EXHIBIT 4.1
Published on November 20, 2007
Exhibit
4.1
AMENDMENT
NO. 2
AMENDMENT
NO. 2 (this “Amendment”) dated as of November 19, 2007 among
CONSTELLATION BRANDS, INC., the “Subsidiary Guarantors” referred to on the
signature pages hereto and JPMORGAN CHASE BANK, N.A., in its capacity as
Administrative Agent pursuant to authority granted by the Required Lenders
pursuant to Section 10.02 of the Credit Agreement referred to
below.
Constellation
Brands, Inc., the
“Subsidiary Guarantors” party thereto, the Lenders party thereto, and JPMorgan
Chase Bank, N.A., as Administrative Agent, are parties to a Credit Agreement
dated as of June 5, 2006 and amended on February 23, 2007 (as modified and
supplemented and in effect from time to time, the “Credit
Agreement”).
The
Borrower, the Subsidiary Guarantors
and the Administrative Agent, pursuant to authority granted by, and having
obtained the consent of, Lenders party to the Credit Agreement constituting
the
Required Lenders, now wish to clarify certain provisions in the Credit
Agreement, and accordingly, the parties hereto hereby agree to amend the
Credit
Agreement as follows:
Section
1. Definitions. Except as otherwise defined in this
Amendment, terms defined in the Credit Agreement are used herein as defined
therein.
Section
2. Amendments. Subject to the satisfaction of the
conditions precedent specified in Section 4 below, but effective as of the
date hereof, the Credit Agreement shall be amended as follows:
2.01. References
Generally. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to “this Agreement” (and
indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall
be deemed to be references to the Credit Agreement as amended
hereby.
2.02. Definitions. Section 1.01
of the Credit Agreement shall be amended by amending the following definition
to
read in its entirety as follows:
“Net
Available Proceeds” means:
(i) in
the case of any Disposition, the amount of Net Cash Payments received in
connection with such Disposition;
(ii) in
the case of any Casualty Event, the aggregate amount of proceeds of insurance,
condemnation awards and other compensation received by the Borrower and its
Subsidiaries in respect of such Casualty Event net of (A) expenses incurred
by the Borrower and its Subsidiaries in connection therewith and
(B) contractually required repayments of Indebtedness (other than
Indebtedness
to the Lenders hereunder) to the extent secured by a Lien on such Property
and
any income and transfer taxes payable by the Borrower or any of its Subsidiaries
in respect of such Casualty Event; and
(iii) in
the case of any Debt Incurrence, the aggregate amount of all cash received
by
the Borrower and its Subsidiaries in respect thereof (net of expenses incurred
by the Borrower and its Subsidiaries in connection therewith) but excluding
(i)
in the case of any Senior Debt Incurrence or Subordinated Debt Incurrence,
the
first $700,000,000 of aggregate cash received by the Borrower therefrom at
any
time after the Effective Date and prior to June 1, 2007 and (ii) (without
duplication) any Senior Debt Incurrence effected pursuant to Section 7.01(c)(ii)
and not in reliance on the proviso of clause (A) thereof.
2.03. Indebtedness. Section 7.01(c)(ii)(A)
of the Credit Agreement is hereby amended to read in its entirety as
follows:
“(A)
the aggregate principal amount of
such Senior Unsecured Indebtedness shall not exceed U.S. $750,000,000 and,
after
giving effect to the incurrence thereof, the Borrower shall be in
proforma compliance with the ratio set forth
in Section 7.10(a) (the determination of such ratio to be
calculated as of the last day of the most recently-ended fiscal quarter of
the
Borrower under the assumption that such Senior Unsecured Indebtedness was
issued
at the beginning of the applicable calculation period), provided that the
foregoing provisions of this clause (A) shall not apply to the extent that
the Net Available Proceeds of such Senior Unsecured Indebtedness are applied
to
either (x) prepay Loans in accordance with Section 2.10(b)(iii) (or
make another application specified in the proviso thereto, including to finance
one or more Acquisitions as therein provided), or (y) refinance or pay at
maturity Senior Unsecured Indebtedness (in accordance with
Section 7.12);”
Section
3. Representations and Warranties. The Borrower
represents and warrants to the Lenders and the Administrative Agent that
(i) the
representations and warranties made by the Borrower in Article IV of the
Credit
Agreement, and by each Obligor in the other Loan Documents to which it is
a
party (but as to such other Loan Documents, in all material respects), are
true
and complete on and as of the date hereof with the same force and effect
as if
made on and as of such date (or, if any such representation and warranty
is
expressly stated to have been made as of a specific date, as of such specific
date), and as if each reference in said Article IV to “this Agreement”
included reference to this Amendment and (ii) at the time of and immediately
after giving effect to this Amendment, no Default has occurred and is
continuing.
Section
4. Conditions Precedent. The amendments set forth
in Section 2 hereof shall become effective, as of the date hereof, upon the
execution and delivery of this Amendment by the Borrower, the Subsidiary
Guarantors and the Administrative Agent.
Section
5. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and
effect. This Amendment 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 by signing
any such counterpart. This Amendment 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 to be duly
executed and delivered as of the day and year first above written.
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CONSTELLATION
BRANDS, INC.
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Senior
Vice President and Treasurer
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SUBSIDIARY
GUARANTORS
ALLBERRY,
INC.
CLOUD
PEAK CORPORATION
CONSTELLATION
TRADING COMPANY, INC.
CONSTELLATION
WINES U.S., INC.
FRANCISCAN
VINEYARDS, INC.
MT.
VEEDER CORPORATION
R.M.E.,
INC.
THE
ROBERT MONDAVI CORPORATION
ROBERT
MONDAVI AFFILIATES
ROBERT
MONDAVI INVESTMENTS
ROBERT
MONDAVI PROPERTIES, INC.
ROBERT
MONDAVI WINERY
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Vice
President and Assistant Treasurer
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BARTON
INCORPORATED
BARTON
BRANDS, LTD.
BARTON
BEERS, LTD.
BARTON
BEERS OF WISCONSIN, LTD.
BARTON
BRANDS OF CALIFORNIA, INC.
BARTON
BRANDS OF GEORGIA, INC.
BARTON
CANADA, LTD.
BARTON
DISTILLERS IMPORT CORP.
BARTON
FINANCIAL CORPORATION
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Vice
President and Assistant Treasurer
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CONSTELLATION
LEASING, LLC
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Assistant
Treasurer
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VINCOR
INTERNATIONAL PARTNERSHIP
VINCOR
INTERNATIONAL II, LLC
VINCOR
HOLDINGS, INC.
R.H.
PHILLIPS, INC.
THE
HOGUE CELLARS, LTD.
VINCOR
FINANCE, LLC
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Vice
President and Assistant Treasurer
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BARTON
SMO HOLDINGS LLC
ALCOFI
INC.
SPIRITS
MARQUE ONE LLC
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By:
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/s/
Thomas D. Roberts
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Name:
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Thomas
D. Roberts
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Title:
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Vice
President and Assistant Treasurer
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ADMINISTRATIVE
AGENT
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
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By:
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/s/
Barbara R. Marks
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Name:
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Barbara
R. Marks
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Title:
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Vice
President
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