As filed with the Securities and Exchange Commission on June 6, 2001
November 20, 2007
Registration No. 333-60720
===============================================================================
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
AMENDMENT NO. 1
to
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________________
CONSTELLATION BRANDS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 2080 | 16-0716709 | ||
(State or other jurisdiction of Incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (IRS Employer Identification Number) |
SEE TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS LISTED ON FOLLOWING PAGE
370 Woodcliff Drive, Suite 300 WillowBrook Office Park
Fairport, New York 14450
716-218-2169
(Address,
585-218-3600
(Address, including zip code, and telephone number, including area code, of registrants'registrants’ principal executive offices)
Thomas J. Mullin, Esq.
Executive Vice President and General Counsel
Constellation Brands, Inc.
370 Woodcliff Drive, Suite 300 WillowBrook Office Park
Fairport, New York 14450
716-218-2169
(Name,
585-218-3600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
___________________________
Copy to:
Bernard S. Kramer, Esq.
McDermott Will & Emery LLP
227 West Monroe Street
Chicago, Illinois 60606-5096
___________________________
Approximate date of commencement of proposed sale of securities to the public: As soon as practicable after the effective date of this registration statement.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [_]
¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
___________________________
¨
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered | Amount to be registered | Proposed maximum per security(1) | Proposed maximum aggregate offering price(1) | Amount of registration fee | ||||
7.25% Senior Notes due 2017 | $700,000,000 | 100% | $700,000,000 | $21,490.00 | ||||
Guarantees of the 7.25% Senior Notes due 2017 | $700,000,000 | (2) | (2) | (2) | ||||
| (1) | Estimated solely for purposes of determining the registration fee pursuant to Rule 457(f) under the Securities Act. |
| (2) | Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is payable for the Guarantees. |
The registrantregistrants hereby amendsamend this registration statement on such date or dates as may be necessary to delay its effective date until the registrantregistrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act or until this registration statement shall become effective on such date as the Commission, acting pursuant to section 8(a), may determine.
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+
TABLE OF SUBSIDIARY GUARANTOR REGISTRANTS
Exact Name of Registrant as Specified in its Charter* | State or Other Jurisdiction of Incorporation or Formation | Primary Standard Classification | IRS Employer Number | |||
Constellation Leasing, LLC | New York | 2080 | 56-2596168 | |||
Constellation Wines U.S., Inc. | New York | 2080 | 16-1462887 | |||
Franciscan Vineyards, Inc. | Delaware | 2080 | 94-2602962 | |||
Allberry, Inc. | California | 2080 | 68-0324763 | |||
Cloud Peak Corporation | California | 2080 | 68-0324762 | |||
Mt. Veeder Corporation | California | 2080 | 94-2862667 | |||
Barton Incorporated | Delaware | 2080 | 36-3500366 | |||
Barton Brands, Ltd. | Delaware | 2080 | 36-3185921 | |||
Barton Beers, Ltd. | Maryland | 2080 | 36-2855879 | |||
Barton Brands of California, Inc. | Connecticut | 2080 | 06-1048198 | |||
Barton Brands of Georgia, Inc. | Georgia | 2080 | 58-1215938 | |||
Barton Distillers Import Corp. | New York | 2080 | 13-1794441 | |||
Barton Financial Corporation | Delaware | 2080 | 51-0311795 | |||
Barton Canada, Ltd. | Illinois | 2080 | 36-4283446 | |||
Barton Beers of Wisconsin, Ltd. | Wisconsin | 2080 | 39-0638900 | |||
Constellation Trading Company, Inc. | New York | 2080 | 77-0644374 | |||
The Robert Mondavi Corporation | California | 2080 | 94-2765451 | |||
R.M.E., Inc. | California | 2080 | 94-2456957 | |||
Robert Mondavi Winery | California | 2080 | 94-1628339 | |||
Robert Mondavi Investments | California | 2080 | 68-0248575 | |||
Robert Mondavi Affiliates | California | 2080 | 68-0248574 | |||
Robert Mondavi Properties, Inc. | California | 2080 | 94-2750477 | |||
Vincor Finance, LLC | Delaware | 2080 | Not applicable | |||
Vincor International Partnership | Nevada | 2080 | 94-3374780 | |||
Vincor International II, LLC | Delaware | 2080 | 20-1723872 | |||
Vincor Holdings, Inc. | Delaware | 2080 | 98-0231249 | |||
R.H. Phillips, Inc. | California | 2080 | 68-0313739 | |||
The Hogue Cellars, Ltd. | Washington | 2080 | 91-1204814 | |||
Barton SMO Holdings LLC | Delaware | 2080 | 71-1025685 | |||
ALCOFI INC. | New York | 2080 | 13-4103237 | |||
Spirits Marque One LLC | Delaware | 2080 | 13-4033806 | |||
| * | The address of each of the additional registrants is c/o Constellation Brands, Inc. |
The information in this prospectus is not complete and may be changed. +
+ We may not sell these securities until the registration statement filed +
+ with the Securities and Exchange Commission is effective. This prospectus +
+ is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where the offer +
+ or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, dated June 6, 2001
November 20, 2007
Prospectus
[LOGO]
Constellation Brands, Inc.
Offer to Exchange
8% Series B
$700,000,000 aggregate principal amount of 7.25% Senior Notes due 2008
(which2017,
which have been registered under the Securities Act,
for any and all outstanding, unregistered 7.25% Senior Notes due 2017
We are offering to exchange our registered 7.25% Senior Notes due 2017, or the exchange notes, for our currently outstanding, unregistered 7.25% Senior Notes due 2017, or the original notes. We sometimes refer to the original notes and the exchange notes in this prospectus collectively as the notes. The exchange notes are substantially identical in all material respects to the original notes, except that the exchange notes have been registered under the Securities Act of 1933)
for
8% Senior Notes due 2008
(of which an aggregate principal amount of $200,000,000 is outstanding)
. We are offering to exchange $200,000,000 of our new 8% Series B Senior Notes
due 2008 (the "new notes") for $200,000,000 of our outstanding 8% Senior Notes
due 2008 (the "old notes"). We are offering to issue the new notes to satisfy
our obligations contained in the registration rights agreement entered into
when the old notes were sold in transactions permitted by Rule 144A and
Regulation S under1933, as amended, or the Securities Act, and, therefore, will not have any transfer restrictions, will bear a different CUSIP number from the original notes and will not entitle their holders to registration rights or rights to liquidated damages. The exchange notes will represent the same debt as the original notes, and we will issue the exchange notes pursuant to, and they will be entitled to the benefits of, 1933.
.the same indenture. We are making this exchange offer in order to satisfy certain contractual obligations.
Certain of our existing and future subsidiaries will guarantee the exchange notes on a senior unsecured basis to the extent and for so long as such entities, or the subsidiary guarantors, guarantee our senior credit facility. If we do not make scheduled payments on the exchange notes, the subsidiary guarantors will be required to make them for us. The exchange notes will rank equally in right of payment with all of our existing and future unsecured senior indebtedness, senior in right of payment to all of our existing and future senior subordinated indebtedness, and effectively subordinated in right of payment to our secured indebtedness, including all borrowings under our senior credit facility, to the extent of the value of the assets securing such indebtedness.
The principal terms of the new notes and the old notesexchange offer are identical, except for
transfer restrictions, registration rights, and liquidated damages that apply
to the old notes.
. as follows:
The exchange offer expires at 5:00 p.m., New York City time, on July 10,
2001,, 2007 unless we extend it.
.
We will exchange all original notes that are validly tendered and not validly withdrawn prior to the expiration of the exchange offer.
You may withdraw tendered original notes at any time prior to the expiration of the exchange offer.
The exchange of oldexchange notes for neworiginal notes pursuant to the exchange offer will not be a taxable event for United
StatesU.S. federal income tax purposes.
We will not receive any proceeds from the exchange offer.
No public market exists for the original notes or the exchange notes. We do not intend to apply for listing of the exchange notes on any securities exchange.
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. The letter of transmittal accompanying this prospectus states that, by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes where the original notes were acquired by the broker-dealer as a result of market-making or other trading activities. We have agreed that, for a period of up to 180 days after the date of expiration of the exchange offer, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See "Certain United States Federal Income
Tax Considerations" on page 43 for more information.
“Plan of Distribution.”
See "Risk Factors"“Risk Factors” beginning on page 511 for a discussion of certain risks that you should consider before deciding to tender your oldoriginal notes in the exchange offer.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securitiesthe exchange notes or passed upon the
adequacydetermined if this prospectus is truthful or accuracy of this prospectus.complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June , 2001.
Table of Contents
2007.
Page
Prospectus Summary.................................................................................................. 1
Risk Factors........................................................................................................ 5
The Exchange Offer.................................................................................................. 9
Use of Proceeds..................................................................................................... 13
Capitalization...................................................................................................... 14
Selected Financial Data............................................................................................. 15
Description of the Notes............................................................................................ 16
The Guarantors...................................................................................................... 43
Certain United States Federal Income Tax Considerations............................................................. 43
Plan of Distribution................................................................................................ 45
Experts............................................................................................................. 46
Legal Matters....................................................................................................... 46
We have not authorized any dealer, salespersonsalesman or other person to give any information or to make any representation other than those contained in this prospectus. You must notshould rely upon anyonly on the information or representation not contained in this prospectus as if we had authorized it.prospectus. This prospectus does not constitute an offer to sell or thea solicitation of an offer to buy any securities other than the registered securities to which it relates, nor does this prospectus constitute an offer to sell or thea solicitation of an offer to buy securities in any jurisdiction to any personpersons to whom it is unlawful to make such an offer or solicitation in such jurisdiction. TheYou should not assume that the information contained in this prospectus is current onlyaccurate as of any date other than the date indicated on itsthe front cover
and may change after that date. For any time after the cover date of this prospectus we do not represent that our affairs are the same as described or that any information we have incorporated by reference is accurate as of any date other than the information in this prospectus is correct, nor do we imply those things
by delivering this prospectus to you.
Each broker-dealer that receives new notes for its own account pursuant to the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of new exchange notes. The Letter of Transmittal states that by
so acknowledging and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaningdate of the Securities
Act of 1933. This prospectus, as it may be amended or supplemented from time to
time, may be useddocument incorporated by a broker-dealer in connection with resales of new notes
received in exchange for private notes where the private notes were acquired by
the broker-dealer as a result of market-making activities or other trading
activities. We have agreed that, starting on the expiration date and ending on
the close of business one year after the expiration date, broker-dealers will
make this prospectus available to any other broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
______________
Where You Can Find More Information
reference.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission, pursuant toor the information requirements of the Securities Exchange
Act of 1934. Our filingsSEC. You may read and copy any document we file with the Securities and Exchange Commission may be
inspected without chargeSEC at the public reference room of the Securities and
Exchange CommissionSEC’s Public Reference Room at 450 Fifth100 F Street, N.W.N.E., Washington, D.C. 20549. You may obtain further information regardingon the operation of the public reference roomPublic Reference Room by calling the Securities and Exchange CommissionSEC at 1-800-SEC-0330. In addition,
registration statements and certain otherOur SEC filings made withare also available to the Securities and
Exchange Commission through its Electronic Data Gathering, Analysis and
Retrieval system are publicly available throughpublic over the Securities and Exchange
Commission's website locatedInternet at the SEC’s web site athttp://www.sec.gov. Our common stock is listed on the New York Stock Exchange under the symbol “STZ”, and you may inspect our SEC filings at our own website at
http://www.cbrands.com.
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
We have filed with the Securities and Exchange CommissionSEC a registration statement on Form S-4 to registerunder the offerSecurities Act with respect to exchange the new notes for old
notes and to register the new notes to be issued in connection with the exchange offer. This prospectus is part of that registration statement and, as permitted by the Securities and Exchange Commission'sSEC’s rules, does not contain all the information set forth in the registration statement. For further information you may refer to the registration statement and to the exhibits and schedules filed as part of the registration statement. You can review and copy the registration statement and its exhibits and schedules at the Securities and Exchange
Commission's public reference roomfacilities maintained by the SEC as described above. The registration statement, including its exhibits and schedules, is also available on the Securities and Exchange Commission'sSEC’s website.
i
The Securities and Exchange Commission allows us to "incorporate
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In this prospectus, we “incorporate by reference"reference” the information we file with it,the SEC, which means that we can disclose important business and financial information to you by referring you to those documents.that information. The information incorporated by reference is considered to be an important part of this prospectus. Any statement in a document incorporated by reference in this prospectus andwill be deemed to be modified or superseded to the informationextent a statement contained in this prospectus or any other subsequently filed document that we fileis incorporated by reference in this prospectus modifies or supersedes such statement. We incorporate by reference in this prospectus the following documents filed with the SEC pursuant to the Securities and Exchange Commission later will automatically update and supersede this information. The
share and per share amounts in documents that we have previously filed that we
are incorporating by reference into this prospectus (exceptAct of 1934, as amended, or the Exchange Act:
Annual Report on Form 10-K for the reportyear ended February 28, 2007, filed on April 30, 2007;
Quarterly Report on Form 10-Q for the quarter ended May 31, 2007, filed on July 10, 2007;
Quarterly Report on Form 10-Q for the quarter ended August 31, 2007, filed on October 10, 2007;
Current Reports on Form 8-K filed on April 12, 2001, reporting our results9, 2007 (two filings; in each case, Item 5.02 only), April 23, 2007, May 2, 2007, May 7, 2007 (Item 1.01 only), May 11, 2007 (Item 5.02 only), May 14, 2007, June 28, 2007 (of two filed that date, the report regarding appointment of new chief executive officer and only Item 5.02 thereof), July 31, 2007, October 4, 2007 (of two filed that date, the report regarding the appointment of a new director and only Item 5.02 thereof and Exhibit 99.1 thereto); November 14, 2007 (two filings; Item 1.01 and Exhibit 2.1 thereto and Item 2.05 only) and November 20, 2007;
Definitive proxy statement for the three month
period and the twelve month period ended February 28, 2001, and announcing our
two-for-one stock split) reflect the two-for-one stock split that we announced
on April 12, 2001. See "Explanatory Note." We incorporate by reference the
documents listed below and any filings that we makespecial meeting of stockholders to be held December 6, 2007, filed with the SecuritiesSEC on November 1, 2007; and
Exchange Commission under Sections
All other documents filed by Constellation Brands pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act aftersubsequent to the date of this prospectus:
. Annual Report on Form 10-K forprospectus and until the fiscal year ended February 28,
2001;
. Current Reports on Form 8-K filed on March 7, 2001, March 14, 2001,
April 12, 2001 (reporting our results forexpiration date of the three month period and the
twelve month period ended February 28, 2001, and announcing our two-for-
one stock split), and April 12, 2001 (reporting the proposed acquisition
by us of Ravenswood Winery, Inc.).
This prospectus incorporates important business and financial information about
the Company that is not included in or delivered with this prospectus. exchange offer.
You may request a copy of these filings, except exhibits to such documents unless those exhibits are specifically incorporated by reference into this information and any of the filings identified above,prospectus, at no cost, by writing or telephoning us at:
Constellation Brands, Inc.,
370 Woodcliff Drive, Suite 300
Fairport, New York 14450
585-218-3600
Attention: David S. Sorce, Secretary 300 WillowBrook Office Park, Fairport, New York
14450; telephone number 716-218-2169.
To obtain timely delivery of any of this information or our filings, you must make your request to us no later than five business days before the expiration date of the exchange offer.The exchange offer will expire at 5:00 p.m., New York City time, on July 10, 2001. , 2007, unless extended.See "The“The Exchange Offer"Offer” for more information.
____________
Explanatory Note
All share and per share amounts in this prospectus are adjusted to give effect
to the two-for-one stock split of our class A common stock and our class B
common stock that we announced on April 12, 2001. The stock split was
distributed in the form of a stock dividend on May 14, 2001, to stockholders of
record on April 30, 2001. Under the terms of the stock dividend, each holder of
class A common stock and each holder of class B common stock was issued an
additional share of class A common stock or class B common stock for each such
share held. The share and per share amounts in documents that we have previously
filed with the Securities and Exchange Commission that we are incorporating by
reference into this prospectus (except for the report on Form 8-K filed on April
12, 2001, reporting our results for the three month period and the twelve month
period ended February 28, 2001, and announcing our two-for-one stock split)
reflect this two-for-one stock split. See "Where You Can Find More
Information."
____________
Forward-Looking Statements
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities Exchange
Act. These forward-looking statements are subject to a number ofthat involve risks and uncertainties, manyincluding those discussed under the caption “Risk Factors.” We develop forward-looking statements by combining currently available information with our beliefs and assumptions. These statements relate to future events, including our future performance, and often contain words such as “may,” “should,” “could,” “expects,” “seeks to,” “anticipates,” “plans,” “believes,” “estimates,” “intends,” “predicts,” “projects,” “potential” or “continue” or the negative of whichsuch terms and other comparable terminology. Forward-looking statements are beyond our control, that could causeinherently uncertain, and actual performance or results tomay differ materially and adversely from those set forththat expressed in, or implied by, our
forward-lookingany such statements. AllConsequently, you should recognize these statements other than statements of historical
facts included in this prospectus, including the statements under "Prospectus
Summary," regarding our business strategy, future operations, financial
position, estimated revenues, projected costs, prospects, plansfor what they are and objectives
of management,we caution you not to rely upon them as well as information concerning expected actions of third
parties are forward-looking statements. When used in this prospectus, the words
"anticipate," "intend," "estimate," "expect," "project" and similar expressions
are intended to identify forward-looking statements, although not all forward-
looking statements contain such identifying words. All forward-looking
statements speak only as of the date of this prospectus. We do not undertake any
obligation to update or revise any forward-looking statements, whether as a
result of new information, future events or otherwise. Although we believe that
the expectations reflected in the forward-looking statements are reasonable, we
can give no assurance that such expectations will prove to be correct. Important
factors that could cause our actual results to differ materially from our
expectations ("cautionary statements") are disclosed under "Risk Factors" and
elsewhere in this prospectus. The cautionary statements qualify all forward-
looking statements attributable to us or persons acting on our behalf.
ii
____________
Industry Data
facts.
Market sharepositions and industry data discloseddiscussed in this prospectus have been obtained or derived from the following industry and government publications: The Gomberg-Fredrikson
Report; Adams Liquor Handbook; Adams Wine Handbook; Adams Beer Handbook; Adams
Media Handbook Advance; The U.S. Wine Market: Impact Databank Review and Forecast; The U.S. Beer Market: Impact Databank Review and Forecast; The U.S. Distilled Spirits Markets:Market: Impact Databank Review and Forecast; NACM; AC
Nielsen; the Zenith Guide; Beer Marketer's Insights;Euromonitor; Australian Bureau of Statistics; Information Resources, Inc.; ACNielsen; Association for Canadian Distillers; AZTEC; and The Drink Pocketbook
2001.DISCUS. We have not independently verified these data. Unless otherwise noted, all references in this prospectus to market share datapositions are based on unit volume and
unless otherwise noted, the most recent complete industry data available are for
1999.
____________
Intellectual Property
We own or have rights to various trademarks, copyrights and trade names used in
our business including the following: Alice White, Almaden, Arbor Mist,
Blackthorn, Black Velvet, Canadian Ltd., Cook's, Covey Run, Diamond White,
Dunnewood, Estancia, Estate Cellars, Fleischmann's, Fleischmann's Royal,
Fleischmann's Schenley, Franciscan, Franciscan Oakville Estate, Gaymor's Olde
English, Golden Wedding, Grant's of St. James, Inglenook, J. Roget, K cider,
MacNaughton, Marcus James, McMaster's, Montezuma, Motif, Mr. Boston, Mystic
Cliffs, Nectar Valley, Oakville Estate, OFC, Paul Masson, Paul Masson Grande
Amber Brandy, QC, St. Regis, Simi, Stone's, Stowells of Chelsea, Talus, Taylor,
Triple Crown and Vendange. This prospectus and the documents incorporated by
reference also include trademarks, service marks and trade names of other
companies.
iii
Prospectus Summary
volume.
The following summary highlights selectedcontains basic information fromabout this prospectus and
mayoffering. It does not contain all of the information that is important to you. WeFor a more complete understanding of this offering, we encourage you to read this prospectusthe entire document and the documents incorporated by reference in their
entirety.reference. Unless we indicate otherwise, and except with respect to any description of the notes, the terms "Company," "we," "us"“Company,” “we,” “us” and "our"“our” refer to Constellation Brands, Inc. together with its consolidated subsidiaries.
Constellation Brands, Inc. is
We are a Delaware corporation that was incorporated on
December 4, 1972. On September 19, 2000, the Company changed its name to
Constellation Brands, Inc. from Canandaigua Brands, Inc.
Constellation Brands, Inc.
Constellation Brands, Inc. is a leader in the productionleading international producer and marketingmarketer of beverage alcohol with a broad portfolio of brands across the wine, spirits and imported beer categories. We have the largest wine business in North Americathe world and have a leading market position in each of our core markets, which include the United States, Canada, the United Kingdom, Australia and is a leading
independent drinks wholesaler inNew Zealand. In the United Kingdom. As the second largest
supplier of wine, the second largest importer of beer and the fourth largest
supplier of distilled spirits,U.S., we are the largest single-sourcemulti-category (wine, spirits and imported beer) supplier of these products in the United States. In the United Kingdom, we arebeverage alcohol. Our strong market positions make us a leading
marketersupplier of winechoice to our customers who include wholesale distributors, retailers, on-premise locations and the second largest producer and marketer of cider. government alcohol beverage control agencies.
With our broad product portfolio, we believe we are distinctly positioned to satisfy an array of consumer preferences across all beverage alcohol categories.categories and price points. Many of our products are recognized leaders in their respective categories and geographic markets. Leading brands in our portfolio include:include Almaden, Arbor Mist, Vendange, Woodbridge by Robert Mondavi, Hardys, Goundrey, Nobilo, Kim Crawford, Alice White, Ruffino, Kumala, Robert Mondavi Private Selection, Rex Goliath, Toasted Head, Blackstone, Ravenswood, Estancia, Franciscan Oakville Estate, Inniskillin, Jackson-Triggs, Simi, Estancia,Robert Mondavi Winery, Stowells, Blackthorn, Black Velvet, Mr. Boston, Fleischmann’s, Paul Masson Grande Amber Brandy, Chi-Chi’s, 99 Schnapps, Ridgemont Reserve 1792 and the Effen and SVEDKA vodka lines. We, through a joint venture with Grupo Modelo, S.A.B de C.V. (which we refer to as “Crown Imports”), import, market and sell Corona Extra, Corona Light, Pacifico, Modelo Especial, Negra Modelo, St. Pauli Girl Almaden, Arbor Mist, Talus, Vendange, Alice
White, Black Velvet, Fleischmann's, Schenley, Ten High, Stowells of Chelsea,
Blackthorn and K.
Our products are distributed by more than 1,000 wholesale distributors in North
America. In the United Kingdom, we distribute our branded products and those of
other companies to more than 16,500 customers. We operate 29 production
facilities throughout the world. In addition to producing and marketing our own
brands, we also purchase products for resale from other producers.
Tsingtao beers.
Since our founding in 1945 as a producer and marketer of wine products, we have grown through a combination of internal growth and acquisitions. Our internal growth has been driven by leveraging our existing portfolio of leading brands, developing new products, new packaging and line extensions, and focusing on the faster growing sectors of the beverage alcohol industry. Since 1991,We conduct our business through entities we have
successfully integrated nine major acquisitionswholly own as well as a variety of joint ventures with various other entities, both within and outside the U.S.
Corporate Information
Our principal executive offices are located at 370 Woodcliff Drive, Suite 300, Fairport, New York 14450, and our telephone number is 585-218-3600. We maintain a website atwww.cbrands.com. Our website and the information contained on that site, or connected to that site, are not a part of this prospectus. We are a Delaware corporation that was incorporated on December 4, 1972, as the successor to a business founded in 1945. On September 19, 2000, we are in the process of
integratingchanged our recent Turner Road and Corus acquisitions. These acquisitions
have broadened our portfolio and increased our market share, net sales and cash
flow. For the year ended February 28, 2001, our net sales and earnings before
interest, taxes, depreciation and amortization ("EBITDA") were $2.4 billion and
$341.3 million, respectively.
1
The Exchange Offer
On May 14, 2007, we completed an offering of $700,000,000 aggregate principal amount of the original notes in a transaction exempt from the registration requirements of the Securities Act. The original notes are guaranteed on a senior unsecured basis by the subsidiary guarantors. The exchange notes will be our obligations and will be entitled to the benefits of the indenture relating to the original notes. The exchange notes will also be guaranteed on a senior unsecured basis by the subsidiary guarantors. The form and terms of the exchange notes are substantially identical in all material respects to the form and terms of the original notes, except that the exchange notes:
have been registered under the Securities Act and, therefore, will contain no restrictive legends or transfer restrictions;
will bear a different CUSIP number from the original notes;
will not have registration rights; and
will not have the right to liquidated damages.
The following is a brief summary of the terms of the exchange offer. It likely does not contain all the information that is important to you. For a more complete description of the exchange offer, see “The Exchange Offer.”
The Exchange Offer | We are offering |
Expiration | The exchange offer |
Withdrawal Rights | You may withdraw your tender of original notes at any time before the exchange |
Registration Rights Agreement | The exchange offer is intended to satisfy your registration rights under the registration rights agreement we and the subsidiary guarantors entered into with the initial purchasers of the original notes. After the exchange offer is closed, we will no longer have an obligation to register the original notes, except under limited circumstances. Under the registration rights agreement, we are required to pay liquidated damages in the form of |
Resale of Exchange Notes | Based on an interpretation by the staff of the SEC set forth in no-action letters issued to other parties unrelated to us, we believe that the exchange notes issued pursuant to the exchange offer in exchange for original notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that: |
you are acquiring the exchange notes in the ordinary course of your business;
you have not engaged in, and do not intend to engage in, the distribution of the exchange notes (within the meaning of the Securities Act);
you have no arrangement or understanding with any person to participate in the distribution of the exchange notes;
you are not our “affiliate,” as defined in Rule 405 under the Securities Act.
We do not intend to apply for listing of the exchange notes on any securities exchange or to seek approval for quotation through an automated quotation system. Accordingly, there can be no assurance that an active market will develop upon completion of the exchange offer or, if developed, that such market will be sustained or as to the liquidity of any market. |
Each broker-dealer that receives exchange notes for its own account in exchange for original notes that were acquired by that broker-dealer as a result of market-making or other trading activities must |
Conditions to the Exchange Offer | The exchange offer is subject to certain customary conditions which we may amend or waive. The exchange offer is not conditioned upon any minimum principal amount of original notes |
Procedures for | If you wish to accept the exchange offer, you must transmit a properly completed and signed letter of transmittal, |
Special Procedures for Beneficial Owners | If you are a beneficial owner of |
Guaranteed Delivery Procedures | If you cannot deliver your original notes, the letter of transmittal or any other required documentation, or if you cannot comply with The Depository Trust Company’s, or DTC’s, Automated Tender Offer Program for transfer of book-entry interests, prior to the expiration date, you may tender your original notes according to the guaranteed delivery procedures set forth under “The Exchange Offer—Guaranteed Delivery Procedures.” |
Acceptance of the Original Notes and Delivery of the Exchange Notes | We will accept for exchange any and all original notes that you properly tender in |
Use of | We will not receive any proceeds from the issuance of exchange notes pursuant to the exchange offer. |
Material United States Federal Income Tax Consequences | We believe that the exchange of exchange notes for original notes pursuant to the exchange offer will not be a taxable event for United States federal income tax purposes, but you should consult your tax adviser about the tax consequences of the exchange offer. See “Material United States Federal Income Tax Considerations.” |
Consequences of Failure to Exchange | All untendered original notes will continue to be subject to the restrictions on transfer set forth in the original notes and in the indenture governing the notes. In general, you may not offer or sell your original notes unless they are registered under the federal securities laws or sold in a transaction exempt from, or not subject to, the registration requirements of federal and applicable state securities laws. As a result of the restrictions on transfer and the availability of exchange notes, any remaining original notes are likely to be much less liquid than before the exchange offer. After the exchange offer is closed, we will no longer have an obligation to register the original notes, except in limited circumstances. See “The Exchange Offer—Consequences of Failure to Exchange.” |
Exchange Agent | The Bank of New York |
The Exchange Notes
The following is a brief summary of the New Notes
Theprincipal terms of the new notes to be issued inexchange notes. For a more complete description of the terms of the exchange offernotes, see “Description of the Exchange notes.” The exchange notes will have terms substantially identical in all material respects to the form and terms of the outstanding oldoriginal notes, are identical except forthat the exchange notes have been registered under the Securities Act and, therefore, will not be subject to certain transfer restrictions, will bear a different CUSIP number from the original notes and will not entitle their holders to registration rights andor rights to liquidated damages that apply to the old notes. When we
refer to the term "note" or "notes", we are referring to both the outstanding
old notes and the new notes to be issued in the exchange offer.
damages.
Issuer | Constellation Brands, Inc. |
Notes | $700,000,000 aggregate principal amount of |
Maturity Date | May 15, |
Interest | Interest |
Ranking | The exchange notes and the guarantees thereof will be our and our subsidiary guarantors’ general unsecured senior obligations and will: |
rank equally in right of payment to all of our and the subsidiary guarantors’ indebtedness and other obligations that are not, by their terms, expressly subordinated in right of payment to the notes and the guarantees;
be senior in right of payment to any of our and the subsidiary guarantors’ future indebtedness and other obligations that are, by their terms, expressly subordinated in right of payment to the notes and the subsidiary guarantees;
be effectively subordinated to all of our and the subsidiary guarantors’ senior secured indebtedness and other obligations (including our senior credit facility) to the extent of the value of the assets securing such obligations; and
be effectively subordinated to all indebtedness and other liabilities of our subsidiaries that are not subsidiary guarantors.
As of August 31, 2007, the original notes and guarantees thereof ranked effectively junior to approximately $2.39 billion of senior secured indebtedness and we had an additional $849.1 million of additional availability under the revolving portion of our |
Optional Redemption | We may redeem the exchange notes, in whole or |
Change of Control | If we experience specific kinds of changes of control, we must offer to repurchase all of the exchange notes at 101% of |
Subsidiary Guarantees | Each of our existing and future subsidiaries will guarantee the exchange notes on a senior unsecured basis to the extent and for so long as such entities guarantee our senior credit facility. |
Certain Covenants | The indenture |
incur liens;
consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; and
enter into sale and leaseback transactions.
These covenants will be subject to important exceptions, limitations and qualifications. See “Description of the Notes—Certain Covenants.” |
Absence of Public Market | The exchange notes are new securities for which there is currently no market. Although the initial purchasers in the private offering of the original notes have informed us that they currently intend to make a market in the exchange notes, they are not obligated to do so, and any such market-making activities may be discontinued at any time without notice. Accordingly, we cannot assure you as to the |
Risk Factors | You should carefully consider the information set forth in the section entitled “Risk Factors” and the |
Your decision whether or not to participate in the exchange offer and own original notes or exchange notes will involve some degree of risk. You should be aware of, and carefully consider, the following risk factors, along with all of the other information provided or referred to in this prospectus, before deciding whether or not to participate in the exchange offer.
Risks Related to the Exchange Offer
If you fail to exchange your original notes, they will continue to be restricted securities and may become less liquid.
Original notes which the new notes will be issued are
governed by the laws of the State of New York.
Trustee...................................... BNY Midwest Trust Company.
3
Book-Entry Transfer Facilities............... The Depository Trust Company.
Failure to Exchange Your Old Notes
The old notes that you do not tender or we do not accept will, following the exchange offer, continue to be restricted securities. Therefore,securities, and you may only
transfernot offer to sell them except pursuant to an exemption from, or resell them in a transaction registered under or exempt fromnot subject to, the Securities Act and applicable state securities laws. We will issuelaw. Other than in connection with the new notes
in exchange foroffer, we do not plan to register the oldoriginal notes under the Securities Act. If you hold any original notes after the exchange offer only following the
satisfactionis completed, you may experience difficulties selling them because of the procedures and conditions described under the caption "The
Exchange Offer". these restrictions on transfer.
Because we anticipate that most holders of the oldoriginal notes will elect to participate in the exchange their old notes,offer, we expect that the liquidity of the markets,
if any,market for any oldoriginal notes remaining after the completion of the exchange offer will be substantially limited. Any oldoriginal notes tendered and exchanged in the exchange offer will reduce the aggregate principal amount outstanding of the oldoriginal notes outstanding. Following the exchange offer, if you did not tender your original notes you will not have any further registration rights, except in limited circumstances, and your original notes will continue to be subject to certain transfer restrictions.
You must comply with the exchange offer procedures in order to receive the exchange notes.
Risk Factors
You
We will only issue exchange notes in exchange for original notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the original notes, and you should carefully consider all offollow the informationinstructions on how to tender your original notes set forth in this
prospectusunder “The Exchange Offer—Procedures for Tendering” and in particular, should evaluate the specific factors under "Risk
Factors" beginning on page 5 before tenderingletter of transmittal that accompanies this prospectus. Neither we nor the exchange agent are required to notify you of any defects or irregularities relating to your oldtender of original notes.
Some holders who exchange their original notes may be deemed to be underwriters and these holders will be required to comply with the registration and prospectus delivery requirements in connection with any resale transaction.
If you exchange your original notes in the exchange offer.
____________________
Our principal executive offices are located at 300 WillowBrook Office Park,
Fairport, New York 14450, and our telephone number is 716-218-2169. We maintainoffer for the purpose of participating in a website at www.cbrands.com. The information on our website is not part of this
prospectus and is not incorporated by reference in this prospectus.
4
Risk Factors
You should consider carefully alldistribution of the information in thisexchange notes, you may be deemed to have received restricted securities and, if so, will be required to comply with the registration and prospectus and
incorporated by reference in this prospectus. In particular, you should
carefully evaluate the following risks before tendering your old notes in the
exchange offer. However, the risk factors set forth below, other than the first
two risk factors, are also generally applicable to the old notes as well as the
new notes.
This prospectus includes "forward-looking statements" within the meaning of
Section 27Adelivery requirements of the Securities Act and Section 21E of the Securities Exchange
Act. These forward-looking statements include, in particular, the statements
about our plans, strategies and prospects under the heading "Prospectus
Summary." Although we believe that our plans, intentions and expectations
reflected in or suggested by such forward-looking statements are reasonable, we
cannot assure you that we will achieve such plans, intentions or expectations.
Important factors that could cause actual results to differ materially from the
forward-looking statements we make in this prospectus are set forth below and
elsewhere in this prospectus. All forward-looking statements attributable to us
or persons acting on our behalf are expressly qualified in their entirety by the
following cautionary statements.
The liquidity of unexchanged old notes will be substantially limited following
the exchange offer.
Although we believe there is currently a limited trading market for the old
notes, no generally reliable public pricing information for the old notes is
available. The trading market for unexchanged old notes could become even more
limited or nonexistent dueconnection with any resale transaction.
Risks Relating to the reduction in the amount of old notes
outstanding after the exchange offer, which might adversely affect the
liquidity, market price and price volatility of the old notes. If a market for
unexchanged old notes exists or develops, the old notes may trade at a discount
to the price at which such old notes would trade if the amount outstanding were
not reduced, depending on prevailing interest rates, the market for similar
securities, our operating results, and other factors. However, there can be no
assurance that an active market in the unexchanged old notes will exist, develop
or be maintained and no assurance as to the prices at which the unexchanged old
notes may be traded.
Tendering holders of old notes cannot be sure that an active market will develop
for the new notes.
No assurance can be given that an active market for the new notes will develop.
The trading price of the new notes may depend upon prevailing interest rates,
the market for similar securities, our operating results, and other factors,
including general economic conditions. If there is no active trading market, you
may not be able to sell your new notes at their fair market value or at all.
Company
Our indebtedness could have a material adverse effect on our financial health
and our ability to fulfill our obligations under the notes.
health.
We have incurred substantial indebtedness to finance our acquisitions andacquisitions. In the future, we may incur substantial additional indebtedness in the future to finance further acquisitions. Asacquisitions, including our expected acquisition of February 28, 2001, we have approximately $1.4 billion of
indebtedness outstanding, which does not include approximately $287.7 million of
revolving loans we had available to draw under our senior credit facility.Beam Wine Estates, Inc. (“Beam Wine Estates”), or for other purposes. Our ability to satisfy our debt obligations outstanding from time to time will depend upon our future operating performance. We do not have complete control over our future operating performance whichbecause it is subject to prevailing economic conditions, levels of interest rates and financial, business and other factors, many of which are beyondfactors. We cannot assure you that our control. Therefore, there can be no
assurance that ourbusiness will generate sufficient cash flow from operations will be sufficient to meet all of our debt service requirements and to fund our capital expenditure requirements.
Our current and future debt service obligations and covenants could have important consequences to you. Such obligations and covenantsThese consequences include, andor may include, the following:
. our
Our ability to obtain financing for future working capital needs or acquisitions or other purposes may be limited;
.
Our funds available for operations, expansion or distributions will be reduced because we will dedicate a significant portion of our cash flow from operations will be
dedicated to the payment of principal and interest on our indebtedness, thereby reducing funds available for operations;
. we are subject to restrictive covenants that could limit ourindebtedness;
Our ability to conduct our business;business could be limited by restrictive covenants; and
. we may be more vulnerable
Our vulnerability to adverse economic conditions may be greater than our less leveraged competitors and, thus, may be limited in our ability to withstand competitive pressures.
The restrictive covenants included in ourpressures may be limited.
Our senior credit facility our current
indentures and the indentureindentures under which the old notesour debt securities have been issued contain restrictive covenants and the new
notes will be, issued include, among others, those restrictingprovisions. These covenants and provisions affect our ability to grant additional liens, incur additional borrowing, the sale ofdebt, sell assets, engage in changes of control, the payment ofpay dividends, enter into transactions with affiliates, the making ofmake investments and engage in certain other fundamental changes. TheOur senior credit facility also contains restrictions on our ability to make acquisitions and certain financial ratio tests, 5
ratio, a senior debt coverage ratio, a fixed charges ratio and an interest coverage ratio. These restrictions could limit our ability to conduct business. A failureIf we fail to comply with the obligations contained in the senior credit facility, our currentexisting or future indentures or the indenture under which the
old notes have been, and the new notes willother loan agreements, we could be issued could result in an event
of default under such agreements, which could require us to immediately repay the related debt and also debt under other agreements that may contain cross-
accelerationcross-acceleration or cross-default provisions.
Our acquisition and joint venture strategies may not be successful.
We have made a number of acquisitions and we anticipate that we may, from time to time, acquire additional businesses, assets or securities of companies that we believe would provide a strategic fit with our business, including our expected acquisition of Beam Wine Estates. We will need to integrate acquired businesses with our existing operations. We cannot assure you that we will effectively assimilate the business or product offerings of acquired companies into our business or product offerings. Integrating the operations and personnel of acquired companies into our existing operations may result in difficulties and expense, disrupt our business or divert management’s time and attention. Acquisitions involve numerous other risks, including potential exposure to unknown liabilities of acquired companies and the possible loss of key employees and customers of the acquired business. In connection with acquisitions or joint venture investments outside the U.S., we may enter into derivative contracts to purchase foreign currency in order to hedge against the risk of foreign currency fluctuations in connection with such acquisitions or joint venture investments, which subjects us to the risk of foreign currency fluctuations associated with such derivative contracts.
We have entered into joint ventures, including our joint venture with Grupo Modelo, S.A.B. de C.V. (“Modelo”), and we may enter into additional joint ventures. We share control of our joint ventures. Our joint venture partners may at any time have economic, business or legal interests or goals that are inconsistent with our goals or the goals of the joint venture. In addition, our joint venture partners may be unable to meet their economic or other obligations and we may be required to fulfill those obligations alone. Also, there are risks and uncertainties associated with establishing joint ventures including, among others, the joint venture’s ability to operate its business successfully, the joint venture’s ability to develop appropriate standards, controls, procedures and policies for the growth and management of the joint venture and the strength of the joint venture’s relationships with its employees, suppliers and customers. Our failure or the failure of an entity in which we have a joint venture interest to adequately manage the risks associated with any acquisitions or joint ventures could have a material adverse effect on our financial condition or results of operations. We cannot assure you that any of our acquisitions or joint ventures will be profitable.
Competition could have a material adverse effect on our business.
We are in a highly competitive industry and the dollar amount and unit volume of our sales could be negatively affected by our inability to maintain or increase prices, changes in geographic or product mix, a general decline in beverage alcohol consumption or the decision of wholesalers, retailers or consumers to purchase competitive products instead of our products. Wholesaler, retailer and consumer purchasing decisions are influenced by, among other things, the perceived absolute or relative overall value of our products, including their quality or pricing, compared to competitive products. Unit volume and dollar sales could also be affected by pricing, purchasing, financing, operational, advertising or promotional decisions made by wholesalers, state and provincial agencies, and retailers which could affect their supply of, or consumer demand for, our products. We could also experience higher than expected selling, general and administrative expenses if we find it necessary to increase the number of our personnel or our advertising or promotional expenditures to maintain our competitive position or for other reasons.
An increase in excise taxes or government regulations could have a material adverse effect on our business.
The U.S., the U.K., Canada, Australia and other countries in which we operate impose excise and other taxes on beverage alcohol products in varying amounts which have been subject to change. Significant increases in excise or other taxes on beverage alcohol products could materially and adversely affect our financial condition or results of operations. Many U.S. states have considered proposals to increase, and some of these states have increased, state alcohol excise taxes. In addition, federal, state, local and foreign governmental agencies extensively regulate the beverage alcohol products industry concerning such matters as licensing, trade and pricing practices, permitted and required labeling, advertising and relations with wholesalers and retailers. Certain federal and state or provincial regulations also require warning labels and signage. New or revised regulations or increased licensing fees, requirements or taxes could also have a material adverse effect on our financial condition or results of operations.
We rely on the performance of wholesale distributors, major retailers and chains for the success of our business.
In the U.S., we sell our products principally to wholesalers for resale to retail outlets including grocery stores, package liquor stores, club and discount stores and restaurants. In the U.K., Canada and Australia, we sell our products principally to wholesalers and directly to major retailers and chains. The replacement or poor performance of our major wholesalers, retailers or chains could materially and adversely affect our results of operations and financial condition. Our inability to collect accounts receivable from our major wholesalers, retailers or chains could also materially and adversely affect our results of operations and financial condition.
The industry is being affected by the trend toward consolidation in the wholesale and retail distribution channels, particularly in Europe and the U.S. If we are unable to successfully adapt to this changing environment, our net income, share of sales and volume growth could be negatively affected. In addition, wholesalers and retailers of our products offer products which compete directly with our products for retail shelf space and consumer purchases. Accordingly, wholesalers or retailers may give higher priority to products of our competitors. In the future, our wholesalers and retailers may not continue to purchase our products or provide our products with adequate levels of promotional support.
Our business could be adversely affected by a decline in the consumption of products we sell.
Since 1995, there have been modest increases in consumption of beverage alcohol in most of our product categories and geographic markets. There have been periods in the past, however, in which there were substantial declines in the overall per capita consumption of beverage alcohol products in the U.S. and other markets in which we participate. A limited or general decline in consumption in one or more of our product categories could occur in the future due to a variety of factors, including:
A general decline in economic conditions;
Increased concern about the health consequences of consuming beverage alcohol products and about drinking and driving;
A general decline in the consumption of beverage alcohol products in on-premise establishments, such as may result from smoking bans;
A trend toward a healthier diet including lighter, lower calorie beverages such as diet soft drinks, juices and water products;
The increased activity of anti-alcohol groups; and
Increased federal, state or foreign excise or other taxes on beverage alcohol products.
In addition, our continued success depends, in part, on our ability to develop new products. The launch and ongoing success of new products are inherently uncertain especially with regard to their appeal to consumers. The launch of a new product can give rise to a variety of costs and an unsuccessful launch, among other things, can affect consumer perception of existing brands.
We generally purchase raw materials under short-term supply contracts, and we are subject to substantial price fluctuations for grapes and grape-related materials, and we have a limited group of suppliers of glass bottles.
Our business is heavily dependent upon raw materials, such as grapes, grape juice concentrate, grains, alcohol and packaging materials from third-party suppliers. We could experience raw material supply, production or shipment difficulties that could adversely affect our ability to supply goods to our customers. Increases in the costs of raw materials also directly affect us. In the past, we have experienced dramatic increases in the cost of grapes. Although we believe we have adequate sources of grape supplies, in the event demand for certain wine products exceed expectations, we could experience shortages.
The wine industry swings between cycles of grape oversupply and undersupply. In a severe oversupply environment, the ability of wine producers, including ourselves, to raise prices is limited, and, in certain situations, the competitive environment may put pressure on producers to lower prices. Further, although an oversupply may enhance opportunities to purchase grapes at lower costs, a producer’s selling and promotional expenses associated with the sale of its wine products can rise in such an environment.
Glass bottle costs are one of our largest components of cost of product sold. In the U.S., Canada and Australia, glass bottles have only a small number of producers. Currently, one producer supplies most of our glass container requirements for our U.S. operations and another producer supplies substantially all of our glass container requirements for our Australian operations and a third producer supplies a majority of our glass container requirements for our Canadian operations. The inability of any of our glass bottle suppliers to satisfy our requirements could adversely affect our business.
Our operations subject us to risks relating to currency rate fluctuations, interest rate fluctuations and geopolitical uncertainty which could have a material adverse effect on our business.
We have operations in different countries throughout the world and, therefore, are subject to risks associated with currency fluctuations. As a result of our international acquisitions, we have significant exposure to foreign currency risk as a result of having international operations in Australia, Canada, New Zealand and the U.K. We are also exposed to risks associated with interest rate fluctuations. We manage our exposure to foreign currency and interest rate risks utilizing derivative instruments and other means to reduce those risks. We, however, could experience changes in our ability to hedge against or manage fluctuations in foreign currency exchange rates or interest rates and, accordingly, there can be no assurance that we will be successful in reducing those risks. We could also be affected by nationalizations or unstable governments or legal systems or intergovernmental disputes. These currency, economic and political uncertainties may have a material adverse effect on our results
of operations, especially to the extent these matters, or the decisions, policies or economic strength of our suppliers, affect our global operations.
We have a material amount of intangible assets, such as goodwill and trademarks, and if we are required to write-down any of these intangible assets, it would reduce our net income, which in turn could have a material adverse effect on our results of operations.
We have a significant amount of intangible assets, such as goodwill and trademarks. We adopted the Financial Accounting Standards Board issued Statement of Financial Accounting Standards (“SFAS”) No. 142, “Goodwill and Other Intangible Assets,” in its entirety, on March 1, 2002. Under SFAS No. 142, goodwill and indefinite lived intangible assets are no longer amortized, but instead are subject to a periodic impairment evaluation. Reductions in our net income caused by the write-down of any of these intangible assets could materially and adversely affect our results of operations.
The termination of our joint venture with Modelo relating to importing, marketing and selling imported beer could have a material adverse effect on our business.
On January 2, 2007, we participated in establishing and commencing operations of a joint venture with Modelo, pursuant to which Corona Extra and other brands in Modelo’s Mexican beer portfolio are imported, marketed and sold by the joint venture in the U.S. (including the District of Columbia) and Guam along with certain other imported beer brands in their respective territories. Pursuant to the joint venture and related importation arrangements, the joint venture will continue for an initial term of 10 years, and renew in 10-year periods unless GModelo Corporation, a Delaware corporation and subsidiary of Diblo, S.A. de C.V., an entity owned 76.75% by Modelo and 23.25% by Anheuser-Busch, Inc., gives notice prior to the end of year seven of any term of its intention to purchase our interest we hold through our subsidiary, Barton Beers, Ltd. (“Barton”). The joint venture may also terminate under other circumstances involving action by governmental authorities, certain changes in control of us or Barton as well as in connection with certain breaches of the importation and related sub-license agreements, after notice and cure periods.
The termination of the joint venture by acquisition of Barton’s interest or for other reasons noted above could have a material adverse effect on our business, financial condition or results of operations.
Class action or other litigation relating to alcohol abuse or the misuse of alcohol could adversely affect our business.
There has been increased public attention directed at the beverage alcohol industry, which we believe is due to concern over problems related to alcohol abuse, including drinking and driving, underage drinking and health consequences from the misuse of alcohol. Several beverage alcohol producers have been sued in several courts regarding alleged advertising practices relating to underage consumers. Adverse developments in these or similar lawsuits or a significant decline in the social acceptability of beverage alcohol products that results from these lawsuits could materially adversely affect our business.
We depend upon our trademarks and proprietary rights, and any failure to protect our intellectual property rights or any claims that we are infringing upon the rights of others may adversely affect our competitive position.
Our future success depends significantly on our ability to protect our current and future brands and products and to defend our intellectual property rights. We have been granted numerous trademark registrations covering our brands and products and have filed, and expect to continue to file, trademark applications seeking to protect newly-developed brands and products. We cannot be sure that trademark registrations will be issued with respect to any of our trademark applications. There is also a risk that we could, by omission, fail to timely renew a trademark or that our competitors will challenge, invalidate or circumvent any existing or future trademarks issued to, or licensed by, us.
Contamination could harm the integrity or customer support for our brands and adversely affect the sales of our products.
The success of our brands depends upon the positive image that consumers have of those brands. Contamination, whether arising accidentally or through deliberate third-party action, or other events that harm the integrity or consumer support for those brands, could adversely affect their sales. Contaminants in raw materials purchased from third parties and used in the production of our wine and spirits products or defects in the distillation or fermentation process could lead to low beverage quality as well as illness among, or injury to, consumers of our products and may result in reduced sales of the affected brand or all of our brands.
An increase in the cost of energy could affect our profitability.
We have experienced significant increases in energy costs, and energy costs could continue to rise, which would result in higher transportation, freight and other operating costs. Our future operating expenses and margins will be dependent on our ability to manage the impact of cost increases. We cannot guarantee that we will be able to pass along increased energy costs to our customers through increased prices.
Our reliance upon complex information systems distributed worldwide and our reliance upon third party global networks means we could experience interruptions to our business services.
We depend on information technology to enable us to operate efficiently and interface with customers, as well as maintain financial accuracy and efficiency. If we do not allocate, and effectively manage, the resources necessary to build and sustain the proper technology infrastructure, we could be subject to transaction errors, processing inefficiencies, the loss of customers, business disruptions, or the loss of or damage to intellectual property through security breach. As with all large systems, our information systems could be penetrated by outside parties intent on extracting information, corrupting information or disrupting business processes. Such unauthorized access could disrupt our business and could result in the loss of assets.
Changes in accounting standards and taxation requirements could affect our financial results.
New accounting standards or pronouncements that may become applicable to us from time to time, or changes in the interpretation of existing standards and pronouncements, could have a significant effect on our reported results for the affected periods. We are also subject to income tax in the numerous jurisdictions in which we generate revenues. In addition, our products are subject to import and excise duties and/or sales or value-added taxes in many jurisdictions in which we operate. Increases in income tax rates could reduce our after-tax income from affected jurisdictions, while increases in indirect taxes could affect our products’ affordability and therefore reduce our sales.
Various diseases, pests and certain weather conditions could affect quality and quantity of grapes.
Various diseases, pests, fungi, viruses, drought, frosts and certain other weather conditions could affect the quality and quantity of grapes available, decreasing the supply of our products and negatively impacting profitability. We cannot guarantee that our grape suppliers will succeed in preventing contamination in existing vineyards or that we will succeed in preventing contamination in our existing vineyards or future vineyards we may acquire. Future government restrictions regarding the use of certain materials used in grape growing may increase vineyard costs and/or reduce production. Grape growing also requires adequate water supplies. A substantial reduction in water supplies could result in material losses of grape crops and vines, which could lead to a shortage of our product supply.
Risks Relating to The Notes
The notes are unsecured;unsecured and the stock of some ofwill be effectively subordinated to our subsidiaries is pledged to
secure our senior credit facility.
secured debt.
The notes are not secured by any of our assets. As of August 31, 2007, we had $2.39 billion of secured debt and $849.1 million of unused commitments (taking into account issued and outstanding revolving letters of credit of approximately $33.9 million) under the revolving portion of our senior credit facility. Our obligations under our senior credit facility however, are secured by (i) first priority pledges of 100% of the capital stockownership interests of Canandaigua Limited and allcertain of our domestic operatingU.S. subsidiaries and (ii) first priority pledges of 65% of the voting capital stock held by us of Matthew Clark plc; B.B. Servicios, S.A. de C.V.; Canandaigua World Sales
Limited;certain of our foreign subsidiaries. In addition, the indenture governing the notes permits us and Schenley Distilleries Inc./Les Distilleries Schenley Inc.our subsidiaries to incur significant amounts of additional debt that is secured by liens on our assets without equally and ratably securing the notes. If the
Company becomeswe become insolvent or isare liquidated, or if payment under our senior
credit facilitysecured debt is accelerated, the lenders under the facilityholders of our secured debt would be entitled to exercise the remedies available to a secured lender under applicable law and pursuant to the agreement governing such indebtedness.debt. In any such event, because the notes willare not be secured by any of our assets, it is possible that there would be no assets remaining from which claims of the holders of the notes could be satisfied following repayment of our secured debt or, if any such assets remained, such assets might be insufficient to satisfy such claims fully.
Our ability to make payments on the notes depends on our ability to receive dividends from our subsidiaries, and Matthew Clark is not a guarantor of the
notes.
subsidiaries.
We are a holding company and conduct almost all of our operations through our subsidiaries. As of February 28, 2001,August 31, 2007, approximately 82%92% of our tangible assets were held by our subsidiaries. The capital stock and other ownership interests of our subsidiaries representsrepresent substantially all the assets of the holding company. Accordingly, we are dependent on the cash flows of our subsidiaries to meet our obligations, including the payment of the principal and interest on the notes. See "Description“Description of the Notes."
”
The notes are guaranteed, jointly and severally, by each of our subsidiaries that guarantee any of our other indebtedness or other indebtedness of the
guarantors of the notes.senior credit facility. Holders of the notes will not have a direct claim on assets of subsidiaries that do not guarantee the notes (including, most
significantly, the assetsnotes. As of Matthew Clark). For the year ended February
28, 2001,August 31, 2007, approximately $691.1$909.4 million of our net sales were from the operations
of Matthew Clark, which isour subsidiaries that are not a guarantor of the notes, and approximately $1.6
billion of our net sales were from our operations and the operations of the guarantors of the notes.
The subsidiary guarantees may be subject to challenge under fraudulent transfer laws.
Under U.S. bankruptcy law and comparable provisions of state fraudulent transfer laws, a court could subordinate or void any guarantee if it found that the guarantee was incurred with actual intent to hinder, delay or defraud creditors or the guarantor did not receive fair consideration or reasonably equivalent value for the guarantee and the guarantor was any of the following: (i) insolvent or was rendered insolvent because of the guarantee; (ii) engaged in a business or transaction for which its remaining assets constituted unreasonably small capital; or (iii) intended to incur, or believed that it would incur, debts beyond its ability to pay at maturity. To the extent any guarantee were to be voided as a fraudulent conveyance or held unenforceable for any other reason, holders of the notes would cease to have any claim in respect of such guarantor and would be solely our creditors and any guarantor whose guarantee was not voided or held unenforceable. In such event, the claims of the holders of the notes against the issuer of an invalid guarantee would be subject to the prior payment of all liabilities of such guarantor. There can be no assurance that, after providing for all prior claims, there would be sufficient assets to satisfy the claims of the holders of the notes relating to any voided guarantee.
There may be no public market for the exchange notes and restrictions on transfer may significantly impair the liquidity of the notes.
The exchange notes are a new issue of securities, and there is currently no public market for the exchange notes. If a market for the exchange notes does develop, we also cannot assure you that you will be able to sell your exchange notes at a particular time or that the prices that you receive when you sell will be favorable. We
also cannot assure you as to the level of liquidity of the trading market for the exchange notes. Future trading prices of the exchange notes will depend on many factors, including:
our operating performance, prospects and financial condition or the operating performance, prospects and financial condition of companies in our industry generally;
the interest of securities dealers in making a market for the exchange notes;
prevailing interest rates; and
the market for similar securities.
We do not intend to apply for listing of the exchange notes on any securities exchange or inclusion of the exchange notes on any automated quotation system. In addition, the market for non-investment grade debt has historically been subject to disruptions that have caused volatility in prices. If a market for the exchange notes develops, it is possible that the market for the exchange notes will be subject to disruptions and price volatility. Any disruptions may have a negative effect on holders of the exchange notes, regardless of our prospects and financial performance.
The subsidiary guarantees may be limited in duration.
Each subsidiary guarantor will guarantee our obligations under the notes only for so long as each subsidiary guarantor is a guarantor under our senior credit facility. If any or all of the subsidiary guarantees are released or terminated or no longer required under the senior credit facility, such subsidiary guarantee(s) will be released under the indenture. The indenture does not contain any covenants that materially restrict our ability to sell, transfer or otherwise dispose of our assets, including the capital stock and other ownership interests of our subsidiaries, or the assets of any of our subsidiaries, except as described under the caption “Description of the Notes—Limitations on Mergers, Consolidations, Etc.” in this prospectus.
We may not be able to purchaserepurchase the notes upon a change of control.
Upon the occurrence of specific kinds of change of control events, each holder of notes will have the right to require us to repurchase all or any part of such holder’s notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest, if any, to the date of purchase. Our senior credit facility also provides that certain change of control events constitute a default. Any future credit agreement or other agreements relating to indebtedness to which we become a party may contain similar provisions. If we experience a change of control that triggers a default under our senior credit facility, such default could result in amounts outstanding under our senior credit facility being declared due and payable. We would be prohibited from purchasing the notes unless, and until, such time as our indebtedness under the senior credit facility was repaid in full. There can be no assurance that either we or our subsidiary guarantors would have sufficient financial resources available to satisfy all of our or their obligations under our senior credit facility and these notes in the event of a change of control. Upon the occurrence of certain specific kinds of change of control events, we
will be requiredOur failure to make an offer to repurchasepurchase the notes at 101%as required under the indenture governing the notes would result in a default under the indenture, which could have material adverse consequences for us and the holders of their
principal amount plus accrued interest and we will be required to repay our
senior credit facility in full. However, it is possible that we will not have
sufficient fundsthe notes. See “Description of the Notes—Repurchase at the timeOption of the change of control to make the required
repurchase of notes or to repay our senior credit facility. Even if we did have
sufficient funds to carry out such a repurchase, the financial effect of the
repurchase could cause us to default on our other indebtedness. See "Description
of the Notes--Certain Covenants--Purchase of NotesHolders Upon a Change of Control."
Our acquisition strategy”
Purpose of the Exchange Offer
We sold the original notes to Banc of America Securities LLC and Citigroup Global Markets Inc., the initial purchasers, on May 14, 2007 in a transaction exempt from the registration requirements of the Securities Act. The initial purchasers resold the original notes to qualified institutional buyers pursuant to Rule 144A under the Securities Act and to non-U.S. persons outside the United States pursuant to Regulation S under the Securities Act. Accordingly, the original notes may not be successful.
We have recently made a number of acquisitions, includingreoffered, resold or otherwise transferred unless registered under the Turner RoadSecurities Act and Corus acquisitions,any other applicable securities law or unless applicable exemptions from the registration and anticipate that we may, from time to time, acquire
additional businesses, assets or securities of companies that we believe would
provide a strategic fit with our business. Any other acquired business will need
to be integrated with our existing operations. There can be no assurance that we
will effectively assimilate the business or product offerings of acquired
companies into our business or product offerings. Any acquisitions also will be
accompanied by risks such as potential exposure to unknown liabilities of
acquired companies, the difficulty and expense of integrating the operations and
personnelprospectus delivery requirements of the acquired companies, the potential disruption to our
6
business, the diversion of management timeSecurities Act and attention, the impairment of
relationships with and the possible loss of key employees and customers of the
acquired business, the incurrence of amortization expenses if any acquisition is
accounted for as a purchase. Our failure to adequately manage the risks
associated with any acquisitions could have a material adverse effect on our
financial condition or results of operations.
The termination or non-renewal of imported beer distribution agreements could
have a material adverse effect on our business.
All of our imported beer productssuch other securities laws are marketed and sold pursuant to exclusive
distribution agreements with the suppliers of these products which are subject
to renewal from time to time. Our exclusive agreement to distribute Corona Extra
and our other Mexican beer brands in 25 primarily western U.S. states expires in
December 2006 and, subject to compliance with certain performance criteria,
continued retention of certain personnel and other terms of the agreement, will
be automatically renewed for additional terms of five years. Changes in control
of Constellation Brands, Inc. or its subsidiaries involved in importing the
Mexican beer brands, or changes in the chief executive officer of such
subsidiaries, may be a basis for the supplier, unless it consents to such
changes, to terminate the agreement. The supplier's consent to such changes may
not be unreasonably withheld. Prior to their expiration, these agreements may be
terminated if we fail to meet certain performance criteria. We believe that we
are currently in compliance with all of our material imported beer distribution
agreements. From time to time we have failed, and may in the future fail, to
satisfy certain performance criteria in our distribution agreements. It is
possible that our beer distribution agreements may not be renewed or may be
terminated prior to expiration.
Our business could be adversely affected by a general decline in the consumption
of products we sell.
In the United States, the overall per capita consumption of beverage alcohol
products by adults (ages 21 and over) has declined substantially over the past
20 years. These declines have been caused by a variety of factors including:
. increased concern about the health consequences of consuming beverage
alcohol products and about drinking and driving;
. a trend toward a healthier diet including lighter, lower calorie
beverages such as diet soft drinks, juices and water products;
. the increased activity of anti-alcohol consumer groups; and
. increased federal and state excise taxes.
An increase in excise taxes and government restrictions could have a material
adverse effect on our business.
In the United States, the federal government and individual states impose excise
taxes on beverage alcohol products in varying amounts which have been subject to
change. Increases in excise taxes on beverage alcohol products, if enacted,
could materially and adversely affect our financial condition or results of
operations. In addition, the beverage alcohol products industry is subject to
extensive regulation by state and federal agencies. The federal U.S. Bureau of
Alcohol, Tobacco and Firearms and the various state liquor authorities regulate
such matters as licensing requirements, trade and pricing practices, permitted
and required labeling, advertising and relations with wholesalers and retailers.
In recent years, federal and state regulators have required warning labels and
signage. In the United Kingdom, Matthew Clark carries on its operations under a
Customs and Excise License. Licenses are required for all premises where wine is
produced. Matthew Clark holds a license to act as an excise warehouse operator
and registrations have been secured for the production of cider and bottled
water. New or revised regulations or increased licensing fees and requirements
could have a material adverse effect on our financial condition or results of
operations.
We rely on the performance of wholesale distributors for the success of our
business.
In the United States, we sell our products principally to wholesalers for resale
to retail outlets including grocery stores, package liquor stores, club and
discount stores and restaurants. The replacement or poor performance of our
major wholesalers or our inability to collect accounts receivable from our major
wholesalers could materially and adversely affect our results of operations and
financial condition. Distribution channels for beverage alcohol products have
been characterized in recent years by rapid change, including consolidations of
certain wholesalers. In addition, wholesalers and retailers of our products
offer products which compete directly with our products for retail shelf space
and consumer purchases. Accordingly, there is a risk that these wholesalers or
retailers may give higher priority to products of our competitors. In the
future, our wholesalers and retailers may not continue to purchase our products
or provide our products with adequate levels of promotional support.
We generally do not have long-term supply contracts and we are subject to
substantial price fluctuations for grapes and grape-related materials, and we
have a limited group of suppliers of glass bottles.
7
Our business is heavily dependent upon raw materials, such as grapes, grape
juice concentrate, grains, alcohol and packaging materials from third-party
suppliers. We could experience raw material supply, production or shipment
difficulties which could adversely affect our ability to supply goods to our
customers. We are also directly affected by increases in the costs of such raw
materials. In the past we have experienced dramatic increases in the cost of
grapes. Although we believe we have adequate sources of grape supplies, in the
event demand for certain wine products exceeds expectations, we could experience
shortages. In addition, one of our largest components of cost of goods sold is
that of glass bottles, which have only a small number of producers. The
inability of any of our glass bottle suppliers to satisfy our requirements could
adversely affect our business.
Competition could have a material adverse effect on our business.
We are in a highly competitive industry and the dollar amount, and unit volume,
of our sales could be negatively affected by our inability to maintain or
increase prices, changes in geographic or product mix, a general decline in
beverage alcohol consumption or the decision of our wholesale customers,
retailers or consumers to purchase competitive products instead of our products.
Wholesaler, retailer and consumer purchasing decisions are influenced by, among
other things, the perceived absolute or relative overall value of our products,
including their quality or pricing, compared to competitive products. Unit
volume and dollar sales could also be affected by pricing, purchasing,
financing, operational, advertising or promotional decisions made by wholesalers
and retailers which could affect their supply of, or consumer demand for, our
products. We could also experience higher than expected selling, general and
administrative expenses if we find it necessary to increase the number of our
personnel or our advertising or promotional expenditures to maintain our
competitive position or for other reasons.
We are controlled by the Sands family.
Our outstanding capital stock consists of class A common stock and class B
common stock. Holders of class A common stock are entitled to one vote per share
and are entitled, as a class, to elect one fourth of the members of our board of
directors. Holders of class B common stock are entitled to 10 votes per share
and are entitled, as a class, to elect the remaining directors. As of March 31,
2001, the Sands family beneficially owned approximately 11% of the outstanding
shares of class A common stock (exclusive of shares of class A common stock
issuable pursuant to the conversion feature of the class B common stock owned by
the Sands family) and approximately 92% of the outstanding shares of class B
common stock. On all matters other than the election of directors, the Sands
family has the ability to vote approximately 62% of the votes entitled to be
cast by holders of our outstanding capital stock, voting as a single class.
Consequently, we are essentially controlled by the Sands family and they would
generally have sufficient voting power to determine the outcome of any corporate
transaction or other matter submitted to our stockholders for approval.
8
The Exchange Offer
Purpose and Effect of the Exchange Offer
available.
In connection with the issuancesale of the oldoriginal notes, we and the subsidiary guarantors entered into a registration rights agreement with the initial purchasers of the original notes. The registration rights agreement requires us to register the exchange notes under the Securities Act and to offer to exchange the exchange notes for the original notes. We are effecting the exchange offer to comply with the registration rights agreement. Under the registration rights agreement, we agreed to:
.and the subsidiary guarantors are obligated:
to use our reasonable best efforts to file with the SEC a registration statement withfor the Securitiesexchange offer and Exchange Commission for anthe exchange notes within 395 days after the date of issuance of the new
notes fororiginal notes;
to use our reasonable best efforts to cause the old notesexchange offer registration statement to be declared effective under the Securities Act andnot later than the 485th day after the date of issuance of the original notes;
to use our reasonable best efforts to keep the registration statement effective untilexchange offer open for not less than 30 days, or longer if required by applicable law or otherwise extended by us at our option, after the closingdate on which notice of the exchange offer;
.offer is mailed to the holders of the outstanding notes; and
to use our reasonable best efforts to cause the exchange offer to be consummated within 210 days following the original issuance of the old
notes;
. keep the exchange offer open for acceptance for a period of not lessno later than 20 business525 days after the date notice thereof is mailed to
holdersof issuance of the old notes, or longer if required by applicable law; and
. accept for exchange all old notes validly tendered and not validly
withdrawn in the exchange offer in accordance with the terms oforiginal notes.
Shelf Registration
In the registration statement and letter of transmittal.
As soon as practicable after the exchange offerrights agreement, we agreed to file a shelf registration statement becomes
effective, we will offer eligible holders of the old notes the opportunity to
exchange their old notes for new notes registered under the Securities Act.
Holders are eligible if they are not prohibited by any law or policy of the
Securities and Exchange Commission from participating in this exchange offer.
The new notes will be identical to the old notes except that the new notes will
not contain terms with respect to transfer restrictions, registration rights or
liquidated damages.
In the event that due to a change in current interpretations by the Securities
and Exchange Commission, if:
we are not permitted to effect the exchange offer itas contemplated by this prospectus because of any change in law or applicable interpretations of the law by the staff of the SEC;
the exchange offer is contemplatednot consummated within 525 days after the date of issuance of the original notes;
any holder of original notes is prohibited by law or SEC policy from participating in the exchange offer or does not receive freely tradable exchange notes (other than due solely to the status of such holder as an affiliate of us or any subsidiary guarantor); or
the initial purchaser so requests with respect to original notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution.
In any such event, we will instead file with the SEC promptly, but no later than (a) the 395th day after the date of issuance of the original notes, or (b) the 60th day after any such filing obligation arises, whichever is later, a shelf registration statement coveringto cover resales of transfer restricted securities by those holders who satisfy various conditions relating to the holdersprovision of information in connection with the old notes andshelf registration statement.
If a shelf registration statement is required, we will use our reasonable best efforts to cause the shelf registration statement to become effective and
to keep the shelf registration statement continuously effective, in order to permit the prospectus included therein to be lawfully delivered by holders of relevant outstanding notes, for a maximumperiod of two years from the closing date which isof its effectiveness or such shorter period that will terminate when all notes covered by it have been sold or disposed of or can be sold pursuant to Rule 144(k) under the Securities Act.
Additional Interest
If a registration default, as defined below, occurs with respect to original notes, we will be required to pay additional interest to each holder of such notes. The rate of additional interest will be 0.25% per annum on the principal amount of the original notes for the first 90-day period immediately following the occurrence of the registration default, increasing by an additional 0.25% per annum, with respect to each subsequent 90-day period, up to a maximum amount of additional interest of 1.00% per annum on the principal amount of the original notes, until the earlier of (1) the date on which all registration defaults have been cured or (2) the date on which all the notes otherwise become freely transferable by holders other than our affiliates without further registration under the Securities Act.
A “registration default” will occur if:
we deliveredfail to file any of the old notes to their
initial purchasers.
The description ofregistration statements required by the registration rights agreement containedon or before the date specified for that filing;
any such registration statement is not declared effective by the SEC on or prior to the date specified for its effectiveness;
we fail to complete the exchange offer on or prior to the date specified for completion; or
any of the registration statements is declared effective but thereafter ceases to be effective or usable in this section
is a summary only. For more information, you should reviewconnection with resales covered thereby during the provisions ofperiods specified in the registration rights agreement that we filed with the Securities and Exchange
Commission as an exhibit(subject to the registration statement of which this prospectus
is a part.
In this section entitled "The Exchange Offer," the term "holder" includes any
person that owns a beneficial interest in the old notes.
certain exceptions).
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, we are offering to exchange $1,000 principal amount of exchange notes for each $1,000 principal amount of original notes. You may tender some or all of your original notes only in integral multiples of $1,000 in principal amount. As of the date of this prospectus, $700,000,000 aggregate principal amount of the original notes sold on May 14, 2007 are outstanding.
The expiration dateterms of the exchange notes to be issued are substantially identical in all material respects to the original notes, except that the exchange notes have been registered under the Securities Act and, therefore, the certificates for the exchange notes will not bear legends restricting their transfer. In addition, the exchange notes will bear a different CUSIP number from the original notes and will not entitle their holders to registration rights or rights to additional interest. The exchange notes will be issued under, and be entitled to the benefits of, the indenture, dated as of May 14, 2007 (the “Indenture”), among Constellation Brands, Inc., the subsidiary guarantors and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”).
In connection with the issuance of the original notes, we arranged for the original notes to be issued and transferable in book-entry form through the facilities of The Depository Trust Company, or DTC, acting as depositary. The exchange notes will also be issuable and transferable in book-entry form through DTC.
There will be no fixed record date for determining the eligible holders of the original notes that are entitled to participate in the exchange offer. We will be deemed to have accepted for exchange validly tendered original notes when and if we have given oral (confirmed in writing) or written notice of acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders of original notes for the purpose of receiving exchange notes from us and delivering them to such holders. The exchange offer is not conditioned upon any minimum principal amount of the original notes being tendered for exchange.
You do not have any appraisal or dissenters’ rights under law or the Indenture for the notes in connection with the exchange offer.
If we successfully complete the exchange offer, any original notes that holders do not tender or that we do not accept in the exchange offer will remain outstanding and will continue to be subject to restrictions on transfer. The original notes will continue to accrue interest but, in general, the holders of original notes after the exchange offer will not have further rights under the registration rights agreement, and we will not have any further obligation to register the original notes under the Securities Act. In that case, holders wishing to transfer original notes would have to rely on exemptions from the registration requirements of the Securities Act.
Expiration Date; Extensions; Amendment; Termination
The “expiration date” is 5:00 p.m., New York City time, on July 10, 2001,, 2007, unless we, extend the exchange offer.
The exchange offer is not conditioned upon holders tendering a minimum principal
amount of old notes.
You do not have any appraisal or dissenters' rights in the exchange offer. If
you do not tender old notes or you tender old notes that we do not accept, your
old notes will remain outstanding. Any old notes will be entitled to the
benefits of the indenture under which they were issued. See "Risk Factors" for
more information regarding old notes that remain outstanding after the exchange
offer.
After the expiration date, we will return to you any tendered old notes that we
did not accept for exchange.
You will not have to pay brokerage commissions or fees or transfer taxes for
exchanging your notes if you follow the instructions in the letter of
transmittal. We will pay the charges and expenses, other than those taxes
described below, in the exchange offer. See "-Delivery of Documents by Exchange
Agent; Fees and Expenses" below for further information regarding fees and
expenses. Neither we nor our board of directors recommends that you tender or
not tender old notes in the exchange offer. In addition, we have not authorized
anyone to make any recommendation. You must decide whether to tender in the
exchange offer and, if so, the aggregate amount of old notes to tender.
9
We have the right, in accordance with applicable law, at any time:
. to delay the acceptance of the old notes;
. to terminate the exchange offer if we determine that any of the
conditions to the exchange offer have not occurred or have not been
satisfied;
. to extend the expiration date of the exchange offer and keep all old
notes tendered other than those notes properly withdrawn; and
. to waive any condition or amend the terms of the exchange offer.
If we materially change the exchange offer, or if we waive a material condition
of the exchange offer, we willsole discretion, extend the exchange offer, if required by Rule
14e-1 underin which case the Securities Exchange Act. If we exercise any of“expiration date” shall mean the rights listed
above, we will promptly give written notice of the actionlatest date and time to which the exchange agent,
as described below under "-Exchange Agent", and we will issue a release to
appropriate news agencies.offer is extended. In the case of anany extension, anwe will notify the exchange agent orally (confirmed in writing) or in writing of any extension. We will also notify the registered holders of original notes by public announcement will be
madevia press release to a financial news service of the extension no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
Acceptance of Old Notes for Exchange, and Issuancethe exchange offer.
To the extent we are legally permitted to do so, we expressly reserve the right, in our sole discretion, to:
delay accepting any original note;
extend the exchange offer;
waive any condition of New Notes
We will issuethe exchange offer;
if any of the conditions described below under “—Conditions to the exchange agent new notes for old notes tendered and
accepted and not withdrawn promptly after the expiration date. The exchange
agent might not deliver the new notesExchange Offer” have occurred, to all tendering holders at the same time.
The timing of delivery depends upon whenterminate the exchange agent receivesoffer; and
processes
amend the required documents.
Weterms of the exchange offer in any manner.
Any such delay in acceptance, extension, termination or amendment will be deemed to have exchanged old notes validly tendered and not withdrawn
when we givefollowed as promptly as practicable by oral or written notice to the registered holders of original notes. If we consider an amendment to the exchange agentoffer to be material, we will promptly inform the registered holders of their acceptance. Theoriginal notes of such amendment in a reasonable manner. In addition, if we make a material change to the exchange agent is our agent for receiving tendersoffer within five business days of old notes, letters of
transmittal and related documents. If for any reason, we:
. delay the acceptance or exchange of any old notes, or
.scheduled expiration date, we will extend the exchange offer period to ensure that there are at least five business days between the date we provide notice of such material change and the expiration date of the offer. We will only delay acceptance of a validly tendered original note if an extension of the exchange offer is announced.
Without limiting the manner by which we may choose to make public announcements of any extension, delay in acceptance, amendment or . are unabletermination of the exchange offer, we will have no obligation to acceptpublish, advertise or otherwise communicate any public announcement, other than by making a timely release to a financial news service.
Interest on the Exchange Notes
Interest on the exchange notes thenwill accrue from the last interest payment date on which interest was paid on the original notes surrendered in exchange for the exchange agentnotes or, if no interest has been paid on the original notes, from May 14, 2007. Interest on the exchange notes will be payable at a rate of 7.25% per annum semi-annually in cash in arrears on May 15 and November 15 of each year, commencing November 15, 2007. We will make each interest payment to the holders of record of the exchange notes on the immediately preceding May 1 and November 1. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
Resale of Exchange Notes
Based on an interpretation by the staff of the SEC set forth in several no-action letters issued to other parties unrelated to us, we believe that the exchange notes issued pursuant to the exchange offer in exchange for the original notes may on our behalfbe offered for resale, resold and subjectotherwise transferred by their holders without complying with the registration and prospectus delivery requirements of the Securities Act, provided that:
any exchange notes to be received by you are acquired in the ordinary course of your business;
you are not engaged in, do not intend to engage in or have any arrangement or understanding with any person to participate in, the distribution of the exchange notes within the meaning of the Securities Act;
you are not an “affiliate,” as defined in Rule 14e-1(c)405 under the Securities Exchange Act, retain tendered notes. Oldof ours or, if you are such an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;
if you are a broker-dealer, you have not entered into any arrangement or understanding with us or any “affiliate” of ours to distribute the exchange notes; and
if you are a broker-dealer, you will receive exchange notes for your own account in exchange for original notes that were acquired as a result of market-making or other trading activities (but not directly from us or one of our affiliates) and that you will deliver a prospectus in connection with any resale of such exchange notes.
If you wish to participate in the exchange agent retains may notoffer, you will be withdrawn, except accordingrequired to the withdrawal
procedures outlined below in "Procedures for Tendering Old Notes-Withdrawal of
Tenders."
In tendering old notes, you must warrantmake these representations to us in the letter of transmittaltransmittal.
Each broker-dealer that receives exchange notes for its own account in exchange for original notes, where such original notes were acquired by such broker-dealer as a result of market-making or other trading activities, must acknowledge that it will deliver a prospectus in an
agent's message, which is described below, that:
. you have full power and authority to tender,connection with any resale of such exchange sell, assign
and transfer old notes;
. we will acquire good, marketable and unencumbered titlenotes. See “Plan of Distribution.”
Procedures for Tendering
The term “holder” with respect to the tendered oldexchange offer means any person in whose name original notes free and clearare registered on our registrar’s books or any other person who has obtained a properly completed bond power from the registered holder, or any person whose original notes are held of all liens, restrictions, charges
and other encumbrances; and
. the oldrecord by DTC who desires to deliver such original notes tendered for exchange are not subject to any adverse
claims or proxies.
You also must warrant and agree that you will, upon request, execute and deliver
any additional documents that either we or the exchange agent requests to
complete the exchange, sale, assignment, andby book-entry transfer of the old notes.
Procedures for Tendering Old Notes
Toat DTC.
Except in limited circumstances, only a holder may tender oldits original notes in the exchange offer,offer. To tender original notes in the holderexchange offer:
the exchange agent must receive, before expiration of the notes must transfer
such notes in accordance with DTC's automated transfer procedures ("ATOP").
In lieu of deliveringexchange offer, a properly completed and duly executed letter of transmittal, to the exchange agent, a computer-
generated message, in which the holder of the old notes acknowledges and agrees
to be bound by the termsor facsimile of the letter of transmittal, must be transmitted by
DTC on behalf of a holdertogether with any required signature guarantees and received by with the certificate or certificates representing the original notes being tendered and any other required documents;
the exchange agent priormust receive, before expiration of the exchange offer, a confirmation of a book-entry transfer of original notes into the exchange agent’s account at DTC according to 5:00 p.m.,
New York City time, on DTC’s standard operating procedures for electronic tenders described below under “—Book-Entry Transfer” and a properly transmitted agent’s message in lieu of a letter of transmittal as described below under “—Book-Entry Transfer”; or
the expiration date.
holder must comply with the guaranteed delivery procedures described below under “—Guaranteed Delivery Procedures.”
The tender by a holder of oldoriginal notes will constitute an agreement between thesuch holder and us in accordance with the terms and subject to the conditions set forth hereinin this prospectus and in the letter of transmittal. 10
The method of delivery of original notes, the letter of transmittal and all other required documents, including through DTC’s Automated Tender Offer Program system as described below under “—Book-Entry Transfer,” to the exchange agent is at the election and risk of the holder. Instead of delivery by mail, we recommend that holders use an overnight or hand delivery service. In all cases, sufficient time should be allowed to assure timely delivery prior to the expiration of the exchange offer. No letter of transmittal or original notes should be sent to us.
Anyus but must instead be delivered to the exchange agent. Delivery of documents to DTC will not constitute delivery to the exchange agent.
If you are a beneficial holder whose oldowner of original notes that are held through itsregistered in the name of a broker, dealer, commercial bank, trust company or other nominee and who wishesyou wish to tender your original notes, you should contact such nomineethe registered holder promptly and instruct such nomineethe registered holder to tender on itsyour behalf. DeterminationIf you wish to tender on your own behalf, you must, prior to completing and executing the letter of Validity
Alltransmittal and delivering your original notes, either:
make appropriate arrangements to register ownership of the original notes in your name; or
obtain a properly completed bond power from the registered holder.
The transfer of record ownership may take considerable time and may not be completed prior to the expiration date.
Signatures on a letter of transmittal or a notice of withdrawal as described below in “—Withdrawal of Tenders,” as the case may be, must be guaranteed by an eligible institution unless the original notes tendered pursuant thereto are tendered:
by a registered holder who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” in the letter of transmittal; or
for the account of an eligible institution.
An “eligible institution” is:
a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc.;
a commercial bank or trust company having an office or correspondent in the United States; or
an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Exchange Act.
If the letter of transmittal is signed by a person other than the registered holder of any original notes listed therein, the original notes must be endorsed or accompanied by appropriate bond powers which authorize the person to tender the original notes on behalf of the registered holder, in either case signed as the name of the registered holder or holders appears on the original notes. If the letter of transmittal or any original notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and, unless waived by us, evidence satisfactory to us of their authority to so act must be submitted with the letter of transmittal.
We will determine in our sole discretion all the questions as to the validity, form, eligibility (including time of receipt,receipt), acceptance and withdrawal of the tendered old notes will be determined by us in
our sole discretion, whichoriginal notes. Our determinations will be final and binding. We reserve the absolute right to reject any and all oldoriginal notes not validly tendered or any old original
notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defects, irregularities or conditions of tender as to particular oldoriginal notes. Our interpretation of the terms and conditions of the exchange offer including(including the instructions in the letter of transmittal,transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of oldoriginal notes must be cured within such time before the expiration time as we shallwill determine. Neither we, the exchange agent nor any other person shall be under any duty to give notification of defects or irregularities with respect to tenders of oldoriginal notes and nonenor shall we or any of them incur any liability for failure to give such notification. Tenders of oldoriginal notes will not be deemed to have been made until such irregularities have been cured or waived. Any oldoriginal notes received by the exchange agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned without cost by the exchange agent to the tendering holder of such oldoriginal notes unless otherwise provided in the letter of transmittal, as soon as
practicablepromptly following the expiration date.
date of the exchange offer.
In addition, we reserve the right in our sole discretion to:
.to (a) purchase or make offers for any oldoriginal notes that remain outstanding subsequent to the expiration date or, if any of the conditions described below under “—Conditions to terminate the exchange offer;Exchange Offer” have occurred, the termination date and .(b) to the extent permitted by applicable law, purchase oldoriginal notes in the open market, in privately negotiated transactions or otherwise. The terms of any such purchases or offers may differ from the terms of the exchange offer.
By tendering, each holder
Book-Entry Transfer
We understand that the exchange agent will make a request promptly after the date of oldthis prospectus to establish accounts with respect to the original notes at DTC for the purpose of facilitating the exchange offer. Any financial institution that is a participant in DTC’s system may make book-entry delivery of original notes by causing DTC to transfer such original notes into the exchange agent’s DTC account in accordance with DTC’s Automated Tender Offer Program procedures for such transfer. The exchange for tendered original notes will representonly be made after a timely confirmation of a book-entry transfer of the original notes into the exchange agent’s account, and timely receipt by the exchange agent of an “agent’s message.”
The term “agent’s message” means a message, transmitted by DTC to, usand received by, the exchange agent and forming a part of the confirmation of a book-entry transfer, which states that amongDTC has received an express acknowledgment from the participant in DTC tendering the original notes that are the subject of such book-entry confirmation that such participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce such agreement against the participant. Delivery of an agent’s message will also constitute an acknowledgment from the tendering DTC participant that the representations and warranties contained in the appropriate letter of transmittal and described above are true and correct.
In the case of an agent’s message relating to guaranteed delivery, the term means a message transmitted by DTC to, and received by, the exchange agent, which states that DTC has received an express acknowledgement from the participant in DTC tendering original notes that such participant has received and agrees to be bound by the terms of the notice of guaranteed delivery.
Guaranteed Delivery Procedures
Holders who wish to tender their original notes and (a) whose original notes are not immediately available, (b) who cannot deliver their original notes, the letter of transmittal or any other things, the new notes acquired pursuantrequired documents to the exchange agent before expiration of the exchange offer are being obtainedor (c) who cannot complete DTC’s standard operating procedures for electronic tenders before expiration of the exchange offer, may tender their original notes if:
the tender is made through an eligible institution;
before expiration of the exchange offer, the exchange agent receives from the eligible institution either a properly completed and duly executed notice of guaranteed delivery in the ordinary courseform accompanying this prospectus, by facsimile transmission, mail or hand delivery or an agent’s message in lieu of businessnotice of guaranteed delivery:
setting forth the name and address of the person receiving such newholder and the certificate number or numbers of the original notes whethertendered (if applicable) and the principal amount of original notes tendered;
stating that the tender offer is being made by guaranteed delivery;
guaranteeing that, within three New York Stock Exchange, Inc. trading days after the date of execution of the notice of guaranteed delivery, the letter of transmittal, or not such person isfacsimile of the holder, that neitherletter of transmittal (or a properly transmitted agent’s message), together with certificates for the holder nororiginal notes tendered in proper form for transfer (or a book-entry confirmation with an agent’s message), and any other person has an arrangementdocuments required by the letter of transmittal will be deposited by the eligible institution with the exchange agent; and
the exchange agent receives the properly completed and executed letter of transmittal, or understanding with any person to participate in the
distributionfacsimile of the newletter of transmittal (or an agent’s message), as well as certificates for all tendered original notes in proper form for transfer (or a book-entry confirmation), and that neitherall other documents required by the holder nor any such other
person is an "affiliate"letter of ourstransmittal, within three New York Stock Exchange, Inc. trading days after the meaningdate of Rule 405 underexecution of the Securities Act.
notice of guaranteed delivery.
Upon request to the exchange agent, a notice of guaranteed delivery will be sent to holders who wish to tender their original notes according to the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein,in this prospectus, tenders of oldoriginal notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on , 2007, the expiration date unless
previously accepted for exchange.
To withdraw a tender of old notes in the exchange offer,offer.
For a withdrawal to be effective:
the exchange agent must receive a timely written notice, which may be by facsimile transmission or letter, of withdrawal at the address set forth below under “—Exchange Agent”; or
for DTC participants, holders must comply with DTC’s standard operating procedures for electronic tenders and the exchange agent must receive a timely electronic notice of withdrawal must be transmitted by DTC and received by the exchange agent, in accordance
with the standard operating procedures of DTC on behalf of a holder, prior to
5:00 p.m., New York City time, on the expiration date and prior to acceptance
for exchange thereof by us. from DTC.
Any such notice of withdrawal must:
.
specify the name of the person having depositedwho tendered the oldoriginal notes to be withdrawn;
.
identify the oldoriginal notes to be withdrawn, including the certificate number or numbers and principal amount of such old notes; and
. the original notes to be withdrawn, or, in the case of original notes transferred by book-entry transfer, as indicated below;
be signed by the depositorperson who tendered the original notes in the same manner as the original signature on the letter of transmittal, byincluding any required signature guarantees; and
specify the name in which such oldthe original notes wereare to be re-registered, if different from that of the withdrawing holder.
If original notes have been tendered or be accompanied by documents of transfer sufficient to
permit the trustee with respectpursuant to the old notes to registerprocedures for book-entry transfer described above, the transfernotice of such old notes intowithdrawal must specify the name and number of the depositor withdrawingaccount at DTC to be credited with the tender.
Allwithdrawn original notes and otherwise comply with the procedures of DTC for withdrawals.
We will determine all questions as to the validity, form and eligibility including(including time of receipt,receipt) for such withdrawal notices, will be determined by us, and our determination shall be final and binding on all parties. Any oldoriginal notes soproperly withdrawn will be deemed not to have been validly tendered for purposes of the exchange offer, and no exchange notes will be issued with respect thereto unless the oldoriginal notes so withdrawn are validly tendered.re-tendered. Any oldoriginal notes which have been tendered butand which are not accepted for exchangeproperly withdrawn will be returned to the holder thereof without
cost to such holder as soon as practicable after withdrawal,
rejection(or, in the case of tender or termination oforiginal notes tendered by book-entry transfer into the exchange offer.agent’s account at DTC pursuant to the book-entry transfer procedures described above, the original notes will be credited to an account maintained with DTC for the original notes) promptly after withdrawal. Properly withdrawn oldoriginal notes may be tenderedre-tendered by following one of the procedures for tendering
described above under “—Procedures for Tendering” at any time prior to the expiration date.
11
Conditions to the Exchange Offer
Notwithstanding any other provisionsterm of the exchange offer, we arewill not be required to accept for exchange, or to issue newany exchange notes in exchange for, any oldoriginal notes, and we may terminate or amend the exchange offer if at any timeas provided in this prospectus before the acceptance of the oldoriginal notes, forif
the exchange offer, or the making of any exchange of the new notes for the old
notes, if
. such acceptance or issuance would violateby a holder, violates any applicable law or any applicable interpretation of the Securities and Exchange Commission's
staff;
. staff of the SEC,
any action or proceeding isshall have been instituted or threatened in any court or by or before any governmental agency with respect to the exchange offer which, might materiallyin our judgment, would reasonably be expected to impair our ability to proceed with the exchange offer, or there has occurred
the holders do not tender the original notes in any
existing action or proceeding that would materially impair our ability
to consummateaccordance with the exchange offer; or
. we have not obtained all governmental approvals that we deem necessary
to consummate the exchange offer.
The foregoing
These conditions are for ourthe sole benefit of us and any of themthe subsidiary guarantors and may be asserted by us regardless of the circumstances giving rise to such condition or
may be waived by us in whole or in part at any time and from time to time in our sole discretion.discretion prior to expiration of the exchange offer. Our failure to exercise any of these rights at any time to exercise the foregoing rights iswill not to be deemed a waiver of any of oursuch rights and each of oursuch rights shall be deemed an ongoing right which may be asserted by us at any time and from time to time.
Consequences of Failure to Exchange
If you do not tender your original notes to be exchanged in the exchange offer, they will remain “restricted securities” within the meaning of Rule 144(a)(3) of the Securities Act. Accordingly, they:
may be resold only if (a) registered pursuant to the Securities Act and other applicable securities laws, (b) an exemption from registration is available or (c) neither registration nor an exemption is required by law; and
shall continue to bear a legend restricting transfer in the absence of registration or an exemption therefrom.
As a result of the restrictions on transfer and the availability of the exchange notes, the original notes are likely to be much less liquid than before the exchange offer. Consequently, holders of original notes who do not participate in the exchange offer could experience significant diminution in value of their original notes, compared to the value of the exchange notes. Following the consummation of the exchange offer, in general, holders of original notes will have no further registration rights under the registration rights agreement.
Accounting Treatment
The exchange notes will be recorded at the same carrying value as the original notes on the date of exchange. The carrying value is face value. Accordingly, we will not recognize any gain or loss for accounting purposes. The expenses of the exchange offer and the unamortized expenses relating to the issuance of the original notes will be amortized over the term of the exchange notes. See “—Fees and Expenses.”
Regulatory Approvals
Other than pursuant to the federal securities laws, we do not believe that there are any federal or state regulatory requirements that we must comply with, or any approvals that we must obtain, in connection with the exchange offer.
Exchange Agent
The Bank of New York has beenTrust Company, N.A., the Trustee under the Indenture for the notes, will be appointed as the exchange agent for the exchange offer. All executed letters of transmittal should be directed to the old notes.exchange agent at the address set forth below. Questions and requests for assistance, relating to the exchange
of the old notes and requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery should be directed to the exchange agent at The Bank of
New York (telephone 212-815-5920).
Resales of New Notes
Based on the staff of the Securities and Exchange Commission's letters to other
parties, we believe that holders of new notes, other than broker-dealers, can
offer the new notes for resale, resell and otherwise transfer the new notes
without delivering a prospectus to prospective purchasers. However, you must
acquire the new notes in the ordinary course of business and have no intention
of engaging in a distribution of the new notes,addressed as a "distribution" is defined
by the Securities Act. We are exchanging the old notes for new notes in
reliance upon the staff of the Securities and Exchange Commission's position set
forth in interpretive letters to third parties in other similar transactions.
We will not seek our own interpretive letter. As a result, we cannot assure you
that the staff will take the same position on this exchange offer as it did in
interpretive letters to other parties.
follows:
| By Facsimile: | By Registered or Certified Mail: | By Hand/Overnight Delivery: | ||
| (212)-298-1915 | Bank of New York Mellon Corporation | Bank of New York Mellon Corporation | ||
| Confirm by Telephone: (212)-815-2742 | Corporate Trust Operations Reorganization Unit | Corporate Trust Operations Reorganization Unit | ||
| 101 Barclay Street – 7 East | 101 Barclay Street – 7 East | |||
| New York, N.Y. 10286 | New York, N.Y. 10286 | |||
| Attn: Ms. Diane Amoroso | Attn: Ms. Diane Amoroso |
Delivery of Documents by Exchange Agent; Fees and Expenses
The principal distribution of this prospectus and the letter of transmittal to an address other than as set forth above or transmission of such letter of transmittal via facsimile other than as set forth above does not constitute a valid delivery of the letter of transmittal.
Fees and Expenses
We will bear the expenses of soliciting tenders. The principal solicitation is being made by mailmail. However, our officers and regular employees and those of our affiliates may make additional solicitations by the exchange agent. facsimile, telephone, other electronic means or in person.
We will pay the exchange agent
customary fees for its services, reimburse the exchange agent for its reasonable
out-of-pocket expenses incurredhave not retained any dealer-manager in connection with the provision of these
servicesexchange offer and pay other expenses, including fees and expenses of the trustee,
filing fees, accounting and legal fees, and printing and distribution expenses.
We will not make any payment to brokers, dealers,broker-dealers or others soliciting acceptances of the exchange offer. We will, however, reimburse reasonable
expenses incurred by brokers and dealers in forwarding this prospectus and the
other exchange offer materials to the holders of the old notes. Solicitations
may be made by telephone, facsimile, or in person by our officers and regular
employees, and also by persons so engaged bypay the exchange agent although no
payment will be made to any persons engaged byreasonable and customary fees for its services and reimburse the exchange agent for soliciting
acceptancesits reasonable out-of-pocket expenses in connection therewith. We may also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of this prospectus, letters of transmittal and related documents to the beneficial owners of the original notes and in handling or forwarding tenders for exchange.
We will pay the expenses incurred in connection with the exchange offer. The expenses include, among others:
SEC registration filing fee;
fees and expenses of compliance with federal securities and state blue sky or securities laws;
expenses of messengers, delivery services and telephones;
fees and expenses of the exchange agent and trustee;
accounting and legal fees; and
printing costs.
We will pay all transfer taxes, if any, applicable to the exchange of original notes pursuant to the exchange offer. Transfer Taxes
YouThe tendering holder, however, will not be obligatedrequired to pay any transfer taxes in connection with(whether imposed on the registered holder or any tender of oldother person) if:
certificates representing exchange notes, or original notes for principal amounts not tendered or accepted for exchange, except if you instruct usare to register new
notesbe delivered to, or are to be issued in the name of, or request that old notes not tendered or not accepted in
the exchange offer be returned to, aany person other than the registered tendering
holder youof the original notes tendered;
tendered original notes are registered in the name of any person other than the person signing the letter of transmittal; or
a transfer tax is imposed for any reason other than the exchange of original notes under the exchange offer.
If satisfactory evidence of payment of these taxes or an exemption therefrom is not submitted with the letter of transmittal, the amount of these transfer taxes will be responsible for the payment of any applicable transfer tax
thereon.
Consequences of Failurebilled to Exchange
To the extent we accept old notes in the exchange offer, the aggregate principal
amount of outstanding old notes will decline. Consequently, liquidity in the
market for old notes could be adversely affected. See "Risk Factors-The
liquidity of unexchanged old notes will be substantially limited following the
exchange offer."
12
Other
Participation in thethat tendering holder.
The exchange offer is voluntary, and holdersintended to satisfy our obligations under the registration rights agreement entered into in connection with the issuance of old notes
should carefully consider whether to participate. Holders of old notes are
urged to consult their financial and tax advisors in making their own decisions
on which action to take.
Holders of old notes who do not tender their old notes in the exchange offer
will continue to hold their old notes and will be entitled to all the rights,
and limitations applicable thereto. To the extent that old notes are tendered
and accepted in the exchange offer, the trading market for untendered shares of
old notes could be adversely affected.
We may in the future seek to acquire untendered old notes in open market or
privately negotiated transactions, through subsequent exchange offers or
otherwise. We have no present plan to acquire any old notes that are not
tendered in the exchange offer.
Use of Proceedsoriginal notes. We will not receive any cash proceeds from the exchangeissuance of old notes for newthe exchange notes in the exchange offer. 13
Capitalization
In consideration for issuing the exchange notes as contemplated by this prospectus, we will receive the original notes in like principal amount. The original notes surrendered and exchanged for the exchange notes will be retired and canceled and cannot be reissued. Accordingly, the issuance of the exchange notes will not result in any increase in our indebtedness.
The net proceeds of the offering of the original notes were $693.9 million, after deducting selling and offering expenses. We used all of the net proceeds of the offering of the original notes to reduce a corresponding amount of borrowings under the revolving portion of our senior credit facility, which borrowings were incurred for common stock share repurchases, our acquisition of the SVEDKA Vodka brand and related business, and for working capital.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our capitalization ashistorical ratio of February 28, 2001
. on an actual basis, giving effectearnings to the two-for-one stock split that was
distributed in the form of a stock dividend on May 14, 2001, to
stockholders of record on April 30, 2001 (see "Explanatory Note"), and
. on an as adjusted basis giving effect to our sale of 4,370,000 shares of
our class A common stock, after deducting underwriting discountsfixed charges and our estimated offering feeshistorical ratio of earnings to combined fixed charges and expenses.
Since February 28, 2001, except as set forth in this prospectus, there has been
no material change in our capitalization.
| For the Six Months Ended August 31, | For the Fiscal Years Ended February 28, | For the Fiscal Year Ended February 29, 2004 | For the Fiscal Year Ended February 28, 2003 | |||||||||||
| 2007 | 2006 | 2007 | 2006 | 2005 | ||||||||||
Ratio of Earnings to Fixed Charges | 2.0x | 3.0x | 2.8x | 3.3x | 3.8x | 3.0x | 4.0x | |||||||
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends | 2.0x | 2.8x | 2.8x | 3.1x | 3.5x | 2.9x | 4.0x | |||||||
The following table sets forth our consolidated cash and cash equivalents and total capitalization as of August 31, 2007. The completion of the exchange offer will not change the amount of debt outstanding or otherwise affect capitalization. You should read this table in conjunction with our consolidated financial statements and the related notes which are incorporated by reference in this prospectus.
As of August 31, 2007 | |||
(in millions) (Unaudited) | |||
Cash and cash equivalents | $ | 33.2 | |
Long-Term Debt (including current portion): | |||
Revolving Credit Facility | $ | 17.0 | |
Term Loan A | 930.0 | ||
Term Loan B | 1,440.0 | ||
Other Senior Debt | 206.0 | ||
7.250% Senior notes due 2017 | 700.0 | ||
7.250% Senior notes due 2016(a) | 693.6 | ||
8.000% Senior notes due 2008 | 200.0 | ||
8.500% Senior notes due 2009(b) | 312.4 | ||
8.125% Subordinated notes due 2012 | 250.0 | ||
Total debt | 4,749.0 | ||
Stockholders’ equity | 3,188.8 | ||
Total capitalization | $ | 7,937.8 | |
| (a) | Represents $700.0 million less $6.4 million unamortized discount. |
| (b) | Represents £155.0 million less £0.1 million unamortized discount, converted at a rate of £1.00 = $2.0171. |
DESCRIPTION OF THE EXCHANGE NOTES
We issued the original notes, and we will issue the exchange notes, as a single series of securities under the Indenture. The form and terms of the exchange notes are substantially identical in all material respects to the form and terms of the original notes, except that the exchange notes have been registered under the Securities Act and, therefore, will contain no restrictive legends or transfer restrictions, will bear a different CUSIP number from the original notes, will not have registration rights and will not have the right to liquidated damages. The original notes and the exchange notes are referred to collectively as the ratio of
earnings to fixed charges.
The following summary, including the term "Company", see "--Certain Definitions."
The old notes have been, and the new notes will be, issued under the indenture,
dated as of February 21, 2001 (the "Indenture"), among the Company, the
Guarantors, and BNY Midwest Trust Company, as trustee (the "Trustee"). The
Indenture is filed as an exhibit to the registration statement of which this
prospectus forms a part. The principal amount of notes that may be issued under
the Indenture is unlimited.
The followingdescription is a summary of the material provisions of the Indenture. ItIndenture, but does not purport to be complete and whereis qualified by reference is made to particular provisionsthe Indenture. We urge you to read the Indenture because it, and not this description, defines your rights as holders of the notes. The Indenture such provisions, includinghas been filed as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on May 14, 2007 and is available as described under “Where You Can Find More Information.” In this section, the word “Company” refers only to Constellation Brands, Inc. and its successors, but not to any of its subsidiaries. You can find definitions of certain terms are qualifiedused in their entirety by referencethis description under the heading “—Glossary.”
Principal, Maturity and Interest
On May 14, 2007, we issued an aggregate principal amount of original notes equal to all of$700.0 million. We may issue additional notes, which we refer to as the provisions ofAdditional Notes, having identical terms and conditions to the Indenturenotes, except for issue date, issue price and those terms made afirst interest payment date, in an unlimited aggregate principal amount. Any Additional Notes will be part of the Indenture bysame issue as the Trust Indenture
Actnotes and will be treated as one class with the notes, including for purposes of 1939.
General
voting, redemptions and offers to purchase.
The notes will mature on FebruaryMay 15, 20082017 and will be unsecured senior
obligations of the Company and will rank pari passu in right of payment to all
of our existing and future unsecured senior Indebtedness. Each note will bear interest at thea rate of 8%7.25% per annumyear. Interest on the notes will accrue from February 21, 2001May 14, 2007 or from the most recent interest payment date to which interest has been paid. Interestpaid or duly provided for. We:
will pay interest on the notes will be payable semi-annually on FebruaryMay 15 and AugustNovember 15 of each year, commencing AugustNovember 15, 2001,2007;
will pay interest to the Personperson in whose name thea note (or any
predecessor note) is registered at the close of business on the FebruaryMay 1 or AugustNovember 1 preceding the interest payment date;
will compute interest on the basis of a 360-day year consisting of twelve 30-day months;
will make payments on the notes at the offices of the Trustee; and
may make payments by wire transfer for notes held in book-entry form or by check mailed to the address of the person entitled to the payment as it appears in the note register.
If any interest payment date or maturity or redemption date falls on a day that is not a Business Day, the required payment shall be made on the next precedingBusiness Day as if it were made on the date such payment was due and no interest shall accrue on the amount so payable from and after such interest payment date.date or maturity or redemption date, as the case may be, to such next Business Day.
We will issue the notes only in fully registered form, without coupons, in denominations of $1,000 and any integral multiple thereof. The entire aggregateregistered holder will be treated as the owner of such note for all purposes.
Subsidiary Guarantees
Our obligations under the Indenture and the notes, including the payment of principal of, and premium, if any, and interest on, the notes, will be fully and unconditionally guaranteed by our Subsidiaries that are guarantors under the Senior Credit Facility. The subsidiary guarantees will be joint and several obligations of the subsidiary guarantors.
The subsidiary guarantees will be senior unsecured obligations of each subsidiary guarantor and will rank equally with all of the other senior unsecured obligations of the subsidiary guarantor. Each subsidiary guarantee will be effectively subordinated to any secured obligations of the subsidiary guarantors. The obligations of each subsidiary guarantor under its subsidiary guarantee will provide that it be limited as necessary to prevent that subsidiary guarantee from constituting a fraudulent conveyance under applicable law.
If a subsidiary guarantee were rendered voidable, it could be subordinated by a court to all other liabilities and obligations (including guarantees and other contingent liabilities) of the applicable subsidiary guarantor, and depending on the amount of such liabilities and obligations, a subsidiary guarantor’s liability under its subsidiary guarantee could be reduced to zero.
The Indenture does not contain any restrictions on the ability of any subsidiary guarantor to (i) pay dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of that subsidiary guarantor’s ownership interests, (ii) make any payment of principal, premium, if any, or interest on or repay, repurchase or redeem any debt securities of that subsidiary guarantor or (iii) consolidate with, merge with or into, or transfer all or substantially all of its assets to another person or entity. If a subsidiary guarantor is merged or consolidated with or into another person that is the surviving company in that merger or consolidation and (a) the surviving company becomes a guarantor under the Senior Credit Facility, then the Indenture will require that the surviving company expressly assume the obligations of the subsidiary guarantor under its subsidiary guarantee or (b) the surviving company is not a guarantor under the Senior Credit Facility and the Company delivers an officer’s certificate to the Trustee to that effect, then the surviving company will be automatically released from any obligations under the subsidiary guarantee of the subsidiary guarantor which was so merged or consolidated.
The guarantee of a subsidiary guarantor will be automatically released to the extent such subsidiary guarantor is released as a guarantor under the Senior Credit Facility or the Senior Credit Facility is refinanced, extended, substituted, replaced or renewed without such subsidiary guarantor being a guarantor or the Senior Credit Facility is otherwise terminated.
Ranking
The notes will be our senior unsecured obligations and will rank equally with all of our other senior unsecured indebtedness and will be effectively subordinated to the indebtedness outstanding under the Senior Credit Facility from time to time and any other secured debt we may incur, in each case, to the extent of the value of the collateral securing such debt. Each subsidiary guarantee will be effectively subordinated to any secured obligations of the subsidiary guarantors to the extent of the value of the collateral securing such debt. The notes will be effectively subordinated to all debt and other liabilities of our subsidiaries that are not subsidiary guarantors.
We are a holding company and conduct almost all of our operations through our subsidiaries. Consequently, our ability to pay our obligations, including our obligation to pay interest on the notes and to repay the principal amount of the notes at maturity, upon redemption, acceleration or otherwise will becomedepend upon our subsidiaries’ earnings and advances or loans made by them to us (and potentially dividends or distributions made by them to us). Our subsidiaries are separate and distinct legal entities and, except for the subsidiary guarantors’ obligations under the subsidiary guarantees, have no obligation, contingent or otherwise, to pay any amounts due and payable upon maturity.
Payment ofon the notes is guaranteed unconditionally byor to make funds available to us to do so. Our subsidiaries’ ability to make advances or loans to us or to pay dividends or make other distributions to us will depend upon their operating results and will be subject to applicable laws and contractual restrictions, if any. The Indenture will not limit our subsidiaries’ ability to enter into other agreements that prohibit or restrict dividends or other payments or advances to us. Except with respect to the Guarantorscovenants described below under “—Limitation upon Liens” and “—Limitation on a senior
basis. The Guarantors are comprised of all ofSale and Leaseback Transactions”, the direct and indirect Domestic
Restricted Subsidiaries ofIndenture does not restrict or limit the Company and direct and indirect Foreign
Restricted Subsidiaries that in each case guarantee Other Indebtedness. The
Guarantors (except Canandaigua B.V. and M.J. Lewis Corp.) have also guaranteed
all obligations of the Company under the Credit Agreement. No holderability of any other Indebtedness of the Company will have the benefitour subsidiaries to incur, create, assume or guarantee indebtedness or encumber its assets or properties. As of any guaranteesAugust 31, 2007, we had
approximately $4.50 billion aggregate principal amount of senior indebtedness outstanding, of which the holdersapproximately $2.39 billion was secured, and $0.25 billion aggregate principal amount of subordinated indebtedness outstanding.
Optional Redemption
We may redeem the notes do not have.
The notes are direct, senior unsecured obligations of the Company and rank and
will rank pari passu, without any preferences among themselves, with all other
outstanding unsecured and unsubordinated indebtedness, present and future.
Optional Redemption
The notes will be redeemable, in whole or in part at the option of the Company
at any time or in part from time to time, at our option, at a redemption price equal to the greater of (i)
100% of the principal amount of suchthe notes to be redeemed; and (ii) as determined by the Quotation Agent
(as defined below),
the sum of the present values of the remaining scheduled payments of principal and interest thereon (not including any portion of such
payments of(excluding interest accrued as ofto the date of redemption)redemption date) on the notes discounted to the date of redemption on a semi-annualsemiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjustedapplicable Treasury Rate (as defined below) plus 50 basis points,
plus, in each case, accrued and unpaid interest thereonon the principal amount being redeemed to the date of
redemption.
As used herein:
"Adjusted redemption date.
“Treasury Rate"Rate” means, with respect to any redemption date, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the remaining life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annumyear equal to the semi-annual equivalent yield to maturityyield-to-maturity of the Comparable Treasury Issue, assumingcalculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. "ComparableThe Treasury Issue"Rate will be calculated on the third Business Day preceding the redemption date.
“Comparable Treasury Issue” means the United States Treasury Securitysecurity selected by the Quotation Agentan Independent Investment Banker as having a maturity comparable to the remaining term of the notes to be redeemed, that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such
notes.
16
"Comparableredeemed.
“Comparable Treasury Price"Price” means with respect to any redemption date, (i)(1) the average of thefour Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii)(2) if the TrusteeIndependent Investment Banker obtains fewer than threefour such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Quotation Agent"quotations.
“Independent Investment Banker” means any of Banc of America Securities LLC and Citigroup Global Markets Inc., and their successors, or, if Banc of America Securities LLC and Citigroup Global Markets Inc. are unwilling or unable to select the ReferenceComparable Treasury DealerIssue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Company.
"Reference
“Reference Treasury Dealer"Dealer” means eachany of (x) Chase(1) Banc of America Securities LLC or Citigroup Global Markets Inc., and its
respectiveor their successors;provided,however, that if the foregoingBanc of America Securities LLC or Citigroup Global Markets Inc. shall cease to be a primary United States Treasury SecuritiesU.S. Government securities dealer in New York City (a "Primary“Primary Treasury Dealer"Dealer”), the Company shallwill substitute therefor another Primary Treasury Dealer;Dealer and (y)(2) any one other Primary Treasury Dealer selected by the Independent Investment Banker after consultation with the Company.
"Reference
“Reference Treasury Dealer Quotations"Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Company,Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury DealerIndependent Investment Banker at 5:00 p.m., New York City time, on the third business dayBusiness Day preceding such redemption date.
Notice
Holders of any redemptionnotes to be redeemed will be mailedsent a redemption notice by first-class mail at least 30 days butand not more than 60 days before the redemption date to each holderfixed for redemption. If fewer than all of the notes are to be redeemed.redeemed, the Trustee will select, not more than 60 days and not less than 30 days before the redemption date, the particular notes or portions of the notes for redemption from the outstanding notes not previously called by such method as the Trustee deems fair and appropriate. Unless the Company defaultswe default in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the notes or portions thereofof the notes called for redemption.
In
Repurchase at the event that less thanOption of Holders Upon a Change of Control
Upon the occurrence of a Change of Control, each Holder of notes will have the right to require us to repurchase all of the notes are to be redeemed ator any time
pursuant to an optional redemption, selectionpart of such Holder’s notes for redemption will
be made by the Trustee in compliance with the requirements of the principal U.S.
securities exchange, if any, on which the notes are listed or, if the notes are
not then listed on a U.S. securities exchange, on a pro rata basis, by lot or by
such method as the Trustee shall deem fair and appropriate; provided, however,
that no notes of a principal amount of $1,000 or less shall be redeemed in part.
Notice of redemption shall be mailed by first-class mail at least 30 but not
more than 60 days before the redemption date to each holder of notes to be
redeemed at its registered address. If any note is to be redeemed in part only,
the notice of redemption that relates to such note shall state the portion of
the principal amount thereof to be redeemed. A new note in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the holder
thereof upon cancellation of the original note. On and after the redemption
date, interest will cease to accrue on notes or portions thereof called for
redemption as long as the Company has deposited with the paying agent for the
notes funds in satisfaction of the applicable redemption price pursuant to the Indenture. Notice of optional redemption will be published in the manneroffer described below under "--Notices."
Sinking Fund
The notes will not be entitled to the benefit(the “Change of any sinking fund.
GuaranteesControl Offer”) at a purchase price (the “Change of the Notes
The Indenture provides that each of the Guarantors will unconditionally
guarantee (the "Guarantees") on a senior basis, jointly and severally, all of
the Company's obligations under the notes, including its obligations to pay
principal, premium, if any, and interest with respect to the notes. The
Guarantees will be general unsecured obligations of the Guarantors. The
Guarantors (except for Canandaigua B.V. and M.J. Lewis Corp.) have also
guaranteed all obligations of the Company under the Credit Agreement. The
obligations under the Credit Agreement are secured by (i) first priority pledges
of 100% of the capital stock of Canandaigua Limited and all of the Company's
domestic operating subsidiaries and (ii) first priority pledges of 65% of the
capital stock held by the Company of Matthew Clark plc; B.B. Servicios, S.A. de
C.V.; Canandaigua World Sales Limited; and Schenley Distilleries Inc./Les
Distelleries Schenley Inc. The obligations of each Guarantor are limited to the
maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under the Indenture, will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount, based on the net assets of each
Guarantor determined in accordance with GAAP.
The Company shall cause each Restricted Subsidiary issuing a Guarantee after the
Issue Date to execute and deliver to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such Restricted
Subsidiary shall become a party to the Indenture and thereby unconditionally
guarantee all of the Company's Obligations under the notes and the Indenture on
the terms set forth therein. Thereafter, such Restricted Subsidiary shall
(unless released in accordance with the terms of the Indenture) be a Guarantor
for all purposes of the Indenture.
17
The Indenture provides that if the notes are defeased in accordance with the
terms of the Indenture, or if, subject to the requirements of the first
paragraph under "Consolidation, Merger, Sale of Assets" all or substantially all
of the assets of any Guarantor or all of the Capital Stock of any Guarantor are
sold (including by issuance or otherwise) by the Company in a transaction
constituting an Asset Sale, and if (x) the Net Cash Proceeds from such Asset
Sale are used in accordance with the covenant described under "Certain
Covenants--Limitation on Sale of Assets" or (y) the Company delivers to the
Trustee an Officers' Certificate to the effect that the Net Cash Proceeds from
such Asset Sale shall be used in accordance with the covenant described under
"Certain Covenants--Limitation on Sale of Assets" and within the time limits
specified by such covenant, then such Guarantor or the Guarantors, as the case
may be (in the event of a defeasance of the notes or a sale or other disposition
of all of the Capital Stock of such Guarantor) or the corporation acquiring such
assets (in the event of a sale or other disposition of all or substantially all
of the assets of such Guarantor) shall be released and discharged of its
Guarantee obligations in respect of the Indenture and the notes.
Any Guarantor that is designated an Unrestricted Subsidiary pursuant to and in
accordance with "Certain Covenants--Designation of Unrestricted Subsidiaries"
below shall upon such Designation be released and discharged of its Guarantee
obligations in respect of the Indenture and the notes and any Unrestricted
Subsidiary whose Designation is revoked pursuant to "Certain Covenants-
Designation of Unrestricted Subsidiaries" below will be required to become a
Guarantor in accordance with the procedure described in the third preceding
paragraph.
Certain Covenants
The Indenture contains, among others, the following covenants:
Limitation on Indebtedness
The Company will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Indebtedness (including any Acquired Indebtedness), except that the
Company and any Guarantor may Incur Indebtedness (including any Acquired
Indebtedness) and any Restricted Subsidiary that is not a Guarantor may Incur
Acquired Indebtedness if, in each case, the Consolidated Fixed Charge Coverage
Ratio for the Company for the four full fiscal quarters immediately preceding
the Incurrence of such Indebtedness taken as one period (and after giving pro
forma effect to (i) the Incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was Incurred, and the application of such
proceeds occurred, at the beginning of such four-quarter period; (ii) the
Incurrence, repayment or retirement of any other Indebtedness by the Company and
its Restricted Subsidiaries since the first day of such four-quarter period as
if such Indebtedness was Incurred, repaid or retired at the beginning of such
four-quarter period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period);
(iii) in the case of Acquired Indebtedness, the related acquisition as if such
acquisition occurred at the beginning of such four quarter period; and (iv) any
acquisition or disposition by the Company and its Restricted Subsidiaries of any
company or any business or any assets out of the ordinary course of business,
whether by merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first day of such
four-quarter period, assuming such acquisition or disposition had been
consummated on the first day of such four-quarter period) is equal to at least
2.00:1.00.
The foregoing limitation will not apply to the incurrence of any of the
following (collectively "Permitted Indebtedness"):
(i) Indebtedness of the Company and any Restricted Subsidiary under the
Credit Agreement in an aggregate principal amount at any one time
outstanding not to exceed an amount equal to the greater of (x) $1.0
billion, minus the amount of any repayment of such Indebtedness
under the Credit Agreement pursuant to "Certain Covenants--
Limitation on Sale of Assets" below and (y) the Borrowing Base;
(ii) Indebtedness of the Company pursuant to the notes and other
Indebtedness outstanding on the Issue Date (other than Indebtedness
under the Credit Agreement);
(iii) Indebtedness of any Guarantor pursuant to a Guarantee;
(iv) Indebtedness of the Company owing to a Restricted Subsidiary;
provided that any Indebtedness of the Company owing to a Restricted
Subsidiary that is not a Guarantor is made pursuant to an
intercompany note in the form attached to the Indenture and is
subordinated in right of payment from and after such time as the
notes shall become due and payable (whether at Stated Maturity,
acceleration or otherwise) to the payment and performance of the
Company's obligations under the notes; provided, further that any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than a disposition, pledge or transfer to a Restricted
Subsidiary or a pledge to or for the benefit of the lenders under
the Credit Agreement) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause (iv);
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(v) Indebtedness of a Restricted Subsidiary owing to the Company or a
Wholly Owned Restricted Subsidiary; provided that, with respect to
Indebtedness owing to a Wholly Owned Restricted Subsidiary that is
not a Guarantor, (x) any such Indebtedness is made pursuant to an
intercompany note in the form attached to the Indenture and (y) any
such Indebtedness shall be subordinated in right of payment from
and after such time as the obligations under the Guarantee by such
Wholly Owned Restricted Subsidiary shall become due and payable to
the payment and performance of such Wholly Owned Restricted
Subsidiary's obligations under its Guarantee; provided, further
that (a) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or
transfer to the Company or a Restricted Subsidiary or a pledge to
or for the benefit of the lenders under the Credit Agreement) shall
be deemed to be an incurrence of such Indebtedness by the obligor
not permitted by this clause (v), and (b) any transaction pursuant
to which any Restricted Subsidiary, which has Indebtedness owing to
the Company or any other Restricted Subsidiary, ceases to be a
Restricted Subsidiary shall be deemed to be the incurrence of
Indebtedness by such Restricted Subsidiary that is not permitted by
this clause (v);
(vi) guarantees of any Restricted Subsidiary made in accordance with the
provisions of "Certain Covenants--Limitation on Guarantees by
Restricted Subsidiaries";
(vii) Hedging Obligations of the Company or any Guarantor entered into in
the ordinary course of business (and not for speculative purposes)
designed to protect against fluctuations in: (x) interest rates in
respect of Indebtedness of the Company or any of its Restricted
Subsidiaries, as long as such obligations at the time incurred do
not exceed the aggregate principal amount of such Indebtedness then
outstanding or in good faith anticipated to be outstanding within
90 days of such Incurrence, (y) currencies or (z) commodities;
(viii) any renewals, extensions, substitutions, refundings, refinancings
or replacements (collectively, a "refinancing") of any Indebtedness
described in clauses (ii) and (iii) of this definition of
"Permitted Indebtedness," including any successive refinancings so
long as the aggregate principal amount of Indebtedness represented
thereby is not increased by such refinancing plus the lesser of (1)
the stated amount of any premium, interest or other payment
required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being refinanced or (2) the amount
of premium, interest or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company incurred in connection with such
refinancing and, in the case of Pari Passu Indebtedness or
Subordinated Indebtedness, such refinancing does not reduce the
Average Life to Stated Maturity or the Stated Maturity of such
Indebtedness; and
(ix) Indebtedness, in addition to that described in clauses (i) through
(viii) of this definition of "Permitted Indebtedness," and any
renewals, extensions, substitutions, refinancings or replacements
of such Indebtedness, not to exceed $75.0 million outstanding at
any one time in the aggregate.
Limitation on Restricted Payments
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to holders
of, any shares of the Company's Capital Stock (other than dividends
or distributions payable solely in shares of its Qualified Capital
Stock or in options, warrants or other rights to acquire such
Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value, directly
or indirectly, any shares of the Capital Stock of the Company or
any Affiliate thereof (other than any Wholly Owned Restricted
Subsidiary of the Company) or options, warrants or other rights to
acquire such Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund or maturity, any Subordinated
Indebtedness;
(iv) declare or pay any dividend or distribution on any Capital Stock of
any Restricted Subsidiary to any Person (other than the Company or
any of its Restricted Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Restricted Subsidiary held by any Person (other than the Company or
any of its Wholly Owned Restricted Subsidiaries);
(v) incur, create or assume any guarantee of Indebtedness of any
Affiliate (other than a Wholly Owned Restricted Subsidiary of the
Company); or
(vi) make any Investment in any Person (other than any Permitted
Investments)
(any of the foregoing payments described in clauses (i) through (vi), other
than any such action that is a Permitted Payment, collectively, "Restricted
Payments") unless after giving effect to the proposed Restricted Payment
(the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination
shall be conclusive and evidenced by a board resolution), (1) no Default or
Event of Default shall have occurred and be continuing and such Restricted
Payment shall not be an event which is, or after notice or lapse of time or
both, would be, an
19
"event of default" under the terms of any Indebtedness of the Company or
its Restricted Subsidiaries; (2) immediately before and immediately after
giving effect to such transaction on a pro forma basis, the Company could
Incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
under the provisions described under "Limitation on Indebtedness"; and (3)
the aggregate amount of all such Restricted Payments declared or made after
the date of the Indenture does not exceed the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of the
Company accrued on a cumulative basis during the period beginning
on December 1, 1998 and ending on the last day of the Company's
last fiscal quarter ending prior to the date of the Restricted
Payment (or, if such aggregate cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss); plus
(B) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company from the issuance or sale (other than to any of
its Subsidiaries) of its shares of Qualified Capital Stock or any
options, warrants or rights to purchase such shares of Qualified
Capital Stock of the Company (except, in each case, to the extent
such proceeds are used to purchase, redeem or otherwise retire
Capital Stock or Subordinated Indebtedness as set forth below);
plus
(C) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company (other than from any of its Subsidiaries) upon the
exercise of any options or warrants to purchase shares of
Qualified Capital Stock of the Company; plus
(D) the aggregate Net Cash Proceeds received after November 17, 1999
by the Company from debt securities or Redeemable Capital Stock
that have been converted into or exchanged for Qualified Capital
Stock of the Company to the extent such debt securities or
Redeemable Capital Stock are originally sold for cash plus the
aggregate Net Cash Proceeds received by the Company at the time
of such conversion or exchange; plus
(E) in the event the Company or any Restricted Subsidiary has made
since November 17, 1999 or makes an Investment in a Person that,
as a result of or in connection with such Investment becomes a
Restricted Subsidiary, an amount equal to the Company's or any
Restricted Subsidiary's existing Investment in such Person that
was previously treated as a Restricted Payment; plus
(F) so long as the Designation thereof was treated as a Restricted
Payment made after November 17, 1999, with respect to any
Unrestricted Subsidiary that has been redesignated as a
Restricted Subsidiary after the Issue Date in accordance with
"Certain Covenants-Designation of Unrestricted Subsidiaries", an
amount equal to the Company's Investment in such Unrestricted
Subsidiary (provided that such amount shall not in any case
exceed the Designation Amount with respect to such Restricted
Subsidiary upon its Designation); plus
(G) $50.0 million; minus
(H) the Designation Amount (measured as of the date of Designation)
with respect to any Subsidiary of the Company which has been
designated as an Unrestricted Subsidiary after November 17, 1999
in accordance with "Certain Covenants--Designation of
Unrestricted Subsidiaries"; minus
(I) all Restricted Payments made after November 17, 1999 (other than
Permitted Payments made and calculated on the basis set forth
below).
(b) Notwithstanding the foregoing, and in the case of clauses (ii), (iii) and
(iv) below, so long as there is no Default or Event of Default continuing,
the foregoing provisions shall not prohibit the following actions (clauses
(i) through (iv) being referred to as a "Permitted Payment"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment
would be permitted by the provisions of paragraph (a) of this
Section and such payment shall be deemed to have been paid on such
date of declaration for purposes of the calculation required by
paragraph (a) of this covenant;
(ii) the repurchase, redemption, or other acquisition or retirement of
any shares of any class of Capital Stock of the Company in exchange
for (including any such exchange pursuant to the exercise of a
conversion right or privilege or in which cash is paid in lieu of
the issuance of fractional shares or scrip), or out of the Net Cash
Proceeds of, a substantially concurrent issue and sale for cash
(other than to a Subsidiary) of other shares of Qualified Capital
Stock of the Company; provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are excluded from
clause (3)(B) of paragraph (a) of this covenant;
(iii) any repurchase, redemption, defeasance, retirement, refinancing or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent issuance and sale for cash (other than to
any Subsidiary of the Company) of any Qualified Capital Stock of the
Company, provided that the Net Cash Proceeds from the issuance of
such shares of Qualified Capital Stock are excluded from clause
(3)(B) of paragraph (a) of this covenant;
20
(iv) the repurchase, redemption, defeasance, retirement, refinancing or
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) (a "refinancing")
through the issuance of new Subordinated Indebtedness of the Company,
provided that any such new Subordinated Indebtedness (1) shall be in a
principal amount that does not exceed the principal amount so refinanced
(or, if such Subordinated Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon a declaration or
acceleration thereof, then such lesser amount as of the date of
determination), plus the lesser of (x) the stated amount of any premium,
interest or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced
or (y) the amount of premium, interest or other payment actually paid at
such time to refinance the Indebtedness, plus, in either case, the
amount of expenses of the Company Incurred in connection with such
refinancing; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the notes; (3) has a Stated
Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the notes; and (4)
is expressly subordinated in right of payment to the notes at least to
the same extent as the Indebtedness to be refinanced.
Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate of the
Company (other than the Company or a Wholly Owned Restricted Subsidiary) unless
(i) such transaction or series of transactions is in writing on terms that
are no less favorable to the Company or such Restricted Subsidiary, as
the case may be, than would be available in a comparable transaction in
arm's-length dealings with an unrelated third party;
(ii) with respect to any transaction or series of transactions involving
aggregate payments in excess of $10.0 million, the Company delivers an
officers' certificate to the Trustee certifying that such transaction or
series of related transactions complies with clause (i) above and such
transaction or series of related transactions has been approved by the
Board of Directors of the Company; and
(iii) with respect to a transaction or series of related transactions
involving aggregate value in excess of $25.0 million, the Company
delivers to the Trustee an opinion of either an independent investment
banking firm of national standing in the United States or an independent
public accounting firm of national standing in the United States,
stating that the transaction or series of transactions is fair to the
Company or such Restricted Subsidiary;
provided, however, that this provision shall not apply to any transaction with
an officer or director of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
officer or director of the Company).
Limitation on Liens
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, create, Incur, affirm or suffer to exist any Lien of any kind
upon any of its property or assets (including any intercompany notes), owned at
the date of the Indenture or acquired after the date of the Indenture, or any
income or profits therefrom, except if the notes (or a Guarantee, in the case of
Liens of a Guarantor) are directly secured equally and ratably with (or prior to
in the case of Liens with respect to Subordinated Indebtedness or Indebtedness
of a Guarantor subordinated in right of payment to any Guarantee) the obligation
or liability secured by such Lien, excluding, however, from the operation of the
foregoing any of the following:
(a) any Lien existing as of the date of the Indenture;
(b) any Lien arising by reason of
(1) any judgment, decree or order of any court, so long as such Lien is
adequately bonded and any appropriate legal proceedings which may have
been duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(2) taxes not yet delinquent or which are being contested in good faith;
(3) security for payment of workers' compensation or other insurance;
(4) good faith deposits in connection with tenders, leases, or contracts
(other than contracts for the payment of money);
21
(5) zoning restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of property or
minor irregularities of title (and with respect to leasehold
interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by,
through or under a landlord or owner of the leased property, with or
without consent of the lessee), none of which materially impairs the
use of any parcel of property material to the operation of the
business of the Company or any Restricted Subsidiary or the value of
such property for the purpose of such business;
(6) deposits to secure public or statutory obligations, or in lieu of
surety or appeal bonds;
(7) certain surveys, exceptions, title defects, encumbrances, easements,
reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph or telephone lines and other similar
purposes or zoning or other restrictions as to the use of real
property not interfering with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries;
(8) operation of law in favor of mechanics, materialmen, laborers,
employees or suppliers, incurred in the ordinary course of business
for sums which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend the
collection thereof; or
(9) standard custodial, bailee or depository arrangements (including (x)
in respect of deposit accounts with banks and other financial
institutions and (y) standard customer agreements in respect of
accounts for the purchase and sale of securities and other property
with brokerage firms or other types of financial institutions);
(c) any Lien now or hereafter existing on property of the Company or any
Guarantor securing Indebtedness outstanding under the Credit Agreement;
(d) any Lien securing Acquired Indebtedness created prior to (and not created in
connection with, or in contemplation of) the incurrence of such Indebtedness
by the Company or any Restricted Subsidiary, in each case which Indebtedness
is permitted under the provisions of "Certain Covenants--Limitation on
Indebtedness"; provided that any such Lien only extends to the assets that
were subject to such lien securing such Acquired Indebtedness prior to the
related transaction by the Company or its Restricted Subsidiaries; and
(e) any extension, renewal, refinancing or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (d) so long as the
amount of security is not increased thereby.
Limitation on Sale of Assets
(a) The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, consummate an Asset Sale (other than an Asset
Swap permitted by clause (g) below) unless (i) at least 75% of the proceeds
from such Asset Sale are received in cash; provided, however that the amount
of (A) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet or the notes thereto) of the Company
or any Restricted Subsidiary that are assumed by the transferee in such
Asset Sale and from which the Company or such Restricted Subsidiary is
released and (B) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are immediately
converted by the Company or such Restricted Subsidiary into cash, shall be
deemed cash for purposes of this covenant, and (ii) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset Sale
at least equal to the Fair Market Value of the shares or assets sold (other
than in the case of an involuntary Asset Sale, as determined by the board of
directors of the Company and evidenced in a board resolution).
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale are not
required to be applied to repay permanently any secured Indebtedness then
outstanding as required by the terms thereof or the Company determines not
to apply such Net Cash Proceeds to the permanent repayment of such secured
Indebtedness or if no secured Indebtedness is then outstanding, then the
Company may within 12 months of the Asset Sale, invest the Net Cash Proceeds
in other properties and assets that (as determined by the Board of Directors
of the Company) replace the properties and assets that were the subject of
the Asset Sale or in properties and assets that will be used in the
businesses of the Company or its Restricted Subsidiaries as existing at such
time or reasonably related thereto. The amount of such Net Cash Proceeds
neither used to permanently repay or prepay secured Indebtedness nor used or
invested as set forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals $10.0 million or more,
the Company shall apply the Excess Proceeds to the repayment of the notes
and any Pari Passu Indebtedness required to be repurchased under the
instrument governing such Pari Passu Indebtedness as follows: (a) the
Company shall make an offer to purchase (an "Offer") from all holders of the
notes in accordance with the procedures set forth in the Indenture in the
maximum principal amount (expressed as a multiple of $1,000) of notes that
may be purchased out of an amount (the "Note Amount"Control Purchase Price”) equal to the product
of such Excess Proceeds multiplied by a fraction, the numerator of which is
the outstanding principal amount of the notes, and the
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denominator of which is the sum of the outstanding principal amount of the
notes and such Pari Passu Indebtedness (subject to proration in the event
such amount is less than the aggregate Offered Price (as defined) of all
notes tendered) and (b) to the extent required by such Pari Passu
Indebtedness to permanently reduce the principal amount of such Pari Passu
Indebtedness, the Company shall make an offer to purchase or otherwise
repurchase or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in an
amount (the "Pari Passu Debt Amount") equal to the excess of the Excess
Proceeds over the Note Amount; provided that in no event shall the Pari
Passu Debt Amount exceed the principal amount of such Pari Passu
Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The offer price shall be payable
in cash in an amount equal to 100%101% of the principal amount of the notes to be repurchased, plus accrued and unpaid interest if any,to, but excluding, the repurchase date (subject to the right of Holders of record on the relevant record date (the "Offer Date")to receive interest due on the relevant interest payment date).
Within 30 days following any Change of Control, we will:
cause a notice of the Change of Control Offer to be sent at least once to the Dow Jones News Service or similar business news service in the United States; and
send, by first-class mail, with a copy to the Trustee, to each Holder of notes, at such Holder’s address appearing in the security register, a notice stating:
that a Change of Control has occurred and a Change of Control Offer is consummated (the "Offered Price"), in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate
Offered Price of the notes tenderedbeing made pursuant to the Offer is less thancovenant entitled “Repurchase at the Note Amount relating thereto or Option of Holders Upon a Change of Control” and that all notes timely tendered will be accepted for payment;
the aggregate amountChange of Pari Passu
Indebtedness that is purchased is less than the Pari Passu Debt Amount (the
amount of such shortfall, if any, constituting a "Deficiency"), the Company
shall use such Deficiency in the business of the Company and its Restricted
Subsidiaries. Upon completion of the purchase of all the notes tendered
pursuant to an OfferControl Purchase Price and the purchaserepurchase date, which will be, subject to any contrary requirements of the Pari Passu Indebtedness
pursuant toapplicable law, a Pari Passu Offer, the amount of Excess Proceeds, if any,
shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant to clause (c)
above, the notes shall be purchased by the Company, at the option of the
holder thereof, in whole or in part in integral multiples of $1,000, on a
date that is notbusiness day no earlier than 4530 days and notnor later than 60 days from the date the notice is givenmailed;
the circumstances and relevant facts regarding the Change of Control (including information with respect to holders, or such later date as maythe Company’s pro forma consolidated historical income, cash flow and capitalization after giving effect to the Change of Control); and
the procedures that Holders of notes must follow in order to tender their notes (or portions thereof) for payment, and the procedures that Holders of notes must follow in order to withdraw an election to tender notes (or portions thereof) for payment.
We will not be necessary
forrequired to make a Change of Control Offer following a Change of Control if a third party makes the Company to complyChange of Control Offer in the manner, at the times and otherwise in compliance with the requirements under the Exchange Act,
subject to prorationset forth in the event the Note Amount is less than the
aggregate Offered PriceIndenture applicable to a Change of Control Offer made by us and purchases all notes tendered.
(e) The Company shallvalidly tendered and not withdrawn under such Change of Control Offer.
We will comply, to the extent applicable, with the applicable tender offer rules, including
Rule 14e-1 underrequirements of Section 14(e) of the Exchange Act and any other applicable securities laws or regulations in connection with the repurchase of notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this covenant, we will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of this compliance.
We have no present intention to engage in a transaction involving a Change of Control, although it is possible that we would decide to do so in the future. We could, in the future, enter into certain transactions, including acquisitions, refinancings or other recapitalizations, that would not constitute a Change of Control, but that could increase the amount of debt outstanding at such time or otherwise affect our capital structure or credit ratings.
The definition of Change of Control includes a phrase relating to the sale, transfer, assignment, lease, conveyance or other disposition of “all or substantially all” of the Company’s and the Company’s Subsidiaries’ property. Although there is a developing body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, if the Company and its Subsidiaries, considered as a whole, dispose of less than all of their property by any of the means described below, the ability of a Holder of notes to require us to repurchase its notes may be uncertain. In such a case, Holders of the notes may not be able to resolve this uncertainty without resorting to legal action.
Sinking Fund
The notes will not have the benefit of any sinking fund.
Certain Covenants
The Indenture contains, among others, the following covenants:
Reports to the Trustee
For so long as any notes are outstanding, we will file with the Trustee, within 15 days after we file the same with the Commission, copies of the annual reports and of the information, documents and other reports which we may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act (or copies of such portions thereof as may be prescribed by the Commission); or, if we are not required to file with the Commission information, documents or reports pursuant to either Section 13 or Section 15(d) of the Exchange Act, then we will file with the Trustee and will file with the Commission, in accordance with rules and regulations prescribed by the Commission, such of the supplementary and periodic information, documents and reports required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations.
We and the subsidiary guarantors have also agreed that, for so long as any notes remain outstanding, we will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
We are required to provide the Trustee with an Offer.
(f) officers’ certificate each fiscal year stating that we have reviewed our activities during the preceding fiscal year and that, after reasonable investigation and inquiry by the certifying officers, we are in compliance with the requirements of the Indenture and that no Default exists or, if we know of a Default, we must identify it.
Limitation Upon Liens
The CompanyIndenture provides that, so long as any of the notes remain outstanding, we will not and will not permit any Subsidiary to createissue, assume or permit to exist or become effectiveguarantee any restrictionFunded Debt that is secured by a Lien (other than restrictions existing under Indebtedness as in effectPermitted Liens) upon or with respect to any Principal Property or on the dateCapital Stock of any Subsidiary that owns a Principal Property unless:
we secure the notes equally and ratably with (or prior to) any and all Funded Debt secured by that Lien, or
in the case of Funded Debt other than Capital Markets Debt, immediately after giving effect to the granting of any such Lien and the incurrence of any Funded Debt in connection therewith, our Consolidated Fixed Charge Coverage Ratio would be greater than 2.0 to 1.0.
Limitation on Sale and Leaseback Transactions
The Indenture provides that, so long as any of the Indenture) as such Indebtedness maynotes remain outstanding, neither we nor any Subsidiary shall enter into any arrangement with any Person (other than us or any Subsidiary) whereby we or a Subsidiary agrees to lease any Principal Property (except for leases for a term of not more than three years) which has been or is to be refinanced from time to time,
provided that such restrictions are no less favorable tosold or transferred more than 120 days after the holderslater of
notes than those existing on the date (i) such Principal Property was acquired by us or a Subsidiary and (ii) completion of construction and commencement of full operation thereof, by us or a Subsidiary to that Person unless (a) the net proceeds to us or a Subsidiary from the sale or transfer equal or exceed the fair value, as determined by the Board of Directors, of the Indenture that would
materially impair the ability of the Company to make an Offer to purchase
the notes or, if such Offer is made, to pay for the notes tendered for
purchase.
(g) The Company will not, and will not permit any Restricted Subsidiary, to
engage in any Asset Swaps, unless: (i) at the time of entering into such
Asset Swap, andPrincipal Property so leased, (b) immediately after giving effect to such Asset Swap, no
DefaultSale and Leaseback Transaction, our Consolidated Fixed Charge Coverage Ratio would be greater than 2.0 to 1.0, or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; (ii) in(c) we, within 120 days after the event such Asset Swap involves
an aggregate amount in excess of $10.0 million, the terms of such Asset
Swap have been approved by a majorityeffective date of the members of the board of
directors of the Company which determination shall include a determination
that the Fair Market Value of the assets being received in such swap are at
leastSale and Leaseback Transaction, apply an amount equal to the Fair Market Valuefair value as determined by our Board of Directors of the assets being swappedPrincipal Property so leased to (x) the prepayment or retirement of our Funded Debt, which may include the notes, or (y) the acquisition of additional real property for us or any Subsidiary. A Sale and (iii)
inLeaseback Transaction shall not include any such arrangement for financing air, water or noise pollution control facilities or sewage or solid waste disposal facilities or involving industrial development bonds which are tax-exempt pursuant to Section 103 of the Code (or which receive similar tax treatment under any subsequent amendments thereto or successor laws thereof).
Additional Subsidiary Guarantees
In the event such Asset Swap involves an aggregate amount in excess of
$20.0 million, the Company has also received a written opinion from an
independent investment banking firm of nationally recognized standingwe (i) organize or an
independent public accounting firm of nationally recognized standing that
such Asset Swap is fair to the Company or such Restricted Subsidiary, as
the case may be, from a financial point of view.
Limitation on Guarantees by Restricted Subsidiaries
The Indenture provides that in the event the Company (i) organizes or acquiresacquire any Domestic Restricted Subsidiary after November 17, 1999the Issue Date that is not a Guarantorsubsidiary guarantor and causes or permits such Restricted Subsidiary, to, directly or indirectly, provides a guarantee under the payment of any Indebtedness ("Other Indebtedness") of
the Company or any GuarantorSenior Credit Facility or (ii) causes or permits any Foreign Restricted
Subsidiary that is not a Guarantorsubsidiary guarantor to, directly or indirectly, guarantee obligations under the payment of any Other Indebtedness,Senior Credit Facility, then, in each case the Companywe shall cause such Restricted Subsidiary to simultaneously execute and deliver a supplemental indenture to the Indenture pursuant to which it will become a Guarantorsubsidiary guarantor under the Indenture; provided, however,Indenture.
Limitations on Mergers, Consolidations, Etc.
The Indenture provides that, inso long as any of the event a Domestic Restricted
Subsidiary is acquirednotes remain outstanding, we will not, directly or indirectly, in a single transaction in whichor a merger agreement is enteredseries of related transactions, consolidate or merge with or into such Domestic Restricted Subsidiary shall not be required to execute and
deliver such supplemental indenture until the consummationanother Person, or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets or Properties of the Company or the Company and the Subsidiaries (taken as a whole) unless either:
the Company will be the surviving or continuing Person; or
the Person formed by or surviving such consolidation or merger contemplatedor to which such sale, lease, conveyance, transfer or other disposition shall be made (collectively, the “Successor”) expressly assumes, by any such merger agreement; provided, further, that if such Other
Indebtedness is (i) Indebtedness that is ranked pari passuagreements in rightform and substance reasonably satisfactory to the Trustee, all of payment
withour obligations under the notes and the Indenture.
Upon any consolidation, combination or the Guarantees of such Restricted Subsidiary, as the case may
be, the Guarantee of such Restricted Subsidiary shall be pari passu in right of
payment with the guaranteemerger of the Other Indebtedness;Company, or (ii) Subordinated
Indebtedness, the Guarantee of such Restricted Subsidiary shall be senior in
right of payment to the guarantee of the Other Indebtedness (which guarantee of
such Subordinated Indebtedness shall provide that such guarantee is subordinated
to the Guarantees of such Subsidiary to the same extent and in the same manner
as the Other Indebtedness is subordinated to the notes or the Guarantee of such
Restricted Subsidiary, as the case may be). The Guarantee of a Guarantor shall
be released upon the sale orany transfer of all or substantially all of the assets of the Company in accordance with the foregoing, in which the Company is not the continuing corporation, the surviving entity formed by such consolidation or into which the Company is merged or the Person to which the conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and the notes with the same effect as if such surviving entity had been named therein as the Company, except in the case of a lease, the Company will be released from the obligation to pay the principal of and interest on the notes and all of our other obligations and covenants under the Capital Stocknotes and the Indenture.
Events of such Guarantor; provided, that, either (i) such
sale
23
or transfer complies with the provisions set forth in "Certain Covenants--
Limitation on Sale of Assets" or (ii) such sale or transfer need not comply with
the provisions set forth in "Certain Covenants--Limitation on Sale of Assets"
because the Capital Stock so sold or transferred does not constitute an "Asset
Sale" by operationDefault
Each of the provisionsfollowing is an “Event of clause (y) of the last sentence of the
definition of Asset Sale.
Purchase of Notes Upon a Change of Control
If a Change of Control shall occur at any time, then each holder of notes shall
have the right to require that the Company purchase such holder's notes in whole
or in part in integral multiples of $1,000, at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to 101% of the principal
amount of such notes, plus accrued and unpaid interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in the Indenture.
Within 30 days following any Change of Control, the Company shall notify the
Trustee, give written notice of such Change of Control to each holder of notes
by first-class mail, postage prepaid, at his address appearing in the security
register stating, among other things, the purchase price and that the purchase
dateDefault”:
there shall be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed, or such later date as is necessary to comply
with requirements under the Exchange Act; that any notes not tendered will
continue to accrue interest; that, unless the Company defaultsdefault in the payment of the purchase price,principal of (or premium, if any, notes acceptedon) any note at its maturity (upon acceleration, optional redemption or otherwise);
there shall be a default in the payment of any interest on any note when it becomes due and payable, and such default shall continue for payment pursuant to the Changea period of Control Offer shall cease to accrue interest after the Change30 days;
| • | there shall be a default in the performance, or breach, of any covenant or agreement of the Company or any subsidiary guarantor contained in the notes or in the Indenture, and continuance of such default or breach for a period of 90 days after the date on which written notice specifying such default or breach and requiring the Company or such subsidiary guarantor to remedy the same and stating that such notice is a “Notice of Default” under the Indenture shall have been given to the Company or such subsidiary guarantor, as the case may be, by the Trustee, or to the Company or such subsidiary guarantor, as the case may be, and the Trustee by the Holders of at least 25% in principal amount of the then outstanding notes; |
| • | the failure by the Company to make any payment, on or before the end of the applicable grace period, after the maturity of any indebtedness of the Company with an aggregate principal amount then outstanding in excess of $100 million or the acceleration of indebtedness of the Company with an aggregate principal amount then outstanding in excess of $100 million as a result of a default with respect to such indebtedness, and such indebtedness, in either case, is not discharged or such acceleration shall not have been cured, waived, rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding notes, a written notice specifying such failure to pay or acceleration and requiring the Company to cause such acceleration to be cured, waived, rescinded or annulled or to cause such indebtedness to be discharged and stating that such notice is a “Notice of Default” under the Indenture; |
any subsidiary guarantee of Control
Purchase Date; and certain other proceduresa subsidiary guarantor that is a holder of notes must follow
to accept a Change of Control Offer or to withdraw such acceptance.
If a Change of Control Offer is made, there can be no assurance that the Company
will have available funds sufficient to pay the Change of Control Purchase Price
for all of the notes that might be delivered by holders of the notes seeking to
accept the Change of Control Offer. The Credit Agreement restricts the abilitySignificant Subsidiary of the Company shall for any reason cease to purchase the notes prior to full repayment of indebtedness
under the Credit Agreement and, upon a Change of Control, all amounts
outstanding under the Credit Agreement become due and payable. There can be, no
assurance thator be asserted in the event of a Change in Controlwriting by any subsidiary guarantor or the Company willnot to be, ablein full force and effect and enforceable in accordance with its terms, except to obtain the necessary consents fromextent contemplated by the lenders underIndenture;
there shall have been the Credit Agreement to
consummateentry by a Changecourt of Control Offer. The failurecompetent jurisdiction of (i) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Bankruptcy Law or (ii) a decree or order adjudging the Company bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its Properties, or ordering the winding up or liquidation of its affairs, and any such decree or order for relief shall continue to makebe in effect, or consummateany such other decree or order shall be unstayed and in effect, for a period of 60 consecutive days; or
(i) the ChangeCompany commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent, (ii) the Company consents to the entry of Control Offera decree or payorder for relief in respect of the ChangeCompany in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of Control Purchase
Price when due will result inany bankruptcy or insolvency case or proceeding against it, (iii) the Company files a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, (iv) the Company (1) consents to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its Properties, or (2) makes an assignment for the benefit of creditors.
If an Event of Default shall occur and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the notes then outstanding may, and the Trustee at the request of the Holders of not less than 25% in aggregate principal amount of the notes then outstanding shall, declare all unpaid principal of, premium, if any, and accrued interest on all the notes to be due and payable immediately, by a notice in writing to the Company (and the Trustee if given by the Holders of the notes). Thereupon such principal shall become immediately due and payable, and the Trustee may, at its discretion, proceed to protect and enforce the rights of the Holders of notes by appropriate judicial proceeding.
At any time after such declaration of acceleration has been made but before a judgment or decree for payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate principal amount of the notes outstanding, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
We have paid or deposited with the Trustee a sum sufficient to pay:
all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
to the extent payment of such interest is lawful, if interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, and
to the extent that payment of such interest is lawful, interest upon overdue interest at the rate borne by the notes;
all Events of Default, other than the non-payment of principal of the notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in the Indenture; and
the rescission will givenot conflict with any judgment or decree.
No such rescission will affect any subsequent Default or impair any right consequent thereon.
No Holder will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless the Trustee:
has failed to act for a period of 60 days after receiving written notice of a continuing Event of Default by such Holder and a request to act by Holders of at least 25% in aggregate principal amount of notes outstanding;
has been offered indemnity satisfactory to it in its reasonable judgment; and
has not received from the Holders of a majority in aggregate principal amount of the outstanding notes a direction inconsistent with such request.
However, such limitations do not apply to a suit instituted by a Holder of any note for enforcement of payment of the principal of or interest on such note on or after the due date therefor (after giving effect to the grace period specified in clause (2) of the first paragraph of this “—Events of Default” section).
Legal Defeasance and Covenant Defeasance
We may, at our option and at any time, elect to have our obligations and the obligations of the subsidiary guarantors discharged with respect to the outstanding notes (“Legal Defeasance”). Legal Defeasance means that we and the subsidiary guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the notes and the subsidiary guarantees, and the Indenture shall cease to be of further effect as to all outstanding notes and subsidiary guarantees, except as to
rights of Holders to receive payments in respect of the principal of and interest on the notes when such payments are due from the trust funds referred to below,
our obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes, and the maintenance of an office or agency for payment and money for security payments held in trust,
the rights, powers, trust, duties, and immunities of the Trustee, and our obligation in connection therewith, and
the holdersLegal Defeasance provisions of the Indenture.
In addition, we may, at our option and at any time, elect to have our obligations and the obligations of the subsidiary guarantors released with respect to most of the covenants under the Indenture, except as described otherwise in the Indenture (“Covenant Defeasance”), and thereafter any omission to comply with such obligations shall not constitute a Default. In the event Covenant Defeasance occurs, certain Events of Default (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) will no longer apply. We may exercise our Legal Defeasance option regardless of whether we previously exercised Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
| • | We must irrevocably deposit or cause to be irrevocably deposited with the Trustee and convey all right, title and interest to the Trustee for the benefit of the Holders of notes, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of such Holders as security for payment of the principal of and interest, if any, on the notes, and dedicated solely to, the benefit of such Holders, in and to (a) money in an amount, (b) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (1), money in an amount or (c) a combination thereof in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the principal of and interest on the outstanding notes on the stated maturity of such principal or interest;provided, that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such principal and interest with respect to the notes; |
in the case of Legal Defeasance, we must deliver to the Trustee either (x) an opinion of counsel to the effect that Holders of notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised, which opinion of counsel shall be based upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to the same effect unless there has been a change in applicable federal income tax law after the Issue Date such that a ruling is no longer required or (y) a ruling directed to the Trustee received from the Internal Revenue Service to the same effect as the aforementioned opinion of counsel;
in the case of Covenant Defeasance, we must deliver to the Trustee an opinion of counsel to the effect that the Holders of notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and defeasance of such covenants and Events of Default and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
immediately after giving effect to such deposit, on a pro forma basis, no Default or Event of Default with respect to the notes shall have occurred and be continuing on the date of such deposit or, insofar the Events of Default under clauses (6) and (7) of the first paragraph under “—Events of Default” above are concerned, at any time during the period ending on the 91st day after such date of such deposit; and
we must deliver to the Trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions precedent provided for above relating to the defeasance have been complied with.
If the funds deposited with the Trustee to effect a defeasance are insufficient to pay the principal of and interest on the notes when due, then the obligations of us and the subsidiary guarantors under the Indenture will be revived and no such defeasance will be deemed to have occurred.
Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect (except as to rights of registration of transfer or exchange of notes which shall survive until all notes have been canceled) as to all outstanding notes when either:
all the notes that have been authenticated and delivered (except lost, stolen or destroyed notes which have been replaced or paid and notes for whose payment money has been deposited in trust or segregated and held in trust by us and thereafter repaid to us or discharged from this trust) have been delivered to the Trustee for cancellation, or
(a) all notes not delivered to the Trustee for cancellation otherwise (i) have become due and payable, (ii) will become due and payable, or may be called for redemption, within one year or (iii) have been called for redemption pursuant to the provisions described under “—Optional Redemption,” and, in any case, we have irrevocably deposited or caused to be deposited with the Trustee as trust funds, in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire Indebtedness (including all principal and accrued interest) on the notes not theretofore delivered to the Trustee for cancellation, (b) we have paid all sums payable by us under the Indenture, and (c) we have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the notes at maturity or on the rights describeddate of redemption, as the case may be.
In addition, we must deliver an officers’ certificate and an opinion of counsel stating that all conditions precedent to satisfaction and discharge have been complied with.
Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the notes may be amended with the consent (which may include consents obtained in connection with a tender offer or exchange offer for notes) of the Holders of at least a majority in principal amount of the notes then outstanding, and any existing Default under, "Eventsor compliance with any provision of, Default."
The definitionthe Indenture may be waived (other than any continuing Default in the payment of "Changethe principal or interest on the notes) with the consent (which may include consents obtained in connection with a tender offer or exchange offer for notes) of Control"the Holders of a majority in principal amount of the notes then outstanding;provided that, without the consent of each Holder affected, no amendment or waiver may:
reduce, or change the maturity of, the principal of any note;
reduce the rate of or extend the time for payment of interest on any note;
reduce any premium payable upon redemption of the notes or change the date on which any notes are subject to redemption;
make any note payable in money or currency other than that stated in the notes;
modify or change any provision of the Indenture or the related definitions to affect the ranking of the notes or any subsidiary guarantee in a manner that adversely affects the Holders;
reduce the percentage of Holders necessary to consent to an amendment or waiver to the Indenture or the notes;
waive a default in the payment of principal of or premium or interest on any notes (except a rescission of acceleration of the notes by the Holders thereof as provided in the Indenture and a waiver of the payment default that resulted from such acceleration);
impair the rights of Holders to receive payments of principal of or interest on the notes on or after the due date therefor or to institute suit for the enforcement of any payment on the notes;
release any subsidiary guarantor that is a Significant Subsidiary from any of its obligations under its subsidiary guarantee or the Indenture, except as permitted by the Indenture; or
make any change in these amendment and waiver provisions.
Notwithstanding the foregoing, the Company and the Trustee may amend the Indenture, the subsidiary guarantees or the notes without the consent of any Holder, to cure any ambiguity, defect or inconsistency, to provide for uncertificated notes in addition to or in place of certificated notes, to provide for the assumption of our or a subsidiary guarantor’s obligations to the Holders in the case of a merger, consolidation or sale of all or substantially all of the assets in accordance with the applicable provisions of the Indenture, to cause a Subsidiary of us to become a subsidiary guarantor, to release any subsidiary guarantor from any of its obligations under its subsidiary guarantee or the Indenture (to the extent permitted by the Indenture), to make any change that does not materially adversely affect the rights of any Holder or, in the case of the Indenture, to maintain the qualification of the Indenture under the Trust Indenture Act.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of us or any subsidiary guarantor will have any liability for any obligations of us under the notes or the Indenture or of any subsidiary guarantor under its subsidiary guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes and the subsidiary guarantees. The waiver may not be effective to waive liabilities under the federal securities laws. It is the view of the Commission that this type of waiver is against public policy.
Concerning the Trustee
The Bank of New York Trust Company, N.A. is the Trustee under the Indenture and has been appointed by us as registrar and paying agent with regard to the notes. The Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of us, to obtain payment of claims in certain cases, or to realize on certain assets received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest (as defined in the Indenture), it must eliminate such conflict within 90 days, apply to the Commission for permission to continue (if the Indenture has been qualified under the Trust Indenture Act) or resign.
The Holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. The Indenture provides that, in case an Event of Default occurs and is not cured, the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any Holder, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to the Trustee.
Governing Law
The Indenture, the notes and the subsidiary guarantees will be governed by, and construed in accordance with, the laws of the State of New York.
Glossary
“Additional Interest” has the meaning set forth in the Registration Rights Agreement.
“Bankruptcy Law” means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States Federal or state law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law.
“Board” or “Board of Directors” shall mean our Board of Directors or (i) the Executive Committee, if any, of such Board of Directors, (ii) any other committee of such Board duly authorized to act under the Indenture, or (iii) any of our officers of duly authorized by such Board of Directors or by any duly authorized committee of such Board to act under the Indenture.
“Business Day” means any day that is not a day on which banking institutions in The City of New York are authorized or required by law or by executive order issued by a governmental authority or agency regulating such banking institutions, to close.
“Capital Lease Obligation” means any obligations of us and our Subsidiaries on a Consolidated basis under any capital lease of real or personal property which, in accordance with GAAP, has been recorded as a capitalized lease obligation.
“Capital Markets Debt” means any debt securities or debt financing issued pursuant to an indenture, notes purchase agreement or similar financing arrangement (but excluding any credit agreement) whether offered pursuant to a registration statement under the Securities Act or under an exemption from the registration requirements of the Securities Act.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, including, without limitation, all common stock and preferred stock.
“Change of Control” means the occurrence of any of the following events: (i) any "person"“person” or "group"“group” (as such terms are used in SectionSections 13(d) and
Section 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the "beneficial owner"“beneficial owner” (as defined in RuleRules 13d-3 and Rule 13d-5 under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all shares that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 30% of the voting power of the total outstanding Voting Stock of the Company voting as one class,provided that the Permitted Holders "beneficially
own"“beneficially own” (as so defined) a percentage of Voting Stock having a lesser percentage of the voting power than such other Person and do not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the boardour Board of directors of the
Company;Directors; (ii) during any period of two consecutive years, individuals who at the beginning of such period constituted the boardour Board of directors of the
CompanyDirectors (together with any new directors whose election to such board
of directorsBoard or whose nomination for election by theour shareholders of
the Company, was approved by a vote of 66 2/3% 2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of such boardBoard of directorsDirectors then in office; (iii) the Company consolidateswe consolidate with or mergesmerge with or into any Person or conveys, transfersconvey, transfer or leaseslease all or substantially all of itsour assets to any Person, or any corporation consolidates with or merges into or with the Company,us, in any such event pursuant to a transaction in which theour outstanding Voting Stock of the Company is changed into or exchanged for cash, securities or other property, other than any such transaction where theour outstanding Voting Stock of the Company is not changed or exchanged at all (except to the extent necessary to reflect a change in theour jurisdiction of incorporation of the Company)incorporation) or where (A) theour outstanding Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (y) cash, securities and other property (other than Capital Stock of the surviving corporation) in an amount
which could be paid by the Company as a Restricted Payment in
accordance with "Certain Covenants-Limitation on Restricted Payments"
(and such amount shall be treated as a Restricted Payment subject to
the provisions in the Indenture described under "Certain Covenants--
Limitation on Restricted Payments") and (B) no "person"“person” or "group"“group” other than Permitted Holders owns immediately after such transaction, directly or indirectly, more than the greater of (1) 30% of the
voting power of the total outstanding Voting Stock of the surviving corporation voting as one class and (2) the percentage of 24
the Company iswe are liquidated or dissolved or adoptsadopt a plan of liquidation or dissolution other than in a transaction which complies with the provisions of the covenant described under "Consolidation, Merger, Sale of Assets."
"Permitted Holders" means as of the date of determination (i) Marilyn Sands,
Richard Sands and Robert Sands; (ii) family members or the relatives of the
Persons described in clause (i) or the Mac and Sally Sands Foundation,
Incorporated; (iii) any trusts created for the benefit of the Persons described
in clauses (i), (ii) or (v) or for the benefit of Andrew Stern or any trust for
the benefit of any such trust; (iv) any partnerships that are controlled by (and
a majority of the partnership interests in which are owned by) any of the
Persons described in clauses (i), (ii), (iii) or (v) or by any partnership that
satisfies the conditions of this clause (iv); or (v) in the case of Marvin Sands
and in the event of the incompetence or death of any of the persons described in
clauses (i) and (ii), such Person's estate, executor, administrator, committee
or other personal representative or beneficiaries, in each case who at any
particular date shall beneficially own or have the right to acquire, directly or
indirectly, Capital Stock of the Company.
The term "all or substantially all" as used in the definition of "Change of
Control" has not been interpreted under New York law (which is the governing law
of the Indenture) to represent a specific quantitative test. As a consequence,
in the event the holders of the notes elected to exercise their rights under the
Indenture and the Company elected to contest such election, there could be no
assurance as to how a court interpreting New York law would interpret the
phrase.
The definition of "Change of Control" is limited in scope. As a result the
provisions of the Indenture will not afford holders of notes the right to
require the Company to purchase the notes in the event of a highly leveraged
transaction or certain transactions with the Company's management or its
affiliates, including a reorganization, restructuring, merger or similar
transaction (including, in certain circumstances, an acquisition of the Company
by management or its affiliates) involving the Company that may adversely affect
holders of the notes, if such transaction is not a transaction defined as a
Change of Control. A transaction involving the Company's management or its
affiliates, or a transaction involving a recapitalization of the Company, will
result in a Change of Control if it is the type of transaction specified by such
definition.
The existence of a holder's right to require the Company to purchase such
holder's notes upon a Change of Control may deter a third party from acquiring
the Company in a transaction which constitutes a Change of Control.
The Company will comply with the applicable tender offer rules, including Rule
14e-1 under the Exchange Act, and any other applicable securities laws or
regulations in connection with a Change of Control Offer.
The Company will not, and will not permit any Subsidiary to, create or permit to
exist or become effective any restriction (other than restrictions existing
under Indebtedness as in effect“—Limitations on the date of the Indenture) that would
materially impair the ability of the Company to make a Change of Control Offer
to purchase the notes or, if such Change of Control Offer is made, to pay for
the notes tendered for purchase.
Limitation on Restricted Subsidiary Capital Stock
The Company will not permit any Restricted Subsidiary of the Company to issue
any Capital Stock, except for
(i) Capital Stock issued to and held by the Company or a Wholly Owned
Restricted Subsidiary;
(ii) Capital Stock issued by a Person prior to the time (A) such Person
becomes a Restricted Subsidiary, (B) such Person merges with or into a
Restricted Subsidiary or (C) a Restricted Subsidiary merges with or
into such Person; provided that such Capital Stock was not issued or
incurred by such Person in anticipation of the type of transaction
contemplated by subclauses (A), (B) or (C);
(iii) Capital Stock issued or sold by a Restricted Subsidiary, where
immediately after giving effect to such issuance or sale, such
Restricted Subsidiary would no longer constitute a Restricted
Subsidiary; and
(iv) Capital Stock issued to any minority owner of a Restricted Subsidiary;
provided that immediately after giving effect to such issuance, (A)
such Restricted Subsidiary remains a Restricted Subsidiary and (B) the
Company has the same percentage of beneficial ownership in such
Restricted Subsidiary as immediately prior to such issuance.
Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries
The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to
25
(i) pay dividends or make any other distribution on its Capital Stock,
(ii) pay any Indebtedness owed to the Company or a Restricted Subsidiary of
the Company,
(iii) make any Investment in the Company or a Restricted Subsidiary of the
Company, or
(iv) transfer any of its properties or assets to the Company or any
Restricted Subsidiary,
except
(a) any encumbrance or restriction pursuant to an agreement in effect on
the date of the Indenture;
(b) any encumbrance or restriction, with respect to a Restricted Subsidiary
that is not a Restricted Subsidiary of the Company on the date of the
Indenture, in existence at the time such Person becomes a Restricted
Subsidiary of the Company and, in the case of clauses (a) and (b), not
incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary;
(c) any encumbrance or restriction existing under any agreement that
extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (a) and (b), or
in this clause (c); provided that the terms and conditions of any such
encumbrances or restrictions are not materially less favorable to the
holders of the notes than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or
replaced (except that an encumbrance or restriction that is not more
restrictive than those set forth in the Indenture shall in any event be
permitted); and;
(d) any encumbrance or restriction created pursuant to an asset sale
agreement, stock sale agreement or similar instrument pursuant to which
an Asset Sale permitted under "Certain Covenants--Limitation on Sale of
Assets" is to be consummated, so long as such restriction or
encumbrance shall be effective only for a period from the execution and
delivery of such agreement or instrument through a termination date not
later than 270 days after such execution and delivery.
Designation of Unrestricted Subsidiaries
The Company may designate after the Issue Date any Subsidiary of the Company as
an "Unrestricted Subsidiary" under the Indenture (a "Designation") only if:
(i) no Default or Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) at the time of and after giving effect to such Designation, the Company
could Incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the Consolidated Fixed Charge Coverage Ratio of the
first paragraph of "Certain Covenants--Limitation on Indebtedness"; and
(iii) the Company would be permitted to make an Investment (other than a
Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to paragraph (a) of
"Certain Covenants--Limitation on Restricted Payments" above in an
amount (the "Designation Amount") equal to the amount of the Company's
Investment in such Subsidiary on such date.
Neither the Company nor any Restricted Subsidiary shall at any time (x) provide
credit support for, subject any of its property or assets (other than the
Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or
guarantee, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness) or (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary. For purposes of the foregoing, the Designation of a Subsidiary of
the Company as an Unrestricted Subsidiary shall be deemed to include the
Designation of all of the Subsidiaries of such Subsidiary.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a "Revocation") only if:
(i) no Default or Event of Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if Incurred at such time,
have been permitted to be Incurred for all purposes of the Indenture.
26
All Designations and Revocations must be evidenced by resolutions of the board
of directors of the Company, delivered to the Trustee certifying compliance with
the foregoing provisions.
Limitation of Applicability of Certain Covenants if Notes Rated Investment Grade
Notwithstanding the foregoing, the Company's and its Restricted Subsidiaries'
obligations to comply with the provisions of the Indenture described (x) above
under the captions "Certain Covenants--Limitation on Indebtedness," "Certain
Covenants--Limitation on Restricted Payments," "Certain Covenants--Limitation on
Transactions with Affiliates," "Certain Covenants--Limitation on Restricted
Subsidiary Capital Stock," "Certain Covenants--Limitation on Dividends and Other
Payment Restrictions Affecting Restricted Subsidiaries," and "Certain Covenants-
- -Designation of Unrestricted Subsidiaries," and (y) below in clause (iv) of the
first paragraph under the caption "Consolidation, Merger, Sale of Assets," will
terminate and cease to have any further effect from and after the first date
when the notes are rated Investment Grade.
Provision of Financial Statements
Whether or not the Company is subject to Section 13(a) or Section 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or Section 15(d) if the Company were so subject,
such documents to be filed with the Commission on or prior to the respective
dates (the "Required Filing Dates") by which the Company would have been
required so to file such documents if the Company were so subject. The Company
will also in any event (x) within 15 days of each Required Filing Date (i)
transmit by mail to all holders, as their names and addresses appear in the
security register, without cost to such holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or Section 15(d) of the Exchange Act if the Company were subject to such
sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective holder at the Company's cost.
Additional Covenants
The Indenture also contains covenants with respect to the following matters: (i)
payment of principal, premium and interest; (ii) maintenance of an office or
agency in the City of New York; (iii) arrangements regarding the handling of
money held in trust; (iv) maintenance of corporate and partnership existence;
(v) payment of taxes and other claims; (vi) maintenance of properties; and (vii)
maintenance of insurance.
Consolidation, Merger, Sale of Assets
The Company shall not, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets as an entirety to any Person or group of affiliated
Persons, or permit any of its Restricted Subsidiaries to enter into any such
transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposal of all or substantially all of the properties and assets of the Company
and its Restricted Subsidiaries on a Consolidated basis to any other Person or
group of affiliated Persons, unless at the time and after giving effect thereto:
(i) either (a) the Company shall be the continuing corporation or (b) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a Consolidated basis (the "Surviving
Entity") shall be a corporation duly organized and validly existing
under the laws of the United States, any state thereof or the District
of Columbia and such Person assumes, by a supplemental indenture in a
form reasonably satisfactory to the Trustee, all the obligations of the
Company under the notes and the Indenture, and the Indenture shall
remain in full force and effect;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction on a pro forma
basis, the Consolidated Net Worth of the Company (or the Surviving
Entity if the Company is not the continuing obligor under the
Indenture) is equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction;
(iv) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the
transaction occurred on the first day of the four-quarter period
immediately prior to the consummation of such transaction with the
appropriate adjustments with respect to the transaction being included
in such pro forma calculation), the Company (or the Surviving Entity if
the Company is not the continuing obligor under the Indenture)
27
could Incur $1.00 additional Indebtedness under the provisions of
"Certain Covenants--Limitation on Indebtedness" (other than Permitted
Indebtedness);
(v) each Guarantor, if any, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations
under the Indenture and the notes;
(vi) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of "Certain Covenants--Limitation on Liens" are complied
with; and
(vii) the Company or the Surviving Entity shall have delivered, or caused to
be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an officers' certificate and an opinion of
counsel, each to the effect that such consolidation, merger, transfer,
sale, assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with the Indenture and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Each Guarantor shall not, and the Company will not permit a Guarantor to, in a
single transaction or through a series of related transactions merge or
consolidate with or into any other corporation (other than the Company or any
other Guarantor) or other entity, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets on a
consolidated basis to any entity (other than the Company or any other Guarantor)
unless at the time and after giving effect thereto:
(i) either (1) such Guarantor shall be the continuing corporation or
partnership or (2) the entity (if other than such Guarantor) formed by
such consolidation or into which such Guarantor is merged or the entity
which acquires by sale, assignment, conveyance, transfer, lease or
disposition the properties and assets of such Guarantor shall be a
corporation duly organized and validly existing under the Laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume by a supplemental indenture, executed and delivered to
the Trustee, in a form reasonably satisfactory to the Trustee, all the
obligations of such Guarantor under its Guarantee and the Indenture;
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(iii) such Guarantor shall have delivered to the Trustee an officers'
certificate and an opinion of counsel in form and substance reasonably
satisfactory to the Trustee, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or disposition
and such supplemental indenture comply with the Indenture, and
thereafter all obligations of the predecessor shall terminate.
The provisions of this paragraph shall not apply to any transaction (including
any Asset Sale made in accordance with "Certain Covenants--Limitation on Sale of
Assets") with respect to any Guarantor (i) if the Guarantee of such Guarantor is
released in connection with such transaction in accordance with the last
sentence of "Certain Covenants--Limitation on Guarantees by Restricted
Subsidiaries" or (ii) if such transaction need not comply with the provisions
set forth in "Certain Covenants--Limitation on Sale of Assets" because the
properties or assets so sold, assigned, conveyed, transferred, leased or
otherwise disposed of do not constitute an "Asset Sale" by operation of the
provisions of clause (y) of the last sentence of the definition of Asset Sale.
In the event of any transaction (other than a lease) described in and complying
with the conditions listed in the immediately preceding paragraphs in which the
Company or any Guarantor is not the continuing corporation, the successor Person
formed or remaining shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or such Guarantor, as the case may be, and
the Company or such Guarantor, as the case may be, would be discharged from all
obligations and covenants under the Indenture and the notes.
Events of Default
An Event of Default will occur under the Indenture if:
(i) there shall be a default in the payment of any interest on any note
when it becomes due and payable, and such default shall continue for a
period of 30 days;
(ii) there shall be a default in the payment of the principal of (or
premium, if any, on) any note at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise);
(iii) (a) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company or any Guarantor under the
Indenture (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in clauses (i)
or (ii) or in clauses (b), (c) and (d) of this clause (iii)) and such
default or breach shall continue for a period of 30 days after written
notice has been given, by certified mail, (x) to the Company by the
28
Trustee or (y) to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the outstanding notes,
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Indenture;
(b) there shall be a default in the performance or breach of the
provisions described in "Consolidation, Merger, Sale of Assets"; (c)
the Company shall have failed to make or consummate an Offer in
accordance with the provisions of "Certain Covenants--Limitation on
Sale of Assets," or (d) the Company shall have failed to make or
consummate a Change of Control Offer in accordance with the provisions
of "Certain Covenants--Purchase of Notes Upon a Change of Control;"
(iv) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company, any Guarantor or
any Subsidiary then has outstanding Indebtedness in excess of $10.0
million in the aggregate and, if not already matured at its final
maturity in accordance with its terms, such Indebtedness shall have
been accelerated;
(v) any Guarantee shall for any reason cease to be, or be asserted in
writing by any Guarantor or the Company not to be, in full force and
effect and enforceable in accordance with its terms, except to the
extent contemplated by the Indenture and any such Guarantee;
(vi) one or more judgments, orders or decrees for the payment of money in
excess of $15.0 million, either individually or in the aggregate (net
of amounts covered by insurance, bond, surety or similar instrument),
shall be entered against the Company, any Guarantor, any Subsidiary or
any of their respective properties and shall not be discharged and
either (a) any creditor shall have commenced an enforcement proceeding
upon such judgment, order or decree or (b) there shall have been a
period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of an appeal or otherwise, shall not
be in effect;
(vii) any holder or holders of at least $10.0 million in aggregate principal
amount of Indebtedness of the Company, any Guarantor or any Subsidiary
after a default under such Indebtedness shall notify the Trustee of
the intended sale or disposition of any assets of the Company, any
Guarantor or any Subsidiary that have been pledged to or for the
benefit of such holder or holders to secure such Indebtedness or shall
commence proceedings, or take any action (including by way of set-
off), to retain in satisfaction of such Indebtedness or to collect on,
seize, dispose of or apply in satisfaction of Indebtedness, assets of
the Company, any Guarantor or any Subsidiary (including funds on
deposit or held pursuant to lock-box and other similar arrangements);
(viii) there shall have been the entry by a court of competent jurisdiction
of (a) a decree or order for relief in respect of the Company, any
Guarantor or any Subsidiary in an involuntary case or proceeding under
any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company, any Guarantor or any Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company, any Guarantor or any Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company, any Guarantor or any Subsidiary or of any
substantial part of their respective properties, or ordering the
winding up or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(ix) (a) the Company, any Guarantor or any Subsidiary commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent; (b) the
Company, any Guarantor or any Subsidiary consents to the entry of a
decree or order for relief in respect of the Company, any Guarantor or
such Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it; (c) the Company, any
Guarantor or any Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state
law; (d) the Company, any Guarantor or any Subsidiary (x) consents to
the filing of such petition or the appointment of, or taking
possession by, a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company, any Guarantor or such
Subsidiary or of any substantial part of their respective properties,
(y) makes an assignment for the benefit of creditors or (z) admits in
writing its inability to pay its debts generally as they become due;
or (e) the Company, any Guarantor or any Subsidiary takes any
corporate action in furtherance of any such actions in this paragraph
(ix).
If an Event of Default (other than as specified in clauses (viii) and (ix) of
the prior paragraph) shall occur and be continuing, the Trustee or the holders
of not less than 25% in aggregate principal amount of the notes then outstanding
may, and the Trustee at the request of such holders shall, declare all unpaid
principal of, premium, if any, and accrued interest on all of the notes, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the notes). If an Event of Default specified
in clause (viii) or (ix) of the prior paragraph occurs and is continuing, then
all the notes shall ipso facto become and be immediately due and payable, in an
amount equal to the principal amount of the notes, together with accrued and
unpaid interest, if any, to the date the notes become due and payable, without
any declaration or other act on the part of the Trustee or any holder.
29
After a declaration of acceleration, but before a judgment or decree for payment
of the money due has been obtained by the Trustee, the holders of a majority in
aggregate principal amount of notes outstanding by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee under the Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on the notes, and (iii) to the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate borne by the notes; (b) all Events of Default, other than the
nonpayment of principal of the notes which have become due solely by such
declaration of acceleration, have been cured or waived; and (c) the rescission
will not conflict with any judgment or decree.
The holders of not less than a majority in aggregate principal amount of the
notes outstanding, may, on behalf of the holders of all the notes, waive any
past defaults under the Indenture and its consequences, except a default in the
payment of the principal of, premium, if any, or interest on any note, or in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each series of notes
outstanding.
The Company is also required to notify the Trustee within five business days of
the occurrence of any Default.
The Trust Indenture Act contains limitations on the rights of the Trustee,
should it become a creditor of the Company or any Guarantor, to obtain payment
of claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions; provided that if it acquires any conflicting
interest it must eliminate such conflict upon the occurrence of an Event of
Default or else resign.
Legal Defeasance and Covenant Defeasance
The Company may, at its option and at any time, elect to have its obligations
discharged with respect to the outstanding notes ("Legal Defeasance"). Such
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding notes, except
for:
(i) the rights of holders of the notes to receive payments in respect of the
principal of, premium, if any, and interest on the notes when such
payments are due;
(ii) the Company's obligations with respect to the notes concerning issuing
temporary notes, registration of notes, mutilated, destroyed, lost or
stolen notes and the maintenance of an office or agency for payments;
(iii) the rights, powers, trust duties and immunities of the Trustee and the
Company's obligations in connection therewith; and
(iv) the Legal Defeasance provisions of the Indenture.
In addition, the Company may, at its option and at any time, elect to have the
obligations of the Company released with respect to certain covenants that are
described in the Indenture ("Covenant Defeasance") and thereafter any omission
to comply with such obligations shall not constitute a Default or Event of
Default with respect to the particular series of notes.
In the event Covenant Defeasance occurs, certain events (not including non-
payment, bankruptcy, receivership, reorganization and insolvency events)
described under "Events of Default" will no longer constitute an Event of
Default with respect to the particular series of notes subject to such Covenant
Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the holders of the notes cash in U.S. dollars, non-
callable United States Treasury Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of an
internationally recognized firm of independent public accountants, to
pay the principal of, premium, if any, and interest on the outstanding
notes, on the stated date for payment thereof;
(ii) in the case of Legal Defeasance, the Company shall have delivered to
the Trustee an opinion of counsel reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of the Indenture, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the holders of the
notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(iii) in the case of Covenant Defeasance, the Company shall have delivered to
the Trustee an opinion of counsel reasonably acceptable to the Trustee
confirming that the holders of the notes will not recognize income,
gain or loss for federal
30
income tax purposes as a result of such Covenant Defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other that a Default or Event of Default
with respect to the Indenture resulting from the Incurrence of
Indebtedness, all or a portion of which will be used to defease the
notes concurrently with such Incurrence);
(v) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, the Indenture
or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(vi) the Company shall have delivered to the Trustee an officers'
certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the notes over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(vii) the Company shall have delivered to the Trustee an officers'
certificate and opinions of counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with;
(viii) the Company shall have delivered to the Trustee an opinion of counsel
to the effect that (A) the trust funds will not be subject to any
rights of holders of Indebtedness of the Company other than the notes
and (B) assuming no intervening bankruptcy of the Company between the
date of deposit and the 91st day following the deposit and that no
holder of the notes is an insider of the Company, after the 91st day
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally; and
(ix) certain other customary conditions precedent specified in the
Indenture are satisfied.
31
Satisfaction and Discharge
The Indenture shall cease to be of further effect (except as to surviving rights
of registration of transfer or exchange of the notes, as expressly provided for
in the Indenture) as to all outstanding notes when (a) either (i) all the notes
theretofore authenticated and delivered (except lost, stolen or destroyed notes
which have been replaced or paid) canceled or have been delivered to the Trustee
for cancellation or (ii) all notes not theretofore delivered to the Trustee
canceled or for cancellation (x) have become due and payable, (y) will become
due and payable at their Stated Maturity within one year, or (z) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company, and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire indebtedness on the notes not
theretofore delivered to the Trustee canceled or for cancellation, including
principal of, premium, if any, and accrued interest at such Stated Maturity or
redemption date; (b) the Company or any Guarantor has paid or caused to be paid
all other sums payable under the Indenture by the Company or any Guarantor; and
(c) the Company has delivered to the Trustee an officers' certificate and an
opinion of counsel each stating that (i) all conditions precedent under the
Indenture relating to the satisfaction and discharge of the Indenture have been
complied with and (ii) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under, the Indenture or any
other material agreement or instrument to which the Company or any Guarantor is
a party or by which the Company or any Guarantor is bound.
Modifications and Amendments
Modifications and amendments of the Indenture with respect to the notes may be
made by the Company, each Guarantor, if any, and the Trustee with the consent of
the holders of not less than a majority in aggregate outstanding principal
amount of the notes; provided, however, that no such modification or amendment
may, without the consent of the holder of each outstanding note affected
thereby:
(i) change the Stated Maturity of the principal of, or any installment of
interest on, any note or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any
note or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof;
(ii) amend, change or modify the obligation of the Company to make and
consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with "Certain Covenants--Limitation on Sale of Assets" or
the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control in accordance with
"Certain Covenants--Purchase of Notes Upon a Change of Control,"
including amending, changing or modifying any definitions with
respect thereto;
(iii) reduce the percentage in principal amount of outstanding notes, the
consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any
waiver;
(iv) modify any of the provisions relating to supplemental indentures
requiring the consent of holders or relating to the waiver of past
defaults or relating to the waiver of certain covenants, except to
increase the percentage of outstanding notes required for such
actions or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the holder of
each note affected thereby;
(v) except as otherwise permitted under "Consolidation, Merger, Sale of
Assets," consent to the assignment or transfer by the Company or any
Guarantor of any of its rights and obligations under the Indenture;
or
(vi) amend or modify any of the provisions of the Indenture to cause the
notes or any Guarantee to be subordinate to any other Indebtedness.
The holders of not less than a majority in aggregate principal amount of the
notes outstanding may waive compliance with certain restrictive covenants and
provisions of the Indenture, as they relate to such series of notes.
Governing Law
The Indenture, the notes and the Guarantees are governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
32
The Trustee
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it by the Indenture, and use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
The Indenture and the provisions of the Trust Indenture Act contain certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payments of claims in certain cases or to realize on certain
property received in respect of any such claim as security or otherwise. Subject
to the Trust Indenture Act, the Trustee will be permitted to engage in other
transactions; provided that if the Trustee acquires any conflicting interest as
described in the Trust Indenture Act, it must eliminate such conflict or resign.
Book-Entry, Delivery and Form
The old notes have been offered and sold to qualified institutional buyers in
reliance on Rule 144A under the Securities Act. The old notes have been issued
initially in the form of a global note (the "144A Global Note"). The 144A
Global Note will be deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co. as nominee of
DTC. Except in the limited circumstances described in this prospectus,
beneficial interests in the 144A Global Note will be shown on, and transfers
thereof will be effected only through, records maintained in book-entry form by
DTC.
Regulation S notes initially will be represented by one or more notes in
registered, global form without interest coupons (the "Regulation S Global
Note," and together with the Rule 144A Global Note, the "Global Notes"). The
Regulation S Global Note has been deposited with the Trustee as custodian for
DTC and registered in the name of a nominee of DTC, in each case for credit to
the accounts of the Euroclear Bank S.A./N.V., as operator of the Euroclear
System ("Euroclear"), and Clearstream Banking, S.A. of Luxembourg
("Clearstream"). On or prior to the 40th day after the later of the commencement
of this offering and the Issue Date (such period through and including such 40th
day, the "Restricted Period"), beneficial interests in the Regulation S Global
Note may be held only through Euroclear or Clearstream as indirect participants
in DTC, unless transferred to a person that takes delivery in the form of an
interest in the corresponding Rule 144A Global Note in accordance with the
certification requirements described below. Beneficial interests in the Rule
144A Global Note may not be exchanged for beneficial interests in the Regulation
S Global Note at any time except in the limited circumstances described below.
The Global Notes will be subject to certain restrictions on transfer and will
bear a restrictive legend as described under "Notice to Investors." In addition,
transfer of beneficial interests in the Global Notes will be subject to the
applicable rules and procedures of DTC and its direct or indirect participants
(including, if applicable, those of Euroclear and Clearstream), which may change
from time to time.
Depositary Procedures
DTC. We understand as follows with respect to DTC: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities of its
participants and to facilitate the clearance and settlement of transactions
amongst its participants in such securities through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTC's participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations, some of whom (and/or their representatives) own
DTC.
Except as described below, owners of interests in the Global Notes will not have
notes registered in their names, will not receive physical delivery of notes in
certificated form and will not be considered the registered owners or holders of
notes for any purpose. So long as DTC is the registered owner or holder of a
Global Note, such party will be considered the sole owner or holder of the notes
represented by such Global Note for all purposes under the Indenture and the
notes. Accordingly, each person owning a beneficial interest in a Global Note
must rely on the procedures of DTC and their participants or holders to exercise
any rights and remedies of a holder under the Indenture. Payments of principal
and interest on the Global Notes will be made to one or more paying agents on
behalf of DTC as the registered owner thereof.
The laws of some countries and some states in the United States require that
certain persons take physical delivery in definitive form of securities that
they own. Consequently, the ability to transfer beneficial interests in a Global
Note to such persons may be limited to that extent. Because DTC can act only on
behalf of its participants or holders, the ability of a person having beneficial
33
interests in a Global Note to pledge such interests to persons or entities that
do not participate in the relevant clearing system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical certificate
evidencing such interests.
Payments on the Global Notes
While the notes are represented by the Global Notes, payments in respect of the
principal of, premium, if any, and interest on the Global Notes will be made
through one or more paying agents appointed under the Indenture (which initially
will include the Trustee) on behalf of DTC in its capacity as the registered
holder of the notes under the Indenture. If definitive notes have been issued,
the Indenture requires the Company to make payments in respect of such
definitive notes (including principal, premium and interest) by wire transfer of
immediately available funds to the accounts specified by the holders thereof or,
if no such account is specified, by mailing a check to each such holder's
registered address.
Under the terms of the Indenture, the Company and the Trustee will treat the
persons in whose names the notes, including the Global Notes, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, none of the Company, the Trustee,
or any agent of the Company or the Trustee has or will have any responsibility
or liability for
(i) any aspect or accuracy of the records of the relevant clearing system,
the participants therein or the holders thereof, as the case may be,
relating to payments made on account of beneficial ownership interests
in the Global Notes, or for maintaining, supervising or reviewing any
records of such clearing system, participant or holder relating to
beneficial ownership interests in the Global Notes, or
(ii) any other matter relating to the actions and practices of the relevant
clearing system or the participants therein or the holders thereof.
DTC, upon receipt of any such payment, will immediately credit the accounts of
its relevant participants or holders with payments in amounts proportionate to
their respective holdings in principal amount of beneficial interests in the
Global Notes, as shown on the records of DTC. The Company expects that payments
by such participants or holders, as the case may be, to the beneficial owners of
Global Notes will be governed by standing instructions and customary practices
and will be the responsibility of such participants or holders. Neither the
Company nor the Trustee will have responsibility or liability for the payment of
amounts owing in respect of beneficial interests in the Global Notes held by the
Trustee.
Transfers of Global Securities and Interests Therein
Unless definitive securities are issued, the Global Notes may be transferred, in
whole and not in part, only by DTC to the Trustee, or by the Trustee to DTC, or
to another nominee or successor thereof or a nominee of such successor.
Transfers of beneficial interests in the Global Notes will be subject to the
applicable rules and procedures of DTC and its holders and intermediaries. Any
secondary market trading activity in beneficial interests in the Global Notes is
expected to occur through the participants or holders and intermediaries of DTC
and the securities custody accounts of investors will be credited with their
holdings against payment in same-day funds on the settlement date.
No service charge will be made for any registration of transfer or exchange of
the notes, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Although DTC has agreed to various procedures to facilitate transfers of
interests in the Global Notes among participants and holders in DTC it is under
no obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. Neither we, the Trustee, nor any
agent of ours or the Trustee will have any responsibility for the nonperformance
or misperformance (as a result of insolvency, mistake, misconduct or otherwise)
by DTC or its participants, indirect participants, holders or intermediaries of
their respective obligations under the rules and procedures governing their
operations.
We understand that under existing industry practices, if we or the Trustee
requests any action of holders of notes, or if an owner of a beneficial interest
in a Global Note desires to give instructions or take an action that a holder is
entitled to give or take under the Indenture, DTC would authorize their
respective participants or holders, as the case may be, owning the relevant
beneficial interest to give instructions to take such action, and such
participants or holders would authorize indirect participants or intermediaries
to give instructions or take such action, or would otherwise act upon the
instructions of such indirect participants or intermediaries. DTC is not
required to authorize holders to take any action.
34
We understand that under existing practices of DTC if less than all of the notes
are to be redeemed at any time, DTC will credit its participants' or holders'
accounts on a proportionate basis, with adjustments to prevent fractions, or by
lot or on such other basis as DTC deems fair and appropriate, provided that no
beneficial interests of less than $1,000, may be redeemed in part.
Except in the limited circumstances described below, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of
definitive notes. Transfers of beneficial interests in the Global Notes will be
subject to the applicable rules and procedures of DTC and its direct or indirect
participants, which rules and procedures may change from time to time.
Certificated Notes
Beneficial interests in a Global Note are exchangeable for definitive notes in
registered certificated form only if (i) (in whole but not in part) DTC is
closed for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently to cease
business or does in fact do so and no alternative clearance system satisfactory
to the Trustee, is available, (ii) (in whole or in part) an Event of Default
under the Indenture occurs and is continuing, upon the request delivered in
writing to DTC or the Trustee, (iii) (in whole but not in part) at any time the
Company in its sole discretion determines that the Global Notes should be
exchanged for definitive notes or (iv) (in whole but not in part) DTC is at any
time unwilling or unable to continue as depositary and a successor depositary is
not able to be appointed by the Company within 90 days.
Any certificated notes will be issued in registered form in denominations of
$1,000 in nominal amount and integral multiples thereof. In all cases,
certificated notes delivered in exchange for any Global Note or beneficial
interest in the Global Notes will be registered in the names, and issued in any
approved denominations, requested by or on behalf of DTC in accordance with its
customary procedures. The notes may not be issued in bearer form.
In the case of the issuance of certificated notes in the limited circumstances
set forth above, the holder of any such certificated note may transfer such note
by surrendering it at the offices or agencies of the Company maintained for such
purpose within the City and State of New York. Until otherwise designated by the
Company, the Company's office or agency in the City and State of New York will
be the offices of the Trustee maintained for such purpose. In the event of a
partial transfer of a holding of notes represented by one certificate, or
partial redemption of such a holding represented by one certificate, a new
certificate shall be issued to the transferee in respect of the part transferred
or redeemed and a further new certificate in respect of the balance of the
holding not transferred or redeemed shall be issued to the transferor, provided
that no certificate in denominations less than $1,000 shall be issued. Each new
certificate to be issued shall be available for delivery within ten business
days at the office of the Trustee. The cost of preparing, printing, packaging
and delivering the certificated notes shall be borne by the Company.
The Company shall not be required to register the transfer or exchange of
certificated notes for a period of 15 days preceding
(a) the due date for any payment of principal of or interest on the notes, or
(b) the date fixed for a selection of notes to be redeemed.
Also, the Company is not required to register the transfer or exchange of any
notes selected for redemption. In the event of the transfer of any certificated
note, the Trustee may require a holder, among other things, to furnish
appropriate endorsements and transfer documents, and the Company may require a
holder to pay any taxes and fees required by law and permitted by the Indenture
and the notes.
If certificated notes are issued and a holder of a certificated note claims that
the note has been lost, destroyed or wrongfully taken or if such note is
mutilated and is surrendered to the Trustee, the Company shall issue and the
Trustee shall authenticate a replacement note if the Trustee's and the Company's
requirements are met. If required by the Trustee or the Company, an indemnity
bond sufficient in the judgment of both to protect the Company, the Trustee or
any paying agent or authenticating agent appointed pursuant to the indenture
from any loss which any of them may suffer if a note is replaced must be posted.
The Company may charge for its expenses in replacing a note.
In case any such mutilated, destroyed, lost or stolen note has become or is
about to become due and payable, or is about to be redeemed or purchased by the
Company pursuant to the provisions of the Indenture, the Company in its
discretion may, instead of issuing a new note, pay, redeem or purchase such
note, as the case may be.
To the extent permitted by law, the Company, any Paying Agent, the Registrar and
the Transfer Agent shall be entitled to treat the person in whose name any
certificated note is registered as the absolute owner thereof. The Indenture
will contain provisions relating to the maintenance of a register reflecting
ownership of certificated notes, if any, and other provisions customary for a
registered debt security including registration as to both principal and stated
interest and restrictions on transfer except by surrender of a certificated note
and either the reissuance of such certificated note or the issuance of a new
certificated note to the
35
new holder. Payment of principal on each certificated note will be made to the
holder against presentation and surrender. Payment of interest on each
certificated note will be made to the holder appearing on the register at the
close of business on the record date at his address shown on the register on the
record date.
None of the Company, the Trustee, the Depositary or any paying agent will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, any book-entry interest.
Redemption of Global Notes
In the event that any Global Note (or any portion thereof) is redeemed, the
Trustee will redeem an equal amount of the book-entry interests in such Global
Note from the amount received by it in respect to the redemption of such Global
Note. The redemption price payable in connection with the redemption of such
book-entry interests will be equal to the amount received by the Trustee in
connection with the redemption of such Global Note (or any portion thereof).
Resignation of Trustee
The Trustee may at any time resign as Trustee by written notice to the Company
and the Trustee, such resignation to become effective upon the appointment of a
successor Trustee, in which case the Global Notes shall be delivered to such
successor. If no successor has been so appointed by the Company within 90 days,
certificated notes shall be issued in exchange therefor as described above.
Notices
Notices to holders of notes shall be mailed by first-class mail to each holder
at its address appearing in the register of holders on the appropriate date
provided herein. For so long as any of the notes are represented by the Global
Notes, notice to holders shall (in addition to publication as described above)
also be given by delivery of the relevant notice to DTC for communication to the
holders of the book entry interests in the notes.
Reports
The Trustee will immediately send to DTC a copy of any notices, reports and
other communications received relating to the Company, the notes, the Guarantees
or the book-entry interests.
Certain Definitions
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the time
such Person becomes a Restricted Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition. Acquired Indebtedness
shall be deemed to be incurred on the date of the related acquisition of assets
from any Person or the date the acquired Person becomes a Restricted Subsidiary.
"Affiliate" means, with respect to any specified Person: (i) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person; (ii) any other Person that owns,
directly or indirectly, 5% or more of such Person's Capital Stock or any officer
or director of any such Person or other Person or, with respect to any natural
Person, any person having a relationship with such Person by blood, marriage or
adoption not more remote than first cousin; or (iii) any other Person 10% or
more of the voting Capital Stock of which are beneficially owned or held
directly or indirectly by such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person directly or
indirectly, whether through the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
Sale and Leaseback Transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of: (i) any Capital
Stock of any Restricted Subsidiary; (ii) all or substantially all of the
properties and assets of any division or line of business of the Company or its
Restricted Subsidiaries; or (iii) any other properties or assets of the Company
or any Restricted Subsidiary, other than in the ordinary course of business. For
the purposes of this definition, the term "Asset Sale" shall not include (x) any
transfer of properties and assets (A) that is governed by the first paragraph
under "Consolidation, Merger, Sale of Assets" or (B) that is of the Company to
any Restricted Subsidiary, or of any Subsidiary to the Company or any Subsidiary
in accordance with the terms of the Indenture or (y) transfers of properties and
assets in any given fiscal year with an aggregate Fair Market Value of less than
$3,000,000.
36
"Asset Swap" means the execution of a definitive agreement, subject only to
customary closing conditions, that the Company in good faith believes will be
satisfied, for a substantially concurrent purchase and sale, or exchange, of
Productive Assets between the Company or any of its Restricted Subsidiaries and
another Person or group of affiliated Persons; it being understood that an Asset
Swap may include a cash equalization payment made in connection therewith
provided that such cash payment, if received by the Company or its Subsidiaries,
shall be deemed to be proceeds received from an Asset Sale and applied in
accordance with "Certain Covenants--Limitation on Sale of Assets."
"Average Life to Stated Maturity" means, as of the date of determination with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of (a) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States Federal or State law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Borrowing Base" means the sum of (i) 85% of accounts receivable of the Company
and its Subsidiaries and (ii) 50% of the net book value of the inventory of the
Company and its Subsidiaries, in each case, as determined on a consolidated
basis in accordance with GAAP.
"Capital Lease Obligation" means any obligations of the Company and its
Restricted Subsidiaries on a Consolidated basis under any capital lease of real
or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission"Mergers, Consolidations, Etc.”
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of the IndentureIssue Date such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means Constellation Brands, Inc., a corporation incorporated under the
laws of Delaware, until a successor Person shall have become such pursuant to
the applicable provisions of the Indenture, and thereafter "Company" shall mean
such successor Person.
"Consolidated
“Consolidated Fixed Charge Coverage Ratio"Ratio” of the Company means, for any period, the ratio of (a) the sum of Consolidated Net Income (Loss), Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated Non-cash Charges deducted in computing Consolidated Net Income (Loss) in each case, for such period, of the Companyus and its Restrictedour Subsidiaries on a Consolidated basis, all determined in accordance with GAAP to (b) the sum of Consolidated Interest Expense for such period and cash and non-cash dividends paid on any Preferred Stock of the Companyour preferred stock and its Restrictedthat of our Subsidiaries during such period;provided that (i) in making such computation, the Consolidated Interest Expense attributable to interest on any IndebtednessFunded Debt computed on a pro forma basis and (A) bearing a floating interest rate, shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period and (B) which was not outstanding during the period for which the computation is being made but which bears, at theour option, of the Company, a fixed or floating rate of interest, shall be computed by applying at theour option, of the
Company, either the fixed or floating rate and (ii) in making such computation, theour Consolidated Interest Expense of the Company attributable to interest on any IndebtednessFunded Debt under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such IndebtednessFunded Debt during the applicable period.
"Consolidated
“Consolidated Income Tax Expense"Expense” means for any period, as applied to the Company, the provision for federal, state, local and foreign income taxes of the
Companyus and its Restrictedour Subsidiaries for such period as determined in accordance with GAAP on a Consolidated basis.
"Consolidated
“Consolidated Interest Expense"Expense” of the Company means, without duplication, for any period, the sum of (a) the interest expense of the Companyus and its
Restrictedour Subsidiaries for such period, on a Consolidated basis, including, without limitation, (i) amortization of debt discount, (ii) the net cost under interest rate contracts (including amortization of discounts), (iii) the interest portion of any deferred payment obligation and (iv) accrued interest, plus (b) (i) the interest component of the Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued by the Companyus and its Restrictedour Subsidiaries during such period and (ii) all capitalized interest of the Companyus and its Restrictedour Subsidiaries, in each case as determined in accordance 37
Indebtedness IncurredFunded Debt incurred in connection with such acquisition or disposition of assets shall be calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act, as in effect on the date of such calculation.
"Consolidated
“Consolidated Net Income (Loss)"” of the Company means, for any period, the Consolidated net income (or loss) of the Companyus and its Restrictedour Subsidiaries for such period as determined in accordance with GAAP on a Consolidated basis, adjusted, to the extent included in calculating such net income (loss), by excluding, without duplication: (i) all extraordinary gains or losses (less all fees and expenses relating thereto); (ii) the portion of net income (or loss) of the Companyus and its Restrictedour Subsidiaries allocable to minority interests in unconsolidated Persons to the extent that cash dividends or distributions have not actually been received by the Companyus or one of its Restrictedour Subsidiaries; (iii) net income (or loss) of any Person combined with the Company or any of its
Restricted Subsidiaries on a "pooling of interests" basis attributable to any
period prior to the date of combination; (iv) any gain or loss, net of taxes, realized upon the termination of any employee pension benefit plan; (v)(iv) net gains (but not losses) (less all fees and expenses relating thereto) in respect of dispositions of assets other than in the ordinary course of business; or (vi)(v) the net income of any Restricted Subsidiary to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulations applicable to that Restricted
Subsidiary or its stockholders. Whenever pro forma effect is to be given to an
acquisition or disposition of assets for the purpose of calculating the Consolidated Fixed Charge Coverage Ratio, the amount of income or earnings related to such assets shall be calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act, as in effect on the date of such calculation.
"Consolidated
“Consolidated Net Tangible Assets"Assets” means with respect to any Person, asthe aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding the current portion of any dateFunded Debt and any other current liabilities constituting Funded Debt by reason of determination, the book value of such Persons total assets, lessbeing extendable or renewable) and (ii) all goodwill, deferred financing coststrade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, and less accumulated
amortization, shownall as set forth on the most recent balance sheetbooks and records of such Person, determined
on a consolidated basisus and our Consolidated Subsidiaries and computed in accordance with GAAP.
"Consolidated Net Worth" of any Person means the
“Consolidated stockholders'
equity (excluding Redeemable Capital Stock) of such Person and its subsidiaries,
as determined in accordance with GAAP on a Consolidated basis.
"Consolidated Non-cash Charges"Charges” of the Company means, for any period, the aggregate depreciation, amortization and other non-cash charges of the Companyus and its Consolidated Restrictedour Subsidiaries for such period, as determined in accordance with GAAP on a Consolidated basis (excluding any non-cash charge which requires an accrual or reserve for cash charges for any future period).
"Consolidation"
“Consolidation” means, with respect to any Person, the consolidation of the accounts of such Person and each of its subsidiariesSubsidiaries if and to the extent the accounts of such Person and each of its subsidiariesSubsidiaries would normally be consolidated with those of such Person, all in accordance with GAAP. The term "Consolidated"“Consolidated” shall have a similar meaning.
"Credit Agreement"
“Default” means the Credit Agreement, dated as(1) any Event of October 6, 1999, as
amended on February 13, 2001, between the Company, the Subsidiaries of the
Company identified on the signature pages thereof, the lenders named therein,
The Chase Manhattan Bank, as administrative agent, including any deferrals,
renewals, extensions, replacements, refinancingsDefault or refundings thereof or
amendments, modifications or supplements thereto and any agreements therefor
(including any of the foregoing that increase the principal amount of
Indebtedness or the commitments to lend thereunder and have been made in
compliance with the provisions of "Certain Covenants--Limitation on
Indebtedness"; provided that, for purposes of the definition of "Permitted
Indebtedness," no such increase may result in principal amount of Indebtedness
of the Company under the Credit Agreement exceeding the amount permitted by
subparagraph (b)(i) of "Certain Covenants--Limitation on Indebtedness"), whether
by or with the same or any other lender, creditor, group of lenders or group of
creditors, and including related notes, guarantees and note agreements and other
instruments and agreements executed in connection therewith.
"Default" means(2) any event, which is,act or condition that, after notice or the passage of time or both, would be an Event of Default.
"Designation" has
“Exchange Act” means the meaning set forth under "Certain Covenants--Designation of
Unrestricted Subsidiaries."
"Designation Amounts" has the meaning set forth under "Certain Covenants--
Designation of Unrestricted Subsidiaries."
"Domestic Restricted Subsidiary" means a Restricted Subsidiary of the Company
organized under the laws of the United States or any political subdivision
thereof or the operations of which are located substantially inside the United
States.
"Exchange Act" means theU.S. Securities Exchange Act of 1934, as amended.
38
"Fair Market Value"
“Funded Debt” means with respect to any assetall indebtedness for the repayment of money borrowed, whether or property,not evidenced by a bond, debenture, note or similar instrument or agreement, having a final maturity of more than 12 months after the sale value
that would be obtained in an arm's-length transaction between an informed and
willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy.
"Foreign Restricted Subsidiary" meansdate of its creation or having a Restricted Subsidiaryfinal maturity of less than 12 months after the date of its creation but by its terms being renewable or extendible beyond 12 months after such date at the option of the Companyborrower. When determining “Funded Debt,” indebtedness will not organized underbe included if, on or prior to the lawsfinal maturity of that indebtedness, we have deposited the United Statesnecessary funds for the payment, redemption or any political subdivision
thereof andsatisfaction of that indebtedness in trust with the operations of which are located substantially outside of the
United States.
"GAAP" or "Generally Accepted Accounting Principles"proper depositary.
“GAAP” means generally accepted accounting principles in the United States, consistently applied, which are in effect on the dateIssue Date.
“Holder” means any registered holder, from time to time, of the Indenture.
"Guarantee" means the guarantee by each Guarantor of the Company's Indenture
Obligations pursuant to a guarantee given in accordance with the Indenture,
including the Guarantees by the Guarantors and any Guarantee delivered pursuant
to provisions of "Certain Covenants--Limitation on Guarantees by Restricted
Subsidiaries."
"Guaranteed Debt" of any Person means, without duplication, all Indebtedness of
any other Person referred to in the definition of Indebtedness contained in this
Section guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an agreement (i)
to pay or purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss, (iii) to supply funds to, or in
any other manner invest in, the debtor (including any agreement to pay for
property or services without requiring that such property be received or such
services be rendered), (iv) to maintain working capital or equity capital of the
debtor, or otherwise to maintain the net worth, solvency or other financial
condition of the debtor or (v) otherwise to assure a creditor against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business.
"Guarantor" means the Subsidiaries listed on the signature pages of the
Indenture as guarantors and each other Subsidiary, formed, created or acquired
after the Issue Date, required to become a Guarantor after the Issue Date,
pursuant to "Certain Covenants--Limitation on Guarantees by Restricted
Subsidiaries."
"Hedging Agreement"notes.
“interest” means, with respect to the notes, interest and Additional Interest, if any, Person, all interest rate swap or
similar agreements or foreign currency or commodity hedge, exchange or similar
agreements of such Person.
"Hedging Obligations" means, with respect to any Person, the Obligations of such
Person under Hedging Agreements.
"Holders" mean the registered holders ofon the notes.
"Incur"
“Issue Date” means with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Acquired Person or any of its
Subsidiaries existing at the time such Acquired Person becomes a Subsidiary (or
is merged into or consolidated with the Company or any Subsidiary), whether or
not such Indebtedness was Incurred in connection with, as a result of, or in
contemplation of, such Acquired Person becoming a Subsidiary (or being merged
into or consolidated with the Company or any Subsidiary), shall be deemed
Incurred at the time any such Acquired Person becomes a Subsidiary or merges
into or consolidates with the Company or any Subsidiary.
"Indebtedness" means, with respect to any Person, without duplication: (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities arising in the ordinary course of business, but including,
without limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit issued under letter of credit facilities,
acceptance facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (ii) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
Hedging Obligations of such Person, (v) all Capital Lease Obligations of such
Person, (vi) all Indebtedness referred to in clauses (i) through (v) above of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien, upon or with respect to
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment
39
of such Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all
Redeemable Capital Stock valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued and unpaid dividends, and (ix) any
amendment, supplement, modification, deferral, renewal, extension, refunding or
refinancing of any liability of the types referred to in clauses (i) through
(viii) above. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Redeemable Capital
Stock, such Fair Market Value to be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock.
"Indenture Obligations" means the obligations of the Company and any other
obligornotes are originally issued under the Indenture or under the notes, including any Guarantor, to pay
principal of, premium, if any, and interest when due and payable, and all other
amounts due or to become due under or in connection with the Indenture, the
notes and the performance of all other obligations to the Trustee and the
holders under the Indenture and the notes, according to the terms thereof.
"Insolvency or Liquidation Proceeding" means, with respect to any Person, any
liquidation, dissolution or winding up of such Person, or any bankruptcy,
reorganization, insolvency, receivership or similar proceeding with respect to
such Person, whether voluntary or involuntary.
"Investments" means, with respect to any Person, directly or indirectly, any
advance, loan (including guarantees), or other extension of credit or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase, acquisition or ownership by such Person of any Capital Stock, bonds,
notes, debentures or other securities issued or owned by, any other Person and
all other items that would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Investment Grade" means a rating of (i) BBB- or higher by S&P and Ba1 or higher
by Moody's or (ii) Baa3 or higher by Moody's and BB+ or higher by S&P.
"Issue Date" means February 21, 2001.
"Lien"Indenture.
“Lien” means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with respect to any property of any kind, real or personal, movable or immovable, now owned or hereafter acquired.
"Maturity" when used with respect
“Permitted Holders” means (a) the Estate of Marvin Sands, Marilyn Sands, her descendants (whether by blood or adoption), her descendants’ spouses, Hudson Ansley, Lindsay Caleo, William Caleo, Courtney Winslow, or Andrew Stern, or the estate of any of the foregoing Persons, or The Sands Family Foundation, Inc., (b) trusts which are for the benefit of any combination of the Persons described in clause (a), or any trust for the benefit of any such trust, or (c) partnerships, limited liability companies or any other entities which are controlled by any combination of the Persons described in clause (a), the estate of any such Persons, a trust referred to any Notein the foregoing clause (b) or an entity that satisfies the conditions of this clause (c).
“Permitted Liens” means the datefollowing types of Liens:
(1) Liens existing as of the Issue Date (excluding Liens securing the Senior Credit Facility) on which the
principal of such Note becomes due and payable as therein providedany Property or as
provided in the Indenture, whether at Stated Maturity, the Offer Dateassets owned or the
redemption date and whetherleased by declaration of acceleration, Offer in respect of
Excess Proceeds, Change of Control, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.us or any successor thereto.
"Net Cash Proceeds" means (a) with respect toSubsidiary;
(2) Liens securing any Asset Sale by any Person, the
proceeds thereof in the form of cash or Temporary Cash Investments including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed for, cash or Temporary Cash
Investments (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary) net of (i) brokerage
commissions and other actual fees and expenses (including fees and expenses of
counsel and investment bankers) related to such Asset Sale, (ii) provisions for
all taxes payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, (iv) amounts required to be paid to
any Person (other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the assets subject to the Asset Sale and (v) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an officers'
certificate delivered to the Trustee and (b) with respect to any issuance or
sale of Capital Stock or options, warrants or rights to purchase Capital Stock,
or debt securities or Capital Stock that have been converted into or exchanged
for Capital Stock, as referred to under "Certain Covenants--Limitation on
Restricted Payments," the proceeds of such issuance or sale in the form of cash
or Temporary Cash Investments, including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
for, cash or Temporary Cash Investments (except to the extent that such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary), net of attorneys' fees, accountants' fees and brokerage,
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
40
"Obligations" means any principal, interest (including, without limitation,
Post-Petition Interest), penalties, fees, indemnifications, reimbursement
obligations, damages and other liabilities payable under the documentation
governing any Indebtedness.
"Other Indebtedness" has the meaning set forth under "Certain Covenants--
Limitation on Guarantees by Restricted Subsidiaries."
"Pari Passu Indebtedness" means any Indebtedness of the Company or a Guarantor
that is pari passuSenior Credit Facility in right of payment to the notes or a Guarantee, as the case
may be.
"Permitted Investment" means (i) Investments in any Wholly Owned Restricted
Subsidiary or any Person which, as a result of such Investment, becomes a Wholly
Owned Restricted Subsidiary; (ii) Indebtedness of the Company or a Restricted
Subsidiary described under clauses (iv) and (v) of the definition of "Permitted
Indebtedness"; (iii) Temporary Cash Investments; (iv) Investments acquired by
the Company or any Restricted Subsidiary in connection with an Asset Sale
permitted under "Certain Covenants--Limitation on Sale of Assets" to the extent
such Investments are non-cash proceeds as permitted under such covenant; (v)
guarantees of Indebtedness otherwise permitted by the Indenture; (vi)
Investments in existence on the date of the Indenture; and (vii) Investments in
joint ventures in an aggregate amount not to exceed the maximum amount permitted to be outstanding under the Senior Credit Facility on the Issue Date (including the incremental credit facility contemplated thereunder);
(3) Liens on Property or assets of, or any shares of stock securing Funded Debt of, any corporation or other Person existing at the time such corporation or other Person becomes a Subsidiary;
(4) Liens on Property, assets or shares of stock securing Funded Debt existing at the time of an acquisition, including an acquisition through merger or consolidation, and Liens to secure Funded Debt incurred prior to, at the time of or within 180 days after the later of the completion of the acquisition, or the completion of the construction and commencement of the operation of any onesuch Property, for the purpose of financing all or any part of the purchase price or construction cost of that Property;
(5) Liens on any Property or assets to secure all or any portion of the cost of development, operation, construction, alteration, repair or improvement of all or any part of such Property or assets, or to secure Funded Debt incurred prior to, at the time of or within 180 days after the greatercompletion of (x) $50.0 millionsuch development, operation, construction, alteration, repair or improvement for the purpose of financing all or any part of such costs;
(6) Liens in favor of, or which secure Funded Debt owing to, us or a Subsidiary;
(7) Liens arising from the assignment of moneys due and (y) 5.0%to become due under contracts between us or any Subsidiary and the United States of Consolidated Net Tangible Assets.
"Person"America, any State, Commonwealth, Territory or possession thereof or any agency, department, instrumentality or political subdivision of any thereof; or Liens in favor of the United States of America, any State, Commonwealth, Territory or possession thereof or any agency, department, instrumentality or political subdivision of any thereof, to secure progress, advance or other payments pursuant to any contract or provision of any statute, or pursuant to the provisions of any contract not directly or indirectly in connection with securing any Funded Debt;
(8) Liens arising by reason of any attachment, judgment, decree or order of any court or other governmental authority, so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been initiated for review of such attachment, judgment, decree or order shall not have been finally terminated or so long as the period within which such proceedings may be initiated shall not have expired;
(9) any deposit or pledge as security for the performance of any bid, tender, contract, lease or undertaking not directly or indirectly in connection with the securing of any Funded Debt; any deposit or pledge with any governmental agency required or permitted to qualify us or any Subsidiary to conduct business, to maintain self-insurance or to obtain the benefits of any law pertaining to worker’s compensation, unemployment insurance, pensions, social security or similar matters, or to obtain any stay or discharge in any legal or administrative proceedings; deposits or pledges to obtain the release of mechanics’, worker’s, repairmen’s, materialmen’s or warehousemen’s liens on the release of property in the possession of a common carrier; any security interest created in connection with the sale, discount or guarantee of notes, chattel mortgages, leases, accounts receivable, trade acceptances or other paper, or contingent repurchase obligations, arising out of sales of merchandise in the ordinary course of business; liens for taxes not yet due and payable or being contested in good faith; any deposit or pledge in connection with appeal or surety bonds; or other deposits or pledges similar to those referred to in this clause (9);
(10) Liens created after the Issue Date on Property leased to or purchased by us or any Subsidiary after that date and securing, directly or indirectly, obligations issued by a State, a Territory or a possession of the United States of America, or any political subdivision of any of the foregoing, or the District of Columbia, to finance the cost of acquisition or cost of construction of such Property;
(11) Liens arising from surveys exceptions, title defects, encumbrances, easements, reservations of, or rights of others for, rights of way, sewers, electric lines, telegraph or telephone lines and other similar purposes or zoning or other restrictions as to the use of real property not interfering with the ordinary conduct of the business of us or any of our Subsidiaries;
(12) Liens arising by operation of law in favor of mechanics, materialmen, laborers, employees or suppliers, incurred in the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof;
(13) Liens arising from zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, Liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased Property, with or without consent of the lessee), none of which materially impairs the use of any parcel of Property material to the operation of the business of us or any Subsidiary or the value of such Property for the purpose of such business; and
(14) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), as a whole or in part, of any Lien referred to in subparagraphs (1) through (13) above or the Funded Debt secured thereby; provided, that (1) such extension, renewal, substitution or replacement Lien shall be limited to all or any part of the same Property or assets or shares of stock that secured the Lien extended, renewed, substituted or replaced (plus improvements on such Property and any other Property or assets not then constituting a Principal Property) and (2) the Funded Debt secured by such Lien at such time is not increased.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stockjoint-stock company, trust, unincorporated organization or government or any agency or political subdivisions thereof.
"Post-Petition Interest"
“Principal Property” means, with respect to any Indebtednessas of any Person,
all interest accrueddate, any building, structure or accruing on such Indebtedness afterother facility, together with the commencementland upon which it is erected and any fixtures which are a part of any Insolvencythe building, structure or Liquidation Proceeding against such Personother facility, used primarily for manufacturing, processing or production, in accordance with
and at the contract rate (including, without limitation, any rate applicable
upon default) specifiedeach case located in the agreementUnited States, and owned or instrument creating, evidencingleased or governing such Indebtedness, whetherto be owned or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency
or Liquidation Proceeding.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred stock whether now outstanding, or issued after the date of
the Issue Date, and including, without limitation, all classes and series of
preferred or preference stock.
"Productive Assets" means assets of a kind used or usableleased by the Company and its
Restricted Subsidiaries in their respective businesses (including without
limitation, contracts, leases, licenses, or other agreements of value to the
Companyus or any of its Restricted Subsidiaries), provided, however,our Subsidiaries, and in each case the net book value of which as of that productive assets to be acquired bydate exceeds 2% of our Consolidated Net Tangible Assets as shown on the Companyconsolidated balance sheet contained in our latest filing with the Commission, other than any such land, building, structure or any Restricted Subsidiary
shall be,other facility or portion thereof which is a pollution control facility, or which, in the good faith judgment of management of the Company or such
Restricted Subsidiary, assets which are reasonably related, ancillary or
complementary to the business of the Company and its Restricted Subsidiaries as
conducted on the Issue Date.
"Qualified Capital Stock" of any Person means any and all Capital Stock of such
Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that, either by its terms or
by the terms of any security into which it is convertible or exchangeable or
otherwise, is or upon the happening of an event (other than as a result of a
change of control provision substantially similar to that contained in "Certain
Covenants--Purchase of Notes Upon a Change of Control") or passage of time would
be, required to be redeemed prior to any Stated Maturity of the principal of the
notes or is redeemable at the option of the holder thereof at any time prior to
any such Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to any such Stated Maturity at the option of the
holder thereof.
"Restricted Subsidiary" means any Subsidiary of the Company that has not been
designated by the Board of Directors of the Company, by a resolutionopinion of the Board of Directors, is not of material importance to the total business conducted by us and our Subsidiaries, considered as one enterprise.
“Property” means any asset, revenue or any other property, whether tangible or intangible, real or personal, including, without limitation, any right to receive income.
“Registration Rights Agreement” means (i) the Registration Rights Agreement dated as of the Company delivered toIssue Date among us, the Trustee, as an Unrestricted
Subsidiary pursuant to "Certain Covenants--Designation of Unrestricted
Subsidiaries" above. Any such designation may be revoked by a resolutionsubsidiary guarantors and the initial purchasers of the Boardnotes issued on the Issue Date and (ii) any other registration rights agreement entered into in connection with an issuance of Directors ofAdditional Notes in a private offering after the Company delivered to the Trustee, subject to the
provisions of such covenant.
"SaleIssue Date.
“Sale and Leaseback Transaction"Transaction” means any transaction or series of related transactions pursuant to which the Companywe or a Restricted Subsidiary sells or transfers any property or asset in connection with the leasing, or the resale against installment payments, of such property or asset to the seller or transferor.
"Securities Act"
“Senior Credit Facility” means that certain Credit Agreement, dated as of June 5, 2006, by and among us, the Securities Actguarantors named therein, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents and lenders party thereto from time to time providing for loans and other credit extensions in an amount of 1933,up to
$3,900,000,000, as amended.
"S&P" means Standard & Poor's Ratings Services, a divisionamended by that certain amendment dated as of The McGraw-Hill
Companies, Inc.February 23, 2007, and as further amended, restated, modified, supplemented, substituted, replaced, renewed or refinanced from time to time, including any agreement or agreements extending the maturity of, or refinancing all or any portion of the indebtedness under such agreement, and any successor thereto.
41
"Stated Maturity" when usedor replacement agreement or agreements with respect to any Indebtednessthe same or any installmentother borrowers, agents, creditors, lenders or group of interest thereon, means the dates specified in such Indebtednesscreditors or lenders.
“Significant Subsidiary” shall mean, as the fixedof any date on which the principal of such Indebtedness or such installment of interest
is due and payable.
"Subordinated Indebtedness" means Indebtednessdetermination, any subsidiary of the Company (i) whose revenues exceed 10% of the total revenues of us, or a Guarantor
subordinated(ii) whose net worth exceeds 10% of the total stockholders’ equity of us, in righteach case as of payment to the notes, or a Guarantee, asend of the case may
be.
"Subsidiary"most recent fiscal year.
“Subsidiary” means any Person a majority of the equity ownership or the Voting Stock of which is at the time owned, directly or indirectly, by the Companyus or by one or more other Subsidiaries, or by the Companyus and one or more other Subsidiaries.
"Temporary Cash Investments" means: (i) any evidence of Indebtedness of a
Person, other than the Company or its Subsidiaries, maturing not more than one
year after the date of acquisition, issued by the United States of America or
the United Kingdom, or an instrumentality or agency thereof and guaranteed fully
as to principal, premium, if any, and interest by the United States of America
or the United Kingdom, (ii) any certificate of deposit, maturing not more than
one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's Investors Service,
Inc. ("Moody's") or any successor rating agency or "A-1" (or higher) according
to Standard and Poor's Corporation ("S&P") or any successor rating agency, (iii)
commercial paper, maturing not more than one year after the date of acquisition,
issued by a corporation (other than an Affiliate or Subsidiary of the Company)
organized and existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's or "A-1" (or higher) according to S&P and (iv) any
money market deposit accounts issued or offered by a domestic commercial bank
having capital and surplus in excess of $500,000,000.
"Trust
“Trust Indenture Act"Act” means the Trust Indenture Act of 1939, as amended.
"United States Treasury Securities"
“U.S. Government Obligations” means direct non-callable obligations of, and obligationsor guaranteed by, the United States of America for the payment of which guarantee or obligations the full faith and credit of the United States is pledged.
"Unrestricted Subsidiary"
“Voting Stock” means, with respect to any SubsidiaryPerson, Capital Stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
Book-Entry, Delivery and Form of Securities
The notes will be represented by one or more global notes (the “Global Notes”) in definitive form. The Global Notes will be deposited upon issuance with, or on behalf of, DTC and registered in the name of Cede & Co., as nominee of DTC (such nominee being referred to herein as the “Global Note Holder”). DTC will maintain the notes in denominations of $1,000 and integral multiples thereof through its book-entry facilities.
DTC has advised us as follows:
DTC is a limited-purpose trust company that was created to hold securities for its participating organizations (collectively, the “Participants” or the “Depositary’s Participants”), and to facilitate the clearance and settlement of transactions in these securities between Participants through electronic book-entry changes in accounts of its Participants. The Depositary’s Participants include securities brokers and dealers (including the initial purchaser), banks and trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies (collectively, the “Indirect Participants” or the “Depositary’s Indirect Participants”) that clear through or maintain a custodial relationship with a Participant, either directly or indirectly. Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Depositary’s Participants or the Depositary’s Indirect Participants. Pursuant to procedures established by DTC, ownership of the Company designated as such
pursuantnotes will be shown on, and the transfer of ownership thereof will be effected only through, records maintained by DTC (with respect to "Certain Covenants--Designation of Unrestricted Subsidiaries" above.
Any such designation may be revoked by a resolutionthe interests of the Board of DirectorsDepositary’s Participants) and the records of the Company deliveredDepositary’s Participants (with respect to the interests of the Depositary’s Indirect Participants).
The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer the notes will be limited to such extent.
So long as the Global Note Holder is the registered owner of any notes, the Global Note Holder will be considered the sole Holder of outstanding notes represented by such Global Notes under the Indenture. Except as provided below, owners of notes will not be entitled to have notes registered in their names and will not be considered the owners or holders thereof under the Indenture for any purpose, including with respect to the giving of any directions, instructions, or approvals to the Trustee subjectthereunder. None of us, the subsidiary guarantors or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of notes by DTC, or for maintaining, supervising or reviewing any records of DTC relating to such notes.
Payments in respect of the principal of, premium, if any, and interest on any notes registered in the name of a Global Note Holder on the applicable record date will be payable by the Trustee to or at the direction of such Global Note Holder in its capacity as the registered holder under the Indenture. Under the terms of the Indenture, we, any subsidiary guarantor and the Trustee may treat the persons in whose names any notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, neither we, any subsidiary guarantor nor the Trustee has or will have any responsibility or liability for the payment of such amounts to beneficial owners of notes (including principal, premium, if any, and interest). We believe, however, that it is currently the policy of DTC to immediately credit the accounts of the relevant Participants with such payments, in amounts proportionate to their respective beneficial interests in the relevant security as shown on the records of DTC. Payments by the Depositary’s Participants and the Depositary’s Indirect Participants to the provisionsbeneficial owners of notes will be governed by standing instructions and customary practice and will be the responsibility of the Depositary’s Participants or the Depositary’s Indirect Participants.
Subject to certain conditions, any person having a beneficial interest in the Global Notes may, upon request to the Trustee and confirmation of such covenant.
"Voting Stock" means stockbeneficial interest by the Depositary or its Participants or Indirect Participants, exchange such beneficial interest for notes in definitive form. Upon any such issuance, the Trustee is required to register such notes in the name of and cause the same to be delivered to, such person or persons (or the nominee of any thereof). In addition, if the Depositary notifies us in writing that DTC is no longer willing or able to act as a depositary and we are unable to locate a qualified successor within 90 days, then, upon surrender by the relevant Global Note Holder of its Global Note, notes in such form will be issued to each person that such Global Note Holder and DTC identifies as being the beneficial owner of the class or classes pursuant to whichrelated notes.
Neither we, any subsidiary guarantor nor the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock ofTrustee will be liable for any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares and up to 5% of
the issued and outstanding Capital Stock which may be owned by executive
officers of such Subsidiary) is owneddelay by the CompanyGlobal Note Holder or another Wholly Owned
Restricted Subsidiary.
42
The Guarantors
Thesubsidiary guarantors of the old notes and the new notesinitially are the following subsidiaries of the Company: ALCOFI INC., Allberry, Inc., Barton Beers, Ltd., Barton Beers of Wisconsin, Ltd., Barton Brands of California, Inc., Barton Brands of Georgia, Inc., Barton Brands, Ltd., Barton Canada, Ltd., Barton Distillers Import Corp., Barton Financial Corporation, Barton Incorporated, Batavia Wine Cellars, Inc., Canandaigua B.V., Canandaigua Europe
Limited, Canandaigua Limited, Canandaigua WineBarton SMO Holdings LLC, Cloud Peak Corporation, Constellation Leasing, LLC, Constellation Trading Company, Inc., Cloud Peak
Corporation,Constellation Wines U.S., Inc., Franciscan Vineyards, Inc., M.J. Lewis Corp.The Hogue Cellars, Ltd., Monarch Import
Company, Mt. Veeder Corporation, Polyphenolics,The Robert Mondavi Corporation, R.H. Phillips, Inc., Roberts Trading Corp.R.M.E., Inc., Robert Mondavi Winery, Robert Mondavi Investments, Robert Mondavi Affiliates, Robert Mondavi Properties, Inc., Spirits Marque One LLC, Vincor Finance, LLC, Vincor International Partnership, Vincor International II, LLC, and Stevens Point Beverage Co.
Certain United States Federal Income Tax Considerations
Vincor Holdings, Inc.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain anticipated U.S.material United States federal income tax consequences relevant to the exchange of exchange notes for the purchase,original notes and the ownership and disposition of the exchange notes based uponby the beneficial owners thereof, or the holders. This discussion is limited to the tax consequences to the holders of exchange notes who acquire the exchange notes in exchange for original notes that were acquired at the issue price within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended, or the Code, and existing regulations, rulings
and judicial decisions asdoes not address the tax consequences to holders who acquire their exchange notes in exchange for subsequently purchased original notes or to subsequent purchasers of exchange notes. This summary does not purport to be a complete analysis of all of the date of this prospectus. Such authorities may
be repealed, revoked or modified, possibly with retroactive effect, so as to
result in U.S.potential United States federal income tax consequences different from those discussed
below. Except as specifically set forth in this prospectus,relating to the exchange of exchange notes for the original notes and the ownership and disposition of the exchange notes, nor does this summary deals
only with notes held as capital assets by initial holders, and does not deal
with special situations, such as those of dealers in securities or currencies,
financial institutions, banks, tax-exempt organizations, insurance companies,
holders that are partnerships or other pass-through entities and holders whose
"functional currency" is not the U.S. dollar, or special rules with respect to
"straddle," "conversion," "hedging" or "constructive sales" transactions. This
summary is not binding on the Internal Revenue Service or the courts. No ruling
has been sought or will be sought from the Internal Revenue Service with respect
to the positions and issues discussed herein, and theredescribe any federal estate tax consequences. There can be no assurance that the Internal Revenue Service, or the IRS, will not take a different position concerningsimilar view of the tax consequences described herein. Furthermore, this discussion does not address all aspects of taxation that might be relevant to particular holders in light of their individual circumstances. For instance, this discussion does not address the alternative minimum tax provisions of the purchase, ownershipCode or dispositionspecial rules applicable to certain categories of holders (including dealers in securities or foreign currencies, insurance companies, real estate investment trusts, regulated investment companies, financial institutions, tax-exempt entities, holders whose functional currency is not the United States dollar and, except, to the extent discussed below, foreign holders (as defined below)) or to holders who hold the exchange notes as part of a hedge, conversion or constructive sale transaction or other risk reduction transaction.
This discussion is based on the provisions of the Code, the Treasury Regulations promulgated thereunder, and administrative and judicial interpretations thereof, all as in effect as of the date hereof and all of which are subject to change (possibly with retroactive effect). The discussion below assumes that holders hold the exchange notes as capital assets within the meaning of Section 1221 of the Code.
If a partnership, or thatan entity treated as a partnership for United States federal income tax purposes, holds any exchange notes, the tax treatment of such position would not be sustained. Prospective investors are urged toentity and each partner will generally depend on the status of the partner and the activities of the partnership. Partnerships and their partners should consult their tax advisors regarding the particular tax consequences of purchasing, holdingowning exchange notes.
EACH PROSPECTIVE INVESTOR IS URGED TO CONSULT SUCH INVESTOR’S TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF AN ACQUISITION OF EXCHANGE NOTES IN LIGHT OF SUCH INVESTOR’S PARTICULAR TAX SITUATION, INCLUDING THE APPLICATION AND EFFECT OF THE CODE, AS WELL AS STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
Treatment of the exchange notes as indebtedness
We intend to take the position that, under current law and disposing ofinterpretations thereof, the exchange notes will be classified for United States federal income tax purposes as indebtedness. No assurance can be given, however, that maythe IRS will not challenge such position or, if challenged, that such a challenge will not be specificsuccessful. If the IRS were to them,
includingassert successfully that the exchange notes should be treated as equity for United States federal income tax purposes, the tax treatment of the exchange notes would be different than the treatment described below. The remainder of this discussion assumes that the exchange notes will be classified as indebtedness for United States federal income tax purposes.
Tax Consequences to United States Holders
The following summary is a general description of material United States federal income tax consequences arising under any state, local or foreign laws.
As used inapplicable to a “United States holder.” For the purpose of this prospectus, the term "U.S. Holder"discussion, “United States holder” means a beneficial ownerholder of aexchange note, who or thatwhich holder is for U.S.United States federal income tax purposes (i) a citizen or resident of the United States, (ii) a corporation, or other entity treated as a corporation for United States federal income tax
purposes, created or organized in or under the laws of the United States or of any political subdivision thereof (including the District of Columbia), (iii) an estate, the income of which is subject to U.S.United States federal income taxation regardless of its source, or (iv) a trust, if (A) a U.S. court is able to exercise primary supervision
over the administration of the trust is subject to the primary supervision of a court within the United States and one or more U.S.United States persons havehas the authority to control all substantial decisions of the trust, or (B) such trustit was in existence on August 20, 1996, and has a valid election in effect under applicable
U.S. Treasury Regulationsplace to be treated as a U.S.United States person.
As used in this prospectus, the term "Non-U.S. Holder" means a holder
Payments of aInterest
Interest paid on an exchange note that is not a U.S. Holder.
Exchange of Notes
There will be no federal income tax consequences to holders exchanging old notes
for new notes pursuant to the exchange offer since the exchange offer will be by
operation of the original terms of the old notes, pursuant to a unilateral act
by us, and will not result in any material alteration in the terms of the old
notes. Each exchanging holder will have the same adjusted tax basis and holding
period in the new notes as it had in the old notes immediately before the
exchange.
U.S. Holders
Interest. Interest (including Additional Interest, if any) on the notes
generally will be taxable to a U.S. HolderUnited States holder as ordinary interest income at the time accruedthe interest accrues or is received in accordance with the U.S. Holder's regularUnited States holder’s method of accounting for United States federal income tax purposes.
Dispositions. Upon
Sale, Exchange, Redemption or Retirement of the Notes: General
In general, upon the sale, exchange, redemption or retirement or other disposition of aan exchange note, a U.S. Holder generallyUnited States holder will recognize taxablecapital gain or loss equal to the difference between the amount realized on the disposition (other thansuch sale, exchange, redemption or retirement (not including any amountsamount attributable to accrued but unpaid interest)interest that the United States holder has not already included in gross income) and the holder'ssuch holder’s adjusted tax basis in the exchange note. The gain or loss generally will be capital gain or loss. To the extent that the amount realized representsattributable to accrued but unpaid interest that the United States holder has not previously taken intoalready included in gross income, however, such amounts mustthe amount recognized by the United States holder will be taken into
accounttreated as interest income.
43
For certain non-corporate U.S. Holders, including individuals, thea payment of interest. See “—Payments of Interest” above.
The excess of net long-term capital gains over net short-term capital losses is subject to tax at a lower rate for noncorporate taxpayers. Noncorporate taxpayers are generally subject to a maximum tax rate of taxation15% (for all taxable years ending on or before December 31, 2010) on capital gain realized on the disposition of a capital gains will depend upon the holder's holding period in the
note, with a preferential rate generally available for notesasset (including an exchange note) held for more than one year. In addition, special rules,The distinction between capital gain or loss and generally lower maximum tax rates,
apply to individuals in lower tax brackets and to individuals who have held,ordinary income or loss is also relevant for more than five years, capital assets acquired or deemed to have been acquired
after December 31, 2000. Thepurposes of, among other things, limitations on the deductibility of capital losses is subject to
limitations.
Non-U.S. Holders
losses.
Exchange Offer
The following discussion is limitedexchange of an exchange note for an original note pursuant to the U.S.exchange offer will not be taxable to the exchanging holder for United States federal income tax purposes. As a result, an exchanging holder:
will not recognize any gain or loss on the exchange;
will have a holding period for the exchange note that includes the holding period for the original note exchanged therefor;
will have an adjusted tax basis in the exchange note equal to its adjusted tax basis in the original note exchanged therefor; and
will experience tax consequences upon a subsequent sale, exchange, redemption or retirement of an exchange note as described above.
The exchange offer is not expected to result in any material United States federal income tax consequences relevant to a nonexchanging holder.
Tax Consequences to Foreign Holders
The following summary is a general description of material United States federal income tax consequences to a “foreign holder.” A “foreign holder” means, for purposes of this discussion, a holder of(other than a notepartnership, or other entity treated as a partnership for United States federal income tax purposes) that is not a Non-U.S. Holder.
Interest. SubjectUnited States holder. Special rules may apply to the discussion below concerning backup withholding,
payments of interest on a note to any Non-U.S. Holder will generally not be
subject to U.S. federal income or withholding tax, provided that
(i) the holder is not (A) a direct or indirect owner, taking into account
certain attribution rules, of 10% or more of the total voting power
of all voting stock of the issuer or (B) a foreign holders such as ��controlled foreign corporation related to the issuer through stock ownership,
(ii)corporations,” “passive foreign investment companies” and certain United States individuals that are expatriates and such foreign holders should consult their tax advisors.
Interest
Assuming that a foreign holder’s interest payments areincome on an exchange note is not effectively connected with the conduct by the Non-U.S. Holder of a trade or business within the United
States and
(iii) the issuer or its paying agent receives (A) from the Non-U.S. Holder,
a properly completed Form W-8BEN, or substitute Form W-8BEN, under
penalties of perjury, which provides the Non-U.S. Holder's name and
address and certifies that the Non-U.S. Holder of the note is a Non-
U.S. Holder or (B) from a security clearing organization, bank or
other financial institution that holds the notes in the ordinary
course of its trade or business (a "financial institution") on behalf
of the Non-U.S. Holder, certification under penalties of perjury that
such a Form W-8BEN or substitute Form W-8BEN has been received by it,
or by another such financial institution, from the Non-U.S. Holder,
and a copy of the Form W-8BEN or substitute Form W-8BEN, is furnished
to the payor.
A Non-U.S. Holder that does not qualify for exemption from withholding under the
preceding paragraph generally will be subject to withholding of U.S. federal
income tax at the rate of 30%, or lower applicable treaty rate, on payments of
interest on the notes. To the extent a Non-U.S. Holder seeks a reduced rate of
withholding under a treaty, such holder must provide the issuer or its paying
agent with a properly completed Form W-8BEN.
If the payments of interest on a note are effectively connected with the conduct
by a Non-U.S. Holder of a trade or business in the United States, payments of interest on such paymentsexchange note by us or any paying agent to a foreign holder will not be subject to United States federal income tax or withholding tax,provided that:
such holder does not own, actually or constructively, 10% or more of the total combined voting power of all classes of our stock entitled to vote;
such holder is not, for United States federal income tax purposes, a controlled foreign corporation related, directly or indirectly, to us through stock ownership;
such holder is not a bank receiving interest “on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business” within the meaning of Section 881(c)(3)(A) of the Code; and
the certification requirements under Code Section 871(h) or 881(c) and Treasury Regulations thereunder (summarized below) are met.
Payments of interest on an exchange note that do not satisfy all of the foregoing requirements are generally subject to United States federal income tax and withholding tax at a flat rate of 30% (or a lower applicable treaty rate, provided certain certification requirements are met).
Except to the extent otherwise provided under an applicable tax treaty, a foreign holder generally will be subject to U.S.United States federal income tax onin the same manner as a net basis at the rates
applicable to United States persons generally and,holder with respect to interest that is effectively connected with a United States trade or business conducted by the foreign holder. Effectively connected interest income received by a corporate holders,foreign holder may also, under certain circumstances be subject to an additional “branch profits tax” at a 30% branch profits tax. If payments are
subject to U.S. federalrate, or, if applicable, a lower treaty rate. Such effectively connected interest income tax on a net basis in accordance with the rules
described in the preceding sentence, those payments will not be subject to withholding tax so long asif the foreign holder providesdelivers an IRS Form W-8ECI to the issuer or its paying agent
withpayor.
Repayment of Principal and Realized Gain
In general, a properly executed Form W-8ECI.
Non-U.S. Holders should consult any applicable income tax treaties, which may
provide for a lower rateforeign holder of an exchange note will not be subject to United States federal withholding tax exemption from or reductionon the receipt of branch profits tax, or other rules different from those described above.
For purposespayments of principal on the certification requirements, those persons that, under U.S.exchange note, and a foreign holder will not be subject to United States federal income tax principles, are the taxpayers with respect to payments on the
notes are generally treated as the beneficial owners of such payments, rather
than persons such as nominees or agents legally entitled to such payments. In
the case of payments to an entity classified as a foreign partnership under U.S.
federal income tax principles, the partners, rather than the partnership,
generally must provide the required certifications to qualify for the
withholding tax exemption described above. A payment to a United States
partnership, however, is treated for these purposes as payment to a U.S. Holder,
even if the partnership has one or more foreign partners. The discussion under
this heading and under "--Information Reporting and Backup Withholding" below,
is not intended to be a complete discussion of the provisions of the U.S.
withholding laws. Prospective investors are urged to consult their tax advisors
regarding the tax consequences of their proposed investment in light of such
laws.
Dispositions. Subject to the discussion below concerning backup withholding, any gain realized by a Non-U.S. Holder on the sale, exchange, redemption, retirement or other disposition of such exchange note, or receipt of principal, unless:
such foreign holder is a note generally will not be subject to U.S. federal income or
withholding tax, unless
(i) such gain is effectively connected with the conduct by such Non-U.S.
Holder of a trade or business within the United States,
44
(ii) the Non-U.S. Holder is annonresident alien individual who is present in the United States for 183 days or more days in the taxable year of the disposition and certain other conditions are satisfied, or
(iii) met;
the Non-U.S. Holderforeign holder is subjectrequired to pay tax pursuant to the provisions of U.S.United States tax law applicable to certain U.S. expatriates.
Federal Estate Tax. Notes held,United States expatriates; or treated as held, by an individual who
the gain is a
Non-U.S. Holder at the time of his or her death will not be subject to U.S.
federal tax provided that (i) the individual does not actually or constructively
own 10% or more of the total voting power of all voting stock of the issuer and
(ii) income on the notes was not effectively connected with the conduct by the
Non-U.S. Holder of a United States trade or business withinof or, if a tax treaty applies, is attributable to a United States permanent establishment of, the foreign holder.
Under Code Sections 871(h) and 881(c) and the underlying Treasury Regulations, in order to obtain the exemption from withholding tax described in “—Interest” and “—Repayment of Principal and Realized Gain” above, either (i) the holder of an exchange note must provide its name and address, and certify, under penalties of perjury, to us or the paying agent, as the case may be, that such holder is a foreign holder or (ii) the holder holds the exchange notes through certain intermediaries and such holder satisfies the certification requirements of applicable Treasury Regulations. Special certification rules apply to holders that are pass-through entities for United States.
Information Reporting and Backup Withholding
PaymentsStates federal income tax purposes. In general, a certificate described in this paragraph is effective only with respect to payments of interest made to the notescertifying foreign holder after issuance of the certificate in the calendar year of its issuance and the proceeds upontwo immediately succeeding calendar years. Under Treasury Regulations, the sale or other
disposition of the notesforegoing certification may be provided by the holder of an exchange note on IRS Form W-8BEN, W-8IMY or W-8EXP, as applicable.
Federal withholding tax is not an additional tax. Rather, any amounts withheld from a payment to a holder are generally allowed as a credit against the affected foreign holder’s United States federal income tax liability.
Backup Withholding and Information Reporting
Under current United States federal income tax law, backup withholding at specified rates (currently 28%) and information reporting requirements apply to certain payments of principal and interest made to, and to the proceeds of sale before maturity by, certain holders.
In the case of a noncorporate United States holder, information reporting requirements will apply to payments of principal or interest made by us or any paying agent thereof on an exchange note. The payor will be required to withhold backup withholding tax if:
a holder fails to furnish its Taxpayer Identification Number, or TIN (which, for an individual, is his Social Security number) to the payor in the manner required;
a holder furnishes an incorrect TIN and the payor is so notified by the IRS;
the payor is notified by the IRS that such holder has failed to properly report payments of interest or dividends; or
under certain circumstances, a holder fails to certify, under penalties of perjury, that it has furnished a correct TIN, is a United States person, and has not been notified by the IRS that it is subject to backup withholding for failure to report interest or dividend payments.
Backup withholding and information reporting does not apply with respect to payments made to certain exempt recipients, including entities treated as corporations for United States federal income tax purposes. United States holders should consult their tax advisors regarding their qualification for exemption from backup withholding and information reporting, and possibly
U.S.the procedure for obtaining such an exemption if applicable.
In the case of a foreign holder, under currently applicable Treasury Regulations, backup withholding at a 31% rate. Backup withholding will not apply to a
U.S. Holder who furnishes its correct taxpayer identification number and provides other certification. Backup withholdinginformation reporting will not apply to payments of principal or interest made by the issuer in respect of the notesus or any paying agent thereof on an exchange note (absent actual knowledge or reason to a Non-U.S. Holder, ifknow that the holder certifies,is actually a United States holder) if such holder has provided the required certification under penaltypenalties of perjury that it is not a U.S. person and provides
its name and address, provided that neither the issuer nor its paying agentUnited States holder or has actual knowledge that the holder is a U.S. person, or the Non-U.S. Holder
otherwise establishesestablished an exemption. CopiesIf such holder provides the required certification, such holder may nevertheless be subject to withholding of information returns may be made
available, under the provisions of a specific treaty or agreement, to the tax
authorities of the country in which the Non-U.S. Holder resides.
Payment of proceeds from the disposition of notes to or through the United States officefederal income tax as described above under “—Tax Consequences to Foreign Holders.” The rules regarding withholding, backup withholding and information reporting for foreign holders are complex, may vary depending on a foreign holder’s particular situation and are subject to change. In addition, special rules apply to certain types of any broker, U.S. or foreign will be subject toholders, including
partnerships, trusts and other entities treated as pass-through entities for United States federal income tax purposes. Accordingly, foreign holders should consult their tax advisors regarding the application of information reporting and backup withholding unlessin their particular situations, the owner certifies as to its non-U.S.
status under penaltyavailability of perjury or otherwise establishes an exemption provided
thattherefrom, and the broker does not have actual knowledge that the holder is a U.S. person
or that the conditions of any otherprocedure for obtaining such an exemption are not, in fact, satisfied. The
payment of the proceeds from the disposition of a note to or through a non-U.S.
office of a non-U.S. broker thatif applicable.
Backup withholding is not an additional tax. Any amounts withheld from a "U.S. related person," as defined in
applicable Treasury Regulations, will not be subjectpayment to information reporting or
backup withholding. In the case of the payment of proceeds from the disposition
of a note to or through a non-U.S. office of a broker that is a U.S. person or a
"U.S. related person," the regulations require information reporting on the
payment unless the broker has documentary evidence in its files that the owner
is not a U.S. person and the broker has no knowledge to the contrary. Backup
withholding will not apply to payments made through a non-U.S. foreign office of
a broker that is a U.S. person or a "U.S. related person," absent actual
knowledge that the payee is a U.S. person.
Amounts withheld under the backup withholding rules do not constitute a separate
United States federal income tax. Rather, any amount withheldholder under the backup withholding rules will be allowed as a refund or a credit against a holder's
U.S.such holder’s United States federal income tax liability if any, and may entitle such holder to a refund,provided that the requisite
procedures are followed.
45
Plan of Distribution
We will exchange new notes for old notes. We will not receive any proceeds from
the exchange of new notes for old notes.
The new notes we issue in connection with the exchange offer may be generally
offered for resale, resold and otherwise transferred by any holder of the new
notes, except for a holder thatcertain required information is an affiliate of the Company, without
compliance with the registration requirements of the Securities Act.
We have not entered into any arrangement or understanding with any person to
distribute the new notes received in the exchange offer. In addition,furnished to the best of our information and belief, each person participating in the exchange
offer is acquiring the new notes in the ordinary course of business and has no
arrangement or understanding with any person to participate in the distribution
of the new notes.
We have agreed to pay all expenses incident to the exchange offer, other than
commissions or concessions of any brokers or dealers.
We shall not be liable for any delay by DTC or any participant or indirect
participant in identifying the beneficial owners of the old notes, and we and
these participants may conclusively rely on, and shall be protected in relying
on, instructions from DTC for all purposes, including with respect to the
registration and delivery, and the principal amounts, of the new notes to be
issued.
IRS.
Each broker-dealer that receives newexchange notes for its own account pursuant tounder the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of newthose notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection
withfor resales of newexchange notes received in exchange for privateoriginal notes where such
private notes werethat had been acquired as a result of market-making activities or other trading activities. We have agreed that, starting on the expiration date and
ending on the closefor a period of business one year180 days after the expiration date, itof the exchange offer, we will make this prospectus, as it may be amended or supplemented, available to any broker-dealer for use in connection with any such resale. Any broker-dealers required to use this prospectus and any amendments or supplements to this prospectus for resales of the exchange notes must notify us of this fact by checking the box on the letter of transmittal requesting additional copies of these documents.
Notwithstanding the foregoing, we are entitled under the registration rights agreement to suspend the use of this prospectus by broker-dealers under specified circumstances. For example, we may suspend the use of this prospectus if:
the SEC or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or additional information;
the SEC or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that purpose;
we receive notification of the suspension of the qualification of the exchange notes for sale in any U.S. jurisdiction or the initiation or threatening of any proceeding for that purpose;
the suspension is required by law;
the suspension is taken by us in good faith and for a valid business reason, including the possible acquisition or divestiture of assets or a material corporate transaction or event; or
an event occurs which makes any statement in this prospectus untrue in any material respect or which constitutes an omission to state a material fact in this prospectus.
If we suspend the use of this prospectus, the 180-day period referred to above will be extended by a number of days equal to the period of the suspension.
We will not receive any proceeds from any sale of newexchange notes by brokers-dealers.
Newbroker-dealers. Exchange notes received by broker-dealers for their own account pursuant tounder the exchange offer may be sold from time to time in one or more transactions
in the over-the-counter market, market;
in negotiated transactions, transactions;
through the writing of options on the new notesthose notes; or
through a combination of suchthose methods of resale, resale;
at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any resaleresales may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any suchthe selling broker-dealer and/or the purchasers of any suchthe exchange notes. Any broker-dealer that resells newexchange notes
that were received by it for its own account pursuant tounder the exchange offer and any broker or dealer that participates in a distribution of suchthe exchange notes may be deemed to be an "underwriter"“underwriter” within the meaning of the Securities Act and any profit on any resale of 1933, as amended,exchange notes and any commissions or concessions received by any suchthese persons may be deemed to be underwriting compensation under the Securities Act. The Letterletter of Transmittaltransmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter"“underwriter” within the meaning of the Securities Act.
For a period of one year after the expiration date, we will promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal.
We have agreed to pay all expenses incidentincidental to the exchange offer, (includingincluding the expenses of one counsel for the holderholders of the private notes)original notes, other than commissions or concessions of any brokers or dealers and will indemnify the holders of the privateexchange notes, (includingincluding any broker-dealers)broker-dealers, against certain liabilities, including liabilities under the Securities Act.
Experts
Act or contribute to payments that they may be required to make in request thereof.
The audited consolidated financial statements of Constellation Brands, Inc. as of February 28, 2007 and 2006, and for each of the years in the three-year period ended February 28, 2007, and management’s assessment of the effectiveness of internal control over financial reporting as of February 28, 2007, have been incorporated herein by reference in this prospectus and elsewhere in the registration
statement to the extent andfrom Constellation Brands, Inc.’s Annual Report on Form 10-K for the periods indicatedfiscal year ended February 28, 2007 in their report have been
audited by Arthur Andersen LLP, independent public accountants, and arereliance upon the reports, also incorporated by reference herein, in relianceof KPMG LLP, an independent registered public accounting firm, and upon the authority of said firm as experts in givingaccounting and auditing.
The combined financial statements of Vincor International Partnership and subsidiaries and Vincor Finance, LLC as of and for the fiscal year ended March 26, 2006, have been incorporated herein by reference from Constellation Brands, Inc.’s Current Report on Form 8-K dated November 20, 2007 in reliance upon the report, also incorporated by reference herein, of KPMG LLP, an independent registered public accounting firm, and upon the authority of said report.
Legal Matters
firm as experts in accounting and auditing.
The consolidated financial statements of ALCOFI INC. and subsidiaries as of and for the fiscal year ended December 31, 2006, have been incorporated herein by reference from Constellation Brands, Inc.’s Current Report on Form 8-K dated November 20, 2007 in reliance upon the report, also incorporated by reference herein, of KPMG LLP, an independent registered public accounting firm, and upon the authority of said firm as experts in accounting and auditing.
The validity of the exchange notes offered hereby will be passed upon for us by McDermott Will & Emery.
46
[LOGO]
Emery LLP.
Constellation Brands, Inc.
Offer to Exchange
$200,000,000
8% Series B
$700,000,000
7.25% Senior Notes due 2008
_____________________
Prospectus
_____________________
June2017
P R O S P E C T U S
, 2001
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
The Delaware General Corporation Law (Section 102) allows a corporation to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, but a corporation may not so eliminate or limit a director'sdirector’s liability for a breach of the duty of loyalty, a failure to act in good faith, engaging in intentional misconduct or a knowing violation of a law, authorizing the payment of a dividend or approving a stock repurchase in violation of the Delaware General Corporation Law, or obtaining an improper personal benefit. The Company'sCompany’s Restated Certificate of Incorporation contains a provision which eliminates directors'directors’ personal liability to the extent permitted by the Delaware General Corporation Law.
The Delaware General Corporation Law (Section 145) gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses incurred in the defense of any lawsuit to which they are made parties by reason of being or having been such directors or officers, subject to specified conditions and exclusions; gives a director or officer who successfully defends an action the right to be so indemnified; and authorizes the Company to buy directors'directors’ and officers'officers’ liability insurance. Such indemnification is not exclusive of any other right to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or otherwise.
The Company'sCompany’s Restated Certificate of Incorporation provides for indemnification to the fullest extent authorized by Section 145 of the Delaware General Corporation Law for directors, officers and employees of the Company and also to persons who are serving at the request of the Company as directors, officers or employees of other corporations (including subsidiaries); provided that, with respect to proceedings initiated by such indemnitee, indemnification shall be provided only if such proceedings were authorized by the Board of Directors. This right of indemnification is not exclusive of any other right which any person may acquire under any statute, bylaw, agreement, contract, vote of stockholders or otherwise.
The Company maintains a directors'directors’ and officers'officers’ liability insurance and corporate reimbursement policy insuring directors and officers against loss arising from claims made arising out of the performance of their duties.
Item 21. Exhibits./(1)/
Exhibit
Number Description of Exhibit
- ------ ----------------------
4.1 Indenture, dated as of February 21, 2001, by and among the Company,
certain subsidiaries, and BNY Midwest Trust Company, as Trustee*
4.2 Registration Rights Agreement, dated as of February 21, 2001, by and
among the Company, certain subsidiaries and the Initial Purchasers named
therein*
4.3 Form of 8% Series B Senior Notes due 2008 (included in Exhibit 4.1)*
5 Opinion of McDermott, Will & Emery*
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of McDermott, Will & Emery (included in Exhibit 5)*
24 Powers of Attorney (included on the signature pages of the registration
statement)*
25 Statement of Eligibility of Trustee on Form T-1*
99.1 Form of Letter of Transmittal*
99.2 Form of Letter to Registered Holders*
99.3 Form of Letter to Clients and Instruction to Registered Holder from
Beneficial Owner*
* PreviouslyExhibits
| Exhibit Number | Description of Exhibit | |
| 4.1 | Indenture, with respect to 7 1/4% Senior Notes due May 2017, dated May 14, 2007, by and among the Company, as Issuer, certain subsidiaries, as Guarantors, and The Bank of New York Trust Company, N.A., as Trustee (filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K dated May 9, 2007, filed May 14, 2007 and incorporated herein by reference). # | |
| 4.2 | Registration Rights Agreement, with respect to 7 1/4% Senior Notes due May 2017, dated May 14, 2007, among the Company, certain subsidiaries, as Guarantors, and Banc of America Securities LLC and Citigroup Global Markets Inc., as Initial Purchasers (filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K dated May 9, 2007, filed May 14, 2007 and incorporated herein by reference). # | |
| 4.3 | Credit Agreement, dated as of June 5, 2006, among Constellation, the Subsidiary Guarantors party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citicorp North America, Inc., as Syndication Agent, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc., as Joint Lead Arrangers and Bookrunners, and The Bank of Nova Scotia and SunTrust Bank, as Co-Documentation Agents (filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated June 5, 2006, filed June 9, 2006 and incorporated herein by reference). # | |
II-1
/(1)/ The exhibits listed are pursuant to Regulation S-K Item 601 exhibit table
footnote 3: "an exhibit need not be provided about a company if (1) with respect
to such company an election has been made under Forms S-4 or F-4 to provide
information about such company at a level prescribed by Forms S-2, S-3, F-2 or
F-3 and (2) the form, the level of which has been elected under Forms S-4 or
F-4, would not require such company to provide such exhibit if it were
registering a primary offering."
| Exhibit Number | Description of Exhibit | |
| 4.4 | Amendment No. 1, dated as of February 23, 2007, to the Credit Agreement, dated as of June 5, 2006, among Constellation, the subsidiary guarantors referred to on the signature pages to such Amendment No. 1, and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent (filed as Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated and filed February 23, 2007, and incorporated herein by reference). # | |
| 4.5 | Amendment No. 2, dated as of November 19, 2007, to the Credit Agreement, dated as of June 5, 2006, among Constellation, the subsidiary guarantors referred to on the signature pages to such Amendment No. 2, and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent (filed as Exhibit 4.1 to the Company’s Form 8-K, dated and filed November 20, 2007, and incorporated herein by reference). | |
| 4.6 | Guarantee Assumption Agreement, dated as of August 11, 2006, by Constellation Leasing, LLC, in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.29 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2006 and incorporated herein by reference). # | |
| 4.7 | Guarantee Assumption Agreement, dated as of November 30, 2006, by Vincor International Partnership, Vincor International II, LLC, Vincor Holdings, Inc., R.H. Phillips, Inc., The Hogue Cellars, Ltd., and Vincor Finance, LLC in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.31 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended November 30, 2006 and incorporated herein by reference). # | |
| 4.8 | Guarantee Assumption Agreement, dated as of May 4, 2007, by Barton SMO Holdings LLC, ALCOFI INC., and Spirits Marque One LLC in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.39 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 2007 and incorporated herein by reference). # | |
| 4.9 | Form of 7.25% Senior Notes due 2017 (included in Exhibit 4.1). | |
| 5.1 | Opinion of McDermott Will & Emery LLP. | |
| 12 | Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends. | |
| 23.1 | Consent of KPMG LLP. | |
| 23.2 | Consent of KPMG LLP. | |
| 23.3 | Consent of KPMG LLP. | |
| 23.4 | Consent of McDermott Will & Emery LLP (included in Exhibit 5.1). | |
| 24.1 | Powers of Attorney (included on the signature pages of the registration statement). | |
| 25 | Statement of Eligibility of Trustee on Form T-1. | |
| 99.1 | Form of Letter of Transmittal. | |
| 99.2 | Form of Notice of Guaranteed Delivery. | |
| 99.3 | Form of Notice of Withdrawal. | |
| 99.4 | Form of Letter to Registered Holders. | |
| 99.5 | Form of Letter to Clients and Instruction to Registered Holder from Beneficial Owner. | |
| # | Company’s Commission File No. 001-08495. |
II-2
Item 22. Undertakings.
(a) The undersigned registrantregistrants hereby undertakes:
undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar amount of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation“Calculation of Registration Fee"Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrantregistrants hereby undertakesundertake that, for purposes of determining any liability under the Securities Act, of 1933, each filing of the registrant'sa registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan'splan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
(c) InsofarThe undersigned registrants hereby undertake that insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrantregistrants pursuant to the foregoing provisions, or otherwise, the registrant hasregistrants have been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrantregistrants will, unless in the opinion of itstheir counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question II-2
itthem is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrantregistrants hereby undertakesundertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(e) The undersigned registrantregistrants hereby undertakesundertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.November 20, 2007.
| CONSTELLATION BRANDS, INC. | ||
| By: | /s/ ROBERT RYDER | |
| Name: | Robert Ryder | |
| Title: | Executive Vice President and Chief Financial Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of Constellation Brands, Inc.
By: /s/ Thomas S. Summer
---------------------------------------------
Thomas S. Summer
Executive Vice President) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and Chief Financial Officer
to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President, Chief Executive Officer and a
- ---------------------------------- Director (Principal Executive Officer)
Richard Sands
* Group President and a Director
- ----------------------------------
Robert Sands
/s/ Thomas S. Summer Executive Vice President and Chief
- ---------------------------------- Financial Officer (Principal Financial
Thomas S. Summer Officer and Principal Accounting Officer)
* Director
- ----------------------------------
Thomas C. McDermott
* Director
- ----------------------------------
James A. Locke, III
* Director
- ----------------------------------
Paul L. Smith
* Director
- ----------------------------------
George Bresler
* Director
- ----------------------------------
Jeananne K. Hauswald
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ROBERT SANDS Robert Sands | President and Chief Executive Officer (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Executive Vice President and Chief Financial Officer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Chairman of the Board of Directors | November 20, 2007 | ||
/s/ BARRY A. FROMBERG Barry A. Fromberg | Director | November 20, 2007 | ||
/s/ JEANANNE K. HAUSWALD Jeananne K. Hauswald | Director | November 20, 2007 | ||
/s/ JAMES A. LOCKE III James A. Locke III | Director | November 20, 2007 | ||
/s/ THOMAS C. MCDERMOTT Thomas C. McDermott | Director | November 20, 2007 | ||
/s/ PAUL L. SMITH Paul L. Smith | Director | November 20, 2007 | ||
/s/ PETER H. SODERBERG Peter H. Soderberg | Director | November 20, 2007 | ||
/s/ MARK ZUPAN Mark Zupan | Director | November 20, 2007 | ||
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Batavia Wine Cellars,November 20, 2007.
CONSTELLATION WINES U.S., INC. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Constellation Wines U.S., Inc.
By: /s/ Thomas S. Summer
-------------------------------------------
Thomas S. Summer
Treasurer
) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- ----------------------------------
Ned Cooper
/s/ Thomas S. Summer Treasurer (Principal Financial Officer and
- ---------------------------------- Principal Accounting Officer)
Thomas S. Summer
* Vice President and a Director
- ----------------------------------
Richard Sands
* Secretary and a Director
- ----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Incorporated
By: /s/November 20, 2007.
CONSTELLATION LEASING, LLC | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
--------------------------------------------
Thomas S. Summer
Vice President
D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a manager, director and/or officer of Constellation Leasing, LLC) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President, Chief Executive Officer and a
- ---------------------------------- Director (Principal Executive Officer)
Alexander L. Berk
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and
Thomas S. Summer Principal Accounting Officer)
* Senior Vice President, Treasurer and a
- ---------------------------------- Director
Troy J. Christensen
* Vice President and a Director
- ----------------------------------
Edward L. Golden
* Vice President and a Director
- ----------------------------------
Richard Sands
* Vice President and a Director
- ----------------------------------
Robert Sands
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* Director
- ----------------------------------
William F. Hackett
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ROBERT RYDER Robert Ryder | President and Treasurer (principal executive officer, principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Brands, Ltd.
By: /s/ Thomas S. Summer
--------------------------------
Thomas S. Summer
November 20, 2007.
| FRANCISCAN VINEYARDS, INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Franciscan Vineyards, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and a Director (Principal
- ---------------------------------- Executive Officer)
Edward L. Golden
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer, and a
- ---------------------------------- Director
Troy J. Christensen
* Executive Vice President and a Director
- ----------------------------------
Alexander L. Berk
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Beers, Ltd.
By: /s/ Thomas S. Summer
-----------------------------------------
Thomas S. Summer
November 20, 2007.
| ALLBERRY, INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Allberry, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* Chief Executive Officer and a Director
- ---------------------------------- (Principal Executive Officer)
Richard Sands
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer, and a
- ---------------------------------- Director
Troy J. Christensen
* Executive Vice President and a Director
- ----------------------------------
Alexander L. Berk
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* President and a Director
- ----------------------------------
William F. Hackett
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Brands of California, Inc.
By: /s/ Thomas S. Summer
---------------------------------------
Thomas S. Summer
November 20, 2007.
| CLOUD PEAK CORPORATION | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Cloud Peak Corporation) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and a Director (Principal
- ---------------------------------- Executive Officer)
Alexander L. Berk
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer and a
- ---------------------------------- Director
Troy J. Christensen
* Vice President and a Director
- ----------------------------------
Edward L. Golden
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
-----------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Brands of Georgia, Inc.
By: /s/ Thomas S. Summer
---------------------------------------
Thomas S. Summer
November 20, 2007.
| MT. VEEDER CORPORATION | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Mt. Veeder Corporation) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and a Director (Principal
- ---------------------------------- Executive Officer)
Alexander L. Berk
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer, and a
- ---------------------------------- Director
Troy J. Christensen
* Vice President and a Director
- ----------------------------------
Edward L. Golden
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Distillers Import Corp.
By: /s/ Thomas S.Summer
-----------------------------------------
Thomas S.Summer
November 20, 2007.
| BARTON INCORPORATED | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Incorporated) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and a Director (Principal
- ---------------------------------- Executive Officer)
Alexander L. Berk
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer, and a
- ---------------------------------- Director
Troy J. Christensen
* Director
- ----------------------------------
Edward L. Golden
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President and Chief Executive Officer (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Financial Corporation
By: /s/ Thomas S. Summer
--------------------------------------------
Thomas S. Summer
November 20, 2007.
| BARTON BRANDS, LTD. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Brands, Ltd.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President, Secretary and a Director
- ---------------------------------- (Principal Executive Officer)
Troy J. Christensen
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and
Thomas S. Summer Principal Accounting Officer)
/s/ Michael A. Napientek Assistant Secretary and a Director
- ----------------------------------
Michael A. Napientek
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ MARTIN P. BIRKEL Martin P. Birkel | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | Director | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Stevens Point Beverage Co.
By: /s/ Thomas S. Summer
-------------------------------------------
Thomas S. Summer
November 20, 2007.
| BARTON BEERS, LTD. | ||
By: | /S/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Beers, Ltd.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President, Chief Executive Officer and a
- ---------------------------------- Director (Principal Executive Officer)
James P. Ryan
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer and a
- ---------------------------------- Director
Troy J. Christensen
* Executive Vice President and a Director
- ----------------------------------
Alexander L. Berk
* Director
- ----------------------------------
William F. Hackett
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ RICHARD SANDS Richard Sands | Chief Executive Officer (principal executive officer) and a Director | November 20, 2007 | ||
/S/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/S/ ALEXANDER L. BERK Alexander L. Berk | Director | November 20, 2007 | ||
/S/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/S/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Monarch Import Company
By: /s/ Thomas S. Summer
-----------------------------------------
Thomas S. Summer
November 20, 2007.
BARTON BRANDSOF CALIFORNIA, INC. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Brands of California, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* Chief Executive Officer and Vice President
- ---------------------------------- (Principal Executive Officer)
James P. Ryan
/s/ Thomas S. Summer Vice President
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer and a
- ---------------------------------- Director
Troy J. Christensen
* President and a Director
- ----------------------------------
Alexander L. Berk
* Vice President and a Director
- ----------------------------------
William F. Hackett
* Senior Vice President, Secretary and a
- ---------------------------------- Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Canandaigua Wine Company,November 20, 2007.
BARTON BRANDSOF GEORGIA, INC. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Brands of Georgia, Inc.
By: /s/ Thomas S. Summer
------------------------------------------
Thomas S. Summer
Treasurer
) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and Chief Executive Officer
- ---------------------------------- (Principal Executive Officer)
Jon Moramarco
/s/ Thomas S. Summer Treasurer (Principal Financial Officer and
- ---------------------------------- Principal Accounting Officer)
Thomas S. Summer
* Vice President and a Director
- ----------------------------------
Robert Sands
* Vice President and a Director
- ----------------------------------
Richard Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Canandaigua Europe Limited
By: /s/November 20, 2007.
BARTON DISTILLERS IMPORT CORP. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
-----------------------------------------
Thomas S. Summer
Treasurer
D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Distillers Import Corp.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- ----------------------------------
Douglas Kahle
/s/ Thomas S. Summer Treasurer (Principal Financial Officer and
- ---------------------------------- Principal Accounting Officer)
Thomas S. Summer
* Vice President and Director
- ----------------------------------
Richard Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.November 20, 2007.
BARTON FINANCIAL CORPORATION | ||
By: | /S/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts Trading Corp.
By: /s/ Thomas S. Summer
-------------------------------------------
Thomas S. Summer, President and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Financial Corporation) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
/s/ Thomas S. Summer President and Treasurer (Principal
- ---------------------------------- Executive Officer, Principal Financial
Thomas S. Summer Officer and Principal Accounting Officer)
* Vice President and a Director
- ----------------------------------
Richard Sands
* Vice President, Secretary and a Director
- ----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | President, Treasurer and Secretary (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ MICHAEL A. NAPIENTEK Michael A. Napientek | Director | November 20, 2007 | ||
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Canandaigua Limited
By: /s/November 20, 2007.
BARTON CANADA, LTD. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
-------------------------------------------
Thomas S. Summer
Finance Director
D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Canada, Ltd.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on June 6, 2001.
Signature Title
--------- -----
* Chief Executive Officer and a Director
- ---------------------------------- (Principal Executive Officer and
Robert Sands Authorized Representative in the United
States)
/s/ Thomas S. Summer Finance Director (Principal Financial
- ---------------------------------- Officer and Principal Accounting Officer)
Thomas S. Summer
* Secretary and a Director
- ----------------------------------
Anne Colquhoun
* Treasurer and a Director
- ----------------------------------
Nigel Hodges
* Chief Operating Officer and a Director
- ----------------------------------
Peter Aikens
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Polyphenolics, Inc.
By: /s/November 20, 2007.
| BARTON BEERSOF WISCONSIN, LTD. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
----------------------------------------
Thomas S. Summer
Vice PresidentD. Roberts and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton Beers of Wisconsin, Ltd.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
- --------- -----
* President (Principal Executive Officer)
- ----------------------------------
Anil Shrikhande
/s/ Thomas S. Summer Vice President, Treasurer and a Director
- ---------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Assistant Secretary and a Director
- ----------------------------------
Ronald C. Fondiller
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JAMES P. RYAN James P. Ryan | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | Director | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Barton Canada, Ltd.
By: /s/ Thomas S. Summer
---------------------------------------
Thomas S. Summer
November 20, 2007.
| CONSTELLATION TRADING COMPANY, INC. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Constellation Trading Company, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President and a Director (Principal
- ----------------------------------- Executive Officer)
Alexander L. Berk
/s/ Thomas S. Summer Vice President
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Senior Vice President, Treasurer and a
- ----------------------------------- Director
Troy J. Christensen
* Vice President and a Director
- -----------------------------------
Edward L. Golden
* Senior Vice President, Secretary
- ----------------------------------- and a Director
Elizabeth Kutyla
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ PERRY HUMPHREY Perry Humphrey | President (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Franciscan Vineyards, Inc.
By: /s/November 20, 2007.
| THE ROBERT MONDAVI CORPORATION | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
---------------------------------------
Thomas S. Summer
Vice PresidentD. Roberts and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of The Robert Mondavi Corporation) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- -----------------------------------
Agustin Francisco Huneeus
/s/ Thomas S. Summer Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Vice President and a Director
- -----------------------------------
Richard Sands
* Vice President and a Director
- -----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Allberry,November 20, 2007.
| R.M.E., INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of R.M.E., Inc.
By: /s/ Thomas S. Summer
---------------------------------------
Thomas S. Summer
Vice President) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and Treasurer
to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- -----------------------------------
Agustin Francisco Huneeus
/s/ Thomas S. Summer Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Vice President and a Director
- -----------------------------------
Richard Sands
* Vice President and a Director
- -----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Cloud Peak Corporation
By: /s/November 20, 2007.
| ROBERT MONDAVI WINERY | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
--------------------------------------
Thomas S. Summer
Vice PresidentD. Roberts and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Robert Mondavi Winery) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- -----------------------------------
Agustin Francisco Huneeus
/s/ Thomas S. Summer Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Vice President and a Director
- -----------------------------------
Richard Sands
* Vice President and a Director
- -----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
M.J. Lewis Corp.
By: /s/November 20, 2007.
| ROBERT MONDAVI INVESTMENTS | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
---------------------------------------
Thomas S. Summer
Vice PresidentD. Roberts and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Robert Mondavi Investments) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* President (Principal Executive Officer)
- -----------------------------------
Agustin Francisco Huneeus
/s/ Thomas S. Summer Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Vice President and a Director
- -----------------------------------
Richard Sands
* Vice President and a Director
- -----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport,Perinton, State of New York on June 6, 2001.
Mt. Veeder Corporation
By: /s/November 20, 2007.
| ROBERT MONDAVI AFFILIATES | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
------------------------------------
Thomas S. Summer
Vice PresidentD. Roberts and Treasurer
each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Robert Mondavi Affiliates) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
*
- -----------------------------------
Agustin Francisco Huneeus President (Principal Executive Officer)
/s/ Thomas S. Summer Vice President and Treasurer
- ----------------------------------- (Principal Financial Officer and Principal
Thomas S. Summer Accounting Officer)
* Vice President and a Director
- -----------------------------------
Richard Sands
* Vice President and a Director
- -----------------------------------
Robert Sands
* By: /s/ Thomas S. Summer
---------------------------
Thomas S. Summer
Attorney-in-fact
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrantregistrant has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the CityTown of Fairport, thePerinton, State of New York on June 6, 2001.
Canandaigua B.V.
By: /s/November 20, 2007.
ROBERT MONDAVI PROPERTIES, INC. | ||
By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
------------------------------------------
Thomas S. Summer
Chief Financial Officer
D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Robert Mondavi Properties, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicatedand on June 6, 2001.
Signature Title
--------- -----
* Managing Director (Principal Executive
- ----------------------------------- Officer)
G.A.L.R. Diepenhorst
/s/the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
/s/ RICHARD SANDS Richard Sands | Director | November 20, 2007 | ||
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| VINCOR FINANCE, LLC | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer Chief Financial OfficerD. Roberts and Authorized
- ----------------------------------- Representativeeach of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Vincor Finance, LLC) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the United Statescapacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| VINCOR INTERNATIONAL PARTNERSHIP | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer (Principal Financial OfficerD. Roberts and Principal
Accounting Officer)
* Managing Director
- -----------------------------------
E.F. Switters
* By: /s/each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Vincor International Partnership) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Managing Board Member | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Managing Board Member | November 20, 2007 | ||
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| VINCOR INTERNATIONAL II, LLC | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
----------------------------D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Vincor International II, LLC) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
VINCOR HOLDINGS, INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas S. Summer
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
R.H. PHILLIPS, INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of R.H. Phillips, Inc.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| THE HOGUE CELLARS, LTD. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of The Hogue Cellars, Ltd.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ JOSÉ FERNANDEZ José Fernandez | President and Chief Executive Officer (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President and Treasurer (principal financial officer and principal accounting officer) and a Director | November 20, 2007 | ||
/s/ ROBERT SANDS Robert Sands | Director | November 20, 2007 | ||
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
BARTON SMO HOLDINGS LLC | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President & Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of Barton SMO Holdings LLC) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-33
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| ALCOFI INC. | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a director and/or officer of ALCOFI INC.) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | President (principal executive officer) and a Director | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
/s/ ROBERT J. GORSKI Robert J. Gorski | Director | November 20, 2007 | ||
/s/ MICHAEL D. LURIE Michael D. Lurie | Director | November 20, 2007 | ||
II-34
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Town of Perinton, State of New York on November 20, 2007.
| SPIRITS MARQUE ONE LLC | ||
| By: | ALCOFI INC. | |
| Its Sole Member | ||
| By: | /s/ THOMAS D. ROBERTS | |
| Name: | Thomas D. Roberts | |
| Title: | Vice President and Assistant Treasurer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Ryder and Thomas D. Roberts and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities (including his capacity as a member, director and/or officer of Spirits Marque One LLC or of its member) to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ ALEXANDER L. BERK Alexander L. Berk | Executive Vice President (principal executive officer) | November 20, 2007 | ||
/s/ ROBERT RYDER Robert Ryder | Vice President (principal financial officer and principal accounting officer) | November 20, 2007 | ||
| ALCOFI INC. | ||||||
| By: | /s/ THOMAS D. ROBERTS | Sole Member | November 20, 2007 | |||
| Name: | Thomas D. Roberts | |||||
| Title: | Vice President and Assistant Treasurer | |||||
II-35
EXHIBIT INDEX
| Exhibit Number | Description of Exhibit | |
| 4.1 | Indenture, with respect to 7 1/4% Senior Notes due May 2017, dated | |
| 4.2 | Registration Rights Agreement, with respect to 7 1/4% Senior Notes due May 2017, dated | |
| 4.3 | Credit Agreement, dated as of June 5, 2006, among Constellation, the Subsidiary Guarantors party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citicorp North America, Inc., as Syndication Agent, J.P. Morgan Securities Inc. and Citigroup Global Markets Inc., as Joint Lead Arrangers and Bookrunners, and The Bank of Nova Scotia and SunTrust Bank, as Co-Documentation Agents (filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated June 5, 2006, filed June 9, 2006 and incorporated herein by reference). # | |
| 4.4 | Amendment No. 1, dated as of February 23, 2007, to the Credit Agreement, dated as of June 5, 2006, among Constellation, the subsidiary guarantors referred to on the signature pages to such Amendment No. 1, and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent (filed as Exhibit 99.1 to the Company’s Current Report on Form 8-K, dated and filed February 23, 2007, and incorporated herein by reference). # | |
| 4.5 | Amendment No. 2, dated as of November 19, 2007, to the Credit Agreement, dated as of June 5, 2006, among Constellation, the subsidiary guarantors referred to on the signature pages to such Amendment No. 2, and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent (filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, dated and filed November 20, 2007, and incorporated herein by reference). # | |
| 4.6 | Guarantee Assumption Agreement, dated as of August 11, 2006, by Constellation Leasing, LLC, in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.29 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2006 and incorporated herein by reference). # | |
| 4.7 | Guarantee Assumption Agreement, dated as of November 30, 2006, by Vincor International Partnership, Vincor International II, LLC, Vincor Holdings, Inc., R.H. Phillips, Inc., The Hogue Cellars, Ltd., and Vincor Finance, LLC in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.31 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended November 30, 2006 and incorporated herein by reference). # | |
| 4.8 | Guarantee Assumption Agreement, dated as of May 4, 2007, by Barton SMO Holdings LLC, ALCOFI INC., and Spirits Marque One LLC in favor of JPMorgan Chase Bank, N.A., as Administrative Agent, pursuant to the Credit Agreement dated as of June 5, 2006 (as modified and supplemented and in effect from time to time) (filed as Exhibit 4.39 to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended May 31, 2007 and incorporated herein by reference). # | |
| 4.9 | Form of | |
| 5.1 | Opinion of McDermott Will & Emery | |
| 12 | Computation of Ratio of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends. | |
| Exhibit Number | Description of Exhibit | |
| 23.1 | Consent of | |
| 23.2 | Consent of KPMG LLP. | |
| 23.3 | Consent of KPMG LLP. | |
| 23.4 | Consent of McDermott Will & Emery LLP (included in Exhibit | |
| 24.1 | Powers of Attorney (included on the signature pages of the registration statement) | |
| 25 | Statement of Eligibility of Trustee on Form | |
| 99.1 | Form of Letter of | |
| 99.2 | Form of Notice of Guaranteed Delivery. | |
| 99.3 | Form of Notice of Withdrawal. | |
| 99.4 | Form of Letter to Registered | |
| 99.5 | Form of Letter to Clients and Instruction to Registered Holder from Beneficial | |