SECOND OMNIBUS AMENDMENT
TO CERTAIN OF THE OPERATIVE DOCUMENTS
THIS SECOND AMENDMENT dated as of March 31, 2000 (this "Amendment")
amends (i) the Participation Agreement, as amended, 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, as amended, 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, 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 1.12:
Section 1.1. Representation of the Lessee and the Guarantors. Section
8.2(j)(ii) of the Participation Agreement shall be amended by deleting the
phrase "G," in line six thereof.
Section 1.2. Indemnification. Section 14.10 of the Participation
Agreement shall be amended by deleting the phrase "liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements" in lines 6 and 14 thereof and substituting the phrase "Claims"
therefor.
Section 1.3 Amendment Provision. Section 15.5(a)(ii) of the
Participation Agreement shall be amended by deleting the semicolon at the end
thereof and replacing it with the phrase "or increase such Participant's
Commitment Percentage;" therefor.
Section 1.4 Aggregate Commitment Amount Definition. The definition of
"Aggregate Commitment Amount" in Appendix A to the Participation Agreement is
amended by deleting the amount "$85,000,000" therein and substituting the amount
"$105,000,000" therefor.
Section 1.5. Base Rate Definition. The definition of "Base Rate" in
Appendix A to the Participation Agreement is amended by inserting the phrase
"(the "Prime Rate")" immediately after the phrase "the rate of interest
announced by the Administrative Agent from time to time as its prime commercial
rate" in subparagraph (i) thereof.
Section 1.6. Capitalized Lease Definition. The definition of
"Capitalized Lease" in Appendix A to the Participation Agreement is amended by
deleting the reference to "Rentals" therein and substituting the phrase
"rentals" therefor.
Section 1.7. Commitment Period Definition. The definition of
"Commitment Period" in Appendix A to the Participation Agreement is amended by
deleting the period at the end thereof and substituting the phrase "and in any
event, shall not extend beyond the Maturity Date." therefor.
Section 1.8. Consolidated Fixed Charges Definition. The definition of
"Consolidated Fixed Charges" in Appendix A to the Participation Agreement is
amended by deleting the reference to "Rentals" immediately following the phrase
"all Rentals (other than" in line 2 thereof and substituting the phrase
"rentals" therefor.
Section 1.9. Guarantee Definition. Appendix A to the Participation
Agreement shall be amended by deleting in its entirety the definition of
"Guarantee".
-2-
Section 1.10. Prime Rate Definition. Appendix A to the Participation
Agreement shall be amended by adding the following new definition to be inserted
in the proper alphabetical order reading as follows:
"Prime Rate" as defined in the definition of Base Rate.
Section 1.11. 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.
Section 1.12. 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 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 2.3:
Section 2.1. Commitment. The Second Recital to the Loan Agreement shall
be amended by replacing the dollar amount "$82,450,000" with the dollar amount
"$101,850,000" therefor.
Section 2.2. Amendment to Interest Rates and Payment Dates. Section 2.4
of the Loan Agreement shall be amended by deleting the phrase "Basis Lease Term"
therein and substituting the phrase "Basic Lease Term" therefor.
Section 2.3. 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.
-3-
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 "$85,000,000" in the first Notice provision on the
first page thereof with the dollar amount "$105,000,000" therefor; (ii)
replacing the dollar amount "$85,000,000" in line 14 of paragraph 5(b) thereof
with the dollar amount "$105,000,000" therefor and (iii) replacing the phrase
"Eighty Five Million Dollars ($85,000,000)" in paragraph 11 thereof with the
phrase "One Hundred Five Million Dollars ($105,000,000)" 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 "$85,000,000" with the dollar amount "$105,000,000"
therefor.
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.
Section 6. Effectiveness. The amendments set forth in Sections 1
through 4 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.
-4-
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.
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]
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Second 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
-6-
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
-7-
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
-8-
EXHIBIT A
SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENTS
COMMITMENT
PARTICIPANT COMMITMENT PERCENTAGE
LENDERS
Xxxxxx Trust and Savings Bank $29,100,000 27.7143%
Bank of America, N.A. $29,100,000 27.7143%
Credit Agricole Indosuez $24,250,000 23.0952%
Rabobank International $19,400,000 18.4762%
----------- --------
$101,850,000 97.0000%
CERTIFICATE HOLDERS
Xxxxxx Trust and Savings Bank $ 900,000 0.8571%
Bank of America, N.A. $ 900,000 0.8571%
Credit Agricole Indosuez $ 750,000 0.7143%
Rabobank International $ 600,000 0.5714%
----------- -------
TOTAL $3,150,000 3.0000%
TOTAL COMMITMENT $105,000,000 100%
EXHIBIT B
Notice Information, Wire Instructions and Funding Offices
CERTIFICATE HOLDER: LENDER:
Rabobank International Rabobank International
4 Embarcadero Center 0 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. XxXxxx Attention: Xxxx X. XxXxxx
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Wire Transfer Instructions: Wire Transfer Instructions:
Bank: Bank of New York Bank: Bank of New York
ABA Number: 021-000018 ABA Number: 021-000018
Attention: Rabobank International Attention: Rabobank International
Account Number: 8026002533 Account Number: 8026002533
Ref: RMP 1999 Trust Ref: RMP 1999 Trust
