CONSENT AND AMENDMENT NO. 6 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.11 

 

CONSENT AND AMENDMENT NO. 6

TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

CONSENT AND AMENDMENT NO. 6 dated as of April 17, 2020 (this “Consent and Amendment”) to the Second Amended and Restated Credit, Security, Guaranty and Pledge Agreement dated as of October 7, 2016 (as the same has been and may be further amended, restated, supplemented or otherwise modified, renewed or replaced from time to time, the “Credit Agreement”) among (i) STX FINANCING, LLC, a Delaware limited liability company, as Borrower, (ii) STX FILMWORKS, INC., a Delaware corporation, as Parent, (iii) the GUARANTORS referred to therein, (iv) the LENDERS referred to therein, and (v) JPMORGAN CHASE BANK, N.A., as Administrative Agent for the Lenders and as Issuing Bank.

INTRODUCTORY STATEMENT

WHEREAS, the Borrower desires for Parent and Eros International Plc, an Isle of Man company (“Eros Plc”) to enter into a merger transaction (whether consummated as described in clauses (a) through (c) below or otherwise, the “Proposed Eros Transaction”) pursuant to which, among other things, (a) certain stockholders of Parent are contemplated to invest: (i) $75,000,000 to purchase A ordinary shares, each of £0.30 par value (“A Ordinary Shares”), of Eros Plc and (ii) $750 to purchase Class E preferred stock, par value $0.01 per share (“Class E Preferred Stock”), of Parent, (b) a wholly owned indirect subsidiary of Eros Plc is contemplated to merge with and into Parent, with Parent surviving (the “Merger”), and (c) the holders of Parent preferred stock are contemplated to receive contingent value rights of Eros Plc to be settled at a later time for an aggregate number of A Ordinary Shares equal to the fully diluted outstanding shares of Eros Plc.

WHEREAS, in connection with the Proposed Eros Transaction, the Borrower has requested that the Credit Agreement be amended on the terms set forth herein.

WHEREAS, pursuant to Section 2.6 of the Credit Agreement, but subject to Section 2.18 of the Credit Agreement, the Borrower has notified the Administrative Agent that it intends to permanently reduce the Total Commitments from $400,000,000 to $350,000,000 in connection with this Consent and Amendment.

NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, the parties hereto agree as follows:

1.               Defined Terms. Capitalized terms used but not otherwise defined herein (including any such terms used in the Introductory Statement hereto) shall have the meanings given to them in the Credit Agreement.

2.               Consents. Subject to the satisfaction or waiver of the conditions precedent set forth in Section 4 hereof, the Administrative Agent and the Lenders party hereto (constituting Required Lenders) hereby:

(a)             consent to the consummation of Proposed Eros Transaction, notwithstanding any provision to the contrary in the Credit Agreement; and

(b)            consent to a one-time prepayment by the Borrower of up to $21,500,000 towards outstanding principal and accrued interest owed under the Subordinated Loan Agreement notwithstanding any contrary provision in the Credit Agreement or the Subordination Agreement, provided that such prepayment must be made substantially simultaneously with the consummation of the Proposed Eros Transaction.

3.               Amendments to Credit Agreement. Subject to the satisfaction or waiver of the conditions precedent set forth in Section 4 hereof, the Credit Agreement is hereby amended as follows:

(a)             Section 1.2 of the Credit Agreement is hereby amended by:

(i)              adding thereto the following definitions, which shall be inserted in proper alphabetical order:

“Amendment No. 6” shall mean that certain Consent and Amendment No. 6 dated as of April 17, 2020 to this Credit Agreement.

“CARES Act” shall mean Division A, Title I of the Coronavirus Aid, Relief, and Economic Security Act, as now and hereafter in effect.

“Eros Closing Date” shall mean the date of the consummation of the Proposed Eros Transaction, as defined in Amendment No. 6.

“Eros B Shareholders” shall mean each of the following persons: (i) Eros Ventures Limited; (ii) Beech Investments Limited; (iii) the trustees for the time being of the Ganges Trust; (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇ and his estate, guardian, or conservator; (v) ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ descendants; (vi) any other descendants of ▇▇▇▇▇ ▇▇▇▇▇ and their respective estates, guardians or conservators; (vii) any Family Controlled Entity; (viii) the trustees, solely in their respective capacities as such, of any Family Trust; and (ix) any custodian or bare nominee for any person within (i) – (viii) inclusive.

“Eros Plc” shall mean Eros International Plc, an Isle of Man company.

“Family Controlled Entity” shall have the meaning set forth in the Articles of Association of Eros Plc.

“Family Trust” shall have the meaning set forth in the Articles of Association of Eros Plc.

“PPP Loans” shall mean small business “Payroll Protection Loans” under Section 1102 of the CARES Act.

“PPP Regulations” shall mean any and all rules and regulations implemented by the United States Small Business Administration, the United States Department of Treasury or any other Governmental Authority with respect to PPP Loans.

(ii)            amending the definition of “Affiliate” appearing therein by adding the following text after the second sentence of the definition:

“For clarity, Eros Plc and its Subsidiaries shall be deemed Affiliates of the Borrower.”

(iii)          amending and restating the following definitions in their entireties as follows:

“Allocated Overhead Costs” shall mean the fully-absorbed costs for overhead and certain services (such as sales, human resources, accounting, legal and treasury functions) furnished to or on behalf of the Borrower and the other Credit Parties by Parent (or furnished by Eros Plc and on behalf of Parent or the Credit Parties), in each to the extent directly attributable to costs or services for the Borrower or the other Credit Parties (but not, for the avoidance of doubt, to the extent attributable to Eros Plc or any of Eros Plc’s Subsidiaries); provided that Allocated Overhead Costs (x) may not be billed more frequently than monthly by Parent or by Eros Plc, and (y) may not include any ▇▇▇▇-up.

“Change in Control” shall mean (i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) other than the Permitted Holders and/or the Eros B Shareholders of equity interests representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding equity interests of Eros Plc, (ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by the Eros B Shareholders of equity interests in the aggregate representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding equity interests of Eros Plc, (iii) Eros Plc shall cease to directly or indirectly own 100% of the equity interests issued of Parent, or shall cease to have voting control of Parent, (iv) the Parent shall cease to directly own 100% of the Equity Interests issued by the Borrower or shall cease to have voting control of the Borrower, or (v) except as otherwise permitted pursuant to the terms hereof, the Borrower (or, if applicable, any Guarantor) shall cease to own directly or indirectly 100% of the Equity Interests issued by any Guarantor to the Borrower (or, if applicable, to any Guarantor) or shall cease to have voting control of any Guarantor or (v) occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of Eros Plc by Persons who were not (x) directors of Eros Plc on the Eros Closing Date or (y) nominated by directors who were directors of Eros Plc on the Eros Closing Date (or nominated by directors so nominated).

“Change in Management” shall mean (i) any two of the following shall occur: (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to act as chief executive officer of Eros Plc, (b) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to act as chairman of the motion picture group at Parent or (c) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to act as Co-President of Eros Plc (in each case

under clause (a)-(c), for any reason, including, without limitation, termination of employment, death or disability) and (ii) the Borrower shall have failed to appoint a replacement or replacements (as applicable) reasonably acceptable to the Administrative Agent and the Required Lenders within 90 days of such discontinuance. Additionally, should ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ cease to act as chief executive officer of Eros Plc for any reason, including without limitation, termination of employment, death or disability, and a replacement reasonably acceptable to the Administrative Agent and the Required Lenders has not been appointed within 180 days (but for purposes of this sentence a replacement shall be deemed to be acceptable to the Administrative Agent and the Lenders if the Lenders constituting the Required Lenders or the Administrative Agent have not objected to a proposed replacement in writing within ten (10) Business Days of written notice from the Borrower of the proposed replacement), that shall constitute a Change in Management for purposes of Section 4.4 hereof (but not for purposes of Section 7.1 hereof).

“P&A Advance Rate” shall initially mean 50%; provided that (i) if the Five Picture Rolling P&A Coverage Ratio is less than the Deficit Percentage, the P&A Advance Rate shall be the percentage equal to 50% less 1.00% for each 1.00% by which the Five Picture Rolling P&A Coverage Ratio is less than the Deficit Percentage (e.g., if the Five Picture Rolling P&A Coverage Ratio is 110% and the Deficit Percentage is 120%, the P&A Advance Rate will be reduced from 50% to 40%) and (ii) if the Five Picture Rolling P&A Coverage Ratio is determined to be less than 100%, the P&A Advance Rate shall be zero percent (0%) (other than for new Pictures for which P&A Credits had not previously been taken but that are scheduled to be released theatrically domestically within six months of the date of determination, for which the P&A Advance Rate shall be fifty percent (50%)) until (if ever) the Five Picture Rolling P&A Coverage Ratio for five new Pictures (i.e. Pictures that were not included in any computation of the Five Picture Rolling P&A Coverage Ratio that yielded a percentage of less than 100%) exceeds 125%.

(iv)          amending and restating the definition of “Approved Co-Financier” in its entirety as follows:

“Approved Co-Financier” shall mean (i) a Major Studio, (ii) Shanghai Media Group (including Great Mission International Limited and Marco Alliance Limited (each, a “Hony Investor”)) and its Affiliates engaged principally in the entertainment industry and which Affiliates are acceptable to the Administrative Agent, (iii) Odd Lot Entertainment, LLC and its Affiliates engaged principally in the entertainment industry and which Affiliates are acceptable to the Administrative Agent, (iv) Metro-▇▇▇▇▇▇▇-▇▇▇▇▇ Inc. and its Affiliates, (v) Eros International Media Limited and its Affiliates, provided however that the unfunded commitments of the entities described in this clause (v) to make payments towards the negative cost, Budgeted Negative Cost or acquisition cost of any Item of Product shall not give rise to any reduction of such Item of

Product’s Production Cost Reserve, and (vi) any other Person acceptable (with respect to such Person’s identity and creditworthiness, with consideration to be given to any credit enhancement being offered by or on behalf of such Person) to the Administrative Agent.

(v)            amending and restating clause (a)(vi) of the definition of “Restricted Payment” in its entirety as follows:

“(vi) any other payment by a Credit Party to or for the benefit of any Affiliate of such Credit Party (other than a Credit Party) or any direct or indirect members or shareholder of such Credit Party (other than a Credit Party), including, without limitation, Eros Plc or its (non-Credit Party) Subsidiaries, including, without limitation, any payment to Eros Plc or its (non-Credit Party) Subsidiaries relating to Overhead,”

(vi)          amending the definition of “UK P&A Advance Rate” appearing therein by replacing “75%” with “50%” in lieu thereof.

(b)            Section 2.18(a) of the Credit Agreement is hereby amended by replacing reference therein to $200,000,000 to $250,000,000.

(c)             Section 3.28 of the Credit Agreement is hereby amended and restated in its entirety as follows:

“SECTION 3.28. Public Side Materials. The Borrower covenants that if any Lender has advised the Borrower that such Lender is a Public-Sider, the Borrower will not request that any other material be posted to Public-▇▇▇▇▇▇ without the Borrower first expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws. Notwithstanding anything herein to the contrary, if any Lender has advised the Borrower that such Lender is a Public-Sider, in no event shall the Borrower request that the Administrative Agent make available to Public-▇▇▇▇▇▇ any budgets or any certificates, reports or calculations with respect to the Borrower’s compliance with the covenants contained herein or with respect to the Borrowing Base.”

(d)            Section 4.4 of the Credit Agreement is hereby amended by inserting the following clause (f) after clause (e) appearing therein:

“(f) Change in Management Stop Funding. No Change in Management shall have occurred under the second sentence of the definition thereof.”

(e)             Section 6.1 of the Credit Agreement is hereby amended by inserting the following new clause (r) at the end thereof with appropriate punctuation adjustments to existing clauses (p) and (q):

“(r) unsecured obligations in connection with PPP Loans, in an aggregate principal amount not to exceed the maximum loan amount permitted under the applicable payroll-based formula specified under the CARES Act or any PPP Regulations applicable to the Credit Parties; provided that (i) nothing in this clause (r) shall be construed to give rise to any obligation on the part of the Administrative Agent or any Lender to extend any PPP Loans, (ii) the interest rate on such PPP Loans does not exceed 1% and (iii) the Credit Parties covenant and agree that (A) they shall submit to the lender of the PPP Loans as soon as permitted under Section 1106(e) of the CARES Act or any PPP Regulations any and all documentation necessary or appropriate to obtain forgiveness of all principal on the PPL Loans, (B) the proceeds of each PPP Loan shall be applied solely towards permitted uses under the PPP Regulations and the CARES Act and shall be so applied within three (3) months of receipt thereof, and shall in no case be utilized for any purpose other than forgivable purposes under the PPP Regulations and the CARES Act and (C) they shall neither take nor omit to take any action that would cause or permit any portion of the principal amount of any PPP Loans to be deemed ineligible for forgiveness under Section 1106 of the CARES Act (including without limitation any reduction in headcount or salary(ies) that would have such an effect), nor otherwise allow any such principal to no longer be eligible for such forgiveness (provided, that solely with respect to the covenants in this clause (iii)(A)-(C), if a failure to comply is a direct result of a Change in Law that occurs after the date on which a PPP Loan is issued, the Credit Parties shall have fifteen (15) days following such Change in Law to cure such non-compliance); provided further that if there is a Change in Law between April 17, 2020 and the date on which the Credit Parties intend to request a PPP Loan, such changes must be satisfactory to the Administrative Agent in its reasonable discretion in order for the Indebtedness thereunder to be incurred.”

(f)             Section 6.5(e) of the Credit Agreement is hereby amended and restated in its entirety as follows:

“(e) payments to Odd Lot Entertainment, LLC, Shanghai Media Group, the Hony Investors, Eros Plc or any of their respective Affiliates in connection with a Co-Financed Item of Product or other arms-length contractual arrangements permitted under Section 6.11.”

(g)            Section 6.5(g) of the Credit Agreement is hereby amended and restated in its entirety as follows:

“(g) either (i) pay Allocated Overhead Costs for services which the Administrative Agent has approved (in reimbursement payments attributable to the Credit Parties that were directly paid by the Parent or Eros Plc) or (ii) so long as no Default or Event of Default is in existence or would result therefrom, dividends or distributions to Parent for further distribution to Eros Plc for payment of c-suite level Overhead expenses of Eros Plc to the extent directly attributable to the Credit Parties (but not to any non-Credit Party subsidiaries of Eros Plc), subject in either case to Section 6.23 hereof; and”

(h)            Section 6.11(v) of the Credit Agreement is hereby amended and restated as follows:

“(v) is a co-financing arrangement that satisfies the requirements for a Co-Financed Item of Product with Odd Lot Entertainment, LLC, Shanghai Media Group, a Hony Investor, Eros Plc or any other Approved Co-Financier”

(i)              The proviso appearing in Section 6.23 of the Credit Agreement is replaced in its entirety as follows:

“It is acknowledged and agreed that paid or incurred Allocated Overhead Costs count (without duplication) against the amounts set forth in this Section 6.23. Additionally, the Borrower shall cause itself and Eros Plc to keep records of all Overhead attributable to Borrower and its Subsidiaries versus Eros Plc and its Subsidiaries (other than Borrower and its Subsidiaries), and provide such information to the Administrative Agent upon the request of the Administrative Agent. In addition to reimbursements of Allocated Overhead costs as described in the foregoing, the Parent or the Credit Parties may reimburse Eros Plc for Overhead expenses related (solely) to the payment of “C-suite” salaries and other related “C-Suite” expenses that are directly attributable to the Credit Parties, but any such payments shall also count against the amounts set forth in this Section 6.23.”

(j)              The second paragraph of Section 6.27 of the Credit Agreement is hereby amended and restated in its entirety as follows:

“Notwithstanding the foregoing, nothing in this Section 6.27 shall in any way limit the ability of Eros Plc and its non-Credit Party Subsidiaries to operate their businesses as historically conducted.”

(k)            The following text is hereby inserted as Section 6.31 of the Credit Agreement:

“SECTION 6.31. Eros Holding Company. The Credit Parties shall not permit Eros Plc to carry on any business, own any assets or incur any liabilities except for: (i) (a) the participation in tax, accounting and other administrative activities as a publicly listed holding company and provision of administrative services to its Subsidiaries of a type customarily provided by a holding company to its Subsidiaries; (b) activities necessary or reasonably advisable for or incidental to the registration and listing of Eros Plc’s (or its direct or indirect parent’s) common stock and the continued existence of Eros Plc as a public company, (c) engaging in any activities incidental to compliance with the provisions of the Securities Act and the Exchange Act and similar laws and regulations of other jurisdictions and the rules of securities exchanges, in each case, as applicable to companies with listed equity or debt securities, as well as activities incidental to investor relations, shareholder meetings and reports to shareholders or debt-holders, (d) engaging in activities required to comply with applicable laws or maintain its corporate existence, (e) establishing, creating,

developing, registering, enforcing, prosecuting and maintaining, as applicable, bank accounts, (f) entering into employment agreements and other arrangements with officers and directors, (g) providing indemnification to officers, managers and directors, (h) ownership of (A) Equity Interests in other Subsidiaries of Eros Plc (including activities relating to the formation and capitalization of such subsidiaries), (B) cash and Cash Equivalents to be used for administrative purposes described above including not less than $50,000,000 in proceeds from new equity remaining as of the Eros Closing Date at Eros Plc pro forma after consummation of the Proposed Eros Transaction as described in Amendment No. 6 as well as proceeds from equity issuances from time to time; and (C) certain other nominal assets incidental to the business or activities described above, (i) activities reasonably incidental to the businesses and activities described in the foregoing clauses (a) through (h), and (j) any other activities consented to by the Administrative Agent in writing in its sole discretion; and (ii) professional fees and administration costs incurred in the ordinary course of business as a holding company.”

 

(l)              Section 7.1(g) through Section 7.1(j) of the Credit Agreement are hereby amended and restated in their entireties as follows:

(g)       default shall be made with respect to any payment of any Indebtedness (i) of any Credit Party in excess of $1,000,000 in the aggregate at any one time outstanding when due or (ii) of Eros Plc or any Subsidiary of Eros Plc (other than the Credit Parties) in excess of $7,500,000 in the aggregate at any one time outstanding when due, or, in each case, in the performance of any other obligation incurred in connection with any such Indebtedness if the effect of such default is to accelerate the maturity of such Indebtedness or to permit the holder thereof to cause such Indebtedness to become due prior to its stated maturity, and such default shall not be remedied, cured, waived or consented to within the period of grace with respect thereto;

(h)       any Credit Party, Co-Financing Venture Entity, Eros Plc or any Subsidiary of Eros Plc shall generally not pay its debts as they become due or shall admit in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors; or any Credit Party, Co-Financing Venture Entity, Eros Plc or any Subsidiary of Eros Plc shall commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property or shall file an answer or other pleading in any such case, proceeding or other action admitting the material allegations of any petition, complaint or similar pleading filed against it or consenting to the relief sought therein; or any Credit Party, Co-Financing Venture Entity, Eros Plc or any Subsidiary of Eros Plc shall take any action to authorize, or in contemplation of, any of the foregoing;

(i)       any involuntary case, proceeding or other action against any Credit Party, Co-Financing Venture Entity, Eros Plc or any Subsidiary of Eros Plc shall be commenced seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action (i) results in the entry of any order for relief against it, or (ii) shall remain undismissed for a period of sixty (60) days;

(j)       final judgment(s) for the payment of money (to the extent not paid or fully covered by insurance) in excess of $1,000,000 in the aggregate shall be rendered against any Credit Party, Eros Plc any Subsidiary of Eros Plc or Co-Financing Venture Entity, and within thirty (30) days from the entry of such judgment it shall not have been discharged or stayed pending appeal or which shall not have been discharged or bonded in full within thirty (30) days from the entry of a final order of affirmance on appeal;

(m)           Section 12.1(b)(xii) of the Credit Agreement is hereby amended by replacing the phrase “an additional $200,000,000 of Commitments beyond the $400,000,000 in effect as of the Closing Date” appearing therein with the phrase “an additional $250,000,000 of Commitments beyond the $350,000,000 as of the effective date of Amendment No. 6” in lieu thereof.

(n)            Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety and replaced with the attached Schedule 1.1 to reflect a permanent reduction in the Total Commitments from $400,000,000 to $350,000,000.

4.               Conditions to Effectiveness. The effectiveness of the consents set forth in Section 2 and the amendments set forth under Section 3 of this Consent and Amendment is subject to the satisfaction in full (or waiver by the Required Lenders) of each of the conditions precedent set forth in this Section 4 (the date upon which each of such conditions precedent in this Section 4 have been satisfied or waived, the “Consent and Amendment Effective Date”):

(i)              the Administrative Agent shall have received counterparts of this Consent and Amendment that, when taken together, bear the signatures of the Borrower, the Guarantors and the Required Lenders;

(ii)            as consideration for the Lenders’ agreement to enter into the Consent and Amendment, the Administrative Agent shall have received, for the benefit of each of the Lenders that has executed this Consent and Amendment by no later than the Consent and Amendment Effective Date, an amendment fee in an aggregate amount equal to 0.20% of the Commitments reflected on Schedule 1.1 attached hereto for each such Lender;

(iii)          all costs and expenses due and owing pursuant to Section 12 hereof to the Administrative Agent by the Borrower shall have been paid in full and the Borrower shall have paid any other fees or invoiced expenses of the Administrative Agent;

(iv)          the Proposed Eros Transaction shall have been consummated or, shall be consummated substantially concurrently with the Consent and Amendment Effective Date, in accordance with the terms set forth in that certain Agreement and Plan of Merger, dated as of an even date herewith, by and among Eros Plc, England Holdings 2, Inc., England Merger Corp., and Parent (the “Merger Agreement”), a copy of which has been previously provided to the Administrative Agent, without giving effect to any modifications, amendments, consents or waivers thereto that in the aggregate are material and adverse to the Lenders without the prior consent of the Required Lenders; provided that the final terms of the Proposed Eros Transaction include: (A) Parent being the indirect wholly-owned subsidiary of Eros Plc and Parent existing as an indirect “sister” subsidiary of Eros International Media Limited; (B) Parent surviving the Merger and continuing to have no business activities other than as permitted pursuant to Section 6.29 of the Credit Agreement and continuing to directly hold 100% of the Equity Interests in the Borrower; and (C) each of the Borrower and the other Credit Parties surviving the Merger; and (D) any changes to the certificate of incorporation (or equivalent) or bylaws (or equivalent) of Parent or any Credit Party shall be satisfactory to the Administrative Agent;

(v)            not less than $110,000,000 of new equity investment shall have been contributed to Parent or Eros Plc, of which not less than $25,000,000 (which amount is in excess of any amounts being used to repay the Subordinated Debt substantially simultaneously with the consummation of the Proposed Eros Transaction) shall have been contributed to Borrower and not less than $50,000,000 shall remain at Eros Plc pro forma after consummation of the Proposed Eros Transaction;

(vi)          on a pro forma basis after giving effect to the prepayment of the Subordinated Debt described in Section 2 hereof (the “Proposed Prepayment”), neither any material Default nor any Event of Default shall have occurred and be continuing as of the Consent and Amendment Effective Date; provided that, for the avoidance of doubt, this clause (vi) shall in no event be construed to permit the consummation of the Proposed Eros Transaction but not the Proposed Prepayment;

(vii)        the representations and warranties contained in the Credit Agreement and the other Fundamental Documents are true and correct in all material respects on and as of the date of the Consent and Amendment Effective Date (except to the extent that such representations and warranties (a) expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date and/or (b) cannot be made as of the Consent and Amendment Effective Date solely due to the existence of a Default that is not material);

(viii)      upon the reasonable request of any Lender, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and

anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least five (5) days prior to the Consent and Amendment Effective Date;

(ix)          at least three (3) days prior to the Consent and Amendment Effective Date, to the extent that the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, Borrower shall deliver, to each Lender that so requests the same at least seven (7) days prior to the Consent and Amendment Effective Date, a Beneficial Ownership Certification;

(x)            the Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or other appropriate officer (or member or manager, as the case may be, in the case of limited liability companies), acceptable to the Administrative Agent, of the Parent and the Borrower, attesting that the conditions precedent set forth in this Section 4 have been satisfied; and

(xi)          the Administrative Agent shall have received, for the benefit of each of the Lenders, all accrued and unpaid Commitment Fees on the amount of the Commitments so reduced pursuant to Section 2.6 of the Credit Agreement.

5.               Representations and Warranties. As of the date hereof, each of the Credit Parties represents and warrants that:

(a)             each of the Credit Parties has the power and authority to execute and deliver this Consent and Amendment and perform its obligations under this Consent and Amendment and the Credit Agreement as modified hereby;

(b)            the execution and delivery by each of the Credit Parties of this Consent and Amendment, and the performance by such Person of its obligations under this Consent and Amendment and the Credit Agreement as modified hereby (i) have been duly authorized by all necessary company action (or similar action) on the part of such Person, (ii) will not constitute a violation of any provision of Applicable Law or any order of any Governmental Authority applicable to such Person or any of its properties or assets, (iii) will not violate any provision of the certificate of formation or organization, by-laws, operating agreement, partnership agreement or any other organizational document of such Person, (iv) will not violate any provision of, be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or create any right to terminate any indenture, agreement, bond, note or other similar instrument to which such Person is a party or by which such Person or any of its properties or assets are bound, other than where any such violation, conflict, breach, default or termination could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (v) will not result in the creation or imposition of any Lien of any nature whatsoever upon any of the properties or assets of such Person other than pursuant to the Fundamental Documents;

(c)             the representations and warranties contained in the Credit Agreement and the other Fundamental Documents are true and correct in all material respects on and as of the date hereof (except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date); and

(d)            no Default or Event of Default shall have occurred and be continuing.

6.               CARES Act. Notwithstanding anything to the contrary contained herein, the amendments described in Section 3 hereof that relate solely to the CARES Act, PPP Loans, and PPP Regulations shall become effective upon satisfaction of the condition precedent set forth in Section 4(i) hereof.

7.               Fundamental Document. This Consent and Amendment is designated a Fundamental Document by the Administrative Agent.

8.               Full Force and Effect. Except as expressly set forth herein, this Consent and Amendment does not constitute an amendment, waiver or modification of any other provision of the Credit Agreement, does not constitute a waiver of timely compliance with the provisions of the Credit Agreement or any provision of any other Fundamental Document, does not constitute a waiver of any Default or Event of Default whether or not known to the Administrative Agent or the Lenders, and does not entitle any Credit Party to any amendment, waiver or modification of any provision of the Credit Agreement or any other Fundamental Document, or to a consent to any transaction, in the future in similar or dissimilar circumstances. Except as expressly modified hereby, the Credit Agreement and the other Fundamental Documents shall continue in full force and effect in accordance with the provisions thereof on the date hereof and are hereby ratified and confirmed. Without limiting the foregoing, each Credit Party hereby (i) reaffirms its obligations under the Credit Agreement and the other Fundamental Documents to which it is a party, including on a pro forma basis after giving effect to the Proposed Eros Transaction, and (ii) reaffirms all Liens on the Collateral which have been granted by it in favor of the Administrative Agent (for the benefit of the Secured Parties) pursuant to any of the Fundamental Documents. As used in the Credit Agreement, the terms “Agreement,” “this Agreement,” “this Credit Agreement,” “herein,” “hereafter,” “hereto,” “hereof” and words of similar import, shall, unless the context otherwise requires, mean the Credit Agreement as modified by this Consent and Amendment.

9.               Notice. “Clause (a)(ii)(z) of Section 13.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:

O’Melveny & ▇▇▇▇▇ LLP, Times Square Tower, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ (email: ▇▇▇▇▇▇@▇▇▇.▇▇▇); and”

10.            Further Assurances. At any time and from time to time, upon the Administrative Agent’s reasonable request and at the expense of the Credit Parties in accordance with Section 13.4 of the Credit Agreement, each Credit Party will promptly and duly execute and deliver any and all further instruments and documents and take such further action as the Administrative Agent reasonably deems necessary to effect the purposes of this Consent and Amendment.

11.            APPLICABLE LAW. THIS CONSENT AND AMENDMENT SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE

LAWS OF THE STATE OF NEW YORK WHICH ARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.

12.            Counterparts. This Consent and Amendment may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument. Delivery of an executed counterpart of a signature page of this Consent and Amendment by facsimile transmission or electronic photocopy (i.e., “.pdf”) shall be effective as delivery of a manually executed counterpart hereof.

13.            Expenses. The Borrower agrees to pay pursuant to Section 13.4 of the Credit Agreement, all out-of-pocket expenses incurred by the Administrative Agent in connection with the preparation, execution and delivery of this Consent and Amendment, including, but not limited to, the reasonable and documented fees and disbursements of counsel for the Administrative Agent.

14.            Headings. The headings of this Consent and Amendment are for the purposes of reference only and shall not affect the construction of or be taken into consideration in interpreting this Consent and Amendment.

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment No. 6 to be duly executed as of the date first written above.

 

 

BORROWER:   STX FINANCING, LLC       By: /s/ Noah Fogelson_______________________ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Executive Vice President, General Counsel and Secretary

 

 

PARENT:   STX FILMWORKS, INC.       By: /s/ Noah Fogelson_______________________ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Executive Vice President, General Counsel and Secretary     By its execution of the above, the Parent hereby acknowledges agrees that its obligations under the Credit Agreement as a Pledgor or otherwise under the Credit Agreement shall remain unaffected by the Proposed Eros Transaction referred to in this Consent and Amendment No. 6, and covenants and agrees that it shall in connection with the Proposed Eros Transaction execute a reaffirmation agreement or other documentation in form and substance satisfactory to the Administrative Agent evidencing its agreement to continue be bound by such obligations.

 

 

GUARANTORS:   STX FILMDEV, LLC STX FILMDEV II, LLC STX PLAN F, LLC STX PRODUCTIONS, LLC STX TV, INC. STX LOUISIANA, LLC FSO ▇▇▇▇▇, LLC STX NY, INC. FSO ▇▇▇▇▇ NY, LLC STX MUSIC, LLC STX MUSIC PUBLISHING, LLC STX RECORDINGS, LLC MARS BOYS, LLC WE ARE BESTIES, LLC BAD MOMS LOUISIANA, LLC BADDER MOMS, LLC STX INTERNATIONAL, INC. STX TRUE LIFE, LLC SURREAL, INC. STX ENTERTAINMENT UK, LTD. ADRIFT PRODUCTIONS UK LTD. VATN ALLS STADAR, LLC ADRIFT PRODUCTIONS NZ LIMITED PUPPET MURDERS, LLC ▇▇▇▇ ▇▇, LLC SECOND ACT PRODUCTIONS, LLC SEVENTEEN BRIDGES, LLC MINNETONKA DREAMS, LLC UGLY INDUSTRIES, LLC TIME OF DEATH, LLC POLE SISTERS, LLC STX ANIMATION, LLC     By: /s/ Noah Fogelson_______________________ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Executive Vice President, General Counsel and Secretary

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and as a Lender

 

By: /s/ ▇▇▇▇▇ Tepper_______________________

Name: ▇▇▇▇▇ ▇▇▇▇▇▇

Title: Vice President

MUFG Union Bank, N.A.

By: /s/ ▇▇▇▇ Richman_______________________

Name: ▇▇▇▇ ▇▇▇▇▇▇▇

Title: Director

 

 

Name of Lender:

East West Bank

By: /s/ ▇▇▇▇ Chong_______________________

Name: ▇▇▇▇ ▇▇▇▇▇

Title: Senior Vice President

 

Name of Lender:

Cit Bank, N.A.

By: /s/ ▇▇▇▇▇▇▇ James_______________________

Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇

Title: Vice President

Name of Lender:

Comerica Bank

By: /s/ ▇▇▇▇▇ ▇. Shaver______________________

Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: AVP

Name of Lender: Truist Bank, successor by merger to SunTrust Bank

 

 

By: /s/ J. ▇▇▇▇▇▇▇ Rowand____________________

Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

Title: Director

Name of Lender:

BANK HAPOALIM B.M.

By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ____________________

Name: ▇▇▇▇▇▇ ▇▇▇▇

Title: FVP

 

By: /s/ ▇▇▇▇▇▇ Liu_______________________

Name: ▇▇▇▇▇▇ ▇▇▇

Title: VP

Name of Lender:

Emigrant Bank

By: /s/ ▇▇▇▇ ▇. Hart______________________

Name: ▇▇▇▇ ▇. ▇▇▇▇

Title: Vice Chairman

 

SCHEDULE 1.1

Schedule of Commitments

Lenders	Commitment
JPMorgan Chase Bank, N.A.	$44,625,000
Bank of America, N.A.	$44,625,000
MUFG Union Bank, N.A.	$44,625,000
East West Bank	$44,625,000
CIT Bank, N.A.	$39,375,000
Comerica Bank	$35,000,000
City National Bank	$30,187,500
SunTrust Bank	$28,437,500
Bank Hapoalim B.M.	$21,437,500
Emigrant Bank	$17,062,500
TOTAL:	$350,000,000

 

The Total Commitments were permanently reduced from $400,000,000 to $350,000,000 in connection with Amendment No. 6 to the Credit Agreement.