PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is entered into as of July 1,
1996, between THE CHALONE WINE GROUP, LTD., a California corporation
("Chalone"), XXXXXXX X. XXXXX, TRUSTEE, XXXXX 1993 TRUST DATED JUNE 10, 1993, a
trust ("Xxxxx Trust"), and XXXXXXX X. XXXXX, an individual ("Xxxxx").
Background
The Xxxxx Trust owns approximately 160 acres of property and a
single-family house situated on such property generally known as 000 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx which is more completely described below.
Xxxxx will have the right to use portions of the property pursuant to
the Residential Lease entered into between Chalone and Xxxxx as of the date
above written.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, the parties agree
as follows:
1. Agreement of Sale. The Xxxxx Trust hereby agrees to sell to Chalone,
and Chalone hereby agrees to purchase from the Xxxxx Trust that certain real
property (the "Land") located in Monterey County, California which is more
particularly described in Exhibit 1.1 (Description of the Land), together with
all improvements located upon the Land including the house, vines, posts,
fencing, and irrigation facilities ("Improvements"), all appurtenant rights
related to the Land including easements and water rights (the "Appurtenant
Rights"), the farm equipment located on the Land ("Equipment") as listed in
Exhibit 1.2 (List of Farm Equipment), and all approvals from any governmental or
quasi-governmental authority with respect to the Land or Improvements including
permits, variances, and licenses ("Approvals"). The Land, the Improvements, the
Appurtenant Rights, the Equipment, and the Approvals are referred to
collectively in this Agreement as the "Property."
2. Purchase Price. The purchase price for the Property is One Million
One Hundred Ninety-Two Thousand Five Hundred Three Dollars ($1,192,503) plus the
amount of the liability assumed or paid off as described in Section 2.4 (the
"Purchase Price") and will be paid by Chalone as follows:
2.1. A bank cashier's check payable to or a wire transfer to
the Xxxxx Trust in the amount of $250,000 at the Closing (as defined in Section
5.1 (Closing Date) below).
2.2. Chalone's promissory note in the principal amount of Nine
Hundred Forty-Two Thousand Five Hundred Three Dollars ($942,503) bearing
interest at seven and three one-hundredths of a percent (7.03%) per year, with
monthly installments of principal and interest in the amounts as described in
Exhibit 2.2.1 (Schedule of Mortgage Payments) and providing for a right of
setoff, substantially in the form of Exhibit 2.2.2 (the "Note").
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2.3. Security for this Note in the form of a deed of trust on
the Property ("Second Deed of Trust") substantially in the form of Exhibit 2.3
("Second Deed of Trust").
2.4. Chalone will assume or pay-off the liability owed to
Xxxxx Fargo Bank N.A. which is evidenced by a promissory note dated as of March
2, 1996 made payable to the order of First Interstate Bank of California in an
original loan amount of $456,000 ("Assumed Note") and secured by a deed of trust
encumbering the Property ("First Deed of Trust").
3. Title.
3.1. Permitted Title Exceptions. The Xxxxx Trust will deliver
good and marketable title to the Property to Chalone subject only to those
exceptions as may be approved in writing by Chalone pursuant to Section 4.1.2
(Objections to Preliminary Title Report) below ("Permitted Title Exceptions").
3.2. Owner's Policy. Evidence of title will be the issuance at
the Closing by the Title Company of a CLTA Standard Coverage Owner's Policy of
Title Insurance in a form acceptable to Chalone insuring that fee title in the
Property is vested in Chalone, subject only to the Permitted Title Exceptions,
together with such endorsements as Chalone may reasonably request (the "Title
Policy").
4. Conditions to Closing.
4.1. Chalone's Conditions. Chalone's obligation to purchase
the Property is conditioned upon the satisfaction of each of the following
conditions:
4.1.1. Performance of Obligations and Accuracy of
Representations and Warranties. The performance by the Xxxxx Trust of every
obligation it has under this Agreement, and the accuracy of each representation
and warranty made in this Agreement by Xxxxx and the Xxxxx Trust at the time the
representation or warranty was made and as of the Closing.
4.1.2. Objections to Preliminary Title Report.
Chalone's review and approval of the Preliminary Title Report and all title
exceptions. Chalone will be deemed to have accepted title unless it notifies the
Xxxxx Trust of its reasonable disapproval of the condition of title within seven
(7) business days from the execution of this Agreement. If Chalone reasonably
disapproves of any item(s) in the Preliminary Title Report before the end of
this seven (7) business day period, within five (5) business days after
Chalone's disapproval of any of these items, the Xxxxx Trust may elect to remove
such item(s) or may elect not to remove such item(s). If the Xxxxx Trust elects
not to remove such item(s), Chalone may terminate this Agreement or may proceed
to Closing and will be deemed to have accepted the disapproved item(s).
4.1.3. Third Party Consents. All consents, approvals
and waivers from any governmental authorities and other third parties necessary
to permit The Xxxxx Trust to transfer the Property to Chalone as contemplated by
this Agreement will have been obtained, including the consent of Xxxxx Fargo
Bank N.A. to the assignment of the liability if the liability is assumed by
Chalone, pursuant to Section 2.3 of this Agreement.
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4.1.4. No Governmental Proceeding or Litigation. No
suit, action, investigation, inquiry or other proceeding by any governmental
authority or other party has been instituted or threatened which questions the
validity or legality of the transactions contemplated by this Agreement.
4.1.5. Residential Lease. A Residential Lease entered
into between Chalone and Xxxxx whereby Chalone will lease to Xxxxx the
single-family house situated on the Land and approximately 160 acres surrounding
the house ("Residential Lease"). The Residential Lease will be in the form of
Exhibit 4 (Residential Lease).
4.1.6. Promissory Note. A Promissory Note made by
Xxxxx to Chalone in the principal amount of Seventy-Six Thousand Six Hundred
Fifty-Two Dollars and Eighty-Seven Cents ($76,652.87) bearing interest at seven
percent (7%) per year, with equal quarterly installments of principal and
interest in the amount of Four Thousand Five Hundred Seventy-Five Dollars and
Fifty Cents ($4,575.50), substantially in the form of Exhibit 4.1.6 (the "Xxxxx
Note").
4.1.7. Consulting Agreement. A Consulting and
Non-Competition Agreement entered into between Chalone and Xxxxx whereby Chalone
will engage Xxxxx to assist Chalone on an as needed part-time basis during the
term of which Xxxxx will not compete with Chalone's business ("Consulting
Agreement"). The Consulting and Non-Competition Agreement will be in the form of
Exhibit 4.1.7 (Consulting and Non-Competition Agreement).
4.2. Access. The Xxxxx Trust will afford authorized
representatives of Chalone reasonable access to the Property for the purposes of
satisfying Chalone with respect to the representations, warranties and covenants
of Xxxxx and the Xxxxx Trust contained in this Agreement and the conditions
precedent to the Closing.
4.3. Xxxxx Trust's Conditions.
4.3.1. Performance of Obligations and Accuracy of
Representations and Warranties. The performance by Chalone of every obligation
it has under this Agreement, and the truth of each representation and warranty
made in this Agreement by Chalone at the time the representation or warranty was
made and as of the Closing.
4.3.2. Third Party Consents. All consents, approvals
and waivers from any governmental authorities and other third parties necessary
to permit the Xxxxx Trust to transfer the Property to Chalone as contemplated by
this Agreement will have been obtained.
4.3.3. Residential Lease. A Residential Lease entered
into between Chalone and Xxxxx whereby Chalone will lease to Xxxxx the
single-family house situated on the Land and approximately 160 acres surrounding
the house. The Residential Lease will be in the form of Exhibit 4 (Residential
Lease).
4.3.4. Consulting Agreement. A Consulting and
Non-Competition Agreement entered into between Chalone and Xxxxx whereby Chalone
will engage Xxxxx to assist
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Chalone on an as needed part-time basis during the term of which Xxxxx will not
compete with Chalone's business. The Consulting and Non-Competition Agreement
will be in the form of Exhibit 4.1.7 (Consulting and Non-Competition Agreement).
4.4. Waiver. Either party may, at any time or times before the
Closing, waive one or more of the foregoing conditions, without affecting its
rights and remedies with respect to the remaining conditions. Any waiver must be
in writing and signed by the waiving party.
5. Closing.
5.1. Closing Date. The consummation of the purchase and sale
of the Property (the "Closing") will be held no later than September 30, 1996,
or on such other date agreed to in writing by Chalone and the Xxxxx Trust.
5.2. Xxxxx Trust's Deposits IntoEscrow. The Xxxxx Trust must
deposit the following documents and items into escrow:
5.2.1. a duly executed and acknowledged grant deed
conveying the Land and Improvements to Chalone, subject only to the Permitted
Title Exceptions;
5.2.2. a duly executed assignment reasonably
acceptable to Chalone assigning to Chalone all of the Xxxxx Trust's interest in
all Approvals;
5.2.3. an affidavit in the form of attached Exhibit
5.2.3. stating that the Xxxxx Trust is not a "foreign person" under IRC Section
1445(f)(3).
5.2.4. a certificate from the Xxxxx Trust certifying
that there has been no change in or damage to the Property (or specifying such
change or damage) from the date of this Agreement and that the representations
and warranties described in Section 6.1 (Representations and Warranties of the
Xxxxx Trust) are complete and accurate as of the Closing date;
5.2.5. The Xxxxx Trust's share of the closing costs
as described in Section 5.5 (Closing Costs) below;
5.2.6. An assignment of the Assumed Note, properly
executed and acknowledged by Xxxxx, and accompanied by all consents of Xxxxx
Fargo Bank N.A. required by the Assumed Note and the First Deed of Trust, in a
form acceptable to Chalone, if the liability is assumed by Chalone and not paid
off; and
5.2.7. such other documents as may reasonably be
required to complete the Closing.
5.3. Chalone's Deposits Into Escrow. Chalone must deposit the
following into escrow:
5.3.1. a bank cashier's check payable to or a wire
transfer to the Xxxxx Trust in the amount of $250,000 and a Note, substantially
in the form of Exhibit 2.2.2;
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5.3.2. a Second Deed of Trust substantially in the
form of Exhibit 2.3 (Second Deed of Trust);
5.3.3. Chalone's share of the closing costs as
described in Section 5.5. (Closing Costs) below; and
5.3.4. such other documents as may reasonably be
required to complete the Closing.
5.4. Prorations. All expenses for the Property will be
prorated as of the Closing date (the "Proration Date") and the Purchase Price
will be adjusted on the following basis:
5.4.1. Accounts Payable. All sums due for accounts
payable which were owing or accrued by the Property prior to the Proration Date
and for all agreements and contracts not assumed by Chalone will be paid by
Xxxxx, and Xxxxx agrees to indemnify and hold Chalone harmless with respect to
those agreements and contracts.
5.4.2. Property Taxes. To the extent not included
above, all real and personal property ad valorem taxes and special assessments,
if any, will be prorated to the Proration Date, based on the latest available
tax rate and assessed valuation.
5.4.3. Post Closing. If the amount of any proration
cannot be determined at the Closing, the adjustments will be made between the
parties as soon after Closing as possible.
5.5. Closing Costs. The Xxxxx Trust and Chalone will each pay
their respective shares of all Closing costs for this transaction, including all
escrow and recording fees, transfer taxes, and the cost of Chalone's title
insurance policy, pursuant to the custom in Monterey County.
5.6. Closing. Pursuant to Section 5.1 (Closing Date) above,
the Title Company will close the escrow for this transaction when it is in a
position to issue the Title Policy and has received from the Xxxxx Trust and
Chalone the items required of each in Sections 5.2 (Xxxxx Trust's Deposits Into
Escrow) and 5.3 (Chalone's Deposits Into Escrow) above. Title Company will close
escrow by doing the following:
5.6.1. Recording the grant deed in the Official
Records of Monterey County Recorder;
5.6.2. Recording the Second Deed of Trust in the
Official Records of Monterey County Recorder;
5.6.3. Delivering to Chalone the Title Policy, the
original documents and items listed in Section 5.2 (Xxxxx Trust's Deposits Into
Escrow) above, and a closing statement
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for the escrow consistent with this Agreement and satisfactory to Chalone and
the Xxxxx Trust (the "Closing Statement"), and any refund due Chalone; and
5.6.4. Delivering to the Xxxxx Trust the Promissory
Note and the Xxxxx Trust's closing statement.
5.6.5. Delivering to the Xxxxx Trust the payment
described in Section 5.3.1.
5.7 Possession. The Xxxxx Trust will deliver possession of the
Property to Chalone on the Closing date subject to Xxxxx'x retained rights under
the Residential Lease.
6. Representations and Warranties.
6.1. Representations and Warranties of Xxxxx and of the Xxxxx
Trust. Xxxxx and the Xxxxx Trust hereby makes the following representations and
warranties to Chalone, which representations and warranties will survive the
Closing and all of which (i) are material and are being relied upon by Chalone,
and (ii) are complete and accurate as of the date of this Agreement and will be
complete and accurate at the Closing date:
6.1.1. Neither Xxxxx nor the Xxxxx Trust knows of any
facts nor has Xxxxx or the Xxxxx Trust failed to disclose any fact which may
affect the value of the property or the viability of the vineyard located on the
Property to continue as a first class vineyard. There are no material physical
or mechanical defects of the Property, and except as otherwise disclosed, all
Equipment and Improvements are in good operating condition and repair as of the
Closing date and in compliance with all applicable governmental requirements;
6.1.2. Except as disclosed to Chalone in writing,
neither Xxxxx nor the Xxxxx Trust has any knowledge of any condemnation
proceedings or any land-use or development regulations or proceedings existing
or proposed, which would affect the use and operation of the Property, nor has
Xxxxx or the Xxxxx Trust received notice of any special assessment proceedings
or other matters affecting the use, occupancy or value of the Property;
6.1.3. For purposes of this Agreement, the term
"Hazardous Materials" means materials regulated under any federal, state or
local law or regulation, as amended from time to time, as a toxic, hazardous,
contaminated or similarly harmful or dangerous material or substance. To the
best of Xxxxx'x and the Xxxxx Trust's knowledge, there are no Hazardous
Materials being stored or otherwise held on, under or about the Property by
Xxxxx or the Xxxxx Trust or to Xxxxx'x or the Xxxxx Trust's knowledge after due
inquiry by any other party;
6.1.4. Neither Xxxxx nor the Xxxxx Trust has received
any written report, notice or other information, or to their knowledge otherwise
been advised under the California Health and Safety Code or any other applicable
local, state or federal law regarding Hazardous Materials on, under or affecting
the Property or requiring the removal of any Hazardous Materials from the
Property;
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6.1.5. All documents executed by Xxxxx or the Xxxxx
Trust which are to be delivered to Chalone at the Closing are, or at the time of
Closing will be, duly authorized, executed, and delivered by Xxxxx or the Xxxxx
Trust, whichever is applicable, and are, or at the Closing will be, legal,
valid, and binding obligations of Xxxxx or the Xxxxx Trust, whichever is
applicable, and do not, and at the time of Closing will not, violate any
provision of any agreement to which either Xxxxx or the Xxxxx Trust is a party
or to which they are subject or any law, judgment or order applicable to Xxxxx
or the Xxxxx Trust; and
6.1.6. To the best of Xxxxx'x and the Xxxxx Trust's
knowledge, there is no claim, litigation, or governmental investigation or
proceeding, actual or potential, that may affect the Property and no unrecorded
easements, unrecorded mechanics' lien claims, unrecorded taxes and assessments,
claims of encroachment or prescriptive easements affecting the Land or
Improvements.
6.2. Representations and Warranties of Chalone. Chalone hereby
makes the following representations and warranties to the Xxxxx Trust, which
representations and warranties will survive the Closing and all of which (i) are
material and are being relied upon by the Xxxxx Trust, and (ii) are complete and
accurate in all respects as of the date of this Agreement and will be complete
and accurate as of the Closing date:
6.2.1. Chalone is a corporation duly organized,
validly existing and in good standing under the laws of the State of California;
and
6.2.2. This Agreement and all documents executed by
Chalone which are to be delivered to either Xxxxx or the Xxxxx Trust, whichever
is applicable, at the Closing are, or at the time of Closing will be, duly
authorized, executed, and delivered by Chalone, and are, or at the Closing will
be, legal, valid, and binding obligations of Chalone, and do not, and at the
time of Closing will not, violate any provisions of any agreement to which
Chalone is a party or to which it is subject or any law, judgment or order
applicable to Chalone.
7. The Parties' Obligations After Closing.
7.1. Organic Farming. During the term that the Consulting
Agreement is in effect, Chalone will exercise its reasonable efforts to
organically farm the vineyard that is part of the Property ("Vineyard") and to
investigate and, if appropriate, obtain and maintain the required certification
of that Vineyard as an organic farm from the appropriate governmental or
quasi-governmental authorities; provided, however, that if (i) the physical
integrity of the grapes or vines is endangered, (ii) the quality of the
resulting wine is affected, or (iii) the economic competitiveness of the
Vineyard is threatened relative to the Chalone Vineyard, as determined in
Chalone's sole discretion, Chalone will have the right to employ non-organic
materials to combat specific grape pests and diseases on a case-by-case basis,
but only when necessary in Chalone's sole discretion, and Chalone agrees to
minimize the use of any such non-organic materials and to revert to fully
organic materials as soon as possible thereafter.
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7.2. Vineyard Name. Chalone will name the Vineyard the
"Xxxxxxx Xxxxx Vineyard;" provided, however, that if Chalone sells or transfers
the Vineyard, the purchaser or the transferee will not be bound by this
obligation.
7.3. Vineyard Management. During the term that the Consulting
Agreement is in effect, Xxxxx may advise Chalone with respect to the management
of the Vineyard, excluding the day to day management of the Vineyard, but Xxxxx
may not make any decisions which affect the Vineyard in any way; Chalone will
make all such decisions.
7.4. Winemaking. During the term that the Consulting Agreement
is in effect, Chalone will use its reasonable efforts to cause the grapes from
the Vineyard to be made into wine at the Chalone Winery and to allow Xxxxx to
advise Chalone with respect to the making of the wine; provided, however, that
if Chalone sells or transfers the Vineyard, the purchaser or the transferee will
not be bound by this obligation. Under no circumstances will Xxxxx make any
decisions which affect the process of the winemaking in any way, except in the
case of those barrels of wine that have been set aside for Xxxxx'x personal use
as provided in the Consulting Agreement. If the grapes from the Vineyard are
made into wine at the Chalone Winery, Chalone will bottle such wine.
7.5. Subordination. Xxxxx and the Xxxxx Trust shall
subordinate, on the terms reasonably requested by Chalone's Lender, the liens
evidenced by the Second Deed of Trust and the Residential Lease to that of a
commercial lender who from time to time may provide Chalone, or its successors
and assigns, with financing secured by the Property and to attorn to such
commercial lender and shall execute such documents as may be required by such
lender to evidence this subordination and attornment; provided, that, the amount
of financing secured by the Property shall not exceed $500,000.
All obligations described in this Article VII shall survive the
Closing.
8. Indemnification. Each party hereby agrees to indemnify the other
party and hold the other party harmless from and against any and all claims,
demands, liabilities, costs and damages, including without limitation,
reasonable attorneys' fees, resulting from any misrepresentations or breach of
warranty or covenant made by such party in this Agreement or in any document,
certificate, or exhibit given or delivered to the other party pursuant to or in
connection with this Agreement. Xxxxx and the Xxxxx Trust further agree to
indemnify Chalone and hold Chalone harmless from and against any claims,
demands, liabilities, costs and damages asserted against or suffered by Chalone
and resulting from or arising out of the ownership, use or construction of the
Property prior to the conveyance of the Property to Chalone, including, without
limitation, claims arising from the presence, prior to Closing, of any Hazardous
Materials on the Property and reimbursement of cleanup or remedial action costs
under any law or regulation regarding the generation, use, storage, or disposal
of such Hazardous Materials. All of these indemnifications will survive the
Closing and conveyance of the Property to Chalone.
9. Risk of Loss; Insurance Proceeds; Condemnation.
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9.1. Damage or Destruction. In the event of damage or
destruction of the Improvements prior to the Closing date, Chalone may elect to
either (a) terminate this Agreement upon written notice to the Xxxxx Trust or
(b) consummate this Agreement as scheduled, in which event the Xxxxx Trust will
pay to Chalone any and all insurance proceeds payable with respect to such
damage or destruction for costs of repair and restoration of the Property, plus
such additional amount if any as may be required to repair or restore the
Improvements to their condition immediately prior to such damage or destruction.
9.2. Insurance. The Xxxxx Trust agrees to maintain any
insurance policy with respect to the Property currently in effect through the
Closing date.
9.3. Eminent Domain. If, prior to the Closing, all of the Land
and Improvements are taken by eminent domain, this Agreement will be deemed
canceled. If only part of the Land or Improvements are taken by eminent domain,
Chalone will have the option of (a) proceeding with the Closing and acquiring
the Property as affected by the taking, together with all compensation and
damage awarded or the right to receive same, or (b) canceling this Agreement.
10. Xxxxx Trust's Covenants During Contract Period. Between the Xxxxx
Trust's execution of this Agreement and the Closing, or earlier termination of
this Agreement as permitted under this Agreement, the Xxxxx Trust will (i)
maintain the Property in good order, condition and repair, reasonable wear and
tear excepted, (ii) not make any physical changes to the Improvements, (iii)
continue to manage the Property (including the cultivation of the vines) in the
manner in which it is being managed, and (iv) not enter into any lease,
amendment of lease, grape contract, or other agreement pertaining to the
Property, without Chalone's prior consent which may be withheld at Chalone's
sole discretion.
11. Assignment. Neither party may assign its rights or delegate its
obligations under this Agreement without the prior written consent of the other
party. Subject to the foregoing, this Agreement will be binding upon and inure
to the benefit of the parties to this Agreement and their successors and
assigns. In connection with any approved assignment, the assignee must assume
the assignor's obligations under this Agreement, but assignor will nevertheless
remain liable for those obligations.
12. Miscellaneous.
12.1. Notice. All notices and any other communications
permitted or required under this Agreement must be in writing and will be
effective (i) immediately upon delivery in person, or (ii) 24 hours after
deposit with a commercial courier or delivery service for overnight delivery,
(iii) seven days after deposit with the United States Postal Service, certified
mail, return receipt requested, postage prepaid, or (iv) upon receipt, if
transmitted by facsimile with confirmed receipt between 9:00 a.m. and 5:00 p.m.
on a business day, otherwise, on the following business day. All notices must be
properly addressed and delivered to the parties at the addresses set forth
below, or at such other addresses as either party may subsequently designate by
written notice given in the manner provided in this Section:
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Xxxxx Trust: Xxxxxxx X. Xxxxx, Trustee, Xxxxx 1993 Trust
Dated June 10, 1993
c/o The Chalone Wine Group, Ltd.
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxx: Xxxxxxx X. Xxxxx
c/o The Chalone Wine Group, Ltd.
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Chalone: The Chalone Wine Group, Ltd.
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attn.: W. Xxxxxx Xxxxxxxx
12.2. Covenant of Further Assurances. The parties hereby agree
to execute such other documents and perform such other acts as may be necessary
or desirable to carry out the purposes of this Agreement.
12.3. Entire Agreement. This document represents the entire
agreement between the parties with respect to the subject matter and supersedes
all other prior agreements. This Agreement may only be modified by a written
instrument signed by both parties.
12.4. No Waiver. No consent or waiver by either party to or of
any breach of any representation, covenant or warranty will be construed as a
consent to or waiver of any other breach of the same or any other
representation, covenant, or warranty.
12.5. Attorneys' Fees. In the event of any breach of this
Agreement that results in arbitration or litigation between the parties, the
prevailing party shall be entitled to its reasonable attorney's fees, expert
witness fees and costs of suit. The prevailing party shall be determined by the
court or arbitrator, as applicable, based upon an assessment of which party's
major arguments or positions taken in the proceedings could fairly be said to
have prevailed over the other party's major arguments or positions on major
disputed issues in the court's or arbitrator's decision.
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12.6. Brokers and Finders. Neither party has had any contact
or dealings regarding the Property, through any licensed real estate broker or
other persons who can claim a right to a commission or finder's fee in
connection with this transaction. In the event that any other party claims a
commission or finder's fee in this transaction, the party through whom the party
makes his claim will be responsible for the commission or fee and will indemnify
the other against all costs and expenses (including reasonable attorneys' fees)
incurred in defending against the same.
12.7. Time of the Essence. Time is of the essence of this
Agreement.
12.8. Governing Law. This Agreement is entered into and will
be governed by and construed in accordance with the laws of the State of
California.
12.9. Interpretation. All parties have been represented by
counsel in the preparation and negotiation of this Agreement, and this Agreement
is to be interpreted as if it were drafted by all and not any one or more
parties. The words "include" and "including" mean "including without
limitation." The headings used in this Agreement are for purposes of convenience
only and should not be used in construing the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXX TRUST: XXXXXXX X. XXXXX, TRUSTEE, XXXXX 1993
TRUST DATED JUNE 10, 1993,
a trust
By: /s/ XXXXXXX X. XXXXX
-----------------------------
Title: Trustee
-----------------------------
XXXXX:
/s/ XXXXXXX X. XXXXX
------------------------------------
XXXXXXX X. XXXXX
CHALONE: THE CHALONE WINE GROUP, LTD.,
a California corporation
By: /s/ W. XXXXXX XXXXXXXX
-----------------------------
Title: President
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