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 ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ have requested that Agent and ▇▇▇▇▇▇▇ 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:

1.
DEFINITIONS. All terms which are defined in the Loan Agreement shall have the same definition when used herein unless a different definition is ascribed to such term under this Amendment, in which case, the definition contained herein shall govern.
2.
AMENDMENT. Effective as of the date of this Amendment, the Loan Agreement is amended in the following respects:
2.1.
Amend Timing for Delivery of Financial Statements. Section l 0.1.2 is amended as follows:
A.
Clause (c) is deleted m its entirety and is replaced by the following:

(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;

B.
The full paragraph following clause (I) is deleted in its entirety and is replaced by the following:

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.

3.
CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This Amendment shall be effective only upon satisfaction in full of the following conditions precedent:
3.1.
Agent shall have received counterparts to this Amendment, duly executed by the Agent, Holdings, Borrowers, and Lenders constituting Required Lenders, as applicable.
4.
REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby affirms to Agent and the Lenders that all of Borrowers’ representations and warranties set forth in the Loan Agreement are true and correct in all material respects (or all respects if already qualified by materiality) as of the date hereof (except for any representations and warranties that expressly relate to an earlier date).
5.
LIMITED EFFECT. Except for the specific amendments and waivers contained in this Amendment, the Loan Agreement and other Loan Documents shall remain unchanged and in full force and effect.
6.
GOVERNING LAW. This Amendment shall be governed by the laws of the State of California, without giving effect to any conflict of law principles (but giving effect to Federal laws relating to national banks).
7.
COUNTERPARTS. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed and delivered shall be deemed to be an original. All such counterparts, taken together, shall constitute but one and the same Amendment.

[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:

 

 

 

VINTAGE WINE ESTATES, INC.,

a Nevada corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

CFO

 

 

 

 

 

 

BORROWERS:

 

 

 

VINTAGE WINE ESTATES, INC.,

a California corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

CFO

 

 

 

GROVE ACQUISITION, LLC,

a California limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

CFO

 

 

 

▇▇▇▇▇▇ WINERY LLC,

a California limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

CFO

 

 

 

MILDARA BLASS INC.,

a California corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

Secretary & Treasurer

 

 

 

SPLINTER GROUP NAPA, LLC,

a California limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇ ▇▇▇▇▇

Title:

 

Manager

 

 

 

SABOTAGE WINE COMPANY, LLC,

a California limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇ ▇▇▇▇▇

Title:

 

Manager

 

 

 

Amendment Number Two to Second Amended and Restated Loan and Security Agreement

VWE CAPTIVE, LLC,

a Nevada limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

Manager

 

 

 

CALIFORNIA CIDER CO., INC.,

a California corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

VP, Secretary & Treasurer

 

 

 

THAMES AMERICA TRADING COMPANY LTD.,

a California corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

VP, Secretary & Treasurer

 

 

 

VINESSE, LLC,

a California limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

Manager

 

 

 

▇▇▇▇▇’▇ WINE CELLARS, INC.,

an Ohio corporation

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

CFO

 

 

 

▇▇▇▇▇’▇ WINE CELLARS ACQUISITION, LLC,

a Delaware limited liability company

 

 

 

By:

 

/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Name:

 

▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

Title:

 

Secretary & Treasurer

Amendment Number Two to Second Amended and Restated Loan and Security Agreement

Document Metadata

Filed: May 10th, 2023