EXHIBIT 4.9
-----------
SUPPLEMENTAL INDENTURE NO. 8 (this "Supplement"), dated as of March 27,
2003, is entered into by and among CONSTELLATION BRANDS, INC. (formerly known as
Canandaigua Brands, Inc.), a Delaware corporation (the "Company"), CBI AUSTRALIA
HOLDINGS PTY LIMITED, ACN 103 359 299, an unlisted proprietary company
incorporated in the Commonwealth of Australia and taken to be registered in the
Australian Capital Territory and an indirect wholly-owned subsidiary of the
Company ("CBI Australia"), CONSTELLATION AUSTRALIA PTY LIMITED, ACN 103 362 232,
an unlisted proprietary company incorporated in the Commonwealth of Australia
and taken to be registered in the Australian Capital Territory and an indirect
wholly-owned subsidiary of the Company (together with CBI Australia, the "New
Guarantors"), and BNY MIDWEST TRUST COMPANY (successor trustee to Harris Trust
and Savings Bank and The Bank of New York, as applicable), as trustee (the
"Trustee").
RECITALS OF THE COMPANY AND EACH NEW GUARANTOR
WHEREAS, the Company, the Guarantors and the Trustee have executed and
delivered an Indenture, dated as of February 25, 1999; a Supplemental Indenture
No. 1, dated as of February 25, 1999 with respect to the issuance by the Company
of its 8 1/2% Senior Subordinated Notes due 2009 in the aggregate principal
amount of $200,000,000 (the "First Supplemental Indenture"); a Supplemental
Indenture No. 2 dated as of August 4, 1999 with respect to the issuance by the
Company of its 8 5/8% Senior Notes due 2006 in the aggregate principal amount of
$200,000,000 (the "Second Supplemental Indenture"); a Supplemental Indenture No.
3 dated as of August 6, 1999 with respect to the guarantee of the Indenture
Obligations by new Subsidiaries of the Company (the "Third Supplemental
Indenture"); a Supplemental Indenture No. 4 dated as of May 15, 2000 with
respect to the issuance by the Company of its 8 1/2% Series C Senior Notes due
2009 in the aggregate principal amount of (pound) 154,000,000 (the "Fourth
Supplemental Indenture"); a Supplemental Indenture No. 5 dated as of September
14, 2000 providing for certain amendments to the Fourth Supplemental Indenture
(the "Fifth Supplemental Indenture"); a Supplemental Indenture No. 6 dated as of
August 21, 2001 with respect to the guarantee of the Indenture Obligations (the
"Sixth Supplemental Indenture"); and a Supplemental Indenture No. 7 dated as of
January 23, 2002 with respect to the issuance by the Company of its 8 1/8%
Senior Subordinated Notes due 2012 in the aggregate principal amount of
$250,000,000 (the "Seventh Supplemental Indenture") (the First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture, Fourth
Supplemental Indenture, Fifth Supplemental Indenture, Sixth Supplemental
Indenture and Seventh Supplemental Indenture are collectively referred to herein
as the "Indentures");
WHEREAS, the Guarantors guarantee, jointly and severally, the full and
punctual payment and performance when due of all Indenture Obligations;
WHEREAS, pursuant to (i) Section 3.10 of the First Supplemental Indenture;
(ii) Section 3.9 of the Second Supplemental Indenture; (iii) Section 4.15 of the
Fourth Supplemental Indenture; and (iv) Section 3.10 of the Seventh Supplemental
Indenture, the New Guarantors are obligated to enter into this Supplement
thereby guaranteeing the punctual payment and performance when due of all
Indenture Obligations;
WHEREAS, pursuant to (i) Section 11.1 of the First Supplemental Indenture;
(ii) Section 9.1 of the Second Supplemental Indenture; (iii) Section 8.01 of the
Fourth Supplemental Indenture; and Section 11.1 of the Seventh Supplemental
Indenture, the Company, the New Guarantors and the Trustee may enter into this
Supplement without the consent of any Holder;
WHEREAS, the execution and delivery of this Supplement have been duly
authorized by Board Resolutions of the respective Boards of Directors of the
Company and each New Guarantor; and
WHEREAS, all conditions and requirements necessary to make the Supplement
valid and binding upon the Company and each New Guarantor, and enforceable
against the Company and each New Guarantor in accordance with its terms, have
been performed and fulfilled.
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 Securities, as follows:
ARTICLE ONE
THE NEW GUARANTEE
Section 1.01. For value received, each New Guarantor hereby absolutely,
unconditionally and irrevocably guarantees (the "New Guarantee"), jointly and
severally among itself and the Guarantors, to the Trustee and the Holders, as if
such New Guarantor was the principal debtor, the punctual payment and
performance when due of all Indenture Obligations (which for purposes of the New
Guarantee shall also be deemed to include all commissions, fees, charges, costs
and other expenses (including reasonable legal fees and disbursements of one
counsel) arising out of or incurred by the Trustee or the Holders in connection
with the enforcement of this New Guarantee). The agreements made and
obligations assumed hereunder by each New Guarantor shall constitute and shall
be deemed to constitute a Guarantee under the Indentures and for all purposes of
the Indentures, and each New Guarantor shall be considered a Guarantor for all
purposes of the Indentures as if such New Guarantor was originally named therein
as a Guarantor.
Section 1.02. The New Guarantee shall be released upon the occurrence of
the events as provided in the Indenture.
Section 1.03. Each New Guarantor hereby waives, and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary as a result of any payment by such New Guarantor under
its Guarantee under the Indentures.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. Except as otherwise expressly provided or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indentures. Except as
supplemented hereby, the Indentures (including the Guarantees incorporated
therein) and the notes issued pursuant thereto are in all respects ratified and
confirmed and all the terms and provisions thereof shall remain in full force
and effect.
Section 2.02. This Supplement shall be effective as of the close of
business on March 27, 2003.
Section 2.03. The recitals contained herein shall be taken as the
statements of the Company and each New Guarantor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Supplement.
Section 2.04. This Supplement shall be governed by and construed in
accordance with the laws of the jurisdiction which governs the Indentures and
their construction.
Section 2.05. This Supplement may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and attested all as of the day and year first above written.
CONSTELLATION BRANDS, INC.
By: /s/ Thomas S. Summer
-----------------------------------
Name: Thomas S. Summer
Title: Executive Vice President &
Chief Financial Officer
Attest:
/s/ David Sorce
-------------------------
Name: David Sorce
Title: Secretary
CBI AUSTRALIA HOLDINGS PTY LIMITED
By: /s/ Thomas S. Summer
-----------------------------------
Name: Thomas S. Summer
Title: Director and Chief Financial
Officer
Attest:
/s/ Thomas D. Roberts
-------------------------
Name: Thomas D. Roberts
Title: Vice President
CONSTELLATION AUSTRALIA PTY LIMITED
By: /s/ Thomas S. Summer
-----------------------------------
Name: Thomas S. Summer
Title: Director and Chief Financial
Officer
Attest:
/s/ Thomas D. Roberts
-------------------------
Name: Thomas D. Roberts
Title: Vice President
BNY MIDWEST TRUST COMPANY
By: /s/ D. G. Donovan
-----------------------------------
Name: D. G. Donovan
Title: Assistant Vice President
Attest:
/s/ M. Callahan
-------------------------
Name: Mary Callahan
Title: Assistant Vice President