TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (the "Agreement") is made and entered into
as of this 1st day of May, 1995, by and between SANWA BANK CALIFORNIA (the
"Bank") and GOLDEN STATE VINTNERS (the "Borrower").
SECTION I
AGREEMENT TO LEND
1.01 COMMITMENT TO LEND. Subject to the terms and conditions of this
Agreement and so long as no Event of Default occurs, the Bank agrees to extend
to the Borrower the credit accommodations that follow.
1.02 TERM LOAN. The Bank agrees to lend to the Borrower, upon the
Borrower's request made prior to June 30, 1995, up to the maximum amount of
$4,875,000 (the "Term Loan").
A. PURPOSE. Proceeds from the Term Loan shall be used to finance
the purchase of real estate.
B. TERM LOAN ACCOUNT. The Bank shall maintain on its books a
record of account in which the Bank shall make entries setting forth all
payments made, the application of such payments to interest and principal,
accrued and unpaid interest (if any) and the outstanding principal balance under
the Term Loan (the "Term Loan Account"). The Bank shall provide the Borrower
with a monthly statement of the Borrower's Term Loan Account, which statement
shall be considered to be correct and conclusively binding on the Borrower
unless the Borrower notifies the Bank to the contrary within 30 days after the
Borrower's receipt of any such statement which it deems to be incorrect.
C. INTEREST. The Term Loan shall bear interest at the following
rates at the Borrower's election:
(a) VARIABLE RATE BALANCES. The outstanding principal
balance of the Term Loan ("TERM BALANCE") shall bear interest at a rate equal to
Bank's reference rate, as it may change from time to time, plus 1% per annum
("Variable Rate Balances"). The rate of interest shall be adjusted concurrently
with any change in Bank's Reference Rate.
(b) FIXED RATE BALANCES. The Borrower may from time to time
elect that the entire Term Balance shall accrue interest on the amount of such
Term Balance at a fixed rate for such period of time as the Bank may quote and
offer; provided that any such period of time (i) shall be for at least 30, 60,
90, 180 or 360 days and (ii) shall not extend beyond the maturity date of the
Term Loan (the "Interest Period"); and provided further that the then
outstanding Term Balance shall not be less than $250,000. Such interest rate
shall be a percentage approximately equivalent to 2.50% per annum in excess of
the rate which the Bank determines in its sole and absolute discretion to be
equal to the Bank's cost of acquiring funds (adjusted for any and all
assessments, surcharges and reserve requirements pertaining to the Bank's
borrowing or purchase of such funds) in an amount approximately equal to the
amount of the Term Balance and for a period of time approximately equal to the
relevant Interest Period (the "Fixed Rate"). The Term Balance bearing interest
at the Fixed Rate is hereinafter referred to as "Fixed Rate Balance".
(c) EURODOLLAR RATE BALANCES. In addition to Variable Rate
Balances, the Bank hereby agrees to make the Term Balance, accrue interest at a
fixed rate quoted by the Bank for 30, 60, or 90 days or for such other period of
time that the Bank may quote and offer (provided that any such period of time
does not extend beyond the maturity date of the loan) [the "Eurodollar Interest
Period"]. Such interest rate shall be a percentage approximately equivalent to
2.50% in excess of the Bank's Eurodollar Rate which is that rate determined by
the Bank's Treasury Desk as being the approximate rate at which the Bank could
purchase offshore U.S. dollar deposits in an amount approximately equal to the
amount of the Term Loan and for a period of time approximately equal to the
relevant Eurodollar Interest Period (adjusted for any and all assessments,
surcharges and reserve requirements pertaining to the purchase by the Bank of
such U.S. dollar deposits)[the "Eurodollar Rate"]. Term Balances based upon the
Eurodollar Rate are hereinafter referred to as "Eurodollar Rate Balances".
(d) INTEREST PAYMENTS. Borrower hereby promises and agrees
to pay interest on any Fixed Rate Balances, Eurodollar Rate Balance and any
Variable Rate Balance in arrears on the fifth calendar day of each month.
Interest shall be calculated on the basis of a year of 360 days for actual days
elapsed.
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(e) NOTICE OF ELECTION TO ADJUST INTEREST RATE. Upon
telephonic notice which shall be received by the Bank at or before 2:00 p.m.
(California time) on a business day, the Borrower may elect:
(1) That interest on a Variable Rate Balance shall be
adjusted to accrued at the Fixed Rate or the Eurodollar Rate; provided, however,
that such notice shall be received by the Bank no later than two business days
prior to the day (which shall be a business day) on which Borrower requests that
interest be adjusted to accrue at the Fixed Rate or Eurodollar Rate.
(2) That interest on a Fixed Rate Balance or Eurodollar
Rate Balance shall continue to accrue at a newly quoted Fixed Rate or Eurodollar
Rate or shall be adjusted to commence to accrue at the Variable Rate; provided,
however that such notice shall be received by the Bank no later than two
business days prior to the last day of the Interest Period or Eurodollar
Interest Period pertaining to such Fixed Rate Balance or Eurodollar Rate Balance
as the case may. If the Bank shall not have received notice as prescribed herein
of Borrower's election that interest on any Fixed Rate Balance or Eurodollar
Rate Balance shall continue to accrue at the Fixed Rate or Eurodollar Rate,
Borrower shall be deemed to have elected that interest thereon shall be adjusted
to accrue at the Variable Rate upon the expiration of the relevant Interest
Period or Eurodollar Interest Period pertaining to such Term Balance.
(f) PROHIBITION AGAINST PREPAYMENT OF FIXED RATE BALANCES OR
EURODOLLAR RATE BALANCES. Notwithstanding anything to the contrary in the
Agreement, no prepayment shall be made on any Fixed Rate Balance or Eurodollar
Rate Balance except on a day which is the last day of the relevant Interest
Period or Eurodollar Interest Period pertaining thereto. If the whole or any
part of any Fixed Rate Balance or Eurodollar Rate Balance is prepaid by reason
of acceleration or otherwise, the Borrower shall, upon the Bank's request,
promptly pay to and indemnify the Bank for all costs and any loss (including
interest) actually incurred by the Bank and any loss (including loss of profit
resulting from the re-employment of funds) sustained by the Bank as a
consequence of such prepayment.
(g) INDEMNIFICATION FOR FIXED RATE COSTS AND EURODOLLAR RATE
COSTS. During any period of time in which interest on any Term Balance is
accruing on the basis of the Fixed Rate or the Eurodollar Rate, the Borrower
shall, upon the Bank's request, promptly pay to and reimburse the Bank for all
costs incurred and payments made by the Bank by reason of any future assessment,
reserve, deposit or similar requirements or any surcharge, tax or fee imposed
upon the Bank or as a result of the Bank's compliance with any directive or
requirement of any regulatory authority pertaining or relating to funds used by
the Bank in quoting and determining the Fixed Rate or the Eurodollar Rate.
(h) CONVERSION FROM FIXED RATE OR EURODOLLAR RATE TO
VARIABLE RATE. In the event that the Bank shall at any time determine that the
accrual of interest on the basis of the Fixed Rate or the Eurodollar Rate (i) is
infeasible because the Bank is unable to determine the Fixed Rate or Eurodollar
Rate due to the unavailability of U.S. dollar deposits, contracts or
certificates of deposit in an amount approximately equal to the amount of the
relevant Balance and for a period of time approximately equal to the relevant
Interest Period or Eurodollar Interest Period; or (ii) is or has become unlawful
or infeasible by reason of the Bank's compliance with any new law, rule,
regulation, guideline or order, or any new interpretation of any present law,
rule, regulation, guideline or order, then the Bank shall give telephonic notice
thereof (confirmed in writing) to the Borrower, in which event any Fixed Rate
Balance or Eurodollar Rate Balance shall be deemed to be a Variable Rate Balance
and interest shall thereupon immediately accrue at the Variable Rate.
D. PRINCIPAL. The Borrower hereby promises and agrees to pay
principal in 9 equal installments of $325,000.00 per installment commencing on
March 5, 1996 and continuing on the fifth day of each March of each year
thereafter up to and including March 5, 2004. On March 5, 2005, the Borrower
hereby promises and agrees to pay to the Bank the entire unpaid principal
balance, together with accrued and unpaid interest.
E. ADDITIONAL PRINCIPAL PAYMENTS. So long as the principal
balance is greater than $3,250,000.00, within 120 days after the end of each of
Borrower's fiscal years, the Borrower promises and agrees to pay to the Bank as
a further payment of the principal of the Term Loan, an amount determined as
follows:
(I-E)*P
Where:
I = net profit plus depreciation plus amortization for the fiscal
year just ended.
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E = principal payments made on long term debt made during the
fiscal year just ended plus preferred dividends plus capital
expenditures.
P = for FYE 1996, 10%; for FYE 1997, 15%; and 20% for each FYE
thereafter.
Each payment received by the Bank shall, at the Bank's option, be
applied to pay interest then due and unpaid and the remainder thereof (if
any) shall be applied to pay principal.
SECTION II
GUARANTORS/COLLATERAL/REAL PROPERTY
2.01 GUARANTORS. The indebtedness incurred under and pursuant to this
Agreement shall be guaranteed, in form and substance satisfactory to the Bank
(each a "Guaranty"), by Golden State Acquisition Corp. (each a "Guarantor").
2.02 THE COLLATERAL: To secure payment and performance of all the
Borrower's Obligations under this Agreement and all other liabilities, loans,
guarantees, covenants and duties owed by the Borrower to the Bank, whether or
not evidenced by this or by any other agreement, absolute or contingent, due
or to become due, now existing or hereafter and howsoever created, the
Borrower hereby grants the Bank a security interest in and to all of the
following property (the "Collateral"):
(a) All goods now owned or hereafter acquired by the Borrower
or in which the Borrower now has or may hereafter acquire any interest,
including, but not limited to, all machinery, equipment, furniture,
furnishings, tools, supplies and motor vehicles of every kind and
description, and all additions, accessions, improvements, replacements and
substitutions thereto and thereof.
(b) All inventory now owned or hereafter acquired by the
Borrower, including, but not limited to, all raw materials, work in process,
finished goods, merchandise, parts and supplies of every kind and description,
including inventory temporarily out of the Borrower's custody or possession,
together with all returns on accounts.
(c) All accounts, contract rights and general intangibles now
owned or hereafter created or acquired by the Borrower, including, but not
limited to, all receivables, goodwill, trademarks, trade styles, trade names,
patents, patent applications, software, customer lists and business records.
(d) All documents, instruments and chattel paper now owned or
hereafter acquired by the Borrower.
(e) All monies, deposits accounts, certificates of deposit and
securities of the Borrower now or hereafter in the Bank's or its agents'
possession.
(f) All crops now growing or hereafter to be grown, together
with all products and proceeds thereof (the "Crops"), on that certain real
property described in the attached Exhibit "A" (the "Real Property").
(g) All farm products now owned or hereafter acquired by or for
the benefit of the Borrower consisting of supplies used or produced in the
farming operations of the Borrower.
(h) All proceeds of the Collateral, including but not limited to,
all accounts, contract rights, documents, instruments and chattel paper
resulting from the sale or disposition of the Collateral.
The Bank's security interest in the Collateral shall be a
continuing lien and shall include the proceeds and products of the Collateral
including, but not limited to, the proceeds of any insurance thereon.
2.03 REAL PROPERTY. The Borrower hereby agrees that all indebtedness
referenced herein to be paid by the Borrower to the Bank and the Borrower's
performance of each and all of the terms, covenants and agreements contained
herein shall be secured by a deed of trust in form and substance satisfactory
to the Bank (the "Deed of Trust") encumbering, as a lien of first encumbrance,
certain real property described in the attached Exhibit "B" (the "Real
Property"), located in the County of Fresno, State of California, subject only
to current taxes and assessments not yet due and payable and exceptions numbered
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_____________________________________, all as listed on a certain Preliminary
Title Report No. 455171 SKL (the "Permitted Title Exceptions") dated April 10,
1995 and issued by Chicago Title Company.
SECTION III
CONDITIONS PRECEDENT
3.01 DELIVERY OF EXECUTED DOCUMENTATION AND OTHER INFORMATION TO
BANK. The Borrower shall, concurrent with its execution of this Agreement,
deliver or cause to be delivered to the Bank, in form and substance satisfactory
to the Bank:
A. AUTHORITY TO BORROW. Evidence relating to the duly given
approval and authorization of the execution, delivery and performance of this
Agreement, all other documents, instruments or agreements required under this
Agreement and all other actions to be taken by the Borrower hereunder or
thereunder.
B. LOAN DOCUMENTS. The documents described in Section II hereof,
as applicable, and all other documents, instruments or agreements required or
necessary to consummate the transactions contemplated under this Agreement
(collectively the "Loan Documents"), all fully executed.
C. LOAN FEES. Payment of a flat fee of $48,750 and all
out-of-pocket expenses of Bank in connection with the preparation and
negotiation of this Agreement.
D. REAL PROPERTY:
a. An appraisal of the Real Property.
b. A title insurance policy or binder in the amount of
$4,875,000.00 issued by a title insurance company satisfactory to the Bank and
in such form and substance and with such endorsements as are satisfactory to the
Bank. Such title insurance policy or binder shall indicate to the Bank's
satisfaction that the Deed of Trust shall constitute a lien of first encumbrance
on the Real Property subject only to the Permitted Title Exceptions and shall
include a _______ 111.5 endorsement.
c. Evidence that the Deed of Trust has been recorded and
constitutes a lien on the Real Property subject only to the Permitted Title
Exceptions.
E. MISCELLANEOUS DOCUMENTS. Such other documents and opinions as
the Bank may require with respect to the transactions described in this
Agreement.
SECTION IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes the following representations and warranties to the
Bank, which representations and warranties are continuing:
4.01 STATUS: The Borrower is a corporation duly organized and validly
existing under the laws of the State of California and is properly licensed and
is qualified to do business and in good standing in, and, where necessary to
maintain the Borrower's rights and privileges, has complied with the fictitious
name statute of every jurisdiction in which the Borrower is doing business, and
where the failure to so qualify or comply would have a material adverse effect
upon the Borrower or its business.
4.02 AUTHORITY: The execution, delivery and performance by the
Borrower of this Agreement and any instrument, document or agreement required
hereunder have been duly authorized and do not and will not: (i) violate any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having application to the
Borrower; (ii) result in a breach of or constitute a default under any material
indenture or loan or credit agreement or other material agreement, lease or
instrument to which the Borrower is a party or by which it or its properties may
be bound or affected; or (iii) require any consent or approval of its
stockholders or violate any provision of its articles of incorporation or
by-laws.
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4.03 LEGAL EFFECT: This Agreement constitutes, and any instrument,
document or agreement required hereunder when delivered hereunder will
constitute, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms.
4.04 FICTITIOUS TRADE STYLES: All fictitious trade styles used by
the Borrower in connection with its business operations and each state in
which each such fictitious trade style is used are listed below. The Borrower
shall notify the Bank not less than 30 days prior to effecting any change in
the matters described below or prior to using any other fictitious trade
style at any future date, indicating the trade style and state(s) of its use.
TRADE STYLE STATE OF USE
See attached Exhibit "C" California
4.05 FINANCIAL STATEMENTS: All financial statements, information and
other data which may have been or which may hereafter be submitted by the
Borrower to the Bank are true, accurate and correct and have been or will be
prepared in accordance with generally accepted accounting principles
consistently applied and accurately represent in accordance with such principals
the financial condition or, as applicable, the other information disclosed
therein. Since the most recent submission of such financial information or data
to the Bank, the Borrower represents and warrants that no material adverse
change in the Borrower's financial condition or operations has occurred which
has not been fully disclosed to the Bank in writing.
4.06 LITIGATION: Except as have been disclosed to the Bank in
writing, there are no actions, suits or proceedings pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or
the Borrower's properties before any court or administrative agency which, if
determined adversely to the Borrower, would have a material adverse effect on
the Borrower's financial condition or operations or on the Collateral.
4.07 TITLE TO ASSETS: The Borrower has good and marketable title to
all of its assets (including, but not limited to, the Collateral) and the same
are not subject to any security interest, encumbrance, lien or claim of any
third person except for Permitted Liens.
4.08 ERISA: If the Borrower has a pension, profit sharing or
retirement plan subject to ERISA, such plan has been and will continue to be
funded in accordance with its terms and otherwise complies with and continues to
comply with the requirements of ERISA.
4.09 TAXES: The Borrower has filed all tax returns required to be
filed and paid all taxes shown thereon to be due, including interest and
penalties, other than such taxes which are currently payable without penalty or
interest or those which are being duly contested in good faith.
4.10 ENVIRONMENTAL COMPLIANCE: The Borrower has implemented and
complied in all material respects will all applicable federal, state and local
laws, ordinances, statutes and regulations with respect to hazardous or toxic
wastes, substances or related materials, industrial hygiene or environmental
conditions. There are no suits, proceeding, claims or disputes pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
its property claiming violations of any federal, state or local law, ordinance,
statute or regulation relating to hazardous or toxic wastes, substances or
related materials.
SECTION V
COVENANTS
The Borrower covenants and agrees that, during the term of this
Agreement, and so long thereafter as the Borrower is indebted to the Bank
under this Agreement, the Borrower shall, unless the Bank otherwise consents
in writing:
5.01 PRESERVATION OF EXISTENCE; COMPLIANCE WITH APPLICABLE LAWS.
Maintain and preserve its existence and all rights and privileges now
enjoyed; not liquidate or dissolve, merge or consolidate with or into, or
acquire any other business organization other than the merger of subsidiaries
of the Borrower or acquisitions which qualify as capital expenditures under
Section 5.14 hereof; and conduct its business in accordance with all
applicable laws, rules and regulations.
5.02 MAINTENANCE OF INSURANCE. Maintain insurance in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower operates and
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maintain such other insurance and coverages as may be required by the Bank.
All such insurance shall be in form and amount and with companies
satisfactory to the Bank, including, but not limited to key-man life
insurance in the minimum amount of 58,000,000 on the life of Xxxxxxx X.
X'Xxxxx.
5.03 PAYMENT OF OBLIGATIONS AND TAXES. Make timely payment of all
assessments and taxes and all of its liabilities and obligations unless the
same are being contested in good faith.
5.04 INSPECTION RIGHTS. At any reasonable time and from time to
time, permit the Bank or any representative thereof to examine and make
copies of the records and visit the properties of the Borrower and to discuss
the business and operations of the Borrower with any employee or
representative thereof. If the Borrower now or at any time hereafter
maintains any records (including, but not limited to, computer generated
records and computer programs for the generation of such records) in the
possession of a third party, the Borrower hereby agrees to notify such third
party to permit the Bank free access to such records at all reasonable times
and to provide the Bank with copies of any records it may request, all at the
Borrower's expense, the amount of which shall be payable immediately upon
demand.
5.05 REPORTING REQUIREMENTS. Deliver or cause to be delivered to the
Bank in form and detail satisfactory to the Bank:
A. Not later than 90 days after the end of each of the
Borrower's fiscal years, a copy of the annual audited financial report of the
Borrower for such year, prepared by a firm of certified public accountants
acceptable to Bank.
B. Not later than 30 days after the end of each month, the
Borrower's financial statement as of the end of such month.
C. Promptly upon the Bank's request, such other information
pertaining to the Borrower or any Guarantor as the Bank may reasonable request.
5.06 PAYMENT OF DIVIDENDS: Not declare or pay any dividends on any
class of common stock now or hereafter outstanding except dividends payable
solely in the Borrower's capital stock.
5.07 REDEMPTION OR REPURCHASE OF STOCK: Not redeem or repurchase any
class of the Borrower's stock now or hereafter outstanding.
5.08 ADDITIONAL INDEBTEDNESS. Not, and not permit any subsidiary
of the Borrower to, after the date hereof, create, incur or assume, directly
or indirectly, any additional Indebtedness other than (i) Indebtedness owed
or to be owed to the Bank or (ii) Indebtedness to trade creditors incurred in
the ordinary course of the Borrower's business or (iii) Indebtedness of up to
$39,500,000 owed to Xxxxx Winery, Prudential Life Insurance Company and Xxxx
Xxxxxxx Mutual Life Insurance Company or (iv) Indebtedness secured by a
Permitted Lien or (v) Indebtedness in respect of deferrred taxes or (vi)
Indebtedness to growers representing the deferred purchase price for
inventory or (vi) Indebtedness subordinated to Indebtedness owed to the Bank
of up to $1,700,000.
5.09 LOANS. Not make any loans or advances or extend credit to any
third person, including, but not limited to, directors, officers, shareholders,
partners, employees, affiliated entities or subsidiaries of the Borrower, except
for credit extended in the ordinary course of the Borrower's business as
presently conducted and except up to an aggregate amount of $3,000,000 may be
loaned to the Borrower's subsidiaries in any one fiscal year.
5.10 LIENS AND ENCUMBRANCES. Not create, assume or permit to
exist any security interest, encumbrance, mortgage, deed of trust or other
lien (including, but not limited to, a lien of attachment, judgment or
execution) affecting any of the Borrower's properties, or execute or allow to
be filed any financing statement or continuation thereof affecting any of
such properties, except for Permitted Liens and as otherwise provided in this
Agreement.
5.11 TRANSFER ASSETS. Not sell, contract for sale, transfer, convey,
assign, lease or sublet any of its assets except in the ordinary course of
business as presently conducted by the Borrower, and then, only for full, fair
and reasonable consideration, and except up to $250,000 of assets for any reason
in any one fiscal year.
5.12 CHANGE IN NATURE OF BUSINESS. Not make any material change in
its financial structure or in the nature of its business as existing or
conducted as of the date of this Agreement.
5.13 FINANCIAL CONDITION. Maintain at all times:
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(a) A minimum net profit after tax at each fiscal year-end of
at least $1.00.
(b) A ratio of Debt to Effective Tangible Net Worth of not
more than 2.3 to 1 at each fiscal year-end.
(c) A minimum working capital of not less than $8,000,000 at
each fiscal year-end.
(d) A ratio of the sum of net profit after tax plus
depreciation and amortization and other non-cash transaction to the current
portion of long-term Debt plus preferred stock dividends of not less than
1.25 to 1 at each fiscal year-end.
(e) A minimum effective tangible net worth of not less than
$21,050,000.00.
For purposes of the foregoing, the term "effective tangible net
worth" shall mean the Borrower's stated net worth less all its intangible
assets (i.e., goodwill, trademarks, patents, copyrights, organization expense
and similar intangible items) but including leaseholds and leasehold
improvements and plus indebtedness subordinated (by its terms or by written
agreement) to indebtedness owed by the Borrower to the Bank and the term
"debt" shall mean all of the Borrower's liabilities excluding indebtedness
subordinated (by its terms or by written agreement) to indebtedness owed by
the Borrower to the Bank.
Notwithstanding anything herein to the contrary, the consolidated
financial statements of Golden State Acquisition Corporation shall be used
for purposes of determining compliance with Section 7.14 (b) and (e) hereof.
5.14 CAPITAL EXPENSES. Not make any fixed capital expenditure or
any commitment therefor, including, but not limited to, incurring liability
for leases which would be, in accordance with generally accepted accounting
principles, reported as capital leases, or purchase any real or personal
property in an aggregate amount exceeding $1,000,000 in any one fiscal year,
other than capital expenditures in connection with the Borrower's grafting
program.
5.15 RENTALS. Not incur liability (in addition to that incurred
as of the date of this Agreement) for the payment of, or pay, rentals for the
renting, leasing or use of real or personal property in an aggregate amount
exceeding $1,000,000 in any one fiscal year.
5.16 NOTICES. Give prompt written notice to the Bank of any and
all Events of Default and litigation, arbitration or administrative
proceedings to which the Borrower is a party and in which the claim or
liability exceeds $100,000.
5.17 ENVIRONMENTAL COMPLIANCE. The Borrower shall:
(a) Implement and comply in all material respects with all
applicable federal, state and local laws, ordinances, statutes and
regulations with respect to hazardous or toxic wastes, substances or related
materials, industrial hygiene or to environmental conditions.
(b) Not own, use, generate, manufacture, store, handle,
treat, release or dispose of any hazardous or toxic wastes, substances or
related materials, except in accordance with applicable requirements of law.
(c) Give prompt written notice of any discovery of or suit,
proceeding, claim, dispute, threat, inquiry or filing respecting hazardous or
toxic wastes, substances or related materials.
(d) At all times indemnify and hold harmless Bank from and
against any and all liability arising out of the use, generation,
manufacture, storage, handling, treatment, disposal or presence of hazardous
or toxic wastes, substances or related materials by Borrower.
SECTION VI
EVENTS OF DEFAULT
Any one or more of the following described events shall constitute
an event of default (an "Event of Default") under this Agreement:
6.01 NON-PAYMENT. The Borrower shall fail to pay any payment of
principal or interest or any other sum referred to in this Agreement within
10 days of when due.
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6.02 PERFORMANCE UNDER THIS AND OTHER AGREEMENTS. The Borrower
shall fail in any material respect to perform or observe any term, covenant
or agreement contained in this Agreement or in any document, instrument or
agreement evidencing or relating to any indebtedness of the Borrower (whether
owed to the Bank or third persons other than trade creditors), and any such
failure (exclusive of the failure to pay money to the Bank under this
Agreement which results in an event of default or under any other instrument,
document or agreement with the Bank, which failure shall constitute and be an
immediate Event of Default if not paid when due or when demanded to be due
following the expiration of any applicable grace period) shall continue for
more than 30 days after written notice from the Bank to the Borrower of the
existence and character of such Event of Default.
6.03 REPRESENTATIONS AND WARRANTIES; FINANCIAL STATEMENTS. Any
representation or warranty made by the Borrower under or in connection with
this Agreement or any financial statement given by the Borrower or any
Guarantor shall prove to have been incorrect in any material respect when
made or given or when deemed to have been made or given.
6.04 INSOLVENCY. The Borrower or any Guarantor shall: (i) become
insolvent or be unable to pay its debts as they mature; (ii) make an
assignment for the benefit of creditors or to an agent authorized to
liquidate any substantial amount of its properties or assets; (iii) file a
voluntary petition in bankruptcy or seeking reorganization or to effect a
plan or other arrangement with creditors; (iv) file an answer admitting the
material allegations of an involuntary petition relating to bankruptcy or
reorganization or join in any such petition; (v) become or be adjudicated a
bankrupt; (vi) apply for or consent to the appointment of, or consent that an
order be made appointing, any receiver, custodian or trustee, for itself or
any of its properties, assets or businesses; or (vii) any receiver, custodian
or trustee shall have been appointed for all or a substantial part of its
properties, assets or business and shall not be discharged within 60 days
after the date of such appointment.
6.05 EXECUTION. Any writ of execution or attachment or any
judgment lien shall be issued against any property of the Borrower and shall
not be discharged or bonded against or released within 60 days after the
issuance or attachment of such writ or lien.
6.06 REVOCATION OR LIMITATION OF GUARANTY. Any Guaranty shall be
revoked or limited or its enforceability or validity shall be contested by
any Guarantor, by operation of law, legal proceeding or otherwise or any
Guarantor who is a natural person shall die.
6.07 SUSPENSION. The Borrower shall voluntarily suspend the
transaction of business or allow to be suspended, terminated, revoked or
expired any material permit, license or approval of any governmental body
necessary to conduct the Borrower's business as now conducted.
6.08 CHANGE IN OWNERSHIP. There shall occur a sale, transfer,
disposition or encumbrance (whether voluntary or involuntary), or an
agreement shall be entered into to do so, with respect to more than 20% of
the issued and outstanding capital stock of the Borrower, other than warrants
held by Xxxx Xxxxxxx Mutual Life Insurance Company and/or certain of its
respective affiliates.
SECTION VII
REMEDIES ON DEFAULT
Upon the occurrence of any Event of Default, the Bank may, in its
sole and absolute election, without demand and upon only such notice as may
be required by law:
7.01 ACCELERATION. Declare any or all of the Borrower's
indebtedness owing to the Bank, whether under this Agreement or under any
other document, instrument or agreement, immediately due and payable, whether
or not otherwise due and payable.
7.02 CEASE EXTENDING CREDIT. Cease extending credit to or for the
account of the Borrower under this Agreement or under any other agreement now
existing or hereafter entered into between the Borrower and the Bank.
7.03 TERMINATION. Terminate this Agreement as to any future
obligation of the Bank without affecting the Borrower's obligations to the
Bank or the Bank's rights and remedies under this Agreement or under any
other document, instrument or agreement.
7.04 NON-EXCLUSIVITY OF REMEDIES. Exercise one or more of the
Bank's rights set forth herein or seek such other rights or pursue such other
remedies as may be provided by law, in equity or in any other agreement now
existing or hereafter entered into between the Borrower and the Bank, or
otherwise.
-8-
SECTION VIII
MISCELLANEOUS PROVISIONS
8.01 ACCOUNTING AND OTHER TERMS. All references to financial
statements, assets, liabilities and similar accounting terms not
specifically defined in this Agreement shall mean such financial statements
prepared and such terms determined in accordance with generally accepted
accounting principles consistently applied. Except where otherwise specified
in this Agreement, all financial data submitted or to be submitted to the
Bank pursuant to this Agreement shall be prepared in accordance with
generally accepted accounting principles consistently applied. Terms not
otherwise defined in this Agreement shall have the meanings attributed to
such terms in the California Uniform Commercial Code.
8.02 DEFAULT INTEREST RATE. The Borrower shall pay the Bank
interest on any indebtedness or amount payable under this Agreement, if an
Event of Default has occurred or is continuing, at a rate which is 3% in
excess of the rate otherwise provided under this Agreement.
8.03 APPLICATION OF PAYMENTS: All amounts received by the Bank
whether as payments or as proceeds from the disposition or liquidation of
collateral, if any, shall be applied to the Borrower's indebtedness to the
Bank as follows: first, to the costs and expenses of collection, enforcement,
protection and preservation, including but not limited to the Bank's lien in
the collateral and including court costs and reasonable attorneys' fees,
whether or not suit is commenced by the Bank; next, to those costs and
expenses incurred by the Bank in enforcing and collecting this Agreement
including protecting, preserving, liquidating, selling or disposing of the
collateral, if any; next, to the payment of accrued and unpaid interest on
all of the Obligations; next, to the payment of the outstanding principal
balance of the Obligations; and last, to the payment of any other
indebtedness owed by the Borrower to the Bank. Any excess existing after the
payment of the foregoing will be returned or paid by the Bank to the Borrower.
8.04 DISPUTE RESOLUTION. It is understood and agreed that upon the
request of any party to this agreement any dispute, claim, or controversy of
any kind, whether in contract or in tort, statutory or common law, legal or
equitable now existing or hereinafter arising between the parties in any
way arising out of, pertaining to or in connection with: (1) this Agreement,
or any related agreements, documents, or instruments, (2) all past and
present loans, credits, accounts, deposit accounts (whether demand deposits or
time deposits), safe deposit boxes, safekeeping agreements, guarantees,
letters of credit, goods or services, or other transactions, contracts or
agreements of any kind, (3) any incidents, omissions, acts, practices, or
occurrences causing injury to either party whereby the other party or its
agents, employees or representatives may be liable, in whole or in part, or
(4) any aspect of the past or present relationships of the parties, shall be
resolved through a two-step dispute resolution process administered by
Judicial Arbitration & Mediation Services, Inc. ("J*A*M*S") as follows:
a) STEP I - MEDIATION: At the request of any party to the
dispute, claim or controversy of the matter shall be referred to
the nearest office of J*A*M*S for mediation, that is, an informal,
non-binding conference or conferences between the parties in which
a retired judge or justice for the J*A*M*S panel will seek to guide
the parties to a resolution of the case.
b) STEP II - CONTRACTS SECURED BY REAL ESTATE - TRIAL BY COURT
REFERENCE [SECTION 638(1)] CODE OF CIVIL PROCEDURE): If the
dispute, claim or controversy is not one required or agreed to be
submitted to arbitration as provided by subparagraph (b) and has
not been resolved by Step I mediation, them any remaining dispute,
claim or controversy shall be submitted for determination by a
trial on Order of Reference conducted by a retired judge or justice
from the panel of J*A*M*S appointed pursuant to the provisions of
California Code of Civil Procedure Section 638(1) or any amendment,
addition or successor section thereto to hear the case and report a
statement of decision thereon. The parties intend this general
reference agreement to be specifically enforceable in accordance
with said section. If this parties are unable to agree upon a
member of the J*A*M*S panel to act as referee then one shall be
appointed by the Presiding Judge of the county wherein the hearing
is to be held. The parties shall pay in advance, to the referee, the
estimated reasonable fees and costs of the reference, as may be
specified in advance by the referee. The parties shall initially
share equally, by paying their proportionate amount of the
estimated fees and costs of the reference. Failure of any party to
make such a fee deposit shall result in a forfeiture by the
non-depositing party of the right to prosecute or defend the
cause(s) of action which is(are) the subject of the reference, but
shall not otherwise serve to xxxxx, stay or suspend the reference
proceeding.
c) PROVISIONAL REMEDIES. SELF HELP AND FORECLOSURE: No
provision of, or the exercise of any right(s) under subparagraph
(b), nor any other provision of this Dispute Resolution Provision,
shall limit the right of any party to exercise self help remedies
such as set off, to foreclose against any real or personal property
collateral, or obtain provisional or ancillary remedies such as
injunctive relief or the appointment of a receiver from any court
having jurisdiction before, during or after the pendency of any
MEDIATION OR TRIAL ON ORDER OF REFERENCE. At Bank's option,
foreclosure under a deed of trust
-9-
or mortgage may be accomplished either by exercise of power of sale
under the deed of trust or mortgage, or by judicial foreclosure.
The institution and maintenance of an action for provisional
remedies pursuit of provisional or ancillary remedies or exercise
of self help remedies shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or
claim to MEDIATION OR TRIAL ON ORDER OF REFERENCE.
8.05 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE BORROWER AND THE BANK EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
8.06 RELIANCE. Each warranty, representation, covenant and agreement
contained in this Agreement shall be conclusively presumed to have been
relied upon by the Bank regardless of any investigation made or information
possessed by the Bank and shall be cumulative and in addition to any other
warranties, representations, covenants or agreements which the Borrower shall
now or hereafter give, or cause to be given, to the Bank.
8.07 ATTORNEY'S FEES. In the event of any action in relation to
this Agreement or any document, instrument or agreement executed with respect
to, evidencing or securing the indebtedness hereunder, the prevailing party,
in addition to all other sums to which it may be entitled, shall be entitled
to reasonable attorneys' fees.
8.08 NOTICES. All notices, payments, requests, information and
demands which either party hereto may desire, or may be required to give or
make to the other party, shall be given or made to such party by hand
delivery or through deposit in the United States mail, postage prepaid,
rapifax, Federal Express or by Western Union telegram, addressed to the
address set forth below such party's signature to this Agreement or to such
other address as may be specified from time to time in writing by either
party to the other.
8.09 WAIVER. Neither the failure nor delay by the Bank in
exercising any right hereunder or under any document, instrument or agreement
mentioned herein shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder or under any other document,
instrument or agreement mentioned herein preclude other or further exercise
thereof or the exercise of any other right; nor shall any waiver of any right
or default hereunder or under any other document, instrument or agreement
mentioned herein constitute a waiver of any other right or default or
constitute a waiver of any other default of the same or any other term or
provision.
8.10 CONFLICTING PROVISIONS. To the extent that any of the terms or
provisions contained in this Agreement are inconsistent with those contained
in any other document, instrument or agreement executed pursuant hereto, the
terms and provisions contained herein shall control. Otherwise, such
provisions shall be considered cumulative.
8.11 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Borrower and the Bank and their
respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
Bank's prior written consent. The Bank may sell, assign or grant
participations in all or any portion of its rights and benefits hereunder,
with the prior written consent of the Borrower, which consent shall not be
unreasonably withheld. The Borrower agrees that, in connection with any such
sale, grant or assignment, the Bank may deliver to the prospective buyer,
participant or assignee financial statements and other relevant information
relating to the Borrower.
8.12 JURISDICTION. This Agreement, any notes issued hereunder, and
any documents, instruments or agreements mentioned or referred to herein
shall be governed by and construed according to the laws of the State of
California, to the jurisdiction of whose courts the parties hereby submit.
8.13 HEADINGS. The headings set forth herein are solely for the
purpose of identification and have no legal significance.
-10-
8.14 ENTIRE AGREEMENT. This Agreement and the Loan Documents shall
constitute the entire and complete understanding of the parties with respect to
the transactions contemplated hereunder. All previous conversations, memoranda
and writings between the parties or pertaining to the transactions contemplated
hereunder that are not incorporated or referenced in this Agreement or the Loan
Documents are superseded hereby.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA GOLDEN STATE VINTNERS
By: By:
-------------------------------- ----------------------------------
----------------------------------- --------------------------------------
(Name/Title) (Name/Title)
By: By:
-------------------------------- ----------------------------------
----------------------------------- --------------------------------------
(Name/Title) (Name/Title)
Address: Address:
--------------------------- --------------------------------
-----------------------------------
-11-
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
SANWA BANK CALIFORNIA
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxxx Xxxxxxxx
Fresno Commercial Banking Center #080-1
--------------------------------------------------------------------------------
AMENDMENT TO TERM LOAN AGREEMENT
This First Amendment to Term Loan Agreement (the "Amendment") is made and
entered into this 18th day of October, 1996, by and between SANWA BANK
CALIFORNIA (the "Bank") and GOLDEN STATE VINTNERS (the "Borrower") with respect
to the following:
This Amendment shall be deemed to be a part of and subject to that
certain Term Loan Agreement dated as of May 1, 1995, as it may be amended
from time to time, and any and all addenda and riders thereto (collectively
the "Agreement"). Unless otherwise defined herein, all terms used in this
Amendment shall have the same meanings as in the Agreement. To the extent
that any of the terms or provisions of this Amendment conflict with those
contained in the Agreement, the terms and provisions contained herein shall
control.
WHEREAS, the Agreement is secured by a certain deed of trust dated May 1, 1995,
and recorded on May 5, 1995, as Instrument No. 95054740, of the Official Records
of the County of Fresno, State of California (the "Deed of Trust") encumbering
certain real property described in the attached Exhibit A and which Deed of
Trust provides that it secures indebtedness evidenced by the Agreement as the
Agreement may be modified or extended; and
WHEREAS, the Borrower and the Bank mutually desire to extend and/or modify the
Agreement.
NOW THEREFORE, for value received and hereby acknowledged, the Borrower and the
Bank agree as follows:
1. CHANGE IN ADDITIONAL INDEBTEDNESS. Section 5.08 of the Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
"5.08 ADDITIONAL INDEBTEDNESS. Not, and not permit any subsidiary
of the Borrower to, after the date hereof, create, incur or assume,
directly or indirectly, any additional Indebtedness other than
(i) Indebtedness owed or to be owed to the Bank or (ii) Indebtedness
to trade creditors incurred in the ordinary course of the Borrower's
business or (iii) Indebtedness of up to $45,000,000 owed to Xxxxx
Winery, Prudential Life Insurance Company and Xxxx Xxxxxxx Mutual Life
Insurance Company or (iv) Indebtedness secured by a Permitted Lien or
(v) Indebtedness in respect of deferred taxes or (vi) Indebtedness to
growers representing the deferred purchase price for inventory or (vi)
Indebtedness subordinated to Indebtedness owed to the Bank of up to
$1,700,000."
2. CHANGE IN FINANCIAL CONDITION. Section 5.13(b) and (c) of the Agreement
is deleted in its entirety and the following is substituted in lieu thereof and
Section 5.13 (e) is deleted in its entirety:
"(b) A ratio of Debt to Effective Tangible Net Worth of not more
than 3.5 to 1 are each fiscal year-end.
(c) A minimum working capital of not less than $12,000,000 at
fiscal year-end 1997 and thereafter."
3. CHANGE IN CAPITAL EXPENSES. Section 5.14 of the Agreement is deleted in
its entirety and the following is substituted in lieu thereof:
"5.14 CAPITAL EXPENSES. Not make any fixed capital expenditure
or any commitment therefor, including, but not limited to, incurring
liability for leases which would be, in accordance with generally
accepted accounting principles, reported as capital leases, or
purchase any real or personal property in an aggregate amount
exceeding
-1-
$1,500,000 in any one fiscal year, other than capital expenditures
in connection with the Borrower's grafting program."
4. CONFIRMATION OF OTHER TERMS AND CONDITIONS OF THE AGREEMENT. Except
as specifically provided in this Amendment, all other terms, conditions and
covenants of the Agreement unaffected by this Amendment shall remain unchanged
and shall continue in full force and effect and the Borrower hereby covenants
and agrees to perform and observe all terms, covenants and agreements provided
for in the Agreement, as hereby amended.
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA GOLDEN STATE VINTNERS
By: By:
----------------------------- ---------------------------
---------------------------------- --------------------------------
(Name/Title) (Name/Title)
By:
---------------------------
--------------------------------
(Name/Title)
-2-
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
SANWA BANK CALIFORNIA
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxxxx Xxxxxxxx
Fresno Commercial Banking Center #DBD-1
-------------------------------------------------------------------------------
AMENDMENT TO TERM LOAN AGREEMENT
This Second Amendment to Term Loan Agreement (the "Amendment") is made and
entered into this 18th day of December, 1996, by and between SANWA BANK
CALIFORNIA (the "Bank") and GOLDEN STATE VINTNERS (the "Borrower") with respect
to the following:
This Amendment shall be deemed to be a part of and subject to that certain
Term Loan Agreement dated as of May 1, 1995, as it may be amended from time to
time, and any and all addenda and riders thereto (collectively the "Agreement").
Unless otherwise defined herein, all terms used in this Amendment shall have the
same meanings as in the Agreement. To the extent that any of the terms or
provisions of this Amendment conflict with those contained in the Agreement, the
terms and provisions contained herein shall control.
WHEREAS, the Agreement is secured by a certain deed of trust dated May 1,
1995, and recorded on May 5, 1995, as Instrument No. 95054740, of the Official
Records of the County of Fresno, State of California (the "Deed of Trust")
encumbering certain real property described in the attached Exhibit A and which
Deed of Trust provides that it secures indebtedness evidenced by the Agreement
as the Agreement may be modified or extended; and
WHEREAS, the Borrower and the Bank mutually desire to extend and/or modify
the Agreement.
NOW THEREFORE, for value received and hereby acknowledged, the Borrower and
the Bank agree as follows:
1. CHANGE IN TERM LOAN. The first paragraph of Section 1.02 of the
Agreement is deleted in its entirety and the following is substituted in lieu
thereof:
"1.02 TERM LOAN. The Bank agrees to lend to the Borrower, upon the
Borrower's request therefore, up to the maximum amount of $6,200,000
(the "Term Loan")".
2. CHANGE IN INTEREST RATES. All references to 30 and 60 days in Section
1.02 C. (b) and (c) of the Agreement is deleted in their entirety.
3. CHANGE TO PRINCIPAL. Section 1.02 D. of the Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
"D. PRINCIPAL. The Borrower hereby promises and agrees to pay
principal in 2 equal installments of $325,000.00 per installment on
March 5, 1996 and March 5, 1997 and 7 equal installments of $413,000
commencing on March 5, 1998 and continuing on the fifth day of each
March of each year thereafter up to and including March 5, 2004. On
March 5, 2005, the Borrower hereby promises and agrees to pay to the
Bank the entire unpaid principal balance, together with accrued and
unpaid interest".
4. MODIFICATION OF PAYMENTS. Section 1.02 B. of the Agreement is deleted
in its entirety.
-1-
5. CHANGE IN INDEBTEDNESS. Section 5.08 of the Agreement is deleted in
its entirety and the following is substituted in lieu thereof:
"5.08 ADDITIONAL INDEBTEDNESS. Not, and not permit any
subsidiary of the Borrower to, after the date hereof, create,
incur or assume, directly or indirectly, any additional
Indebtedness other than (i) Indebtedness owed or to be owed to
the Bank or (ii) Indebtedness to trade creditors incurred in the
ordinary course of the Borrower's business or (iii) Indebtedness
of up to $45,000,000 owed to Xxxxx Winery, Prudential Life
Insurance Company and Xxxx Xxxxxxx Mutual Life Insurance Company
or (iv) Indebtedness secured by a Permitted Lien or
(v) Indebtedness in respect of deferred taxes or
(vi) Indebtedness to growers representing the deferred purchase
price for inventory or (vi) Indebtedness subordinated to
Indebtedness owed to the Bank of up to $1,700,000 or (vii)
Indebtedness of up to $500,000 owed to Vintners International,
Inc.".
6. MODIFICATION OF COVENANTS. Section 5.13 (b), (c) and (e) of the
Agreement are deleted in their entirety.
7. CHANGE IN CAPITAL EXPENDITURES. Section 5.14 of the Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
"5.14 CAPITAL EXPENSES. Not make any fixed capital expenditure
or any commitment therefor, including, but not limited to,
incurring liability for leases which would be, in accordance with
generally accepted accounting principles, reported as capital
leases, or purchase any real or personal property in an aggregate
amount exceeding $2,500,000 in any one fiscal year, other than
capital expenditures in connection with the Borrower's
acquisition of or capital improvements to a winery in Soledad,
California provided that such capital expenditures may not exceed
$8,600,000.00".
8. FEES. As a condition precedent to the effectiveness of this Agreement,
Borrower agrees to pay to Bank a fee of $17,000.00.
9. CONFIRMATION OF OTHER TERMS AND CONDITIONS OF THE AGREEMENT. Except as
specifically provided in this Amendment, all other terms, conditions and
covenants of the Agreement unaffected by this Amendment shall remain unchanged
and shall continue in full force and effect and the Borrower hereby covenants
and agrees to perform and observe all terms, covenants and agreements provided
for in the Agreement, as hereby amended.
IN WITNESS WHEREOF, this Amendment has been executed by the parties hereto
as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA GOLDEN STATE VINTNERS
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President Xxxxxxx X. X'Xxxxx, President, Treasurer
----------------------------------- -------------------------------------------
(Name/Title) (Name/Title)
By:
----------------------------------------
-------------------------------------------
(Name/Title)
-2-
RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
SANWA BANK CALIFORNIA
0000 Xxxxxx Xx.
Xxxxxx, XX 00000
ATTN: Xxxxxx Xxxxxxxx
--------------------------------------------------------------------------------
APN# ________
THIRD AMENDMENT TO TERM LOAN AGREEMENT
This Third Amendment to Term Loan Agreement (the "Amendment") is made
and entered into this 18th day of April, 1997 by and between SANWA BANK
CALIFORNIA (the "Bank") and GOLDEN STATE VINTNERS (the "Borrower") with
respect to the following:
This Amendment shall be deemed to be a part of and subject to that
certain Term Loan Agreement dated as of May 1, 1995, as it may be amended
from time to time, and any and all addenda and riders thereto (collectively
the "Agreement"). Unless otherwise defined herein, all terms used in this
Amendment shall have the same meanings as in the Agreement. To the extent
that any of the terms or provisions of this Amendment conflict with those
contained in the Agreement, the terms and provisions contained herein shall
control.
WHEREAS, the Agreement is secured by a certain deed of trust dated May
1, 1995, and recorded on May 5, 1995, as Instrument No. 95054740, of the
Official Records of the County of Fresno, State of California (the "Deed of
Trust") encumbering certain real property described in the attached Exhibit A
and which Deed of Trust provides that it secures indebtedness evidenced by
the Agreement as the Agreement may be modified or extended; and
WHEREAS, the Borrower and the Bank mutually desire to extend and/or
modify the Agreement.
NOW THEREFORE, for value received and hereby acknowledged, the Borrower
and the Bank agree as follows:
1. MODIFICATION OF INTEREST RATE. The Variable Rate provided for in
Section 1.02 C of the Agreement is reduced by .50% and the Fixed Rate and
Eurodollar Rate are reduced by .30%.
2. CONDITIONS PRECEDENT. As a condition precedent to the effectiveness
of this Agreement,
(a) Borrower agrees to pay Bank all of Bank's out-of-pocket
expenses in connection with the preparation and negotiation of this Amendment.
(b) Recordation of this Amendment in the official records of the
County of Fresno.
(c) A 110.5 endorsement to the Bank's title policy on the real
property.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms the
representations and warranties contained in the Agreement and represents that
no event, which with notice or lapse of time, could become an Event of
Default, has occurred or is continuing.
4. CONFIRMATION OF OTHER TERMS AND CONDITIONS OF THE AGREEMENT. Except
as specifically provided in this Amendment, all other terms, conditions and
covenants of the Agreement [and the Deed of Trust] unaffected by this
Amendment shall remain unchanged and shall continue in full force and effect
and the Borrower hereby covenants and agrees to perform and observe all
terms, covenants and agreements provided for in the Agreement, as hereby
amended.
5. GOVERNING LAW. This Amendment shall be governed and construed in
accordance with the laws of the State of California to which jurisdiction the
parties hereto hereby consent and submit.
5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
-1-
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA GOLDEN STATE VINTNERS
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxxxx, VP CFO
---------------------------------- ------------------------------------
Name/Title Name/Title
ATTACH NOTARY ACKNOWLEDGMENT(S)
-2-
