EX-10.1
AMENDMENT Number one TO
amended and restated forbearance AGREEMENT
This AMENDMENT NUMBER ONE TO AMENDED AND RESTATED FORBEARANCE AGREEMENT (this “Amendment”) is dated as of May 6, 2024, and is entered into 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 Agreement (together with Borrower Agent, each a "Borrower" and, collectively, the "Borrowers"), the financial institutions party to this Amendment as lenders (the "Consenting Lenders"), and BMO BANK N.A., as successor in interest to Bank of the West (“BMO”), as administrative agent, documentation agent, syndication agent and collateral agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, “Agent”).
RECITALS
WHEREAS, Holdings, Borrowers, Lenders, and Agent are parties to that certain Forbearance Agreement, dated as of February 28, 2024 (the “Original Forbearance Agreement”), which was amended and restated pursuant to that certain Amended and Restated Forbearance Agreement, dated as of April 2, 2024 (the “A&R Forbearance Agreement”).
WHEREAS, the Original Forbearance Agreement was entered into as the result of Designated Defaults (as that term is defined in the Original Forbearance Agreement) that occurred under the Loan Agreement (as that term is defined in the Forbearance Agreement) and the A&R Forbearance Agreement was entered into, in part, as a result of the Additional Designated Defaults (as that term is defined in the A&R Forbearance Agreement). The Additional Designated Defaults are deemed included in the Designated Defaults.
WHEREAS, Obligors have requested that Agent and the Consenting Lenders (i) extend the Forbearance Period (as that term is defined in the A&R Forbearance Agreement), (ii) extend the due date for the $10,000,000 mandatory prepayment, (iii) extend the time periods for the delivery of the NewCo Model to the Agent and the Lenders, and (iv) extend the time period for Borrowers to make themselves available for a meeting with the Lenders.
WHEREAS, Agent and the Consenting Lenders have agreed to Obligors’ requests pursuant to the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1.Definitions. All terms which are defined in the A&R Forbearance Agreement and the Loan Agreement, as applicable, 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. The terms below shall be defined as follows:
“Amendment” shall have the meaning in the preamble to this Amendment Number One to Amended and Restated Forbearance Agreement.
“Amendment Number One Effective Date” means the date that this Amendment has been executed by Obligors.
2.1Section 3(a) of the A&R Forbearance Agreement is amended and replaced with the following:
(a) The "Forbearance Period" shall commence on the Forbearance Effective Date and shall terminate immediately and automatically upon the earliest to occur of: (i) June 4, 2024, at 11:59 p.m. Pacific time; (ii) the occurrence of any Event of Default under the Loan Agreement (other than the Designated Defaults); (iii) the failure of any Obligor to comply with any term, condition or covenant set forth in this Agreement; (iv) any Obligor repudiates or asserts a defense to any Obligations under the Loan Agreement or any other Loan Document or to any obligation or liability owing to the Agent or any Lender in respect thereof or with respect to this Agreement; or (v) any Obligor makes or pursues a claim against the Agent or any Lender.
2.2Sections 7(d), (e) and (f) of the A&R Forbearance Agreement are amended and replaced with the following:
(d) On or before 11:59 p.m., Pacific time, on May 6, 2024, the Obligors shall deliver to Agent an updated proposal (prepared with the assistance of GLC Advisors & Co., LLC) regarding the Obligors’ go-forward business plan and corporate structure (the "NewCo Model").
(e) On or before 11:59 p.m., Pacific time, on May 13, 2024, the Obligors shall deliver the NewCo Model to the Lenders.
(f) Obligors agree to make themselves available for a Lender group meeting on or before May 14, 2024.
2.3Section 3.1.1(a) of the Loan Agreement is amended and replaced with the following:
(a) The Obligations shall bear interest (i) if an Adjusted Base Rate Loan (other than a Swingline Loan), at the Adjusted Base Rate in effect from time to time, plus the Applicable Margin; (ii) if a SOFR Loan, at Adjusted Term SOFR for the applicable Interest Period plus the Applicable Margin; (iii) if a Swingline Loan, for each day outstanding at a daily rate equal to the Adjusted Term SOFR for a one-month period in effect on such date (or, if such date is not a Business Day, the immediately preceding Business Day), plus .8%, plus the Applicable Margin for Adjusted Base Rate Revolver Loans; and (iv) if any other Obligation (including, to the extent permitted by law, interest not paid when due), at the Adjusted Base Rate in effect from time to time, plus the Applicable Margin for Adjusted Base Rate Revolver Loans.
2.4Section 4.1.4(a) of the Loan Agreement is amended and replaced with the following:
(a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an aggregate outstanding amount of $20,000,000, unless the funding is specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its own account and shall accrue interest in accordance with Section 3.1.1(a). The obligation of Borrowers to repay Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any promissory note.
2.5Section 5.4.1 of the Loan Agreement is amended and replaced with the following:
5.4.1 Notwithstanding anything herein to the contrary and in addition to the scheduled amortization payments of the Term Loans but less any mandatory prepayments made pursuant to Section 5.4.2 or Section 5.4.3 on or after the Amendment No. 4 Closing Date (but prior to such scheduled mandatory prepayments), Borrowers shall make the following mandatory prepayments of the Term Loans which shall be applied to the remaining installments of the Term Loans on a pro rata basis in inverse order of maturity: (i) $10,000,000 by no later than June 17, 2024, (ii) $20,000,000 (inclusive of amounts paid under clause (i) above) by no later than June 30, 2024, and (iii) $45,000,000 (inclusive of amounts paid under clauses (i) and (ii) above) by no later than December 31, 2024. For the avoidance of doubt, the amount of any mandatory prepayments made under Section 5.4.2 or 5.4.3 on or after the Amendment No. 4 Closing Date (but prior to such scheduled mandatory prepayments) shall reduce the amount of mandatory prepayments required to be made under this Section 5.4.1 on a dollar-for-dollar basis.
3.Forbearance Fees. As consideration for the extension of the Forbearance as provided under this Amendment, the Obligors will pay fees (the "Third Forbearance Fees") to the Agent pursuant to that certain Forbearance Fee Letter Number Three, of even date herewith, between Borrower Agent and Agent (the " Forbearance Fee Letter Number Three") which shall include a one-time payment to the Agent for the benefit of the Consenting Lenders equal to 5 basis points on the Consenting Lenders' outstanding Loans and Commitments as of the date of this Amendment.
4.Conditions Precedent to Effectiveness of Amendment.
4.1This Amendment shall become effective only upon satisfaction in full of the following conditions precedent:
A.Agent shall have received counterparts to this Amendment, duly executed by the Obligors, Agent and Consenting Lenders, as applicable.
B.Agent shall have received the Third Forbearance Fees.
5.Representations and Warranties. As of the Amendment Number One Effective Date, each of the Obligors hereby affirms to Agent and the Lenders:
5.1All of each Obligors’ representations and warranties set forth in the A&R Forbearance 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).
5.2Except for the Designated Defaults and the Additional Designated Defaults, no event has occurred and is continuing or would result from the consummation of the transactions contemplated hereby that would constitute a Default or an Event of Default.
6.Reaffirmation of Agent’s Liens. Each Borrower hereby reaffirms the granting of, and, subject to Section 7(g) of the A&R Forbearance Agreement, represents and warrants to Agent that Agent has, a valid, enforceable and perfected lien on and security interest in all of the Collateral. The Collateral secures all of the presently existing and hereafter arising Obligations of Borrowers owing to Agent and Lenders.
7.Reaffirmation of Loan Documents. Each Obligor hereby reaffirms each of the Loan Documents as to which it is a party, including the A&R Forbearance Agreement.
8.Release by Obligors. Obligors, for themselves, and for their respective agents, servants, officers, directors, shareholders, members, employees, heirs, executors, administrators, agents, successors and assigns forever release and discharge Agent and Lenders and their agents, servants, employees, accountants, attorneys, shareholders, subsidiaries, officers, directors, heirs, executors, administrators, successors and assigns from any and all claims, demands, liabilities, accounts, obligations, costs, expenses, liens, actions, causes of action, rights to indemnity (legal or equitable), rights to subrogation, rights to contribution and remedies of any nature whatsoever, known or unknown, which Obligors have, now have, or have acquired, individually or jointly, at any time prior to the date of the execution of this Amendment, including specifically, but not exclusively, and without limiting the generality of the foregoing, any and all of the claims, damages, demands and causes of action, known or unknown, suspected or unsuspected by Obligors which:
A.Arise out of the Loan Documents;
B.Arise by reason of any matter or thing alleged or referred to in, directly or indirectly, or in any way connected with, the Loan Documents; or
C.Arise out of or in any way are connected with any loss, damage, or injury, whatsoever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of Agent or any Lender or any party acting on behalf of Agent or any Lender committed or omitted prior to the date of this Amendment.
9.Legal Advice Obtained. The advice of legal counsel has been obtained by each party prior to signing this Amendment and each party executes this Amendment voluntarily, with full knowledge of its significance.
10.Counterparts. This Amendment may be executed in counterparts, all of which taken together shall constitute a single document.
11.Neutral Construction. This Amendment is the product of negotiation among the parties hereto and represents the jointly conceived, bargained-for and agreed upon language mutually determined by the parties to express their intentions in entering into this Amendment. Any ambiguity or uncertainty in this Amendment shall be deemed to be caused by, or attributable to, all parties hereto collectively. In any action or proceeding to enforce or interpret this Amendment, the Agreement shall be construed in a neutral manner, and no term or condition of this Amendment, or the Agreement as a whole, shall be construed more or less favorably to any one party, or group of parties, to this Amendment. In the event any provision contained in this Amendment is determined to be unenforceable by a court competent jurisdiction, then that provision shall be deemed omitted from this Amendment and the remaining provisions of this Amendment shall continue to be in full force and effect.
12.GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN SECTIONS 14.13, 14.14, and 14.15 OF THE CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET FORTH IN FULL HEREIN, Mutatis mutandis.
[Signatures are on the following pages]
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/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
BORROWERS:
VINTAGE WINE ESTATES, INC.,
a California corporation
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
GROVE ACQUISITION, LLC,
a California limited liability company
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
GIRARD WINERY LLC,
a California limited liability company
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
Amendment Number One to Amended and Restated Forbearance Agreement
MILDARA BLASS INC.,
a California corporation
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
SPLINTER GROUP NAPA, LLC,
a California limited liability company
By: /s/ Patrick Roney
Name: Patrick Roney
Title: Manager
SABOTAGE WINE COMPANY, LLC,
a California limited liability company
By: /s/ Patrick Roney
Name: Patrick Roney
Title: Manager
VWE CAPTIVE, LLC,
a Nevada limited liability company
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Manager
CALIFORNIA CIDER CO., INC.,
a California corporation
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Vice President, Secretary and Treasurer
Amendment Number One to Amended and Restated Forbearance Agreement
THAMES AMERICA TRADING COMPANY LTD.,
a California corporation
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Vice President, Secretary and Treasurer
VINESSE, LLC,
a California limited liability company
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Vice President, Secretary and Treasurer
MEIER'S WINE CELLARS, INC.,
an Ohio corporation
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Chief Financial Officer
MEIER'S WINE CELLARS ACQUISITION,
LLC,
a Delaware limited liability company
By: /s/ Kristina Johnston
Name: Kristina Johnston
Title: Secretary and Treasurer
Amendment Number One to Amended and Restated Forbearance Agreement
AGENT AND LENDERS:
BMO BANK N.A., as successor in interest to BANK OF THE WEST,
as Agent and Lender
By:
/s/ Ron Freed
Name: Ron Freed
Title: Director
Amendment Number One to Amended and Restated Forbearance Agreement
AgCountry Farm Credit Services, PCA,
as Lender
By: /s/ Lisa Caswell
Name: Lisa Caswell
Title: Vice President Capital Markets
Amendment Number One to Amended and Restated Forbearance Agreement
Greenstone Farm Credit Services, ACA,
as Lender
By: /s/ Jake Gorter
Name: Jake Gorter
Title: Capital Markets Portfolio Manager
Amendment Number One to Amended and Restated Forbearance Agreement
Greenstone Farm Credit Services, FLCA,
as Lender
By: /s/ Jake Gorter
Name: Jake Gorter
Title: Capital Markets Portfolio Manager
Amendment Number One to Amended and Restated Forbearance Agreement
RABO AGRIFINANCE LLC,
as Lender
By: /s/ Jeff Hanson
Name: Jeff Hanson
Its: VP-LFR
Amendment Number One to Amended and Restated Forbearance Agreement
Compeer Financial, PCA,
as Lender
By: /s/ Jeff Pavlik
Name: Jeff Pavlik
Title: Principal Credit Officer Risk
Amendment Number One to Amended and Restated Forbearance Agreement
FARM CREDIT MID-AMERICA, PCA,
as Lender
By: /s/ Tabatha Hamilton
Name: Tabatha Hamilton
Title: Vice President Capital Markets
Amendment Number One to Amended and Restated Forbearance Agreement
HTLF Bank,
as Lender
By: /s/ Travis Moncada
Name: Travis Moncada
Title: SVP/Director
Amendment Number One to Amended and Restated Forbearance Agreement
FARM CREDIT BANK OF TEXAS,
as Lender
By: /s/ Natalie Mueller
Name: Natalie Mueller
Title: Portfolio Manager
Amendment Number One to Amended and Restated Forbearance Agreement
COMERICA BANK,
as Lender
By: /s/ Barry Cohen
Name: Barry Cohen
Title: Senior Vice President
Amendment Number One to Amended and Restated Forbearance Agreement
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