Exhibit 4.39
SUPPLEMENTAL INDENTURE NO. 1
(this “ Supplement ”), dated as of
January 22, 2008 is entered into by and among CONSTELLATION
BRANDS, INC., a Delaware corporation (the “ Company
”), BWE, INC., a Delaware corporation, ATLAS PEAK VINEYARDS,
INC., a California corporation, BUENA VISTA WINERY, INC., a
California corporation, CLOS DU BOIS WINES, INC., a California
corporation, GARY FARRELL WINES, INC., a California corporation,
PEAK WINES INTERNATIONAL, INC., a Delaware corporation, and PLANET
10 SPIRITS, LLC (collectively, the “ New Guarantors
” and each individually, a “ New Guarantor
”), and THE BANK OF NEW YORK TRUST COMPANY, N.A. as trustee
(the “ Trustee ”).
RECITALS OF THE COMPANY AND THE NEW GUARANTORS
WHEREAS, the Company, the Guarantors
and the Trustee have executed and delivered an Indenture, dated as
of May 14, 2007, providing for the issuance of the
Company’s 7.25% Senior Notes due 2017 (the “
Indenture ”), 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, each New Guarantor is
obligated, pursuant to Section 4.08 of the Indenture, to enter
into this Supplement thereby guaranteeing the punctual payment and
performance when due of all Indenture Obligations;
WHEREAS, pursuant to
Section 8.01 of the 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 all requisite
action on the part of the Company and New Guarantors; and
WHEREAS, all conditions and
requirements necessary to make this Supplement valid and binding
upon the Company and the New Guarantors, and enforceable against
the Company and the New Guarantors 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 Notes, 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 e
