AMENDMENT TO FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT AND SECOND AMENDMENT TO CREDIT AGREEMENT

EX-10.1 2 d420532dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

AMENDMENT TO FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT AND SECOND AMENDMENT TO CREDIT AGREEMENT

THIS AMENDMENT TO FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT AND SECOND AMENDMENT TO CREDIT AGREEMENT dated as of June 29, 2017 (this “Amendment to First Amendment and Limited Waiver”), is entered into among GLOBAL EAGLE ENTERTAINMENT INC., a Delaware corporation (the “Company”), the Guarantors identified on the signature pages hereto, the Lenders party hereto, and CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the First Amendment and Limited Waiver described below.

RECITALS

WHEREAS, reference is made to the First Amendment and Limited Waiver to Credit Agreement, dated as of May 4, 2017 (as amended, the “First Amendment and Limited Waiver”), among the Company, the Guarantors party thereto from time to time, the Administrative Agent and the Lenders party thereto;

WHEREAS, the Loan Parties have requested that the Lenders amend and waive certain provisions of (a) the First Amendment and Limited Waiver and (b) the Credit Agreement; and

WHEREAS, the Lenders signatory hereto, constituting the Required Lenders, are willing to agree to such amendments and waivers, in accordance with and subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1.     Amendment of Limited Waivers. Section 1 of the First Amendment and Limited Waiver is hereby amended and restated in its entirety as follows:

(a) Annual Financial Statements. Notwithstanding anything else to the contrary in any Loan Document, the Administrative Agent and the Lenders party hereto hereby waive (with retroactive effect to March 31, 2017) any Default or Event of Default that has arisen or that may arise under the Credit Agreement or any other Loan Document from the failure to deliver, by March 31, 2017, the Company’s audited annual financials for the fiscal year ended December 31, 2016, together with the related report and opinion and other items required by Section 6.01(a) of the Credit Agreement and the Compliance Certificate relating thereto required by Section 6.02(a) of the Credit Agreement (collectively, the “Annual Financial Statement Deliverables”). The waiver in this Section 1(a) shall remain in effect at all times from and after March 31, 2017, so long as (i) the Annual Financial Statement Deliverables are delivered in accordance with the Credit Agreement by no later than September 15, 2017, and (ii) solely to the extent the Annual Financial Statement Delivery Date (as defined below) has not occurred on or prior to (A) June 30, 2017, the Borrower shall have paid to the Administrative Agent on or prior to 5:00 p.m., New York City time, on July 6, 2017, for the account of each Amendment Consenting Lender (as defined below), a fee in an amount equal to 25 basis points on the aggregate principal amount of the Revolving Credit Commitments and Term Loans of such Amendment Consenting Lender as of June 30, 2017, (B) July 31, 2017, the Borrower shall have paid to the Administrative Agent on

---

or prior to 5:00 p.m., New York City time, on August 3, 2017, for the account of each Amendment Consenting Lender, a fee in an amount equal to 25 basis points on the aggregate principal amount of the Revolving Credit Commitments and Term Loans of such Amendment Consenting Lender as of July 31, 2017, and (C) August 31, 2017, the Borrower shall have paid to the Administrative Agent on or prior to 5:00 p.m., New York City time, on September 6, 2017, for the account of each Amendment Consenting Lender, a fee in an amount equal to 25 basis points on the aggregate principal amount of the Revolving Credit Commitments and Term Loans of such Amendment Consenting Lender as of August 31, 2017; and failure to so pay any such fee (to the extent payable) on or prior to the applicable date and time set forth above or deliver all or any of the Annual Financial Statement Deliverables on or prior to September 15, 2017, shall constitute an immediate Event of Default.

(b) Quarterly Financial Statements. Notwithstanding anything else to the contrary in any Loan Document, the Administrative Agent and the Lenders party hereto waive any Default or Event of Default that may arise under the Credit Agreement or any other Loan Document from any failure to deliver, (i) within 45 days after March 31, 2017, the Company’s financial statements for the fiscal quarter ended March 31, 2017, together with the related items required by Section 6.01(b) of the Credit Agreement and the Compliance Certificate relating thereto required by Section 6.02(a) of the Credit Agreement, and (ii) within 45 days after June 30, 2017, the Company’s financial statements for the fiscal quarter ending June 30, 2017, together with the related items required by Section 6.01(b) of the Credit Agreement and the Compliance Certificate relating thereto required by Section 6.02(a) of the Credit Agreement (the deliverables in the foregoing clauses (i) and (ii), collectively, the “Quarterly Financial Statement Deliverables”). The waiver in this Section 1(b) shall remain in effect at all times from and after the Effective Date so long as the Quarterly Financial Statement Deliverables are delivered in accordance with the Credit Agreement by no later than the Quarterly Financial Statement Due Date (as defined below), and failure to so deliver all or any of the Quarterly Financial Statement Deliverables on or prior to the Quarterly Financial Statement Due Date shall constitute an immediate Event of Default.

(c) Budget. Notwithstanding anything else to the contrary in any Loan Document, the Administrative Agent and the Lenders party hereto hereby waive any Default or Event of Default that may arise from under the Credit Agreement or any other Loan Document from any failure to deliver, within 120 days after December 31, 2016, the Projections required by Section 6.01(c) of the Credit Agreement for the fiscal year ending December 31, 2017 (the “2017 Projections”).

(d) Certain Definitions. As used in this Section 1, the following terms shall have the meanings set forth below:

“Amendment Consenting Lender” means each Lender party to that certain Amendment to First Amendment and Limited Waiver to Credit Agreement and Second Amendment to Credit Agreement, dated as of June 29, 2017, by and among the Company, the Guarantors party thereto, the Administrative Agent and the Lenders party thereto.

“Annual Financial Statement Delivery Date” means the first date on which the Annual Financial Statement Deliverables are delivered in accordance with the Credit Agreement.

“Quarterly Financial Statement Due Date” means the date that is 30 days after the Annual Financial Statement Delivery Date.

 

2

---

2.    Amendments to Credit Agreement. On and as of the Second Amendment Effective Date:

(a)    The following definition of “2016 Annual Financial Statement Delivery Date” is hereby added immediately preceding the definition of “Acceptable Discount” set forth in Section 1.01 of the Credit Agreement:

““2016 Annual Financial Statement Delivery Date” means the first date on which the Borrower shall deliver (or cause to be delivered) in accordance with the terms of this Agreement the consolidated financial statements for the fiscal year ended December 31, 2016, together with the related report and opinion and other items required by Section 6.01(a) and the Compliance Certificate relating thereto required by Section 6.02(a).”

(b)    Section 6.01 of the Credit Agreement is hereby amended by (A) deleting the “and” appearing at the end of clause (d) thereof, (B) replacing the “.” appearing at the end of clause (e) thereof with “;” and (C) inserting the following clauses (f) and (g) immediately thereafter:

“(f)    On or prior to July 31, 2017, furnish or file for public availability on the Securities and Exchange Commission’s Electronic Data Gathering and Retrieval System (EDGAR) on a Form 8-K (i) the estimated adjusted EBITDA of the Company and its Subsidiaries and (ii) the total revenue of the Company and its Subsidiaries, in each case, with a range of no greater than $5,000,000, for each of the fiscal quarters ended December 31, 2016, and March 31, 2017; and

(g) Within one Business Day of (i) July 12, 2017, and (ii) every other Wednesday occurring thereafter prior to the 2016 Annual Financial Statement Delivery Date, furnish or file for public availability on the Securities and Exchange Commission’s Electronic Data Gathering and Retrieval System (EDGAR) on a Form 8-K the current cash balance of the Company and its Subsidiaries, the current cash balance of the Company’s Foreign Subsidiaries and the current outstanding balance under the Revolving Credit Facility.”

(c)    Section 6.17 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.17    Lender Meetings. (a) To the extent requested by the Administrative Agent or the Required Lenders, participate in a conference call (including a customary question and answer session) with the Administrative Agent and Lenders once during each fiscal quarter, and (b) prior to the 2016 Annual Financial Statement Delivery Date, participate in one conference call with the Administrative Agent and Lenders with respect to each furnishing or filing of information for public availability on the Securities and Exchange Commission’s Electronic Data Gathering and Retrieval System (EDGAR) pursuant to Section 6.01(g), in each case of the foregoing clauses (a) and (b), to be held at such time as may be agreed to by the Borrower and the Administrative Agent.”

3.    Reserved.

 

3

---

4.    Effectiveness; Conditions Precedent. This Amendment to First Amendment and Limited Waiver shall be effective, as of the date first above written, on the first date (the “Second Amendment Effective Date”) on which each of the following conditions is satisfied:

(a)    The Company shall have received this Amendment to First Amendment and Limited Waiver, duly executed by the Company, each Guarantor and Lenders constituting at least the Required Lenders.

(b)    The representations and warranties set forth in Section 6 of this Amendment to First Amendment and Limited Waiver shall be true and correct as of the date hereof.

5.    Reaffirmation.

(a)    Validity of Obligations. The Company and each other Loan Party acknowledges and agrees that, both before and after giving effect to this Amendment to First Amendment and Limited Waiver, the Company and each other Loan Party is indebted to the Lenders for the Obligations, without defense, counterclaim or offset of any kind and the Company and each other Loan Party hereby ratifies and reaffirms the validity, enforceability and binding nature of such Obligations.

(b)    Validity of Guarantees. Each Guarantor hereby confirms and agrees that, its guarantee under the Credit Agreement is, and shall continue to be, in full force and effect, and shall apply to all Obligations and such guarantee is hereby ratified and confirmed in all respects.

(c)    Validity of Liens and Loan Documents. The Company and each other Loan Party hereby agrees and confirms that the Credit Agreement and each other Loan Document constitutes a legal, valid and binding obligation of the Company and each other Loan Party, in each case, to the extent party to such Loan Document, enforceable against the Company and each other Loan Party in accordance with its terms. The Company and each other Loan Party hereby ratifies and reaffirms the validity and enforceability (without defense, counterclaim or offset of any kind) of the Liens and security interests granted to the Administrative Agent for the benefit of the Secured Parties to secure any of the Obligations by the Company or any other Loan Party pursuant to the Loan Documents to which any of the Company or any other Loan Party is a party and hereby confirms and agrees that notwithstanding the effectiveness of this Amendment to First Amendment and Limited Waiver, and except as expressly amended by this Amendment to First Amendment and Limited Waiver, each such Loan Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this Amendment to First Amendment and Limited Waiver, each reference in the Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” (and each reference in the Credit Agreement to this “Agreement”, “hereunder” or “hereof”) or words of like import shall mean and be a reference to the Credit Agreement as amended by this Amendment to First Amendment and Limited Waiver. This Amendment to First Amendment and Limited Waiver shall constitute a “Loan Document” for purposes of the Credit Agreement.

6.    Representations and Warranties. Each Loan Party represents and warrants as follows:

(a)    Power; Authorization; Enforceable Obligations. The Company and each other Loan Party has the requisite power and authority, and the legal right, to enter into this Amendment to First Amendment and Limited Waiver. The Company and each other Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment to First Amendment and Limited Waiver. This

 

4

---

Amendment to First Amendment and Limited Waiver constitutes a legal, valid and binding obligation of the Company and each other Loan Party signatory hereto, enforceable against the Company and each other Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b)    Accuracy of Representations and Warranties. Immediately after giving effect to this Amendment to First Amendment and Limited Waiver on the Second Amendment Effective Date, the representations and warranties of the Company and each other Loan Party set forth in the Loan Documents (including, for the avoidance of doubt, in the Credit Agreement) are true and correct in all material respects on and as of the Second Amendment Effective Date to the same extent as though made on and as of the Second Amendment Effective Date, except to the extent such representations and warranties specifically 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; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

(c)    No Default or Event of Default. As of the Second Amendment Effective Date, immediately after giving effect to this Amendment to First Amendment and Limited Waiver, no Default or Event of Default exists.

7.    Expenses. The Company agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment to First Amendment and Limited Waiver, including without limitation the reasonable and documented fees and expenses of the Administrative Agent’s legal counsel, in each case, in the manner set forth in Section 10.04 of the Credit Agreement.

8.    Further Assurances. The Loan Parties agree to promptly take such action, upon the reasonable request of the Administrative Agent, as is necessary to carry out the intent of this Amendment to First Amendment and Limited Waiver.

9.    Counterparts. This Amendment to First Amendment and Limited Waiver is a Loan Document. This Amendment to First Amendment and Limited Waiver may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment to First Amendment and Limited Waiver by fax, email or other electronic transmission (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Amendment to First Amendment and Limited Waiver.

10.    GOVERNING LAW. THIS AMENDMENT TO FIRST AMENDMENT AND LIMITED WAIVER AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON OR ARISING OUT OF THIS AMENDMENT TO FIRST AMENDMENT AND LIMITED WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK

11.    Effect of this Agreement. Except as expressly set forth herein, this Amendment to First Amendment and Limited Waiver shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect

 

5

---

any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to any other consent to, or any other waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.

12.    Successors and Assigns.    This Amendment to First Amendment and Limited Waiver shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

13.    Consent to Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of jury trial provisions set forth in Sections 10.15 and 10.16 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

[remainder of page intentionally left blank]

 

6

---

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to First Amendment and Limited Waiver to be duly executed as of the date first above written.

 

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

 

 

 

 

 

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

 

---

---

---

---

---

---

---

 

---

 

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

---

---

---

---

---

---

---

---

---

---

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

[Signature Page to Amendment to First Amendment and Limited Waiver to GEE Credit Agreement]

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

 

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---