FOURTH OMNIBUS AMENDMENT
TO CERTAIN OF THE OPERATIVE DOCUMENTS
THIS FOURTH AMENDMENT dated as of July 12, 2001 (this "Amendment")
amends (i) the Participation Agreement, as amended, dated as of October 29, 1999
(the "Participation Agreement"), entered into by and among ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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"); ▇▇▇▇▇▇
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"); ▇▇▇▇▇▇ TRUST AND SAVINGS
BANK, as Agent Certificate Holder for the Certificate Holders (in such capacity,
the "Agent Certificate Holder"); ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, an Illinois
banking organization
("▇▇▇▇▇▇"), and the other various financial institutions as are or may
from time to time become lenders (the "Lenders") under the Loan Agreement;
▇▇▇▇▇▇ 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, as amended, dated as of October 29, 1999 (the "Loan Agreement"),
among the Lessor Trust, the Lenders and the Administrative Agent; (iii) the
Master Lease and Deed of Trust, as amended and supplemented, dated as of October
29, 1999 (the "Master Lease"), between the Lessor Trust and the Lessee and (iv)
the Assignment of Lease and Rent, as amended and supplemented, 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 1.8:
Section 1.1. Funding Requests - Construction Costs. Section 6.2(i) of
the Participation Agreement shall be amended by deleting the period at the end
thereof and substituting in its place the phrase "or Section 2.4(c) of the Loan
Agreement."
Section 1.2. Completion Costs and Construction Termination Costs. The
Participation Agreement shall be amended by inserting in the appropriate
numerical order a new section, Section 7.12, as follows:
"Section 7.12. Completion Costs and Construction Completion
Costs. The Administrative Agent and the Agent Certificate
Holder agree that no Completion Costs or Construction
Termination Costs will be incurred without the prior consent
of the Required Banks."
Section 1.3. Representations of the Lessee and the Guarantors - Tax
Returns. Section 8.2(m) of the Participation Agreement shall be amended by
deleting the phrase "Section 10.2(b)" in the last line thereof and substituting
in its place the phrase "Section 10.2(a)" therefor.
Section 1.4. General Indemnification - Basic Lease Term. The proviso at
the end of Section 13.1(b) of the Participation Agreement shall be amended by
amending and restating clause (4) thereof as follows:
"(4) any Claim arising in respect to the Property to the
extent attributable to acts or events occurring in the period
after the Lessee ceases to lease the Property from the Lessor
Trust under the related Lease to the extent caused by Lessor
Trust, provided that the facts supporting such Claim occur
after such period."
Section 1.5. Environmental Indemnity. The proviso at the end of Section
13.3 of the Participation Agreement shall be amended by inserting the phrase "to
the extent caused by Lessor Trust" immediately after the phrase "Property from
the Lessor Trust under the related Lease Supplement" in line 5 thereof and
immediately prior to the phrase ", provided that the facts" therein.
Section 1.6. Aggregate Commitment Amount Definition. The definition of
"Aggregate Commitment Amount" in Appendix A to the Participation Agreement is
amended by deleting the amount "$115,000,000" therein and substituting the
amount "$129,400,000" therefor.
Section 1.7. Amendment to Limited Recourse Default Definition. The
definition of "Limited Recourse Default" in Appendix A to the Participation
Agreement shall be amended by inserting a period immediately after the phrase
"observed and performed)" in line 11 thereof and deleting the remainder of such
definition in its entirety.
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. The Lessor Trust agrees that it shall (i) execute and
deliver to each Lender whose Commitment has changed, a Note evidencing such
Lender's revised Commitment and (ii) execute and deliver to each Certificate
Holder whose Commitment has changed, a Certificate evidencing such Certificate
Holder's revised Commitment.
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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 "$111,550,000" with the dollar amount
"$125,518,000" therefor.
Section 2.2. Indemnification. Section 8.7 to the Loan Agreement shall
be amended by deleting the phrases "liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements" in lines
5 and 12 thereof and substituting in their place the word "Claims" therefor.
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 Section 3.1:
Section 3.1. Exhibit A-1 to the Master Lease shall be amended by (i)
replacing the dollar amount "$115,000,000" in the first Notice provision on the
first page thereof with the dollar amount "$129,400,000" therefor; (ii)
replacing the dollar amount "$115,000,000" in line 14 of paragraph 5(b) thereof
with the dollar amount "$129,400,000" therefor and (iii) replacing the phrase
"One Hundred Fifteen Million Dollars ($115,000,000)" in paragraph 11 thereof
with the phrase "One Hundred Twenty Nine Million Four Hundred Thousand Dollars
($129,400,000)" 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 Section 4.1:
Section 4.1. The First Recital to the Assignment shall be amended by
replacing the dollar amount "$115,000,000" with the dollar amount "$129,400,000"
therefor.
Section 5. Amendment to each Operative Document. Effective on (and
subject to the occurrence of) the Amendment Effective Date, each Operative
Document shall be amended in accordance with Section 5.1:
Section 5.1. Owner Trustee. Each references in each Operative Document
to "First Security Bank, National Association" shall be and is hereby deleted
and amended and deemed to be "▇▇▇▇▇ Fargo Bank Northwest, N.A. (formerly known
as First Security Bank, National Association)".
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Section 6. Consent. Pursuant to Lease Supplement No. 8, the Lessor
Trust has leased the Subject Property commonly known as the "Hillside Vineyard"
to ▇▇▇▇▇▇ Mondavi Properties, Inc. Such Subject Property is a "Completed
Property" pursuant to the Master Lease and therefore the Basic Lease Term of the
Master Lease commenced on the Acquisition Date of such Subject Property.
Notwithstanding the terms and provisions of the Participation Agreement and the
other Operative Documents, in order to permit Construction Agent to renovate,
re-plant or refurbish the Hillside Vineyard, or portions thereof and finance
such renovation, re-planting or refurbishment under the Participation Agreement,
the undersigned hereby agree with Construction Agent that upon Construction
Agent's written request to the Administration Agent, portions of the "Hillside
Property" of not less than fifty contiguous acres may be removed from Lease
Supplement No. 8 and leased pursuant to a new Lease Supplement under the Master
Lease as an Uncompleted Property, provided that the Construction Agent complies
with all the conditions precedent and provisions of the Participation Agreement
for an Uncompleted Property.
Section 7. Confirmation. (a) The confirmation pursuant to this Section
7 specifically references (i) that certain Third Omnibus Amendment to Certain of
the Operative Documents, dated as of June 23, 2000, executed by Lessee and
Construction Agent, the Guarantors, the Agent Certificate Holder, the
Administrative Agent, the Arranger, the Lessor Trust, the Lenders and the
Certificate Holders, (ii) that certain First Amendment to Amended and Restated
Supplement No. 4 to Assignment of Lease and Rent, dated as June 23, 2000 made by
Lessor Trust in favor of Administrative Agent, (iii) that certain First
Amendment to Amended and Restated Lease Supplement NO. 4 dated as of June 23,
2000 between the Lessee and Lessor Trust, (iv) that certain First Amendment To
Supplement No. 7 to Assignment of Lease and Rent is dated as of June 23, 2000
made by Lessor Trust in favor of Administrative Agent and (v) that certain First
Amendment to Lease Supplement No. 7 dated as of June 23, 2000 between the Lessee
and Lessor Trust (herein, the above-referenced Amendments shall be collectively
referred to as the "Confirmation Documents").
(b) The undersigned each hereby acknowledge, agree to and affirm (i)
the Confirmation Documents, although dated prior to the execution of those
certain underlying agreements listed on Exhibit B hereto, were executed
concurrently with such agreements, (ii) the Confirmation Documents are deemed to
have been executed and dated as of the same date as the underlying agreements
listed on Exhibit B and respectively amended thereby, and (iii) the Amendments
and those certain underlying agreements listed on Exhibit B, as amended, are
currently enforceable and in full force and effect.
Section 8. 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 9. Effectiveness. The amendments set forth in Sections 1
through 5 above, the consent set forth in Section 6 above and the confirmation
set forth in Section 7 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; (e) a Note executed and
delivered by the Lessor Trust for the benefit of each Lender whose Commitment
changed pursuant to Section 1.2 hereof evidencing such Lender's revised
Commitment and (f) a Certificate executed and delivered by the Lessor Trust for
the benefit of each Certificate Holder whose Commitment changed pursuant to
Section 1.2 hereof evidencing such Certificate Holder's revised Commitment.
Section 10. 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 11. Miscellaneous.
Section 11.1. Continuing Effectiveness, etc. As herein amended, the
Participation Agreement, the Loan Agreement, the Master Lease and the Assignment
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, the Loan Agreement, the Master Lease, the Assignment
and the other Operative Documents to "Participation Agreement" or "Loan
Agreement" or "Master Lease" or "Assignment" or similar terms shall refer to the
Participation Agreement, the Loan Agreement, the Master Lease and the Assignment
as amended hereby.
Section 11.2. 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 11.3. 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.
Section 11.4. 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 Amendment to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
▇▇▇▇▇▇ MONDAVI PROPERTIES, INC., as Lessee and
Construction Agent
By
Name
Its
THE ▇▇▇▇▇▇ MONDAVI CORPORATION, as a Guarantor
By
Name
Its
R.M.E. INC., as a Guarantor
By
Name
Its
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Agent
Certificate Holder and as a
Certificate Holder
By
Name
Its
▇▇▇▇▇▇ 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
▇▇▇▇▇ FARGO BANK NORTHWEST, N.A., (formerly
known as 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: ▇▇▇▇▇ Fargo Bank Northwest, N.A.,
(formerly known as 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
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CREDIT AGRICOLE INDOSUEZ, as a Lender and
Certificate Holder
By
Name
Its
By
Name
Its
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL", NEW YORK
BRANCH, as a Lender and Certificate Holder
By
Name
Its
By
Name
Its
AMERICAN AGCREDIT, PCA (also known as
Pacific Coast Farm Credit Services, PCA),
as a Lender and Certificate Holder
By
Name
Its
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EXHIBIT A
SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENT
PARTICIPANT COMMITMENT PERCENTAGE
LENDERS
▇▇▇▇▇▇ Trust and Savings Bank $33,950,000 26.2365%
Bank of America, N.A. $23,668,000 18.2906%
Credit Agricole Indosuez $24,250,000 18.7403%
Rabobank International $19,400,000 14.9923%
American AgCredit, PCA $24,250,000 18.7403%
$125,518,000 97.0000%
CERTIFICATE HOLDERS
▇▇▇▇▇▇ Trust and Savings Bank $1,050,000 0.8114%
Bank of America, N.A. $ 732,000 0.5657%
Credit Agricole Indosuez $ 750,000 0.5796%
Rabobank International $ 600,000 0.4637%
American AgCredit, PCA $ 750,000 0.5796%
TOTAL $ 3,882,000 3.0000%
TOTAL COMMITMENT $129,400,000 100%
EXHIBIT B
UNDERLYING AGREEMENTS
1. Amended and Restated Supplement No. 4 to Assignment of Lease
and Rent, dated as of July 10, 2000, made by Lessor Trust in favor of the
Administrative Agent.
2. Amended and Restated Lease Supplement No. 4, dated as of
July 10, 2000 between Lessee and Lessor Trust.
3. Supplement No.7 to Assignment of Lease and Rent, dated as of
July 10, 2000, made by Lessor Trust in favor of the Administrative Agent.
4. Lease Supplement No. 7, dated as of July 10, 2000, between
Lessee and lessor Trust.
