FIRST OMNIBUS AMENDMENT
TO CERTAIN OF THE OPERATIVE DOCUMENTS
THIS FIRST AMENDMENT dated as of February 17, 2000 (this "Amendment")
amends (i) the Participation Agreement dated as of October 29, 1999 (the
"Participation Agreement"), entered into by and among XXXXXX MONDAVI PROPERTIES,
INC., a California corporation, as the Lessee and Construction Agent (in its
capacity as lessee, the "Lessee" and in its capacity as Construction Agent, the
"Construction Agent"); THE XXXXXX MONDAVI CORPORATION, a California corporation,
as a Guarantor (individually the "Guarantor"); R.M.E. INC., a California
corporation, as a Guarantor (individually, the "Guarantor" and, collectively
with The Xxxxxx Mondavi Corporation, the "Guarantors"); RMP 1999 TRUST, a
grantor trust, as the Lessor Trust (the "Lessor Trust"); FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, individually as set forth
herein and as Trustee under the Lessor Trust ("Owner Trustee"); XXXXXX TRUST AND
SAVINGS BANK, an Illinois banking corporation, as a Certificate Holder (together
with any permitted successors and assigns thereto, each a "Certificate Holder"
and collectively the "Certificate Holders"); XXXXXX TRUST AND SAVINGS BANK, as
Agent Certificate Holder for the Certificate Holders (in such capacity, the
"Agent Certificate Holder"); XXXXXX TRUST AND SAVINGS BANK, an Illinois banking
organization ("Xxxxxx"), and the other various financial institutions as are or
may from time to time become lenders (the "Lenders") under the Loan Agreement;
Xxxxxx Trust and Savings Bank, as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders; and BMO GLOBAL CAPITAL SOLUTIONS, INC.,
a Delaware corporation, as Arranger (in such capacity, the "Arranger"); (ii) the
Loan Agreement dated as of October 29, 1999 (the "Loan Agreement"), among the
Lessor Trust, the Lender and the Administrative Agent; (iii) the Master Lease
and Deed of Trust dated as of October 29, 1999 (the "Master Lease"), between the
Lessor Trust and the Lessee and (iv) the Assignment of Lease and Rent dated as
of October 29, 1999 (the "Assignment") from the Lessor Trust, as Assignor, to
the Administrative Agent for the Lenders, as Assignee. Terms defined in the
Participation Agreement are, unless otherwise defined herein or the context
otherwise requires, used herein as defined therein.
WHEREAS, the Lessee, the Guarantors, the Lessor Trust, the Owner
Trustee, the Certificate Holders, the Agent Certificate Holder, the Lenders, the
Administrative Agent and the Arranger have entered into the Participation
Agreement;
WHEREAS, the Lessor Trust, the Lenders and the Administrative Agent
have entered into the Loan Agreement;
WHEREAS, the Lessor Trust and Lessee have entered into the Master
Lease;
WHEREAS, the Lessor Trust and Administrative Agent for the Lenders have
entered into the Assignment; and
WHEREAS, the parties hereto desire to amend the Participation
Agreement, the Loan Agreement, the Master Lease and Assignment as more fully set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendment to Participation Agreement. Effective on (and
subject to the occurrence of) the Amendment Effective Date (as defined below),
the Participation Agreement shall be amended in accordance with Sections 1.1
through 1.10:
Section 1.1. Procedures for Advances. Section 3.4(a) of the
Participation Agreement shall be amended by replacing the phrase "one (1)" in
the last sentence thereof with the phrase "three (3)" therefor.
Section 1.2. Interest Period Selection/Continuation/Conversion
Elections. Section 3.6 of the Participation Agreement shall be amended by
replacing the phrase "four (4)" in subsection (d) thereof with the phrase "six
(6)" therefor.
Section 1.3. Consolidated Adjusted Net Worth. Section 10.1(i) of the
Participation Agreement shall be amended by replacing (i) the dollar amount
"$135,000,000" in subsection (a) thereof with the dollar amount "$200,000,000"
therefor and (ii) the date "September 30, 1997" in subsection (b) thereof with
the date "December 31, 1999" therefor.
Section 1.4. Release of Collateral. The proviso to Section 15.5 of the
Participation Agreement shall be amended by (i) deleting the "or" at the end of
subsection (a)(iv) thereof; (ii) renumbering subsection (a)(v) as subsection
(a)(vi) and (iii) inserting in the appropriate numerical order a new subsection
(v) as follows:
"(v) except as otherwise provided in the Operative Documents,
consent to the release of any Lien in favor of the Lessor Trust,
Certificate Holders, Agent Certificate Holder, Administrative Agent or
Lenders on any Property created by any Operative Document or release
any Guarantor from its obligations under the Guaranty; or"
Section 1.5. Amendment to Aggregate Commitment Amount. The definition
of "Aggregate Commitment Amount" in Appendix A to the Participation Agreement is
amended by deleting the amount "$30,000,000" therein and substituting the amount
"$85,000,000" therefor.
Section 1.6. Amendment to Certificate Holder Margin. The definition of
"Certificate Holder Margin" in Appendix A to the Participation Agreement is
amended by deleting the amount "2.05%" therein and substituting the amount
"1.25%" therefor.
Section 1.7. Amendment to Loan Margin Definition. The definition "Loan
Margin" in Appendix A to the Participation Agreement is amended by deleting the
amount "0.65%" therein and substituting the amount "1.10%" therefor.
Section 1.8. Form of Commitments. Schedule I to the Participation
Agreement shall be amended and restated in its entirety by replacing such with
Exhibit A attached hereto.
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Section 1.9. Notice Information, Wire Instructions and Funding Offices.
Schedule II to the Participation Agreement shall be amended by adding at the end
thereof the information contained on Exhibit B attached hereto.
Section 1.10. Form of Funding Request. Exhibit B to the Participation
Agreement shall be amended and restated in its entirety by replacing such with
Exhibit C attached hereto.
Section 2. Amendment to Loan Agreement. Effective on (and subject to
the occurrence of) the Amendment Effective Date, the Loan Agreement shall be
amended in accordance with Sections 2.1 through 2.2:
Section 2.1. Commitment. The Second Recital to the Loan Agreement shall
be amended by replacing the dollar amount "$29,100,000" with the dollar amount
"$82,450,000".
Section 2.2. New Certificate Holders and New Lenders. Those certain new
lenders and new certificate holders which have executed this Amendment
(collectively in such capacity, the "New Lenders" or "New Certificate Holders",
and each, individually in such capacity, a "New Lender" or "New Certificate
Holder") shall each be deemed, as applicable in their respective capacity, as a
Lender signatory to the Loan Agreement, a Certificate Holder signatory to the
Trust Agreement and a Participant signatory to the Participation Agreement and
shall have all the rights, benefits, duties and obligations of a Lender under
the Loan Agreement, a Certificate Holder under the Trust Agreement and a
Participant under the Participation Agreement, as well as the other Operative
Documents. The Lessor Trust agrees that it shall execute and deliver to the New
Lenders a Note evidencing each such New Lender's Commitment pursuant to the Loan
Agreement, and the Owner Trustee agrees that it shall execute and deliver to the
New Certificate Holders a Certificate evidencing such New Certificate Holder's
Certificate Holder Amount pursuant to the Participation Agreement. Accordingly,
all references in the Operative Documents to the terms "Lender" and "Lenders"
shall be deemed to include, and be a reference to, the New Lenders and all
references in the Loan Agreement and the other Operative Documents to the terms
"Note" and "Notes" shall be deemed to include, and be a reference to, the Notes
issued pursuant hereto by the Lessor Trust to the New Lenders. In addition, all
references in the Operative Documents to the terms "Certificate Holder" and
"Certificate Holders" shall be deemed to include, and be a reference to, the New
Certificate Holders and all references in the Operative Documents to the terms
"Certificate" and "Certificates" shall be deemed to include, and be a reference
to, the Certificates issued pursuant hereto by the Owner Trustee to the New
Certificate Holders. Each New Lender and New Certificate Holder agrees that they
will perform all of the duties and obligations which by the terms of the
Operative Documents are required to be performed by it as a Lender or
Certificate Holder, respectively.
Section 3. Amendment to Master Lease. Effective on (and subject to the
occurrence of) the Amendment Effective Date, the Master Lease shall be amended
in accordance with Sections 3.1 through 3.3:
Section 3.1. Section 16.1(l) shall be amended by replacing the phrase
"Intentionally Omitted" with the phrase "any ground lease comprising all or part
of a Property is amended, supplemental, modified or changed in any material
manner without the prior written consent of Administrative Agent and Agent
Certificate Holder or a default occurs under any such ground lease or any such
ground lease is terminated without the prior written consent of Administrative
Agent and Agent Certificate Holder."
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Section 3.2 Section 26.11 shall be amended by replacing the phrase
"Intentionally Omitted" with the following:
"Ground Lease. Lessee represents that with respect to
any Property that is subject to a ground lease, the copy of
the ground lease heretofore furnished to Lessor is true and
correct and has not been amended, modified or terminated in
any respect (except for amendments and modifications embodied
in written instruments heretofore delivered to Lessor), that
no event has occurred and no condition exists which would be a
ground for the cancellation or termination of the ground
lease, that the ground lease is valid, subsisting and in full
force and effect and is subject to no prior liens or
encumbrances whatsoever other than Permitted Property Liens.
Lessee agrees that it will observe, comply with and be bound
by each and all of the terms, covenants and agreements imposed
on it by any such ground lease."
Section 3.3. Exhibit A-1 to the Master Lease shall be amended by (i)
replacing the dollar amount "$30,000,000" in the first Notice provision on the
first page thereof with the dollar amount "$85,000,000" therefor; (ii) replacing
the dollar amount "$30,000,000" in line 14 of paragraph 5(b) thereof with the
dollar amount "$85,000,000" therefor and (iii) replacing the phrase "Thirty
Million Dollars ($30,000,000)" in paragraph 11 thereof with the phrase "Eighty
Five Million Dollars ($85,000,000)" therefor.
Section 4. Amendment to Assignment Effective on (and subject to the
occurrence of) the Amendment Effective Date, the Assignment shall be amended in
accordance with Sections 4.1:
Section 4.1. The First Recital to the Assignment shall be amended by
replacing the dollar amount "$30,000,000" with the dollar amount "$85,000,000".
Section 5. Representations and Warranties. The Lessee and Guarantor
represent and warrant to the Agent and the Lenders that, after giving effect
hereto, (a) each representation and warranty set forth in Section 8.2 of the
Participation Agreement is true and correct as of the date of the execution and
delivery of this Amendment by the Lessee and Guarantor with the same effect as
if made on such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct as
of such earlier date), and (b) no Event of Default or Unmatured Event of Default
exists.
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Section 6. Effectiveness. The amendments set forth in Sections 1 and 2
above shall become effective on the date (the "Amendment Effective Date") when
the Administrative Agent shall have received (a) counterparts of this Amendment
executed by the Lessee, the Guarantors, the Lessor Trust, the Owner Trustee, the
Certificate Holders, the Agent Certificate Holder, the Lenders, the
Administrative Agent and the Arranger, (b) copies of corporate action of the
respective Board of Directors of the Lessee and each Guarantor taken by such
respective Board of Directors relative to this Amendment certified by a
secretary or assistant secretary as of the date hereof to be true and correct
and in full force and effect as of such date; (c) Opinions of counsel for Lessee
and each Guarantor addressed to the Administrative Agent, the Agent Certificate
Holder, the Lessor Trust, the Owner Trustee, each of the Lenders and each of the
Certificate Holders in a form reasonably satisfactory to the Administrative
Agent; (d) execution, delivery and recordation of Amendments to the each
existing Lease Supplement, Assignment and, as necessary, supplements thereto
encompassing the amendments set forth herein and (e) for the benefit of each New
Lender and New Certificate Holder, an upfront fee as agreed between the Lessee
and each New Lender and New Certificate Holder.
Section 7. Reaffirmation of Guaranty. The Guarantors heretofore
executed and delivered to the Lessor Trust, the Owner Trustee, the Lenders, the
Certificate Holders, the Administrative Agent and the Agent Certificate Holder
the Guaranty dated October 29, 1999. The Guarantors hereby consent to this
Amendment and confirm that the Guaranty and all of the Guarantors' obligations
thereunder remain in full force and effect with respect to the obligations
guaranteed thereunder as such obligations have been amended and increased by
this Amendment. The Guarantors further agree that the consent of the Guarantors
to any further amendments to the Operative Documents shall not be required as a
result of this consent having been obtained, except to the extent, if any,
required by the Guaranty referred to above.
Section 8. Miscellaneous.
Section 8.1. Continuing Effectiveness, etc. As herein amended, the
Participation Agreement and Loan Agreement shall remain in full force and effect
and are hereby ratified and confirmed in all respects. After the Amendment
Effective Date, all references in the Participation Agreement, Loan Agreement
and the other Operative Documents to "Participation Agreement" or "Loan
Agreement" or similar terms shall refer to the Participation Agreement and Loan
Agreement as amended hereby.
Section 8.2. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
Section 8.3. Governing Law. This Amendment shall be a contract made
under and governed by the laws of the State of California applicable to
contracts made and to be performed entirely within such state.
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Section 8.4. Successors and Assigns. This Amendment shall be binding
upon the Lessee, the Guarantors, the Lessor Trust, the Owner Trustee, the
Certificate Holders, the Agent Certificate Holder, the Lenders, the
Administrative Agent and the Arranger and their respective successors and
assigns, and shall inure to the benefit of the Lessee, Guarantors, the Lessor
Trust, the Owner Trustee, the Certificate Holders, the Agent Certificate Holder,
the Lenders and the Administrative Agent and the respective successors and
assigns of the Lessor Trust, the Owner Trustee, the Certificate Holders, the
Agent Certificate Holder, the Lenders and the Administrative Agent.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this First Omnibus
Amendment to Certain of the Operative Documents to be duly executed and
delivered by their duly authorized officers as of the day and year first above
written.
XXXXXX MONDAVI PROPERTIES, INC., as
Lessee and Construction Agent
By
Name
Its
THE XXXXXX MONDAVI CORPORATION,
as a Guarantor
By
Name
Its
R.M.E. INC., as a Guarantor
By
Name
Its
XXXXXX TRUST AND SAVINGS BANK, as
Agent Certificate Holder and as a
Certificate Holder
By
Name
Its
XXXXXX TRUST AND SAVINGS BANK, as
Administrative Agent and as a Lender
By
Name
Its
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BMO GLOBAL CAPITAL SOLUTIONS, INC.,
as Arranger
By
Name
Its
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, except as expressly provided
herein, but solely as Owner Trustee
By_____________________________
Name
Its
RMP 1999 TRUST, as Lessor Trust
By: First Security Bank, National
Association, not in its individual
capacity but solely as Owner
Trustee
By
Name
Its
BANK OF AMERICA, N.A., as a Lender and
Certificate Holder
By
Name
Its
-8-
CREDIT AGRICOLE INDOSUEZ, as a Lender and
Certificate Holder
By
Name
Its
By
Name
Its
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EXHIBIT A
SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENTS
COMMITMENT
PARTICIPANT COMMITMENT PERCENTAGE
LENDERS
Xxxxxx Trust and Savings Bank $29,100,000 34.2353%
Bank of America, N.A. $29,100,000 34.2353%
Credit Agricole Indosuez $24,250,000 28.5294%
----------- --------
$82,450,000 97.0000%
CERTIFICATE HOLDERS
Xxxxxx Trust and Savings Bank $ 900,000 1.0588%
Bank of America, N.A. $ 900,000 1.0588%
Credit Agricole Indosuez $ 750,000 0.8824%
----------- -------
TOTAL $2,550,000 3.0000%
TOTAL COMMITMENT $85,000,000 100%
EXHIBIT B
Notice Information, Wire Instructions and Funding Offices
CERTIFICATE HOLDER: LENDER:
Bank of America, N.A. Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx Attention: Xx. Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Wire Transfer Instructions: Wire Transfer Instructions:
Bank: Bank of America Bank: Bank of America
ABA Number: 000000000 ABA Number: 000000000
Attention: Unit #1592 CLSC Attention: Unit #1592 CLSC
Account Number: 15921-83980 Account Number: 15921-83980
Ref: Benefit of Xxxxxx Mondavi
Corp./Obligor #9738664338 Ref: Benefit of Xxxxxx Mondavi
Corp./Obligor #9738664338
CERTIFICATE HOLDER: LENDER:
Credit Agricole Indosuez Credit Agricole Indosuez
00 Xxxx Xxxxxx, Xxxxx 0000 00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxxxx Attention: Xx. Xxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Wire Transfer Instructions: Wire Transfer Instructions:
Bank: Citibank, NA - New York Bank: Citibank, NA - New York
ABA Number: 000-000-000 ABA Number: 000-000-000
Attention: Credit Agricole
Indosuez - Chicago Attention: Credit Agricole Indosuez -
Chicago
Account Number: 00000000 Account Number: 00000000
Ref: Xxxxxx Mondavi Ref: Xxxxxx Mondavi
EXHIBIT C
EXHIBIT B TO PARTICIPATION AGREEMENT
FORM OF FUNDING REQUEST
___________, 2000
TO: The Agent Certificate Holder and the Administrative Agent,
pursuant to the Participation Agreement (the "Participation
Agreement") dated as of October 29, 1999 among the Lessee, the
Guarantors, the Lessor Trust, the Owner Trustee, the Agent
Certificate Holder, the Certificate Holders, the Lenders, the
Administrative Agent and the Arranger, as the same may be
amended, supplemented, amended and restated or otherwise
modified from time to time (capitalized terms used herein
shall have the meanings ascribed thereto in the Participation
Agreement).
FROM: Xxxxxx Mondavi Properties, Inc. (the "Construction Agent")
RE: [Acquisition Date][Funding Date]
1. This irrevocable Funding Request is hereby delivered by the
Construction Agent pursuant to Section 3.4(a) of the
Participation Agreement.
2. The [Acquisition Date][Funding Date] is scheduled for __________.
3. The amount of the Advance is $____________________.
4. With regard to the amount of the Advance, the amount of interest
on the Loans is $___________, and the amount of Yield is $_______.
5. The Loans and Certificate Holder Amounts will be [Base Rate
Loans/Certificate Holder Amounts] [Eurodollar Loans/Certificate
Holder Amounts]. The initial Interest Period for such
Eurodollar Loans/Certificate Holder Amounts will extend from
the [Acquisition Date][Funding Date] to the next Scheduled
Payment Date.
6. Funds shall be sent by wire transfer as follows:
a. Each Certificate Holder and Lender shall transfer its
Commitment Percentage of $ _______________ to the
following account of Agent Certificate Holder:
Bank:
ABA Number:
Account Name:
Account Number:
Ref:
Further Credit to:
[amount to be provided by the Construction Agent]
b. Lessee hereby instructs Agent Certificate Holder to
distribute the funds as follows:
[information to be provided by the Construction Agent]
7. All of the costs being funded pursuant to this Funding Request
relate to [the acquisition of the Property subject to the
Lease][the construction of improvements to the Property
subject to the Lease] and all moneys advanced to the Agent
Certificate Holder pursuant to this Funding Request will be
applied solely to the payment (or reimbursement) of such
costs.
8. After giving effect to the Advance requested hereby, the
Property Cost for the Property is $_________________ and such
amount does not exceed the Fair Market Sales Value for such
Property as set forth in the Appraisal therefor as delivered
pursuant to [Section 6.1(d)][Section 6.2(b)] of the
Participation Agreement.
[9. The Estimated Improvement Costs are $______________.]
In connection with such requested Advance, the Construction Agent
hereby represents and warrants to you as follows:
a. On the [Acquisition Date][Funding Date], both
immediately before and after giving effect to the
requested Advance and the application of the proceeds
thereof, the statements made by the Lessee and each
Guarantor in Section 8 of the Participation Agreement
are true and correct in all material respects.
b. After giving effect to the Advance requested hereby
(i) the aggregate outstanding amounts of each of the
Loans and the Certificate Holder Amounts does not
exceed the Commitments of the Lenders and the
Certificate Holders, respectively and (ii) the
[Acquisition Cost] [Property Cost] does not exceed
the Fair Market Sales Value of the Property as set
forth in the Appraisal of the Property delivered
pursuant to [Section 6.1(d)] [6.2(b)] of the
Participation Agreement.
c. All of the conditions precedent set forth in
Article VI of the Participation Agreement applicable
to the Advance have been satisfied or waived.
IN WITNESS WHEREOF, I have signed my name this _____ day of _______, ____.
XXXXXX MONDAVI PROPERTIES, INC.
By:
Name:
Title:
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