EXHIBIT 4.8
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SECOND SUPPLEMENTAL INDENTURE (the "Supplement"), dated as of October 2,
1998 is entered into by and among CANANDAIGUA BRANDS, INC. (formerly known as
Canandaigua Wine Company, Inc.), a Delaware corporation (the "Company"), and
POLYPHENOLICS, INC., a New York corporation, and a wholly owned subsidiary of
the Company (the "New Guarantor"), and HARRIS TRUST AND SAVINGS BANK , as
Trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE NEW GUARANTOR
WHEREAS, the Company, the Guarantors and the Trustee have executed and
delivered an Indenture, dated as of October 29, 1996, as supplemented, among the
Company, the Guarantors and the Trustee (the "Indenture") providing for the
issuance by the Company of $65,000,000 aggregate principal amount of the
Company's 8 3/4% Senior Subordinated Notes due 2003 (the "Securities") and
pursuant to which the Guarantors have agreed to guarantee, jointly and
severally, the full and punctual payment and performance when due of all
Indenture Obligations.
WHEREAS, the New Guarantor has become a Subsidiary and pursuant to Section
1014(b) of the Indenture is obligated to enter into the Supplement thereby
guaranteeing the punctual payment and performance when due of all Indenture
Obligations;
WHEREAS, pursuant to Section 901(e) of the Indenture, the Company, the New
Guarantor 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 a Board Resolution of the respective Boards of Directors of the
Company and the New Guarantor; and
WHEREAS, all conditions and requirements necessary to make the Supplement
valid and binding upon the Company and the New Guarantor, and enforceable
against the Company and the 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 101. For value received, the New Guarantor, in accordance with
Article Fourteen of the Indenture, 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 the New Guarantor were
the principal debtor, the punctual payment and performance when due of all
Indenture Obligations (which for purposes of the New Guarantee
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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 the New Guarantee). The agreements made and obligations assumed
hereunder by the New Guarantor shall constitute and shall be deemed to
constitute a Guarantee under the Indenture and for all purposes of the
Indenture, and the New Guarantor shall be considered a Guarantor for all
purposes of the Indenture as if it were originally named therein as a Guarantor.
Section 102. The New Guarantee shall be automatically and unconditionally
released and discharged upon the occurrence of the events set forth in Section
1014(c) of the Indenture.
Section 103. The 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 Subsidiary under its
Guarantee under the Indenture.
ARTICLE TWO
MISCELLANEOUS
Section 201. 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 Indenture. Except as
supplemented hereby, the Indenture (including the Guarantees incorporated
therein) and the Securities are in all respects ratified and confirmed and all
the terms and provisions thereof shall remain in full force and effect.
Section 202. This Supplement shall be effective as of the close of business
on the date hereof.
Section 203. The recitals contained herein shall be taken as the statements
of the Company and the 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 204. This Supplement shall be governed by and construed in
accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 205. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
CANANDAIGUA BRANDS, INC.
[Corporate Seal] By: /s/ Perry R. Humphrey
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Name: Perry R. Humphrey
Title: Treasurer
Attest:
/s/ David S. Sorce
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Name: David S. Sorce
Title: Assistant Secretary
POLYPHENOLICS, INC.
[Corporate Seal] By: /s/ Perry R. Humphrey
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Name: Perry R. Humphrey
Title: Assistant Treasurer
Attest:
/s/ David S. Sorce
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Name: David S. Sorce
Title: Secretary
HARRIS TRUST AND SAVINGS BANK
[Corporate Seal] By: /s/ J. Bartolini
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Name: J. Bartolini
Title: Vice President
Attest:
/s/ D.G. Donovan
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Name: D.G. Donovan
Title: Assistant Secretary