AMENDMENT NUMBER TWO TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.4
AMENDMENT NUMBER TWO TO SECOND
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER TWO TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of March 31, 2023, and is entered into by and among VINTAGE WINE ESTATES, INC., a Nevada corporation (“Holdings”), VINTAGE WINE ESTATES, INC., a California corporation (“Borrower Agent”), each Subsidiary of Borrower Agent party to this Amendment (together with Borrower Agent, each a “Borrower” and, collectively, “Borrowers”), the Lenders party to this Amendment, and BMO XXXXXX BANK N.A., as successor in interest to BANK OF THE WEST (“BMO”), as administrative agent and collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”).
RECITALS
WHEREAS, Holdings, Borrowers, the Lenders, and the Agent are parties to that certain Second Amended and Restated Loan and Security Agreement, dated as of December 13, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”).
WHEREAS, Xxxxxxxxx have requested that Agent and Xxxxxxx extend the time for the delivery of their financial statements for the Fiscal Quarter ended December 31, 2022.
WHEREAS, Agent and the Lenders have agreed to Borrowers’ request pursuant to the terms of this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties agree as follows:
(c) as soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter (provided that solely with respect to the Fiscal Quarter ended December 31, 2022, within one hundred twenty (120) days following the end of such Fiscal Quarter), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income and cash flow for such Fiscal Quarter and for the portion of the Fiscal Year then elapsed, on a consolidated basis for Holdings and its Subsidiaries, setting forth in comparative form, corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP (and noting any purchase accounting adjustments) in order to present financial performance and measure financial covenants at normalized levels, and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes;
Notwithstanding the foregoing, solely in the event of the use of clause (B) below, (i) solely if and to the extent that the applicable deadline required by the Securities and Exchange Commission for delivery of the obligations in Sections 10.1.2(a) and 10.1.2(c) for any period are later than the applicable deadlines for delivery set forth in Sections 10.1.2(a) and 10.l.2(c) for such period, such deadlines set forth in Sections 10.1.2(a) and 10.l.2(c) shall automatically be deemed to be replaced with such later deadlines as required by the Securities and Exchange Commission (without any further action or consent of any party to this Agreement), provided, however, in no event shall (x) the financial statements in Section 10.1.2(a) be delivered more than 130 days after the end of each Fiscal Year, and (y) the financial statements in Section 10.1.2(c) be delivered more than 45 days after the end of each Fiscal Quarter (provided that solely with respect to the Fiscal Quarter ended December 31, 2022, within one hundred twenty (120) days following the end of such Fiscal Quarter), and (ii) the obligations in Sections 10.1.2(a) and 10.1.2 (c) may be satisfied with
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respect to any financial statements of Holdings and its Subsidiaries by furnishing (A) the applicable financial statements of Holdings or any direct or indirect parent of Holdings, or (B) the Borrower Agent’s or Holdings’ (or any direct or indirect parent of Holdings), as applicable, Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission; so long as, with respect to each of clauses (A) and (B), (i) to the extent such financial statements relate to any direct or indirect parent of Holdings, such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent of Holdings, on the one hand, and the information relating to Holdings and its Subsidiaries on a standalone basis, on the other hand, which consolidating information shall not be audited, but shall be certified by a Senior Officer of Holdings as having been fairly presented in all material respects and (ii) if such financial statements are in lieu of financial statements required to be provided under Section 10.1.2(a), such consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by Holdings and reasonably acceptable to Agent.
[Signatures are on the following pages]
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IN WITNESS WHEREOF, this Amendment has been executed and delivered as of the date set forth above.
HOLDINGS: |
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a Nevada corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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CFO |
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BORROWERS: |
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a California corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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CFO |
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GROVE ACQUISITION, LLC, a California limited liability company |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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CFO |
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XXXXXX WINERY LLC, a California limited liability company |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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CFO |
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MILDARA BLASS INC., a California corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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Secretary & Treasurer |
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SPLINTER GROUP NAPA, LLC, a California limited liability company |
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By: |
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/s/ Xxxxxxx Xxxxx |
Name: |
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Xxxxxxx Xxxxx |
Title: |
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Manager |
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SABOTAGE WINE COMPANY, LLC, a California limited liability company |
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By: |
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/s/ Xxxxxxx Xxxxx |
Name: |
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Xxxxxxx Xxxxx |
Title: |
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Manager |
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Amendment Number Two to Second Amended and Restated Loan and Security Agreement
VWE CAPTIVE, LLC, a Nevada limited liability company |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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Manager |
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CALIFORNIA CIDER CO., INC., a California corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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VP, Secretary & Treasurer |
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THAMES AMERICA TRADING COMPANY LTD., a California corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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VP, Secretary & Treasurer |
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VINESSE, LLC, a California limited liability company |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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Manager |
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XXXXX’X WINE CELLARS, INC., an Ohio corporation |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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CFO |
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XXXXX’X WINE CELLARS ACQUISITION, LLC, a Delaware limited liability company |
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By: |
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/s/ Xxxxxxxx Xxxxxxxx |
Name: |
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Xxxxxxxx Xxxxxxxx |
Title: |
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Secretary & Treasurer |
Amendment Number Two to Second Amended and Restated Loan and Security Agreement