EXHIBIT 4.16
------------
[Execution Copy]
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of August 4, 1999, between CANANDAIGUA BRANDS,
INC., a Delaware corporation (the "Borrower"); each of the Subsidiaries of the
Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto (individually, a "Subsidiary Guarantor" and, collectively the
"Subsidiary Guarantors" and, together with the Borrower, the "Obligors"); and
THE CHASE MANHATTAN BANK, as administrative agent for the Lenders referred to
below (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
The Borrower, the Subsidiary Guarantors, certain financial institutions
(the "Lenders") and the Administrative Agent are parties to a First Amended and
Restated Credit Agreement dated as of November 2, 1998, as amended by a Second
Amended and Restated Credit Agreement dated as of May 12, 1999 (as so amended
and in effect on the date hereof, the "Credit Agreement"). The Obligors and the
Administrative Agent (having previously obtained the authorization of the
Required Lenders) wish to amend the Credit Agreement in certain respects and,
accordingly, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No.
1, terms defined in the Credit Agreement (as amended hereby) are used herein as
defined therein.
Section 2. AMENDMENTS. Subject to the execution and delivery of this
Amendment No. 1 by the Obligors and the Administrative Agent, but with effect on
and after the date hereof, the Credit Agreement is amended as follows:
(a) Article I of the Credit Agreement is amended by adding the
following definitions in their appropriate alphabetic locations:
"'SENIOR NOTES' means the Borrower's (i) Senior Notes due 2006
issued pursuant to the Senior Notes Indenture in an original aggregate
principal amount up to $350,000,000 and (ii) Senior Notes due 2008
issued pursuant to the Senior Notes Indenture in an original aggregate
principal amount up to (pound)200,000,000."
"'SENIOR NOTES INDENTURE' means the Indenture dated as of
February 25, 1999 between the Borrower, certain Subsidiaries and
Harris Trust and Savings Bank, as trustee, as supplemented by
Supplemental Indenture No. 1 dated as of February 25, 1999,
Supplemental Indenture No. 2 dated as of August 4, 1999 and
Supplemental Indenture No. 3 dated as of August 6, 1999 and, subject
to Section 7.13, as further supplemented and amended and in effect
from time to time.".
(b) Section 2.11(c) of the Credit Agreement is amended and restated to
read in its entirety as follows:
"(c) MANDATORY PREPAYMENTS -- CHANGE OF CONTROL. In the event
that the Borrower shall be required pursuant to the provisions of the
Senior Notes, the Senior Notes Indenture or any instrument evidencing
or governing any Subordinated Indebtedness to redeem, or make an offer
to redeem or repurchase, all or any portion of the Senior Notes (or
any Indebtedness thereunder) or such Subordinated Indebtedness as a
result of a change of control (however defined), then, concurrently
with the occurrence of the event giving rise to such change of
control, the Borrower shall prepay the Loans (and/or provide cover for
LC Exposure as specified in Section 2.06(k)) in full, and the
Commitments shall be automatically reduced to zero.".
(c) Section 7.01(c) of the Credit Agreement is amended and restated to
read in its entirety as follows:
"(c) Subordinated Indebtedness and Indebtedness outstanding in
respect of the Senior Notes in an aggregate principal amount for each
series thereof not to exceed the respective original aggregate
principal amounts specified in the definition of such term, provided
that the following conditions shall be satisfied with respect to such
Indebtedness outstanding in respect of the Senior Notes (each of which
shall be fulfilled in form and substance satisfactory to the Required
Lenders):
(i) the terms of such Indebtedness shall not provide for
payment of any portion of the principal thereof prior to the date
six months after the final maturity of the Loans hereunder;
(ii) terms in respect of financial and other covenants,
events of default and mandatory prepayments applicable to such
Indebtedness shall be substantially consistent with the proposed
terms of the Senior Notes provided to the Administrative Agent by
the Borrower on or prior to August 4, 1999;
(iii) at the time of issuance of such Indebtedness, and
after giving effect thereto, the Borrower shall be in compliance
with Section 7.08 (the determination of such ratios to be
calculated under the assumption that such Indebtedness was issued
at the beginning of the respective period and that any other
Indebtedness to be retired with the proceeds thereof was in fact
retired on such date of issuance), and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief
financial officer to such effect setting forth in reasonable
detail the computations necessary to determine such compliance;
and
(iv) at the time of such issuance, and after giving effect
thereto, no Default or Event of Default shall have occurred and
be continuing hereunder and the Borrower shall have delivered to
the Administrative Agent a certificate of a Financial Officer to
such effect;".
(d) Article VII of the Credit Agreement is amended by adding the
following new Section 7.13 thereto in its appropriate numeric location:
"SECTION 7.13. SENIOR NOTES. Neither the Borrower nor any of its
Subsidiaries shall purchase, redeem, retire or otherwise acquire for
value, or set apart any money for a sinking, defeasance or other
analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of,
the Senior Notes, except that the Borrower may (i) make payments on
the regularly-scheduled payment dates with respect to the principal of
and interest on the Senior Notes under the Senior Notes Indenture as
in effect on the date hereof and (ii) so long as no Default shall have
occurred and be continuing (or will occur as a result of such
payment), from the proceeds of Subordinated Indebtedness issued in
accordance with the first paragraph of Section 7.09, redeem any Senior
Notes being refinanced with such proceeds. Neither the Borrower nor
any of its Subsidiaries will consent to any modification, supplement
or waiver of any of the provisions of the Senior Notes or the Senior
Notes Indenture if such amendment, supplement or waiver would have a
material adverse effect on (x) the legal ability or financial capacity
of any Obligor to perform any of its obligations under this Agreement
or any of the other Loan Documents to which it is a party or (y) the
rights of or benefits available to the Lenders under this Agreement or
any of the other Loan Documents.".
Section 3. APPLICATION OF PROCEEDS OF SENIOR NOTES. To induce the Lenders
to authorize the Administrative Agent to enter into this Amendment No. 1, the
Borrower agrees that, upon the issuance of the Senior Notes, the Borrower shall
prepay the Loans in an aggregate amount equal to the aggregate amount of cash
received by the Borrower or any of its Subsidiaries in respect of such issuance
(net of reasonable expenses incurred by the Borrower in connection therewith),
such prepayment to be applied to the Loans in the manner specified in Section
2.11(b)(vi)(B) of the Credit Agreement. The Borrower agrees that any failure of
the Borrower to observe or perform any covenant or agreement contained in this
Section 3 shall constitute an Event of Default for all purposes of the Credit
Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lenders and the Administrative Agent that (a) this Amendment No.
1 (and the Credit Agreement, as amended hereby) constitutes a legal, valid and
binding obligation of each Obligor, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (ii) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (b) the
execution, delivery and performance of this Amendment No. 1 (and of the Credit
Agreement, as amended hereby) by each Obligor will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person. It shall be an
Event of Default for all purposes of the Credit Agreement, as amended hereby, if
any representation or warranty made by the Borrower in this Section 4 shall
prove to have been false or misleading as of the time made in any material
respect.
Section 5. MISCELLANEOUS. Except as herein provided, the Credit Agreement
shall remain unchanged and in full force and effect. This Amendment No. 1 may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto
may execute this Amendment No. 1 by signing any such counterpart. This Amendment
No. 1 shall be governed by, and construed in accordance with, the law of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered as of the day and year first above written.
CANANDAIGUA BRANDS, INC.
By /s/ Thomas S. Summer
---------------------------------
Title: Senior Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS
ALLBERRY, INC.
BATAVIA WINE CELLARS, INC.
CANANDAIGUA EUROPE LIMITED
CANANDAIGUA WINE COMPANY, INC.
CLOUD PEAK CORPORATION
FRANCISCAN VINEYARDS, INC.
M.J. LEWIS CORP.
MT. VEEDER CORPORATION
POLYPHENOLICS, INC.
ROBERTS TRADING CORP.
SCV-EPI VINEYARDS, INC.
SIMI WINERY, INC.
By /s/ Thomas S. Summer
--------------------------
Title: Treasurer
BARTON INCORPORATED
BARTON BRANDS, LTD.
BARTON BEERS, LTD.
BARTON BRANDS OF CALIFORNIA, INC.
BARTON BRANDS OF GEORGIA, INC.
BARTON CANADA, LTD.
BARTON DISTILLERS IMPORT CORP.
BARTON FINANCIAL CORPORATION
MONARCH IMPORT COMPANY
STEVENS POINT BEVERAGE CO.
THE VIKING DISTILLERY, INC.
By /s/ Thomas S. Summer
--------------------------
Title: Vice President
CANANDAIGUA LIMITED
By /s/ Thomas S. Summer
--------------------------
Title: Finance Director
CANANDAIGUA B.V.
By /s/ Thomas S. Summer
--------------------------
Title: Authorized Attorney
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ Bruce Borden
--------------------------
Title: Vice President