SCHEDULE
to the
Master Agreement
dated as of December 15, 2003
between
BNP Paribas
("Party A")
and
The Robert Mondavi Corporation and R.M.E., Inc. each, jointly and severally
("Party B")
Part 1
Termination Provisions
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Party B for the purpose of:-
Section 5(a)(v), Affiliates
Section 5(a)(vi), Affiliates
Section 5(a)(vii), Affiliates
Section 5(b)(iv), Affiliates
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) The "Cross Default" provisions of Section 5(a)(vi) will apply to Party A
and will apply to Party B.
If such provisions apply:-
"Specified Indebtedness" will have the meaning specified in Section 14 of
this Agreement but will exclude deposits received by a party in the
ordinary course of its banking business.
"Threshold Amount" means USD 5,000,000 with respect to Party B and 3% of
Shareholder's Equity of Party A (as defined in Party A's published
financial reports) with respect to Party A or the equivalent thereof in any
other currency or currencies with respect to the relevant party.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will apply to
Party A and will apply to Party B.
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(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:-
(i) Loss will apply.
(ii) The Second Method, incorporating the set-off provisions set out in
paragraph (a) of Part 5 hereof, will apply.
(g) "Termination Currency" means United States Dollars.
(h) "Additional Termination Event" will not apply.
Part 2
Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on:-
(i) the accuracy of any representations made by the other party pursuant
to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will not make any representations.
Part 3
Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:- None
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Party required to Form / Document / Certificate Date by which Covered by Section
deliver document to be delivered 3(d) Representation
Party A such proof as Party B may reasonably upon execution Yes
request of the names, true signatures and and delivery of
authority of persons signing this this Agreement
Agreement on its behalf and any other
document referred to herein to which it is
a party;
Party B Certified copies of all corporate upon execution Yes
authorizations and any other documents and delivery of
with respect to the execution, delivery this Agreement
and performance of this Agreement;
together with a certificate of authority
and specimen signatures of the persons
executing this Agreement;
Party B A copy of its most recently available promptly after a Yes
annual report containing audited financial request by Party
statements for its most recently ended A
fiscal year certified by its independent
public accountants as fairly presenting
its financial condition and results of
operations for and as at the close of such
fiscal year;
Party B A copy of its most recently available promptly after
unaudited financial statements for its a request by
most recently ended fiscal quarter Party A
certified by its chief financial officer
as fairly presenting its financial
condition and results of operations for
and as at the close of such quarter;
Party B Each regular financial and/or business promptly after Yes
reporting document that is distributed or a request by
is generally available to its partners, Party A
shareholders, creditors or investors or is
filed with any regulatory authorities and
is publicly available or relates to its
financial condition;
Party B Such other information respecting Party promptly after Yes
B's condition or operations, financial or a request by
otherwise, as Party A may reasonably Party A
request from time to time; and
Party B Opinion of independent counsel for Party B upon execution Yes
in the form of Exhibit I; and delivery of
this Agreement
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Notwithstanding anything to the contrary contained herein, if the financial
reports of Party B are available to Party A on the website www.sec.gov; Party
B's obligation to deliver such reports to Party A hereunder shall be deemed to
have been satisfied.
Part 4
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:-
Address for notices or communications to Party A:-
Address: BNP Paribas, 16 Boulevard des Italiens, 75009 Paris,
France
Attention: BFI/BOLTIT
Telex No. 282919 Answerback: BNP 282919F
copy to: BNP Paribas, 10 Harewood Avenue, London NW1 6AA,
England
Attention: Legal and Transaction Management Group
Telex No: 296723 Answerback: PARCAP
Electronic Messaging System Details: BPCMGB2X
(For all purposes)
Address for notices or communications to Party B:-
Address: Robert Mondavi Corporation
901 Kaiser Road
Napa, CA 94558
Attention: Robert Philipps
Party A may rely on notices or communications from The Robert Mondavi
Corporation alone as a notice from Party B and notices or communication to
The Robert Mondavi Corporation alone shall be deemed effective notice to
Party B.
(b) "Process Agent". For the purpose of Section 13(c) of this Agreement:-
Party A appoints as its Process Agent: its New York Branch at 787 Seventh
Avenue, New York, New York 10019.
Party B appoints as its Process Agent:
Robert Mondavi Corporation
William J. Peterson
841 Latour Court
Napa, CA 94558
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:-
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Party A is a Multibranch Party and may act through the following Offices:-
BNP Paribas Head Office Its New York Branch at Its other United States
16, Boulevard des Italiens The Equitable Tower Branches
75009 Paris 31st Floor
France 787 Seventh Avenue
New York, NY 10019
USA
Its Tokyo Branch at Its London Branch at Its Hong Kong Branch at 11th
Sankei Building 22F 10 Harewood Avenue Floor
1-7-2, Otemachi, London NW1 6AA Central Tower
Chiyoda-ku England 28 Queen's Road Central
Tokyo 100-0004 Hong Kong
Japan
Its Singapore Branch Its Dublin Branch Its Sydney Branch
Tung Centre 5 George's Dock 12 Castlereagh Street
20 Collyer Quay IFSC Sydney NSW 2001
Singapore 0104 Dublin 1 Australia
Ireland
Its Grand Cayman Branch
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A. The failure by Party A
to perform its obligations as Calculation Agent hereunder shall not be
construed as an Event of Default or Termination Event.
(f) Credit Support Document. Not Applicable
(g) Credit Support Provider. Not Applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
choice of law doctrine.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply unless otherwise stated in any Confirmation.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
Part 5
Other Provisions
(a) Set-off. Any amount (the "Early Termination Amount") payable to one party
(the "Payee") by the other party (the "Payer") under Section 6(e), in
circumstances where there is a Defaulting Party or an Affected Party where
a Termination Event under Section 5(b)(iv) has occurred, will, at the
option of the party ("X") other than the Defaulting Party or the Affected
Party (and without prior notice to the Defaulting Party or the Affected
Party), be reduced by its set-off against any amount(s) (the "Other
Agreement Amount") payable (whether at such time or in the future or upon
the occurrence of the contingency) by the Payee to the Payer irrespective
of the currency, place of payment or booking office of the obligation under
any other agreement(s) between the Payee and the Payer (and the Other
Agreement Amount will be discharged pro tanto). X will give notice to the
other party of any set-off so effected.
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant part of such amounts) may be converted at
the applicable prevailing exchange rate into the currency in which the
other is denominated.
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the relevant
party accounting to the other when the obligation is ascertained.
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Nothing in this paragraph shall be effective to create a charge or other
security interest. This Section shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other right to
which any party is at any time otherwise entitled (whether by operation of
law, contract or otherwise).
(b) Tax Event
Section 5(b)(ii) is amended by deleting the words ", or there is a
substantial likelihood that it will", from line four thereof.
(b) ISDA Definitions. The definitions and provisions contained in the 2000 ISDA
Definitions, the 2003 ISDA Credit Derivatives Definitions, the 1998 ISDA FX
and Currency Option Definitions, the 2002 ISDA Equity Derivatives
Definitions, the 1993 ISDA Commodity Definitions, each as published by the
International Swaps and Derivatives Association, Inc. (collectively, the
"Definitions", as such Definitions may be further amended or supplemented)
are incorporated into any Confirmation which supplements and forms part of
this Agreement, and all capitalized terms used in a Confirmation shall have
the meaning set forth in the Definitions, unless otherwise defined in a
Confirmation. In the event of any conflict between the provisions of this
Agreement and the provisions of the Definitions, the provisions of the
Agreement shall apply, and in the event of any conflict between the
provisions of this Agreement and a Confirmation, the provisions of the
Confirmation shall apply.
(c) Confirmations. A new Section 1(d) is hereby added to the Agreement as
follows:
"(d) Confirmations. Any transaction entered into by the parties, whether or
not prior to the date hereof, which would otherwise constitute a "Specified
Transaction" under this Agreement shall be deemed to be a Transaction for
the purposes of this Agreement, even where not so specified in the
documentation for such transaction. Any document or other writing
(including telexes, faxes and electronic messages) evidencing the terms of
such a Transaction shall, unless otherwise specified in such writing, be
deemed to be a Confirmation for the purposes of this Agreement and, unless
otherwise agreed by the parties, each such Confirmation shall supplement,
form a part of, and be subject to this Agreement and all provisions in the
Agreement will govern the Confirmation except as modified therein."
(d) Representations. Each party will be deemed to represent to the other party
on the date on which it enters into a Transaction that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(i) Non-Reliance. It is acting for its own account and it has made its own
independent decisions to enter into that Transaction and as to whether
that Transaction is appropriate or proper for it based upon its own
judgement and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation to enter
into that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction
shall not be considered investment advice or a recommendation to enter
into that Transaction. It has not received from the other party any
assurance or guarantee as to the expected results of the Transaction.
(ii) Evaluations and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and assumes, the
financial and other risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary or an
adviser for it in respect of that Transaction.
(iv) Acting as Principal. It is acting as principal and not as agent or in
any other capacity, fiduciary or otherwise.
(v) Beneficial Owner. With respect to any physically settled Transactions,
it shall at the time of delivery be the legal and beneficial owner
free of liens and other encumbrances of any securities or commodities
it delivers to the other party.
(vi) Eligible Contract Participant. It is an "eligible contract
participant" within the meaning of the Commodity Exchange Act."
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(e) Additional Representation by Party B. Party B represents and warrants that
its obligations hereunder shall at all times rank at least pari passu with
all other unsecured indebtedness of Party B.
(f) Default Caused by Illegality. An Event of Default pursuant to Section
5(a)(vi) shall not be deemed to have occurred if it is caused by an event
that would constitute an Illegality if it occurred in connection with this
Agreement.
(g) Events of Default. Section 5 (a) of the Agreement is amended by inserting
the following at the end of subsection (vii) (3) thereof:
"or a notice is sent convening a meeting to propose a voluntary arrangement
of its creditors"
(h) Waiver of Jury Trial. Each party waives to the fullest extent permitted by
applicable law any right it may have to have a trial by jury in respect of
any Proceedings and acknowledges that it and the other party have been
induced to enter into this Agreement (and provide for any Credit Support
Document, as applicable) by, among other things, the mutual waivers in this
Section.
(i) Notification of the Recording of Telephone Conversations. Each Party (i)
consents to the recording of telephone conversations of trading and
marketing personnel of the parties in connection with this Agreement and
any Transactions hereunder and to the submission of such recordings in
evidence in any Proceedings and (ii) agrees to obtain any necessary consent
of, and give notice of such recording to, such personnel.
PART 6
FX AND CURRENCY OPTION TRANSACTIONS
(a) Payment of Premiums for Currency Options.
(i) Unless otherwise agreed in writing by the parties, the Premium for any
Currency Option shall be paid on its Premium Payment Date.
(ii) If the Premium is not paid on its Premium Payment Date, the Seller may
elect:
(A) to accept a late payment of such Premium;
(B) to give written notice of such non-payment and, if such payment
shall not be received within two (2) Local Business Days of such
notice, treat the related Currency Option as void; or
(C) to give written notice of such non-payment and, if such payment
shall not be received within two (2) Local Business Days of such
notice, treat such non-payment as an Event of Default under
Section 5 (a) (i) of the Agreement.
(iii) If the Seller elects to act under either (A) or (B) above, the Buyer
shall pay all out-of-pocket costs and actual damages incurred in
connection with such unpaid or late Premium or void Currency Option,
including, without limitation, interest on such Premium from and
including the Premium Payment Date to but excluding the late payment
date in the same currency as such Premium at the prevailing market
rate and any other losses, costs or expenses incurred by the Seller in
connection with such terminated Currency Option, for the loss of its
bargain, its cost of funding, or the loss incurred as a result of
terminating, liquidating, obtaining or re-establishing a delta hedge
or related trading position with respect to such Currency Option.
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(b) Netting Discharge and Termination of Currency Options.
From a date to be mutually agreed by the parties, any Call Option or any
Put Option written by a party will automatically be terminated and
discharged, in whole or in part, as applicable, and unless otherwise
agreed, against a Call Option or a Put Option, respectively written by the
other party, such discharge and termination to occur automatically upon the
payment in full of the last Premium payable in respect of such Currency
Options in accordance with standard payment instructions; provided that
such discharge and termination may only occur in respect of Currency
Options:
(i) each being with respect to the same Put Currency and the same Call
Currency;
(ii) each having the same Expiration Date and Expiration Time;
(iii) each being of the same style i.e. either both being American Style
Options or both being European Style Options;
(iv) each having the same Strike Price;
(v) each having being transacted by the same offices of Party A and Party
B; and
(vi) neither of which shall have been exercised by delivery of a Notice of
Exercise;
and upon the occurrence of such discharge and termination, neither Party
shall have any obligation to the other Party in respect of the relevant
Currency Options or, as the case may be, parts thereof so discharged and
terminated. Such discharge and termination shall be effective
notwithstanding that either party may fail to record such discharge and
termination in its books. In the case of a partial discharge and
termination (i.e. where the relevant Currency Options are for different
amounts of the Currency Pair), the remaining portion of the Currency
Options which is partially discharged and terminated shall continue to be a
Currency Option for the purposes of the Agreement, including this
provision.
IN WITNESS WHEREOF the parties have executed this Schedule to the Agreement with
effect from the date specified on the first page of this document.
BNP PARIBAS SECURITIES CORP. THE ROBERT MONDAVI CORPORATION
ON BEHALF OF BNP PARIBAS
By: _____________________ By: ________________________
Name: Christine Smith Howard Name: ________________________
Title: Authorized Signatory Title: ________________________
R.M.E., INC.
By: _____________________ By: _______________________
Name: Mindy Sperling Name: _______________________
Title: Authorized Signatory Title: _______________________
Each of the foregoing on a joint and several basis and each
such party being referred to as "Party B" in this Agreement
both individually and jointly.
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Exhibit I
Opinion of Counsel for the Counterparty
______, 2003
BNP Paribas
16 Boulevard des Italiens
75009 Paris
France
Dear Sirs
I have acted as counsel for _____________________________ (the "Counterparty")
in connection with the ISDA Master Agreement (the "Agreement") dated as of
__________________ between the Counterparty and BNP Paribas ("BNP Paribas"),
pursuant to which this opinion is furnished.
I have examined originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
I express no opinion as to any laws other than the laws and regulations of
_____________________ as currently in effect. In addition, I have assumed that
the Agreement has been, and any Confirmation exchanged between the parties
confirming the Transaction which supplements and is subject to the Agreement (a
"Confirmation") will be, duly authorized, executed and delivered (or, in the
case of a Confirmation, entered into, as provided for therein) by BNP Paribas
[and that the Agreement constitutes, and when confirmed, as provided for
therein, any Confirmation will constitute, a valid and binding obligation under
the laws of the State of New York.
Upon the basis of the foregoing, I am of the opinion that:
1. The Counterparty is a _______________ duly incorporated, validly existing
and in good standing under the laws of ________________ and has full power
and authority to execute, deliver and perform the Agreement and to confirm,
as provided for therein, and perform any Confirmation.
2. The execution, delivery and performance by the Counterparty of the
Agreement and the entering into, as provided for therein, and performance
of any Confirmation have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Counterparty or of any
agreement, judgement, injunction, order, decree or other instrument binding
upon the Counterparty.
3. The Agreement constitutes and, when confirmed, as provided for therein, any
Confirmation, together with the Agreement, will constitute, a valid and
binding obligation of the Counterparty enforceable in accordance with its
terms except as enforcement may be limited by the provisions of any
applicable bankruptcy, liquidation, insolvency and reorganization or other
laws, relating to or affecting, generally the enforcement of creditor's
rights.
4. No authorizations, approvals or consents are required under the laws of
____________ to permit the purchase by the Counterparty of any currency
which may be needed to make payment pursuant to the Agreement.
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5. The submission to the non exclusive jurisdiction of the State and Federal
courts in New York City for all purposes in connection with, and the
consent to service of process in, the Agreement are valid and binding upon
the Counterparty and not subject to revocation. If any final and conclusive
judgement of a State or Federal court sitting in New York City is rendered
against the Counterparty in connection with any action arising out of or
relating to the Agreement, such judgement would be recognized and enforced
by the courts of __________________ without any re-trial or re-examination
of the merits of action; provided that the ________________ court in which
enforcement is sought determines that: [brief description of the grounds
under which such judgement would be recognized without a re-examination of
the merits]
Very truly yours,