a party or by which it
may be bound or affected. No consent, waiver or approval by, notice to or
filing with any person or entity is required in connection with the execution
and delivery of this Agreement by Buyer, compliance by Buyer with any of the
provisions hereof or consummation of the transactions contemplated hereby.
3.4 NO LITIGATION. There are no legal, equitable, administrative or
arbitration claims, actions, suits, proceedings, or investigations pending or,
to Buyer's knowledge, threatened against Buyer to restrain or prevent the
carrying out of the transactions contemplated hereby.
3.5 BROKERS AND FINDERS. Buyer has not employed any broker or finder or
incurred any liability for any brokerage fees, commissions of finders' fees in
connection with the transactions contemplated hereby.
3.6 BUYER'S REPRESENTATION OF PROPERTY INSPECTION. Buyer has conducted
a full visual inspection of the property, and has not been denied reasonable
access to any part thereof; Buyer has had a complete right to bring experts on
the property and conduct, in a reasonable manner, all tests necessary to
determine the condition of the property; Buyer has knowledge of applicable laws
(including, but not limited to, laws and regulations governing zoning and land
use, environmental conditions, and hazardous substances) and its review and
investigation of the condition of the property has included consideration of the
applicability and effect of such laws; and Buyer has investigated to its own
satisfaction the environmental condition of the soil, water, ground water, and
structures upon the property and of any equipment or materials stored on the
property.
3.7 BUYER'S ACKNOWLEDGMENT OF AGRICULTURAL USE OF THE PROPERTY AND
INDEMNIFICATION FROM ACTION CONCERNING AGRICULTURAL CHEMICALS AND PESTICIDES.
Buyer represents and acknowledges that it knows, and is aware, that the property
has been used historically for the cultivation of crops and that such
cultivation may have involved the use of DBCP or other agricultural chemicals
used as pest or nematode control or as herbicides, pesticides, insecticides,
soil sterilants or for other purposes associated with the agricultural use of
the property. Buyer is aware and acknowledges that said prior use of
agricultural chemicals may involve future clean-up or remedial action compelled
or requested by any person, entity, or
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governmental agency pursuant to the Comprehensive Environmental Response
Compensation Liability Act, the Superfund Amendments and Reauthorization Act,
the Clean Water Act; the Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substances Account
Act; the Xxxxxx-Xxxxxxx Water Quality Act, the Resource Conservation and
Recovery Act, or any other local, state or federal rule, regulation, or statute
relating to environmental protection ("Environmental Laws").
This Section shall constitute Seller's disclosure of agricultural
chemicals and pesticides, not specifically known to Seller, but rendered likely
by the historical use of the property, pursuant to Health and Safety Code
Section 25359.7.
3.8 FINANCIALS. The audited financial statements provided by Buyer for
its last two fiscal years and for the most recent stub periods were prepared in
accordance with GAAP, consistently applied, and fairly represent the financial
condition of the guarantor under the Guaranty.
ARTICLE IV
LIMITATIONS ON REPRESENTATIONS AND WARRANTIES
4.1 NO OTHER REPRESENTATIONS OR WARRANTIES. The parties acknowledge
that, except as expressly set forth in this Agreement, neither party hereto has
made or is making any representations or warranties whatsoever, express or
implied or otherwise, to the other party. WITHOUT LIMITING THE GENERALITY OR THE
EFFECT OF THE FOREGOING, BUYER SPECIFICALLY ACKNOWLEDGES THAT SELLER IS SELLING
AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND
THAT EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE III HEREOF, BUYER IS NOT RELYING
ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED
FROM SELLER, ITS AGENTS, OR BROKERS, AS TO ANY MATTERS CONCERNING THE PROPERTY
INCLUDING WITHOUT LIMITATION: (1) the quality, nature, adequacy and physical
condition of the property, (2) the quality, nature, adequacy, and physical
condition of soils, geology and any ground water, (3) the existence, quality,
nature, adequacy and physical condition of utilities that are presently serving
the property or may be extended by any governmental entity to the property, (4)
the development potential of the property, and the property's use, habitability,
merchantability, or fitness, suitability, value or adequacy of the property or
any other public or private restriction on use of the property, (5) the
compliance of the property or its operation with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions and restrictions of any
governmental or quasi-governmental entity or of any other person or entity, (6)
the presence or removal of hazardous or toxic materials, substances or waste on,
under or about the property or the adjoining or neighboring property, (7) the
quality of any labor and materials used in any improvement on the property, (8)
the condition of title of the property, (9) any leases, service contracts, or
other agreements affecting the property, and (10) the economics of the operation
of the property, (11) any licenses or permits for the production and/or sale of
alcoholic beverages, (12) the existence,
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condition or defectiveness of any underground storage tanks, or (13) the
potential or likelihood of flooding due to storm runoff or groundwater
accumulation.
ARTICLE V
PRE-CLOSING COVENANTS OF SELLER
5.1 AFFIRMATIVE COVENANTS OF SELLER PRIOR TO CLOSING. During the period
from the date hereof to the Closing Date or earlier termination of this
Agreement, Seller shall:
(a) operate and maintain the Soledad Facilities in a manner
reasonably consistent with its past practices and shall not permit the physical
condition of the Soledad Facilities, taken as a whole, to materially deteriorate
from its current condition, reasonable and ordinary wear and tear excepted; and
(b) allow Buyer, or Buyer's authorized agents, reasonable access
to the Soledad Facilities during regular business hours and upon reasonable
advance notice to conduct any reasonable due diligence inspection Buyer deems
desirable.
5.2 NEGATIVE COVENANTS OF SELLER PRIOR TO CLOSING. During the period
from the date hereof to the Closing Date or earlier termination of this
Agreement, Seller shall not, unless Buyer consents thereto:
(a) sell, assign or create any right, title or interest whatsoever
in or to the Soledad Facilities, or create or permit to exist any lien or
encumbrance thereon, other than Permitted Encumbrances, without discharging such
lien or encumbrance on or before the Closing Date.
(b) take or omit to take any action (other than in the ordinary
course of business), which action or omission would have the effect of violating
any of the representations and warranties of Seller contained in this Agreement.
ARTICLE VI
CERTAIN ADDITIONAL AGREEMENTS
6.1 PRORATIONS AND ADJUSTMENTS. Operating expenses, including but not
limited to water, sewer, electric, gas, telephone and other utility charges, ad
valorem taxes on the Soledad Facilities and general and special assessments for
the current year shall be prorated at the Closing, effective as of the Closing
Date, utilizing the best available computations of such items. Such adjustments
will be payable from one party to the other on the Closing Date to the extent
practicable. If current ad valorem tax assessments are unavailable at Closing,
such ad valorem taxes shall be adjusted based on tax assessments for the
immediately preceding tax year, with such tax proration to be adjusted in cash
between the parties, based on actual taxes for the current year, at the time
such actual taxes are determined.
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6.2 BUYER'S INDEMNIFICATION. Buyer agrees to indemnify, defend and hold
Seller and Seller's affiliates and the directors, officers, shareholders,
employees, assigns and successors and their affiliates harmless from any claims,
liabilities, damages, penalties, fines, costs or losses, including attorney's
fees, foreseen or unforeseen, that arise directly or indirectly from or in
connection with the use or operation of the Real or Personal Property and/or the
condition thereof during Buyer's ownership of such property after the Closing
Date, including, but not limited to, the presence, suspected presence, release
or suspected release of any hazardous substance of any kind caused by or
attributable to Buyer, whether into the air, soil, surface water, ground water,
pavement, structures, fixtures, equipment, tanks, containers or other personal
property at the Real Property. This hold harmless and indemnification provision
shall specifically and expressly include any actions by a person, entity, or
governmental agency pursuant to applicable Environmental Laws.
ARTICLE VII
CONDITIONS TO BUYER'S OBLIGATIONS
7.1 Conditions. The obligation of Buyer to complete the actions
provided for herein shall be subject, at its election, to satisfaction on or
before the Closing Date of each of the following conditions:
(a) The prorations and adjustments required by Section 6.1 hereof
shall have been completed.
(b) Seller shall have delivered to Buyer the following documents
and instruments in form reasonably satisfactory to counsel to Buyer:
(i) A deed and other appropriate instruments of conveyance
to convey all of Seller's interest in the Real Property, which shall be duly
executed by Seller, acknowledged, and in recordable form.
(ii) Bills of sale, assignments and other instruments of
transfer and conveyance, each duly executed by Seller, transferring to Buyer
title to each item comprising the Soledad Facilities other than the Real
Property.
(iii) A UCC-3 Statement sufficient to release any liens or
encumbrances against the Soledad Facilities, the Real Property and the Personal
Property existing pursuant to Uniform Commercial Code Financing Statements, and
all other Leases that may be required with respect thereto.
(iv) Evidence of the reconveyance of any Deed of Trust
encumbering the Soledad Facilities and/or the Real Property.
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(c) Seller shall have delivered to Buyer actual possession of the
Soledad Facilities.
.
(d) Buyer shall receive a commitment of the Chicago Title to
issue, upon payment by Buyer of its regularly scheduled premium, a CLTA Owner's
Policy of Title Insurance at Closing in the full amount of the Purchase Price,
pursuant to which Chicago Title shall insure that fee simple title to the
Property is vested in Buyer, containing no exceptions to such title other than
the Permitted Encumbrances and those created by or on behalf of Buyer.
(e) Buyer shall have received such other instruments and documents
as shall have been reasonably requested by counsel to Buyer on or before the
Closing Date.
(f) There shall not be in effect any judgment, decree or order of,
or position taken by, any court or administrative body of competent
jurisdiction, nor shall there have been any action, suit, proceeding or known
investigation instituted or threatened, nor shall any law or regulation have
been enacted or any action taken thereunder, which would be likely to restrain
or prohibit, make illegal, or subject Buyer to material damages as a result of,
the transactions contemplated hereby.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATION
8.1 CONDITIONS. The obligations of Seller to complete the transactions
provided for herein shall be subject, at its election, to satisfaction on or
before the Closing Date of each of the following conditions:
(a) The Purchase Price shall have been paid to Seller in
accordance with Section 1.5, including but not limited to the delivery of the
Note, and Chicago Title shall have delivered the Xxxxxxx Money to Seller in
accordance with Section 1.4.
(b) The acquisition of the release of any security interest or
reconveyance of any deed of trust in the Soledad Facilities.
(c) Buyer shall have entered into the Wine Agreement attached
hereto as Exhibit C(i) and the Storage Agreement attached hereto as Exhibit
C(ii).
(d) Seller shall have received such other instruments and
documents as shall have been reasonably requested by counsel to Seller on or
before the Closing Date.
(e) There shall not be in effect any judgment decree or order of,
or position taken by, any court or administrative body of competent
jurisdiction, nor shall there have been any action, suit, proceeding or known
investigation instituted or threatened, nor shall any law or regulation have
been enacted or any action taken thereunder, which would be likely to restrain
or
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prohibit, make illegal, or subject Seller to material damages as a result of,
the transactions contemplated hereby.
ARTICLE IX
CLOSING
9.1 CLOSING. The closing hereunder (the "Closing") shall take place at
the offices of Chicago Title Insurance Company, 00 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, at 10:00 A.M. local time, on a mutually acceptable date no
longer than ninety (90) days from the date hereof or Buyer shall have the option
(the "Option") of increasing the Xxxxxxx Money by depositing in escrow with
Chicago Title an additional sum of One Hundred Thousand Dollars ($100,000), in
which case, the Closing shall take place on a mutually acceptable date no longer
than one hundred and twenty (120) days from the date hereof (the "Closing
Date"). The Option shall be exercised by notice to Seller at least thirty (30)
days prior to the expiration of the ninety (90) day period and by depositing the
additional Xxxxxxx Money in escrow with Chicago Title upon the expiration of the
ninety (90) day period.
ARTICLE X
TERMINATION
10.1 RIGHT TO TERMINATE. This Agreement may be terminated at any time
prior to the Closing Date, as follows:
(a) By the mutual written consent of Buyer and Seller.
(b) By Buyer or by Seller, upon thirty (30) days notice to the
other, following the breach by such other party of a mutual condition contained
herein or of a representation or warranty thereof, which breach remains uncured
at the end of such thirty (30) day period.
In the event of any termination as provided by this Section 10. 1, this
Agreement shall thereupon become void and of no effect, without any liability on
the part of any party except as otherwise set forth herein.
10.2 LIQUIDATED DAMAGES.
BUYER RECOGNIZES THAT IF THIS PURCHASE AND SALE IS NOT CONSUMMATED
BECAUSE OF BUYER'S FAILURE TO COMPLETE THE TRANSACTION CONTEMPLATED
HEREBY FOR A REASON OTHER THAN SELLER'S DEFAULT OR A FAILURE OF A
CONDITION TO BUYER'S OBLIGATIONS TO OCCUR, IT WOULD BE EXTREMELY
DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF THE DETRIMENT
TO SELLER. THE PARTIES HAVE DETERMINED AND AGREED THAT THE ACTUAL
AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY SELLER AS A
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RESULT OF ANY SUCH DEFAULT IS DIFFICULT OR IMPRACTICABLE TO
DETERMINE AS OF THE DATE OF THIS AGREEMENT AND THAT THE AMOUNT OF
THE XXXXXXX MONEY (AS DEFINED IN SECTION 1.4) PLUS ALL INTEREST
ACCRUED THEREON IS A REASONABLE ESTIMATE OF THE AMOUNT OF SUCH
DAMAGES. FOR THESE REASONS, THE PARTIES AGREE THAT IF THIS PURCHASE
AND SALE IS NOT CONSUMMATED BECAUSE OF BUYER'S DEFAULT, SELLER SHALL
BE ENTITLED TO RETAIN THE FULL AMOUNT OF THE XXXXXXX MONEY PLUS
ACCRUED INTEREST AS LIQUIDATED DAMAGES.
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Buyer Seller
10.3 SPECIFIC PERFORMANCE. Seller acknowledges that the remedies at law
available to Buyer for the breach of any provision of this Agreement, or the
failure by Seller to perform pursuant to the terms hereof, may be inadequate and
that Buyer may suffer immediate and irreparable harm with respect to such
breach. Seller hereby agrees that Buyer shall have the right to seek the
specific performance by Seller of the terms of this Agreement, in addition to
any and all other rights or remedies at law or in equity, including without
limitation, Buyer's right to seek damages, that may be available to Buyer.
ARTICLE XI
CONDEMNATION
11.1 CONDEMNATION. In the event that all or a material part of the Real
Property is appropriated prior to the close of escrow by the exercise of the
power of eminent domain, Buyer or Seller shall have the right to terminate this
Agreement, in which case the full amount of the Xxxxxxx Money (and all interest
thereon) shall be returned to Buyer. Following such condemnation, if the
Agreement is terminated and escrow does not close, then Buyer shall have no
compensable interest and no right to share in the condemnation award; provided,
however, if the Agreement is not terminated and escrow does close, then Buyer
shall have the right to offset the amount of the condemnation award, less the
expenses of the condemnation proceedings incurred by Seller, against the
Purchase Price or to collect the condemnation award in the first instance in
Buyers' sole discretion.
ARTICLE XII
GENERAL PROVISIONS
12.1 COVENANT OF FURTHER ASSURANCES. At and after the Closing, upon
request of Buyer, Seller shall take such action and deliver to Buyer such
further instruments of assignment, conveyance, transfer or delivery or other
documents of further assurance as in the opinion of
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counsel for Buyer may be reasonably desirable to assure, complete and evidence
the full and effective transfer, conveyance, assignment and delivery of the
Soledad Facilities and possession thereof to Buyer, its successors and assigns
in accordance with the terms of this Agreement.
12.2 TAXES ON TRANSACTION. All sales, use or similar taxes payable by
reason of the transfer of Personal Property pursuant to this Agreement shall be
borne and paid by Buyer within thirty days of the Closing Date.
12.3 EXPENSES OF THE PARTIES. Except as otherwise specified herein, all
expenses involved in the preparation, negotiation, authorization and
consummation of this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, brokers, counsel and
accountants, shall be borne solely by the party which shall have incurred the
same, and no other party shall have any liability in respect thereof.
12.4 AMENDMENT AND WAIVER. This Agreement may be amended only by a
writing executed by each of the parties hereto. No waiver of compliance with
any provision or condition hereof, and no consent provided for herein, shall be
effective unless evidenced by an instrument in writing duly executed by the
party hereto sought to be charged with such waiver or consent. No failure on
the part of any party hereto to exercise and no delay in exercising, any of its
rights hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by any party of any right preclude any other or future exercise
thereof or the exercise of any other right.
12.5 INTEGRATION. This Agreement contains all of the agreements and
understandings of the parties with respect to any matter mentioned in this
Agreement, and supersedes and terminates all prior and contemporaneous
agreements between Seller and Buyer with respect to the matters covered in this
Agreement. The Agreement may be modified in writing only, signed by the Seller
and Buyer at the time of the modification.
12.6 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall
be deemed or construed by the parties or by any third party to create the
relationship of principal and agent, partnership, joint venture, or any other
association between Buyer and Seller.
12.7 NO RIGHTS IN THIRD PARTIES. Nothing in this Agreement, expressed or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any third party, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third party to any party
to this Agreement, nor shall any provision in this Agreement give any third
party any right of subrogation or action over or against any party to this
Agreement.
12.8 ASSIGNMENT. Buyer shall not assign, transfer, or convey its rights
and obligations under this Agreement with respect to the property without the
prior written consent of Seller. Any attempted assignment without the prior
written consent of Seller shall be void and Buyer shall be deemed in default of
this Agreement. Any permitted transfer shall not relieve the assigning party
from its liability under this Agreement.
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12.9 REMEDIES CUMULATIVE. No remedy or election of remedies provided for
in this Agreement shall be deemed exclusive, but shall be cumulative with all
other remedies at law or in equity. Each remedy shall be construed to give it
the fullest effect allowed by law.
12.10 INDEMNIFICATION. Each party to this Agreement shall defend,
indemnify, and hold harmless, the other party from any losses, liabilities,
claims, costs, and expenses, including reasonable attorney's fees and expenses,
resulting from, or when occurred in connection with, any breach of any warranty,
the incorrectness of any representation, or the failure to perform any agreement
or covenant contained in the Agreement.
12.11 KNOWLEDGE. Wherever the term "knowledge" or "known" is used in
connection with Seller, it shall be limited to the knowledge of Xxxx Xxxxxxxxx,
Xxxx Xxxxxx and Xxx Xxxxxxx.
12.12 TIME OF ESSENCE. Time shall be of the essence in this Agreement and
each and all of its provisions in which performance is a factor.
12.13 SEVERABILITY. The invalidity of any Section or provision of this
Agreement, as determined by a court of competent jurisdiction, shall in no way
affect the validity of any other provision of this Agreement.
12.14 WAIVER. The forbearance in the enforcement of any term or provision
of this Agreement, or the waiver of any of the covenants in this Agreement, or
the prompt and timely performance thereof, shall not be deemed or construed to
be a waiver of each party's rights to enforce the same at any future time, nor
shall it be a continuing waiver, nor shall any party who has made such waiver be
required to give written demand for performance to the other party in order to
enforce the terms of any condition or covenant which may have been waived, not
enforced, or extended as to time of performance.
12.15 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without reference to
principles of conflicts of laws contained therein.
12.16 NOTICES. Any notice, report demand, waiver or consent required or
permitted hereunder or any other related document shall be in writing and shall
be personally delivered, or sent by registered, certified or express first-class
mail, postage prepaid, or by telecopy or reputable overnight courier service,
addressed as follows:
If to Seller: Vintners International Company, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Vice President
Telecopier: (000) 000-0000
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If to Buyer: Golden State Vintners
00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. X'Xxxxx, President
Telecopier: (000) 000-0000
Each such notice or other communication given by mail shall be deemed to have
been given when it is delivered by hand, deposited in the United States mail in
the manner specified herein, deposited with a reputable overnight courier
service or telecopied and the appropriate confirmation of transmission is
received. Any party to this Agreement may change its address or telecopier
number for the purpose hereof by giving notice in accordance with the provisions
of this Section 12.16.
12.17 HEADINGS: COUNTERPARTS. The article and section headings of this
Agreement are for convenience of reference only and do not form a part hereof
and do not in any way modify, interpret or construe the intentions of the
parties. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12.18 NO SOLICITATIONS. So long as Buyer is not in breach of any
provision hereof, prior to the Closing Date, Seller shall not communicate with,
solicit, or encourage or participate in any discussions or negotiations with any
entity or person (other than Buyer) with respect to the sale of all or any
portion of the Xxxxxxx Facilities.
IN WITNESS WHEREOF, the parties hereto have duly signed this Agreement on
the date first written above.
VINTNERS INTERNATIONAL COMPANY, INC.
By: /S/ XXXXXX X. XXXXX
-------------------------------------
Xxxxxx X. Xxxxx
Secretary
GOLDEN STATE VINTNERS
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Its: President
-------------------------------------
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FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT is made and entered into as of
September 17, 1996, by and between GOLDEN STATE VINTNERS, a California
corporation, 00 Xxxx Xxx Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx ("Buyer"), and VINTNERS INTERNATIONAL COMPANY, INC., a New York
corporation with an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx
("Seller").
RECITALS
WHEREAS, Seller and Buyer are parties to an Asset Purchase Agreement dated
September 4, 1996, pursuant to which Seller agreed to sell to Buyer, and Buyer
agreed to purchase from Seller, that certain property described in Section 1.1
of the Asset Purchase Agreement.
WHEREAS, Seller and Buyer now desire to modify or amend the Asset Purchase
Agreement as more particularly set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, and for other valuable consideration, the adequacy and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Section 1.5 of the Asset Purchase Agreement is hereby amended to
provide that, at the Closing, Buyer shall pay Three Million, Nine Hundred and
Fifty Thousand Dollars ($3,950,000) of the Purchase Price to Seller upon all of
the terms and conditions set forth in Section 1.5.
2. Exhibit B to Exhibit C(i) of the Asset Purchase Agreement, the Wine
Sale Agreement, is hereby amended by deleting the 2,000 Tons of 100% California
Rubired grapes to be delivered in 1996.
3. Concurrent with the execution hereof, Buyer agrees to execute and be
bound by the terms of the Market Price Contract, attached hereto.
4. The commencement date, September 4, 1996, of Exhibit C(i), Wine Sale
Agreement, and Exhibit C(ii), Storage Agreement, is hereby deleted and a blank
is substituted therefor, which such blank will be completed upon execution of
each such Exhibit in accordance with the Asset Purchase Agreement.
5. Except as otherwise modified or amended above, the terms and
conditions of the Asset Purchase Agreement shall remain unmodified and in full
force and effect. In the event of
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any conflict or inconsistency between the terms of this First Amendment to Asset
Purchase Agreement, the terms of this First Amendment shall control.
6. This First Amendment to Asset Purchase Agreement may be signed in
counterpart and transmitted by telefacsimile. A copy of this First Amendment to
Asset Purchase Agreement containing counterpart signatures obtained by
telefacsimile shall be as valid and enforceable as a single original draft
signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Asset Purchase Agreement the date and year first above written.
Seller:
VINTNERS INTERNATIONAL COMPANY, INC.,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Its: Secretary
Buyer:
GOLDEN STATE VINTNERS
a California corporation,
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Its: President
-------------------------------------
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