Exhibit 4.37
SUPPLEMENTAL INDENTURE NO. 5
(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, a Delaware limited liability company
(collectively, the “ New Guarantors ” and each
individually, a “ New Guarantor ”), and THE BANK
OF NEW YORK TRUST COMPANY, N.A. (successor trustee to BNY Midwest
Trust Company), 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 August 15, 2006 (the “ Base Indenture
”), as supplemented by Supplemental Indenture No. 1,
dated as of August 15, 2006, providing for the issuance of the
Company’s 7.25% Senior Notes due 2016 (the “ First
Supplemental Indenture ”), Supplemental Indenture
No. 4, dated as of December 5, 2007, providing for the
issuance of the Company’s 8 3/8% Senior Notes due 2014 in the
aggregate principal amount of $500,000,000 (the “ Fourth
Supplemental Indenture ”) and by any other supplements
and amendments thereto made prior to the date hereof and in effect
on the date hereof (the Base Indenture, the First Supplemental
Indenture, the Fourth Supplemental Indenture and together with such
other supplements and amendments are collectively herein referred
to as 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 (i) Section 3.4 of the First
Supplemental Indenture and (ii) Section 3.4 of the Fourth
Supplemental Indenture, to enter into this Supplement thereby
guaranteeing the punctual payment and performance when due of all
Indenture Obligations;
WHEREAS, pursuant to
(i) Section 8.1 of the First Supplemental Indenture and
(ii) Section 8.1 of the Fourth 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 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:
