Exhibit 10.60
(Multicurrency - Cross Border)
ISDA
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 23, 2003
between
THE ▇▇▇▇▇▇ MONDAVI CORPORATION ("Party A")
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK ("Party B")
Part 1
Termination Provisions
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Affiliates
Section 5(a)(vi), Affiliates
Section 5(a)(vii), Affiliates
Section 5(b)(iv), Affiliates
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) The "Cross Default" provision of Section 5(a)(vi) will apply to Party A and
Party B.
"Specified Indebtedness" will have the meaning specified in Section 14,
provided that it will also include any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in
respect of any Derivative Transaction and will not include (i) indebtedness
in respect of deposits received or (ii) any payment not made because of an
intervening change in law making such payment illegal, Force Majeure or act
of state, provided that the party had available sufficient funds to make
such payment at the time of non-payment.
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"Threshold Amount" shall have the meaning set forth below; for purposes of
"Threshold Amount", "Equity" means the stockholders' equity including
retained earnings, total partnership capital, net assets, or total capital
and reserves, as the case may be, of the Party or its Credit Support
Provider.
"Threshold Amount" means, in relation to Party A or any Credit Support
Provider of Party A, (i) zero with respect to (x) Specified Indebtedness to
Party B or any Affiliate of Party B and (y) Specified Indebtedness under
the Revolving Credit Agreement, and (ii) $5,000,000 with respect to other
Specified Indebtedness.
"Threshold Amount" means, with respect to Party B, 2% of the Equity of
Party B.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will apply to
Party A and Party B.
(e) The "Automatic Early Termination" provisions 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) Market Quotation will apply.
(ii) The Second Method will apply.
Notwithstanding the above, with respect to FX Transactions and Currency
Option Transactions, Loss and Second Method shall apply.
(g) "Termination Currency" means U.S. Dollars.
(h) Additional Termination Event will apply.
An Additional Termination Event shall have occurred, for the purposes of
Section 5(b)(v) of this Agreement, with Party A as the Affected Party, if
the Revolving Credit Agreement is cancelled, terminated, repaid or
otherwise ceases to be in full force and effect, or if the Revolving Credit
Agreement is replaced, extended, restated or otherwise modified in a manner
not approved by Party B acting in its sole discretion.
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Part 2
Tax Representations
NOT APPLICABLE
Part
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:
Party required to
deliver document Form/Document/Certificate Date by which to be Covered by Section 3(d)
delivered Representation
_____________________________________________________________________________________________________________________
Party A and Party Certificate of incumbency containing Upon execution of this Yes
B specimen signatures of each person Agreement, and if
executing the Agreement and if requested, requested, each Confirmation
any Confirmation
_____________________________________________________________________________________________________________________
Party A Legal opinion substantially in the form Upon execution of this No
of Exhibit I attached hereto Agreement
_____________________________________________________________________________________________________________________
Party A Each Credit Support Document listed in Promptly upon request Yes
Part 4(f) of this Schedule, and any
amendment thereto.
_____________________________________________________________________________________________________________________
Party A A copy of any notice required pursuant to Promptly upon the issuance Yes
the Revolving Credit Agreement in thereof.
connection with any event of default
thereunder or any event that, with the
giving of notice, lapse of time or both,
would become an event of default
thereunder.
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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: ▇▇▇▇▇▇ Mondavi Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice-President, Treasury and Investor Relations
Email: ▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Addresses for notices or communications to Party B:
With respect to Transactions, excluding FX Transactions and Currency
Options:
Address: ▇▇▇▇▇▇ Trust and Savings Bank
c/o Bank of Montreal
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attention: Manager, Confirmations
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/6827
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Swift ID NO.: ▇▇▇▇▇▇▇▇
With respect to FX Transactions and Currency Options:
Address: ▇▇▇▇▇▇ Trust and Savings Bank
c/o Bank of Montreal
FX/MM Operations
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇. ▇.
11th Floor, H.O.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Canada
Attention: Manager, FX Operations
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/9186
Swift ID NO: ▇▇▇▇▇▇▇▇
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Any notice sent to Party B in connection with Sections 5, 6 or 9(b) shall
be sent to the following address:
Address: ▇▇▇▇▇▇ Trust and Savings Bank
Global Financial Products
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director, Derivative Sales
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Process Agent. For purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
Address: ▇▇▇▇▇▇ Mondavi Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Party B appoints as its Process Agent: Not Applicable
(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:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party and will transact through ▇▇▇▇▇▇ Trust
and Savings Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(e) Calculation Agent. The Calculation Agent is Party B, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) Credit Support Document.
With respect to Party A, the Revolving Credit Agreement and any related
security documents.
With respect to Party B: Not applicable.
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(g) Credit Support Provider:
With respect to Party A, R.M.E., Inc.
With respect to Party B: 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. Section 2(c) shall apply to all Transactions except FX
Transactions and Currency Option Transactions; Part 6 of this Schedule
addresses the payment netting for such Transactions. Subparagraph (ii) of
Section 2(c) of this Agreement (x) will not apply to any Transactions
identified as or otherwise deemed Commodity Transactions, and (y) will
apply to all other Transactions, except as set forth above.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
Part 5
Other Provisions
(a) 2000 ISDA Definitions. The provisions of the 2000 ISDA Definitions (the
"Definitions"), published by the International Swaps and Derivatives
Association, Inc., are incorporated by reference in, and will be deemed to
be part of, this Agreement and each Confirmation as if set forth in full in
this Agreement or in such Confirmation, without regard to any revision or
subsequent edition thereof. In the event of any inconsistency between the
provisions of this Agreement and the Definitions, this Agreement will
prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Agreement or the Definitions, such Confirmation will
prevail for the purpose of the relevant transaction.
(b) Illegality or Force Majeure. As contemplated by Section 6 of this
Agreement, while neither party shall be obligated to violate any applicable
law by reason of Section 6 or this Part 5(b), each party shall retain its
right to payment pursuant to Section 6(e) if the other party does not
perform because of Illegality or Force Majeure.
(c) 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 one Affected Party in
the case where a Termination Event under Section 5(b)(iv) or 5(b)(v) 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 a 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 or instrument(s) or undertaking(s) issued or executed by one party
to, or in favour of, the other party (and the Other Agreement Amount will
be discharged promptly and in all respects to the extent it is so set-off).
X will give notice to the other party of any set-off effected under this
Section.
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For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be converted
by X into the currency in which the other is denominated at the rate of
exchange at which such party would be able, acting in a reasonable manner
and in good faith, to purchase the relevant amount of such currency.
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.
Nothing in this Section 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).
(d) Conditions to Certain Payments. Notwithstanding the provision of Section
6(e)(i)(3) and (4), as applicable, if the amount referred to therein is a
positive number, the Defaulting Party will pay such amount to the
Non-defaulting Party, and if the amount referred to therein is a negative
number, except to the extent set out below, the Non-defaulting Party shall
have no obligation to pay any amount thereunder to the Defaulting Party
unless and until the conditions set forth in (i) and (ii) below have been
satisfied, at which time there shall arise an obligation of the
Non-defaulting Party to pay to the Defaulting Party an amount equal to the
absolute value of such negative number less any and all amounts which the
Defaulting Party may be obligated to pay under Section 11 (the "Conditional
Payment Amount"):
(i) the Non-defaulting Party shall have received confirmation satisfactory
to it in its sole discretion (which may include an unqualified opinion
of its counsel) that (x) no further payments or deliveries under
Section 2(a)(i) or 2(e) in respect of Terminated Transactions will be
required to be made in accordance with Section 6(c)(ii) and (y) each
Specified Transaction shall have terminated pursuant to its specified
termination date or through the exercise by a party of a right to
terminate and all obligations owing under each such Specified
Transaction shall have been fully and finally performed;
(ii) all obligations (contingent or absolute, matured or unmatured) of the
Defaulting Party and any Affiliate of the Defaulting Party to make any
payment or delivery to the Non-defaulting Party or any Affiliate of
the Non-defaulting Party shall have been fully and finally performed;
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provided that if the Conditional Payment Amount exceeds the aggregate
amount of the obligations owing to the Non-defaulting Party and Affiliates
of the Non-defaulting Party by the Defaulting Party and Affiliates of the
Defaulting Party (including without limitation all obligations owing under
each Specified Transactions), the Non-defaulting Party shall pay the amount
of the excess to the Defaulting Party.
(e) Relationship between the Parties. 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 decision to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisors 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. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee
as to the expected results of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits of
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 risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for
or an advisor to it in respect of that Transaction.
(f) Bankruptcy Code. The parties hereto intend that this Agreement shall be a
"master agreement" for purposes of 11 U.S.C. ss.101(53B) and 12U.S.C.
ss.1821(e)(8)(D)(vii), or any successor provisions.
(g) Commodity Exchange Act. Each party represents to the other party on and as
of the date hereof and on each date on which a Transaction is entered into
among them that:
(i) such party is an "eligible contract participant" as defined in the
U.S. Commodity Exchange Act, as amended (the "CEA");
(ii) neither this Agreement nor any Transaction has been executed or traded
on a "trading facility" as such term is defined in the CEA; and
(iii) the terms of this Agreement and each Transaction have been subject to
individual negotiation.
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(h) Escrow. If by reason of the time difference between the cities in which
payments are to be made or otherwise, it is not possible for simultaneous
payments to be made on any date on which both parties are required to make
payments hereunder, either party may at its option and in its sole
discretion notify the other party that payments on that date are to be made
in escrow. In this case deposit of the payment due earlier on that date
shall be made by 2:00 p.m. (local time at the place for the earlier
payment) on that date with an escrow agent selected by the party giving the
notice and reasonably acceptable to the other party, accompanied by
irrevocable payment instructions (a) to release the deposited payment to
the intended recipient upon receipt by the escrow agent of the required
deposit of the corresponding payment from the other party on the same date
accompanied by irrevocable payment instructions to the same effect or (b)
if the required deposit of the corresponding payment is not made on that
same date, to return the payment deposited to the party that paid it into
escrow. The party that elects to have payments made in escrow shall pay the
costs of the escrow arrangements and shall cause those arrangements to
provide that the intended recipient of the payment due to be deposited
first shall be entitled to interest on that deposited payment for each day
in the period of its deposit at the rate offered by the escrow agent for
that day for overnight deposits in the relevant currency in the office
where it holds that deposited payment (at 11:00 a.m. local time on that
day) if that payment is not released by 5:00 p.m. local time on the date it
is deposited for any reason other than the intended recipient's failure to
make the escrow deposit it is required to make hereunder in a timely
fashion.
(i) WAIVER OF JURY TRIAL: EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY CREDIT SUPPORT
DOCUMENT OR ANY TRANSACTION. EACH PARTY ACKNOWLEDGES THAT IT AND THE OTHER
PARTY HAVE ENTERED INTO THIS AGREEMENT AND ANY CREDIT SUPPORT DOCUMENT, AS
APPLICABLE, IN RELIANCE ON, AMONG OTHER THINGS, THE MUTUAL WAIVERS IN THIS
SECTION.
(j) Telephone Recording. Each party (i) consents to the recording of telephone
conversations of trading and marketing personnel of the parties in
connection with this Agreement or any potential or actual Transaction
hereunder; (ii) agrees to obtain any necessary consent of and give notice
of such recording to its trading and marketing personnel; and (iii) agrees
that such recordings may be submitted in evidence in any proceeding
relating to this Agreement, subject to applicable rules of discovery and
evidence.
(k) Pari Passu. Party A hereby covenants that if, at any time during the
currency of this Agreement, Party A secures any loan, debt, guarantee or
other obligation, now or hereafter existing (including, without limitation,
any obligation pursuant to the Revolving Credit Agreement or any Derivative
Transaction, an "Obligation") by any mortgage, lien, pledge or other charge
upon any of its present or future assets or revenues (a "Lien"), it shall
immediately take the necessary steps to ensure that its obligations under
this Agreement shall share in and be secured by such Lien equally and
rateably with such other Obligation and that in the creation of such Lien
express provision shall be made to such effect.
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(l) Right to Terminate. Either party may, provided that no Event of Default or
Potential Event of Default exists with respect to that party, elect to
terminate any Transaction under this Agreement on the third (3rd)
anniversary of the Effective Date of such Transaction or every three (3)
years thereafter, (the "Optional Termination Date"), by providing at least
five (5) days' prior notice to the other party (the "Other Party"). Notice
may be provided by telephone but is to be followed up with a written notice
to be received by the Other Party prior to the Optional Termination Date.
In the event a party, (the "Terminating Party") elects to terminate a
Transaction pursuant to the foregoing, Party B shall at or prior to 2:00
p.m. Toronto time on the Optional Termination Date, determine the amount
payable in respect of the terminated Transaction (the "Market Value") by
making the calculations required by Section 6(e)(i) of the Agreement as if
the Optional Termination Date were an Early Termination Date designated as
a result of the occurrence of an Event of Default with respect to the
Terminating Party and the parties had specified Loss and the Second Method
for that purpose. The Market Value will be paid by the relevant party on
the second Business Day following the Optional Termination Date.
If there is a dispute between the parties as to the calculation of the
Market Value,
(a) the parties will consult with each other in an attempt to resolve the
dispute; and
(b) if the parties fail to resolve the dispute prior to 3:00 p.m. Toronto
time on the Optional Termination Date, then Party B shall recalculate
the Market Value by making calculations required by Section 6(e)(i) of
the Agreement as if the Optional Termination Date were an Early
Termination Date designated as a result of the occurrence of an Event
of Default with respect to the Terminating Party and the parties had
specified Market Quotation and the Second Method for that purpose.
Promptly following a resolution pursuant to this paragraph, the Market
Value will be paid by the relevant party on the second Business Day
following the Optional Termination Date.
Upon payment of such sum as provided herein, the obligations of both
parties with respect to this Transaction shall be discharged in full.
(m) Additional Definitions. The following definition shall be added to Section
14 in its appropriate alphabetical place:
"Derivative Transaction" means (a) any transaction which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of
these transactions) and (b) any combination of these transactions.
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"Force Majeure" is a natural or man-made disaster, armed conflict, riot,
civil disturbance, or similar event that materially disrupts transportation
or communication facilities in the relevant city where the party is to make
payment, or otherwise prevents the personnel of the party from performing
their duties in connection with such payment, and is beyond the control of
the party.
"Revolving Credit Agreement" means the credit agreement dated as of
December 14, 2001 between, among others, Party A and R.M.E., Inc., as
Borrowers, Bank of America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer, and various agents, managers and lenders from time
to time party thereto, as amended by the amending agreement dated as of
June 16, 2003.
Part 6
Additional Terms for FX Transactions and Currency Option Transactions
(a) Standard Terms and Conditions Applicable to FX Transactions and Currency
Option Transactions. Each FX Transaction or Currency Option Transaction
outstanding at or entered into after the date hereof between the parties
shall be governed by this Agreement irrespective of any references in a
Confirmation to any other master agreements (e.g. IFEMA, ICOM, or any
specified terms and conditions).
(b) Incorporation of and Amendments to ISDA FX Definitions. The 1998 ISDA FX
and Currency Option Definitions (the "FX and Currency Option Definitions"),
published by the International Swaps and Derivatives Association, Inc., et.
al., are hereby incorporated by reference with respect to any "FX
Transactions" and "Currency Option Transactions" as defined by the FX and
Currency Option Definitions, except as otherwise specifically provided
herein or in a Confirmation.
(c) Amendments to ISDA FX Definitions. The following amendments are hereby made
to the FX and Currency Option Definitions:
(i) Section 2.1 of the FX and Currency Option Definitions is amended by
the addition of the following definitions with respect to FX
Transactions:
"Currency Obligation" means the obligation of a party hereunder to
deliver or take delivery of an amount of currency, whether pursuant to
the terms of an FX Transaction or Currency Option Transaction or
resulting from the netting of currency amounts due under FX
Transactions and/or Currency Option Transactions.
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"Value Date" means, in respect of a Transaction, the Settlement Date.
(ii) Section 3.6(a) of the FX and Currency Option Definitions is hereby
amended by deleting in its entirety the final sentence thereof and
adding the following two sentences at the end thereof: "A Currency
Option Transaction may be exercised in whole or in part. If a Currency
Option Transaction is exercised in part, the unexercised portion shall
not be extinguished thereby but shall remain a Currency Option
Transaction to the extent of such unexercised portion until the
earlier of (A) the expiration of the Currency Option Transaction or
(B) an exercise of the Currency Option Transaction that leaves no
remaining unexercised portion thereof."
(iii) The term "Deliverable" as applied to Currency Option Transactions is
hereby modified by the following amendment:
Section 1.7, "Deliverable", is modified by replacing the words "except
as otherwise provided in Section 3.6 (c) and Article 5" with "except
as otherwise provided in Section 3.6 (c), Section 3.7 (d) and Article
5".
(d) Section 3.7 is amended by adding the following subsection (d):
"(d) Potential Event of Default. If an Event of Default or a Potential
Event of Default has occurred and is continuing and an Early
Termination Date has not been designated by the Non-defaulting Party,
the Non-defaulting Party may, by written notice, specify that any or
all Deliverable Currency Option Transactions being settled while such
an Event of Default or Potential Event of Default is continuing shall
be settled as Non-Deliverable Currency Option Transaction in
accordance with Section 3.7(b) unless and until the Event of Default
or Potential Event of Default is no longer continuing."
(e) Article 3 of the FX and Currency Option Definitions is hereby amended by
the addition of the following as a new Section 3.9:
"Section 3.9 Terms Relating to Payment of Premium
(a) Unless otherwise agreed in writing by the parties, the Premium
related to a Currency Option Transaction shall be paid on its
Premium Payment Date in immediately available funds.
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(b) If a Premium is not received on the Premium Payment Date, the
Seller may elect: (i) to accept a late payment of such Premium;
(ii) to give written notice of such non-payment and, if such
payment shall not be received within three Local Business Days of
such notice, treat the related Currency Option Transaction as
void; or (iii) to give written notice of such non-payment and, if
such payment shall not be received within three Local Business
Days of such notice, treat such non-payment as an Event of
Default under Section 5(a)(i). If the Seller elects to act under
clause (i) of the preceding sentence, the Buyer shall pay
interest on such Premium in the same currency as such Premium
from the day such Premium was due until the day paid at the
Default Rate, as determined in good faith by the Seller, if the
Seller elects to act under clause (ii) of the preceding sentence,
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 Transaction, including without limitation,
interest on such Premium in the same currency as such Premium at
the then prevailing market rate and any other costs or expenses
incurred by the Seller in covering its obligations (including,
without limitation, a delta hedge) with respect to such Currency
Option Transaction."
(f) Confirmations. FX Transactions and Currency Option Transactions
shall be promptly confirmed by the parties by Confirmations
exchanged by mail, telex, facsimile or other electronic means.
Unless either party objects to the terms of an FX Transaction or
Currency Option Transaction contained in any Confirmation within
three Local Business Days of receipt thereof, the terms of such
Confirmation shall be deemed correct and accepted absent manifest
error, unless a corrected Confirmation is sent by a party within
such three day period, in which case the party receiving such
corrected Confirmation shall have three Local Business Days after
receipt thereof to object to the terms contained in such
Confirmation. Where an FX Transaction or Currency Option
Transaction is confirmed by means of mail or an electronic
messaging system that the parties have elected to use to confirm
such Transaction: (i) such confirmation will constitute a
"Confirmation" as referred to in this Agreement even where not so
specified in the confirmation, (ii) such Confirmation will
supplement, form part of, and be subject to this Agreement and
all provisions in this Agreement will govern the Confirmation,
and (iii) the definitions and provisions contained in the FX and
Currency Option Definitions and this Agreement will govern for
the purposes of the relevant FX Transaction or Currency Option
Transaction.
(g) Netting, Offset and Discharge with Respect to Currency Option
Transactions. The following provisions shall apply to Currency
Option Transactions:
(i) If, on any date, and unless otherwise mutually agreed by the
parties, a Premium would otherwise be payable hereunder in
the same currency between a pair of Offices of the parties,
then, on such date, each party's obligation to make payment
of any such Premium will be automatically satisfied and
discharged and, if the aggregate Premium(s) that would
otherwise have been payable by such Office of one party
exceeds the aggregate Premium(s) that would otherwise have
been payable by such Office of the other party, replaced by
an obligation upon the party by whom the larger aggregate
Premium(s) would have been payable to pay the other party
the excess of the larger aggregate Premium(s) over the
smaller aggregate Premiums(s).
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(ii) Unless otherwise agreed, any Call Option or any Put Option
written by a party will automatically be terminated and
discharged, in whole or in part, as applicable, against a
Call Option or a Put Option, respectively, written by the
other party, such termination and discharge to occur
automatically upon the payment in full of the last Premium
payable in respect of such Currency Option Transactions;
provided that such termination and discharge may only occur
in respect of Currency Option Transactions:
(1) each being with respect to the same Put Currency and
the same Call Currency;
(2) each having the same Expiration Date and Expiration
Time;
(3) each being the same style, i.e. either both being
American Style Options or both being European Style
Options;
(4) each having the same Strike Price;
(5) neither of which shall have been exercised by delivery
of a Notice of Exercise;
(6) which are entered into by the same Offices of the
parties; and
(7) which are otherwise identical in all respects relevant
to termination and discharge;
and upon the occurrence of such termination and discharge, neither
party shall have any further obligation to the other party in respect
of the relevant Currency Option Transactions or, as the case may be,
parts thereof so terminated and discharged. In the case of a partial
termination and discharge (i.e. where the Currency Option Transactions
are for different amounts of the Currency Pair), the remaining portion
of the Currency Option Transaction which is partially discharged and
terminated shall continue to be a Currency Option Transaction for all
purposes of this Agreement.
(h) Netting, Discharge and Termination of FX Transactions. Notwithstanding
Part 4(i) herein, if on any Value Date, and unless otherwise agreed,
Currency Obligations for the delivery of the same currency shall exist
between a pair of Offices of the parties, then on such Value Date,
each party's Currency Obligation will be automatically satisfied and
discharged, if the aggregate amount that should otherwise have been
delivered by such Office of one party exceeds the aggregate amount
that would otherwise have been delivered by such Office of the other
party, and replaced by a Currency Obligation upon the party by whom
the larger aggregate amount would have been deliverable to deliver to
the other party the excess of the larger aggregate amount over the
smaller aggregate amount.
32
Part 7
Additional Terms for Commodity Derivative Transactions
(a) Commodity Definitions. This Agreement, each Transaction which is a
commodity swap, commodity option, commodity swaption or commodity cap,
collar or floor (each a "Commodity Transaction") and each Confirmation
with respect to a Commodity Transaction are subject to, in addition to
the Definitions, the 1993 Commodity Derivatives Definitions, as
published by ISDA (the "Commodity Definitions"), and each Commodity
Transaction and each Confirmation with respect thereto shall, in
addition to the Definitions, be governed in all respects by the
provisions set forth in the Commodity Definitions; but in the event of
any inconsistency or conflict between the Commodity Definitions and
the Definitions, the Commodity Definitions shall prevail with respect
to all Commodity Transactions. The provisions of the Commodity
Definitions are incorporated by reference in, and made part of, this
Agreement and each Confirmation with respect to a Commodity
Transaction as if set forth in full in this Agreement and each such
Confirmation. In the event of any inconsistency between the provisions
of this Agreement and the Commodity Definitions, this Agreement will
prevail. In the event of any inconsistency between the provisions of
any Confirmation with respect to a Commodity Transaction and the
Agreement or the Commodity Definitions, such Confirmation shall
prevail for the purpose of the relevant Commodity Transaction.
(b) Disruption Fallbacks. The following "Disruption Fallbacks" specified
in Section 7.5(c) of the Commodity Definitions shall apply, in the
following order, except as otherwise specifically provided in the
Confirmation:
(i) Postponement, provided that the Maximum Days of Disruption shall
be three (3) Commodity Business Days;
(ii) Negotiated Fallback; and
(iv) No Fault Termination.
[The balance of this page is intentionally left blank; execution page follows.]
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IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto as of
the date first written above.
THE ▇▇▇▇▇▇ MONDAVI CORPORATION ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: _________________________________ By: __________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
Title: VP, Treasury & Investor Relations Title:
34
Exhibit I
Letterhead of Counterparty's Counsel
Date
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
This opinion is furnished to you in connection with the ISDA Master
Agreement dated as of December 23, 2003 (the "Agreement") and the Confirmation
dated as of December 23, 2003 between The ▇▇▇▇▇▇ Mondavi Corporation (the
"Counterparty") and ▇▇▇▇▇▇ Trust and Savings Bank (the "Bank"). Terms defined in
the Agreement and used but not defined herein have the meanings given to them in
the Agreement.
We have acted as counsel to the Counterparty in connection with the
execution and delivery of the Agreement. We have examined the Agreement, the
Counterparty's constating documents and such other documents as we have deemed
necessary or appropriate for purposes of the opinions expressed herein. We have
also made such investigations and considered such questions of law as we have
considered necessary for the purpose of rendering this opinion. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, certified or otherwise.
We express no opinion with respect to the laws of any jurisdiction other
than the laws of [jurisdiction of organization/incorporation] and the laws of
[federal jurisdiction] applicable therein.
Based on the foregoing we are of the opinion that:
1. The Counterparty has been duly [organized/incorporated] and is validly
existing and in good standing under the laws of [jurisdiction of
organization/incorporation].
2. The execution and delivery of the Agreement and each Confirmation
entered into by the parties on or prior to the date hereof and the
performance by the Counterparty of its obligations thereunder have
been duly authorized by the Counterparty, are within the corporate
power of the Counterparty and do not conflict with, or result in a
breach of, (i) the constating documents of the Counterparty, (ii) any
law or regulation, or (iii) any agreement, decree, order, judgment,
injunction or other instrument binding on or affecting the
Counterparty.
35
3. The Agreement and each Confirmation entered into by the parties on or
prior to the date hereof [has/have] been duly authorized, executed and
delivered by the Counterparty to the Bank.
4. No action by, notice to or filing with, or consent, authorization or
approval of, any governmental authority or regulatory body is required
in connection with the Counterparty's execution, delivery and
performance of the Agreement or any Confirmation entered into by the
parties on or prior to the date hereof.
5. The governing law clause, subjecting the Agreement to the laws of the
State of New York, is valid under the laws of [jurisdiction of
organization/incorporation]. Under the laws of [jurisdiction of
organization/incorporation], the laws of the State of New York will be
applied to the Agreement, provided that such choice of law is bona
fide and provided that such choice of law is not contrary to public
policy, as that term is understood under the laws of [jurisdiction of
organization/incorporation]. To the best of our knowledge, having made
due inquiry, the public policy of [jurisdiction of
organization/incorporation] would not be breached by application of
the chosen law.
6. A final and conclusive judgment for sum certain in personam and
rendered by a court of competent jurisdiction in the State of New York
with respect to the obligations of the Counterparty under the
Agreement would be recognized and enforceable by the [jurisdiction of
organization/incorporation] courts.
7. Assuming that the Agreement is legal, valid, binding and enforceable
under the laws of the State of New York, the Agreement and each
Transaction evidenced by a Confirmation outstanding as of the date of
execution of the Master Agreement constitutes a legal, valid and
binding obligation of the Counterparty enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws and equitable
principles of general application affecting the rights of creditors or
limiting the availability of specific performance, injunctive relief
or any other equitable remedy.
This opinion is provided solely for your benefit and is not to be relied
upon for any purpose other than in respect of the Agreement or by any other
person.
Yours very truly,
36