EXHIBIT 4.1
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CANANDAIGUA BRANDS, INC.,
as ISSUER,
the Guarantors named herein
and
THE BANK OF NEW YORK,
as TRUSTEE
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Supplemental Indenture No. 5
Dated as of September 14, 2000
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(pound)300,000,000
8 1/2% Series C Senior Notes due 2009
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SUPPLEMENTAL INDENTURE NO. 5, dated as of September 14, 2000 (the "Fifth
Supplemental Indenture"), by and among CANANDAIGUA BRANDS, INC., a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company"), the guarantors named herein and from time to time parties
hereto, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore delivered to the Trustee an Indenture,
dated as of February 25, 1999 (the "Base Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Company's Registration Statement on Form
S-3 (Registration No. 333-91587), as supplemented by Supplemental Indenture No.
3 thereto, dated as of August 6, 1999, and Supplemental Indenture No. 4 thereto,
dated as of May 15, 2000 (the "Fourth Supplemental Indenture"), among the
Company, certain of the Guarantors and the Trustee, providing for the issuance
from time to time of debt securities of the Company;
WHEREAS, Section 8.01 of the Fourth Supplemental Indenture provides that
the Supplemental Indenture may be amended without the consent of the holders of
the Company's 8 1/2% Series C Senior Notes due 2009 (the "Notes") in order to
make provisions with respect to matters arising under the Fourth Supplemental
Indenture provided that such provisions shall not adversely affect the interests
of the holders of the Notes; and
WHEREAS, the Company and the Trustee desire to amend the Fourth
Supplemental Indenture to provide that Notes may be issued to holders who tender
their Series B Senior Notes in an exchange offer exempt from registration under
the Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the above premises, each of the parties
hereto agrees, for the benefit of the others and for the equal and proportionate
benefit of the holders of the Notes, as follows:
ARTICLE I
THE AMENDMENTS
SECTION 1.01. AMENDMENT OF DEFINITION OF "EXEMPT EXCHANGE OFFER". Section
1.02 of the Fourth Supplemental Indenture is hereby amended by adding the
following definition:
"Exempt Exchange Offer" means an exchange offer issuing Notes for the
Company's outstanding Series B Senior Notes that is exempt from the registration
requirements of the Securities Act in accordance with Section 3(a)(9) of the
Securities Act.
SECTION 1.02. AMENDMENT OF DEFINITION OF "ADDITIONAL NOTES". Section 1.02
of the Fourth Supplemental Indenture is hereby amended by deleting the existing
definition of "Additional Notes" and replacing such definition with the
following:
"Additional Notes" means, subject to the Company's compliance with Section
4.10, 8 1/2% Series C Senior Notes due 2009, issued from time to time after May
15, 2000 under the terms of this Supplemental Indenture and the Indenture,
including, without limitation, any Notes issued in an exchange offer registered
under the Securities Act for the Series B Senior Notes or in an Exempt Exchange
Offer (other than Notes issued pursuant to Sections 2.07, 2.08, 2.11, 3.06 and
4.16 of this Supplemental Indenture or Section 12.5 of the Indenture).
SECTION 1.03. AMENDMENT OF SECTION 2.01. Section 2.01 of the Fourth
Supplemental Indenture is amended by deleting the first paragraph of Section
2.01 and replacing such paragraph with the following:
(a) GLOBAL NOTES. Notes issued and sold pursuant to an effective
registration statement under the Securities Act, issued pursuant to an
effective exchange offer registration statement under the Securities Act
for the Company's outstanding Series B Senior Notes or an Exempt Exchange
Offer, or issued in accordance with Section 2.07(b)(iii) and 2.07(e), shall
be issued in the form of Unrestricted Global Notes and deposited with
Citibank N.A., London, as custodian (in such capacity, the "Custodian") on
behalf of DTC or with Citibank N.A., London, as common depositary (in such
capacity, the "Common Depositary") on behalf of Euroclear and Clearstream,
as the case may be. Notes offered and sold to Qualified Institutional
Buyers in reliance on Rule 144A shall be issued initially in the form of a
144A Global Note, which shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided and deposited with the
Custodian on behalf of DTC. Notes offer and sold in reliance on Regulation
S shall be issued initially in the form of a Regulation S Global Note,
which shall be duly executed by the Company and authenticated by the
Trustee as hereinafter provided and deposited with the Common Depositary on
behalf of Euroclear and Clearstream. The issuance of Unrestricted Global
Notes in connection with an Exempt Exchange Offer is subject to the
condition that the Company deliver to the Trustee an Opinion of Counsel to
the effect that no registration of such Notes is required under the
Securities Act and that such Notes are not Restricted Securities and are
not required to bear the Private Placement Legend.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.01. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned thereto in the Fourth
Supplemental Indenture.
SECTION 2.02. CONCERNING THE TRUSTEE. The recitals contained herein and in
the Notes, except with respect to the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Fifth Supplemental Indenture or of the
Notes.
SECTION 2.03. COUNTERPARTS. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 2.04. GOVERNING LAW. This Fifth Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 2.05. EFFECTIVENESS AND EFFECT. This Fifth Supplemental Indenture
shall take effect on the date hereof. The provisions set forth in this Fifth
Supplemental Indenture shall be deemed to be, and shall be construed as, part of
the Indenture. All references to the Indenture in the Indenture or in any other
agreement, document, or instrument delivered in connection therewith or pursuant
thereto shall be deemed to refer to the Indenture as amended by this Fifth
Supplemental Indenture. Except as supplemented hereby, the Indenture and the
Notes and Guarantees issued pursuant thereto are in all respects ratified and
confirmed and all the terms and provisions thereof shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties have caused this Fifth Supplemental
Indenture to be duly executed all as of the date and year first written above.
CANANDAIGUA BRANDS, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Executive Vice President
and Chief Financial Officer
BATAVIA WINE CELLARS, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Treasurer
BARTON INCORPORATED
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS, LTD.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON BEERS, LTD.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF CALIFORNIA, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON BRANDS OF GEORGIA, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON DISTILLERS IMPORT CORP.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
BARTON FINANCIAL CORPORATION
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
STEVENS POINT BEVERAGE CO.
By:/s/ Thomas S. Summer
---------------------------------
Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA LIMITED
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Finance Director
MONARCH IMPORT COMPANY
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
CANANDAIGUA WINE COMPANY, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Treasurer
CANANDAIGUA EUROPE LIMITED
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Treasurer
ROBERTS TRADING CORP.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: President and Treasurer
POLYPHENOLICS, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
FRANCISCAN VINEYARDS, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
ALLBERRY, INC.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
CLOUD PEAK CORPORATION
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
M.J. LEWIS CORP.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
MT. VEEDER CORPORATION
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President and Treasurer
CANANDAIGUA B.V.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Authorized Representative
BARTON CANADA, LTD.
By:/s/ Thomas S. Summer
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Name: Thomas S. Summer
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By:/s/ Stephen J. Guirlando
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Name: Stephen J. Guirlando
Title: Vice President