Exhibit 10.4


 


FIRST AMENDMENT
To AMENDED AND RESTATED INTERcreditor agreement


 


THIS FIRST AMENDMENT
TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT (this “Amendment”) is entered into this 1st
day of July, 2016, among BANK OF AMERICA, N.A., in its capacity as administrative agent and collateral agent (together with
its successors and assigns in such capacity, the “BofA Facility Agent”), and WILMINGTON TRUST, NATIONAL
ASSOCIATION, in its capacity as administrative agent and collateral agent (together with its successors and assigns in such
capacities, the “GSO Agent”).


 


Recitals


 


A.           Pursuant to that
certain Second Amended and Restated First Lien Credit Agreement, dated as of April 8, 2015, by and among Sequential Brands Group,
Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the BofA Facility Agent
and the BofA Facility Lenders (as amended prior to the date hereof and in effect, the “Existing BofA Facility Credit
Agreement”), the BofA Facility Lenders have agreed to make certain loans and provide other financial accommodations
to or for the benefit of the Borrower.


 


B.           Pursuant to that
certain Second Amended and Restated Credit Agreement dated as of December 4, 2015, by and among the Borrower, the Guarantors party
thereto, the GSO Lenders and the GSO Agent (as amended prior to the date hereof and in effect, the “Existing GSO Credit
Agreement”), the GSO Lenders have made certain loans to the Borrower.


 


C.           The BofA Facility
Agent and the GSO Agent have entered into that certain Amended and Restated Intercreditor Agreement dated as of December 4, 2015
(as amended and in effect, the “Intercreditor Agreement”), which provides, among other things, the respective
rights and remedies of the BofA Facility Agent and the GSO Agent with respect to the Collateral (as defined therein) and certain
other matters.


 


D.           Contemporaneously
herewith, the Borrower, the Guarantors, the BofA Facility Lenders and the BofA Facility Agent are entering into that certain Third
Amended and Restated First Lien Credit Agreement to amend and restate the terms of the Existing BofA Facility Credit Agreement
(the “Restated BofA Facility Credit Agreement”).


 


E.           Contemporaneously
herewith, the Borrower, the Guarantors, the GSO Lenders and the GSO Agent are entering into that certain Third Amended and Restated
Credit Agreement to amend and restate the terms of the Existing GSO Credit Agreement (the “Restated GSO Credit Agreement”).           


 


F.           The BofA Facility
Agent and the GSO Agent have agreed to amend certain provisions of the Intercreditor Agreement, but only to the extent, in accordance
with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.


 






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Agreement


 


Now,
Therefore, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the
parties hereto agree as follows:


 


1.           Definitions.
Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Intercreditor Agreement.


 


2.           Amendments
to Intercreditor Agreement.


 


(a)           General.
Any and all references in the Intercreditor Agreement, other than in Section 8.4 of the Intercreditor Agreement, to the phrase
“as in effect on the date hereof” and the phrase “as of the date hereof” shall be deleted and replaced
with the phrase “as in effect on the First Amendment Effective Date” and the phrase “as of the First Amendment
Effective Date”, respectively.


 


(b)           Section
1.2 of the Intercreditor Agreement is hereby amended by deleting the reference to “Section 6.18(b)” in clause (iii)
of the definition of “Inadvertent Overadvances” and by substituting “Section 6.18(a)” in its stead.


 


(c)           Section
1.2 of the Intercreditor Agreement is hereby amended by deleting the definition of “Maximum BofA Facility Amount”
in its entirety and by substituting the following in its stead:


 


“Maximum
BofA Facility Amount” shall mean, on any date of determination thereof, a principal amount equal to (a) $287,500,000
plus (b) an additional amount of additional indebtedness incurred under the BofA Credit Agreement that would not result in the
Consolidated First Lien/First Out Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of the Borrower for
which financial statements are required to have been delivered under the GSO Credit Agreement by the Borrower to exceed 2.50:1.00,
after giving pro forma effect to the incurrence of such additional amount under the BofA Credit Agreement, plus (c) BofA Facility
Obligations under Bank Product Agreements and Cash Management Services Agreement, plus (d) any additional principal amount extended
pursuant to a DIP Financing permitted pursuant to Section 6.1(a) hereof, minus (e) the amount of any permanent repayment of the
BofA Facility Obligations made after the First Amendment Effective Date or any commitment reduction of the BofA Facility Obligations
after the First Amendment Effective Date.


 


(d)           Section
1.2 of the Intercreditor Agreement is hereby amended by deleting the definition of “Maximum GSO Facility Amount”
in its entirety and by substituting the following in its stead:


 


“Maximum
GSO Facility Amount” shall mean (a) the principal amount of $450,000,000 plus (b) the aggregate principal amount
of Indebtedness that may be incurred under Section 2.14 of the GSO Credit Agreement as in effect on the First Amendment Effective
Date.


 






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(e)          Section
1.2 of the Intercreditor Agreement is hereby amended by adding the following new defined terms in appropriate alphabetical
order therein:


 


“First
Amendment Effective Date” shall mean July 1, 2016.


 


“MSLO
Key Man Policy” shall have the meaning assigned to that term in the BofA Credit Agreement.


 


(f)          Section
4.1 of the Intercreditor Agreement is hereby deleted in its entirety and the following is substituted in its stead:


 


“4.1       Application
of Proceeds of BofA Facility Priority Collateral.


 


(a)          The BofA Facility
Agent and the GSO Agent hereby agree that all BofA Facility Priority Collateral and all Proceeds thereof received by either of
them (other than the MSLO Key Man Policy and the Proceeds thereof) (i) in connection with any Exercise of Secured Creditor Remedies
with respect to the BofA Facility Priority Collateral, (ii) in connection with the exercise of any right or remedy (including set
off) relating to the BofA Facility Priority Collateral, or (iii) following the commencement of any Insolvency Proceeding, in each
case, shall be applied,


 


first,
to the payment of reasonable costs and expenses of the BofA Facility Agent,


 


second,
to the payment of the BofA Facility Obligations (other than the Excess BofA Facility Obligations) in accordance with the BofA Facility
Loan Documents until the Discharge of BofA Facility Obligations (other than the Excess BofA Facility Obligations) shall have occurred;


 


third,
to the payment of the GSO Obligations (other than the Excess GSO Obligations) in accordance with the GSO Loan Documents until the
Discharge of GSO Obligations (other than the Excess GSO Obligations) shall have occurred,


 


fourth,
to the payment of the Excess BofA Facility Obligations in accordance with the BofA Facility Loan Documents until the Discharge
of BofA Facility Obligations shall have occurred,


 


fifth,
to the payment of the Excess GSO Obligations in accordance with the GSO Loan Documents until the Discharge of GSO Obligations shall
have occurred, and


 


sixth,
the balance, if any, to the Loan Parties or as a court of competent jurisdiction may direct.


 


(b)          The BofA Facility
Agent and the GSO Agent hereby agree that the MSLO Key Man Policy and the Proceeds thereof received by either of them (i) in connection
with any Exercise of Secured Creditor Remedies with respect to the MSLO Key Man Policy and the Proceeds thereof, (ii) in connection
with the exercise of any right or remedy (including set off) relating to the the MSLO Key Man Policy and the Proceeds thereof,
or (iii) following the commencement of any Insolvency Proceeding, in each case, shall be applied,


 






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first,
to the payment of reasonable costs and expenses of the BofA Facility Agent,


 


second,
to the payment of the BofA Facility Obligations consisting of the Tranche A Term Loan (other than the Excess BofA Facility Obligations)
in an amount equal to the lesser of (x) the aggregate amount of the Tranche A Term Loan outstanding and (y) (i) at any time that
any portion of the BofA Facility Obligations consisting of the Tranche A-1 Loan is outstanding, $20,000,000, and (ii) at all other
times, $35,000,000;


 


third,
at any time that any portion of the BofA Facility Obligations consisting of the Tranche A-1 Loan is outstanding, to the payment
of the BofA Facility Obligations consisting of the Tranche A-1 Term Loan (other than the Excess BofA Facility Obligations) in an
amount equal to the lesser of (x) the aggregate amount of the Tranche A-1 Term Loan outstanding and (y) (i) $20,000,000;


 


fourth,
to the payment of the GSO Obligations (other than the Excess GSO Obligations) in accordance with the GSO Loan Documents up to an
amount not to exceed (i) at any time that any portion of the BofA Facility Obligations consisting of the Tranche A-1 Loan is outstanding,
$10,000,000, and (ii) at all other times, $15,000,000;


 


fifth,
to the payment of the other BofA Facility Obligations (other than the Excess BofA Facility Obligations) in accordance with the
BofA Facility Loan Documents until the Discharge of BofA Facility Obligations (other than the Excess BofA Facility Obligations)
shall have occurred;


 


sixth,
to the payment of the other GSO Obligations (other than the Excess GSO Obligations) in accordance with the GSO Loan Documents until
the Discharge of GSO Obligations (other than the Excess GSO Obligations) shall have occurred,


 


seventh,
to the payment of the Excess BofA Facility Obligations in accordance with the BofA Facility Loan Documents until the Discharge
of BofA Facility Obligations shall have occurred,


 


eighth,
to the payment of the Excess GSO Obligations in accordance with the GSO Loan Documents until the Discharge of GSO Obligations shall
have occurred, and


 


ninth,
the balance, if any, to the Loan Parties or as a court of competent jurisdiction may direct.”


 


(g)          Section
5.2 of the Intercreditor Agreement is hereby amended by:


 


		(1)	adding the following language at the end of clause (a)(4) of such
section:



 


“, including,
without limitation, pursuant to the provisos of Sections 2.06(a) and (b) of the BofA Credit Agreement as in effect on the First
Amendment Effective Date;”


 


		(2)	deleting the number “2.16” in its entirety in the second
line of clause (a)(6) of such section; 



 






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		(3)	deleting “; or” at the end of clause (a)(6) and by substituting
“;” in its stead;



 


		(4)	deleting clause (a)(7) in its entirety and by substituting the following
in its stead:



 


“(7)           amend,
supplement or otherwise modify Section 4.02(d) of the BofA Credit Agreement as in effect on the First Amendment Effective Date
or waive the requirements thereunder; or


 


(8)            make
any other amendment or modification in contravention of this Agreement.”; and


 


		(5)	deleting the number “2.05” in the first line of clause
(b)(2) of such section and by substituting “2.07” in its stead.



 


3.           Consent
to Restated BofA Facility Credit Agreement. The GSO Agent, on behalf of itself and
the other GSO Secured Parties, hereby consents to the terms and conditions of the Restated BofA Facility Credit Agreement, and
acknowledges and agrees that, on and after the First Amendment Effective Date, all references in the Intercreditor Agreement to
the “BofA Credit Agreement” shall mean and refer to the Restated BofA Facility Credit Agreement.


 


4.           Consent
to Restated GSO Credit Agreement. The BofA Facility Agent, on behalf of itself and
the other BofA Facility Secured Parties, hereby consents to the terms and conditions of the Restated GSO Credit Agreement, and
acknowledges and agrees that, on and after the First Amendment Effective Date, all references in the Intercreditor Agreement to
the “GSO Credit Agreement” shall mean and refer to the Restated GSO Credit Agreement.


 


5.           Representations
and Warranties. Each of the parties hereto hereby represents and warrants to the other
party as follows:


 


5.1           Each
party hereto has the power and authority to execute and deliver this Amendment and perform its obligations under the Intercreditor
Agreement (as amended by this Amendment);


 


5.2           The
execution and delivery by each party hereto of this Amendment and the performance by such parties of its obligations under the
Intercreditor Agreement (as amended by this Amendment) has been duly authorized; and


 


5.3           This
Amendment has been duly executed and delivered by each party hereto and is the binding obligation of the BofA Facility Agent and
the GSO Agent, enforceable against each such party in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles
relating to or affecting creditors’ rights.


 






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6.           Miscellaneous.


 


6.1           This
Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one instrument. Delivery of an executed counterpart
of a signature page of this Amendment by telecopy or electronic mail shall be as effective as delivery of a manually executed counterpart
of this Amendment.


 


6.2           This
Amendment expresses the entire understanding of the parties hereto with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof.


 


6.3           Any
determination that any provision of this Amendment or any application hereof is invalid, illegal, or unenforceable in any respect
and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the
validity, legality, or enforceability of any other provision of this Amendment.


 


6.4           Except
as expressly amended hereby, all terms and provisions of the Intercreditor Agreement remain in full force and effect.


 


6.5           THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE CHOICE
OF LAW AND VENUE PROVISIONS SET FORTH IN THE INTERCREDITOR AGREEMENT, AND SHALL BE SUBJECT TO THE JURY TRIAL WAIVER AND NOTICE
PROVISIONS OF THE INTERCREDITOR AGREEMENT.


 


6.6           This
Amendment shall become effective on and as of the date when the parties hereto execute and deliver to one another signature pages
to this Amendment.


 


[Signature page follows]


 




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In
Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered as of the date
first written above.


 


	 	BANK OF AMERICA, N.A.,
	 	as BofA Facility Agent
	 	 	 
	 	By:	/s/ Andrew Cerussi
	 	Name:	Andrew Cerussi
	 	Title:	Director
	 	 	 
	 	WILMINGTON TRUST, NATIONAL ASSOCIATION,
	 	as GSO Agent
	 	 	 
	 	By:	/s/ Meghan H. Mc Cauley
	 	Name:	Meghan H. Mc Cauley
	 	Title:	Assistant Vice President


 




    	 	 	 



     


    


 


ACKNOWLEDGMENT


 


The Borrower and each
Guarantor hereby acknowledges that it has received a copy of this Amendment and consents thereto, agrees to recognize all rights
granted thereby to the BofA Facility Agent, the BofA Facility Secured Parties, the GSO Agent, and the GSO Secured Parties and will
not do any act or perform any obligation which is not in accordance with the agreements set forth in this Amendment. The Borrower
and each Guarantor further acknowledges and agrees that it is not an intended beneficiary or third party beneficiary under this
Amendment and (i) as between the BofA Facility Secured Parties, the Borrower and the Guarantors, the BofA Facility Loan Documents
remain in full force and effect as written and are in no way modified hereby, and (ii) as between the GSO Secured Parties, the
Borrower and the Guarantors, the GSO Loan Documents remain in full force and effect as written and are in no way modified hereby.


 


	 	SEQUENTIAL BRANDS GROUP, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	SQBG, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	SEQUENTIAL LICENSING, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	WILLIAM RAST LICENSING, LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer



 






    	 	 	 



     


    

 


	 	HEELING SPORTS LIMITED
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	Name: Gary Klein
	 	 	Title: Chief Financial Officer
	 	 	 
	 	B©AND MATTER, LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	SBG
    Revo Holdings, LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	sbg
    universe brands, llc
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	Galaxy
    Brands LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	The
    Basketball Marketing Company, Inc.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer



 






    	 	 	 



     


    

 


	 	American Sporting Goods Corporation
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	Gary
    Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	LNT Brands LLC
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	sbg fm, LLC
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	joe’s holdings
    LLC
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MARTHA STEWART LIVING OMNIMEDIA, INC.
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 







    	 	 	 



     


    

 


	 	MSO IP HOLDINGS, INC.
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	martha
    stewart, inc.
	 	 	 
	 	By:	/s/
    Gary Klein 
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	body
    & soul omnimedia, inc.
	 	 	 
	 	By:	/s/
    Gary Klein 
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MSLO PRODUCTIONS, INC.
	 	 	 
	 	By:	 /s/
    Gary Klein
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MSLO PRODUCTIONS – HOME, INC.
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MSLO PRODUCTIONS – EDF, INC.
	 	 	 
	 	By:	/s/
    Gary Klein
	 	 	 
	 	Name:	 Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 



 






    	 	 	 



     


    

 


	 	FLOUR PRODUCTIONS, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	EMERIL PRIMETIME MUSIC, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	EMERIL PRIMETIME PRODUCTIONS, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	GOOD THING PRODUCTIONS, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MSLO SHARED IP SUB LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	MSLO EMERIL ACQUISITION SUB LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 










    	 	 	 



     


    

 


	 	SBG-GAIAM HOLDINGS, LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	GAIAM BRAND HOLDCO, LLC
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer
	 	 	 
	 	GAIAM AMERICAS, INC.
	 	 	 
	 	By:	/s/ Gary Klein
	 	 	 
	 	Name:	Gary Klein
	 	 	 
	 	Title:	Chief Financial Officer