THIRD AMENDMENT TO CREDIT AGREEMENT

A.  Borrower and Bank entered into that certain Credit Agreement dated as of April 20, 2011, as amended by that certain First Amendment to Credit Agreement dated as of January 1, 2012, and as amended by that certain Second Amendment to Credit Agreement dated as of October 24, 2012 (the “Credit Agreement”).

 

B.  In connection with the Credit Agreement, Borrower executed and delivered to Bank that certain Line of Credit Promissory Note dated April 20, 2011, in the stated principal amount of $500,000.00, as amended and restated by that certain Amended and Restated Line of Credit Promissory Note dated as of January 1, 2012, in the stated principal amount of $1,500,000.00, and as amended and restated by that certain Second Amended and Restated Line of Credit Promissory Note dated as of October 24, 2012, in the stated principal amount of $5,000,000.00 (the “Line of Credit Note”).

 

C.  In connection with the Credit Agreement, (i) Guarantors (other than Wilhelmina Creative, LLC) executed and delivered to Bank that certain Unlimited Guaranty Agreement dated April 20, 2011, and (ii) Wilhelmina Creative, LLC, at the time of its formation as an additional subsidiary of Borrower, executed and delivered to Lender pursuant to Section 4.14 of the Credit Agreement that certain Unlimited Guaranty Agreement dated effective as of May 25, 2012 (the “Guaranty Agreements”).

 

D.  Borrower has requested Bank (i) to extend additional credit to Borrower and (ii) to amend the Credit Agreement in certain respects, and Bank has agreed to the same upon the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

Section 1.1.  Definitions.  Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meaning as assigned to them in the Credit Agreement, as amended hereby.

Section 2.1.  Amendment to Section 1.1(a) and (b) of the Credit Agreement.  Sections 1.1(a), (b), and (c) of the Credit Agreement are hereby amended and restated in their entirety to hereafter read as follows.

(i)  any account which is unpaid more than ninety (90) days past the initial invoice date therefor;

 

(ii)  that portion of any account for which there exists any right of setoff, defense or discount (except regular discounts allowed in the ordinary course of business to promote prompt payment) or for which any defense or counterclaim has been asserted;

(iii)  any account which represents an obligation of any state or municipal government or of the United States government or any political subdivision thereof;

 

(iv)  any account which represents an obligation of an account debtor located in a foreign country;

 

(v)  any account which arises from the sale or lease to or performance of services for, or represents an obligation of, an employee, affiliate, partner, member, parent or subsidiary of Borrower;

 

(vi)  that portion of any account, which represents interim or progress billings or retention rights on the part of the account debtor;

 

(vii)  any account which represents an obligation of any account debtor when twenty percent (20%) or more of Borrower’s accounts from such account debtor are not eligible pursuant to (i) above;

 

(viii)  that portion of any account from an account debtor which represents the amount by which such Borrower’s total accounts from said account debtor exceeds twenty percent (20%) of Borrower’s total accounts; or

 

(ix)  any account deemed ineligible by Bank when Bank, in its sole discretion, deems the creditworthiness or financial condition of the account debtor, or the industry in which the account debtor is engaged, to be unsatisfactory.

(c)   Borrowing and Repayment.  Borrower may from time to time during the term of the Line of Credit borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the limitations, terms and conditions contained herein or in the Line of Credit Note; provided however, that the total outstanding borrowings under the Line of Credit shall not at any time exceed the maximum principal amount available thereunder, as set forth above.  If at any time the total outstanding borrowings under the Line of Credit exceed the then current Borrowing Base, then Borrower shall immediately repay the amount of such excess.”

Section 2.2.  Amendment to Section 1.2 of the Credit Agreement.  Subparagraph (c) of Section 1.2 of the Credit Agreement is amended and restated in its entirety to hereafter read as follows:

 

“(c)           Unused Facility Fee.  Borrower agrees to pay to Bank an unused facility fee on the daily average unused amount of the Line of Credit for the period from and including the date of this Agreement to and including October 24, 2015, at the rate of one quarter of one percent (0.25%) per annum based on a 360 day year and the actual number of days elapsed.  For the purpose of calculating the unused facility fee hereunder, the Line of Credit shall be deemed utilized by the amount of all outstanding advances under the Line of Credit and all outstanding Letter of Credit Liabilities.  Accrued unused facility fee shall be payable in arrears on October 24th of each calendar year during the term of this Agreement commencing October 24, 2014, with the final payment being due on October 24, 2015.”

 

Section 2.3.  Addition of Section 1.5 of the Credit Agreement.  A new Section 1.5 is hereby added to the Credit Agreement in its appropriate numerical order to read as follows:

(a)  Issuance.  Subject to the terms and conditions of this Agreement, Lender agrees to issue one or more standby letters of credit for the account of Borrower from time to time from the date hereof through the date that is five (5) business days prior to October 24, 2015; provided, however, that the outstanding Letter of Credit Liabilities shall not at any time exceed the least of: (a) Three Hundred Thousand and No/100 Dollars ($300,000.00); (b) an amount equal to $5,000,000.00 minus the outstanding borrowings under the Line of Credit; or (c) an amount equal to the Borrowing Base Amount minus the outstanding borrowings under the Line of Credit.  Each Letter of Credit shall have an expiration date not to exceed three hundred sixty-five (365) days, shall not have an expiration date beyond October 24, 2015, shall be payable in Dollars, shall have a minimum face amount of Fifty Thousand and No/100 Dollars ($50,000.00), must support a transaction that is entered into in the ordinary course of Borrower’s business, must be satisfactory in form and substance to Lender, will be subject to the payment of such Letter of Credit fees as Lender may require, and shall be issued pursuant to such documents and instruments executed by Borrower (including, without limitation, Lender’s form of Letter of Credit application as then in effect) as Lender may require. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a direct or indirect subsidiary of Borrower, Borrower shall be obligated to reimburse Lender hereunder for any and all drawings under such Letter of Credit.  Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any of its direct or indirect subsidiaries inures to the benefit of Borrower, and that Borrower’s business derives substantial benefits from the businesses of such subsidiaries.    For purposes of this Agreement, the term “Letter of Credit Liabilities” shall mean, at any time, the aggregate face amount of all outstanding Letters of Credit, plus any amounts drawn under any Letters of Credit for which Bank has not been fully reimbursed by Borrower (unless Lender, in its sole discretion, has cleared the drawn amount, in which case the drawn amount would not constitute a Letter of Credit Liability).  The Letter of Credit Liabilities are part of Borrower’s indebtedness and obligations hereunder.  For purposes of this Agreement, the term “Letter of Credit” shall mean any letter of credit issued by Bank for the account of or at the direction of Borrower pursuant to this section.

 

(b)  Fees.  Borrower agrees to pay to Lender, as a condition precedent to the issuance (including the extension) of each Letter of Credit, an issuance fee payable on the date of issuance equal to the greater of (i) one percent (1%) per annum of the face amount of such Letter of Credit, and (ii) $1,000 (including any extension).

 

(c)  Reimbursement.  Each payment by Lender pursuant to a drawing under a Letter of Credit is required to be reimbursed by Borrower to Lender and payable immediately upon such drawing and, at the sole option of Lender, can be charged by Lender as a borrowing under the Line of Credit Note and this Agreement by Borrower as of the day and time such payment is made by Lender and in the amount of such payment.

 

(d)  Additional Costs in Respect of Letters of Credit.  If, after the date hereof, there shall occur the adoption of any applicable law, rule, or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by Lender with any request or directive (whether or not having the force of law) of any such authority, central bank, or comparable agency there shall be imposed, modified, or deemed applicable any tax, reserve, special deposit, or similar requirement against or with respect to or measured by reference to Letters of Credit issued or to be issued hereunder or Lender’s commitment to issue Letters of Credit hereunder, and the result shall be to increase the cost to Lender of issuing or maintaining any Letter of Credit or its commitment to issue Letters of Credit hereunder or reduce any amount receivable by Lender hereunder in respect of any Letter of Credit (which increase in cost, or reduction in amount receivable, shall be the result of Lender’s reasonable allocation of the aggregate of such increases or reductions resulting from such event), then, upon demand by Lender, Borrower agrees to pay to Lender, from time to time as specified by Lender, such additional amounts as shall be sufficient to compensate Lender for such increased costs or reductions in amount.  A statement as to such increased costs or reductions in amount incurred by Lender, submitted by Lender to Borrower, shall be conclusive as to the amount thereof; provided that the determination thereof is made on a reasonable basis.”

“SECTION 3.2. CONDITIONS OF EACH EXTENSION OF CREDIT.     The obligation of Bank to make each extension of credit requested by Borrower hereunder or issue any Letter of Credit (including the initial Letter of Credit) shall be subject to the fulfillment to Bank’s satisfaction of each of the following conditions:

 

(a)  Borrowing Request or Letter of Credit Request.  Bank shall have received, as the case may be, a borrowing request or a Letter of Credit request, in form and substance satisfactory to Bank, dated the date of such extension of credit or Letter of Credit and executed by an authorized officer of Borrower.

 

(b)  Compliance.  The representations and warranties contained herein and in each of the other Loan Documents shall be true on and as of the date of each extension of credit or issuance of Letter of Credit by Bank pursuant hereto, with the same effect as though such representations and warranties had been made on and as of each such date (except that representations and warranties which are made only as of a specific date or dates shall be true on and as of such date or dates), and on each such date, no Event of Default as defined herein, and no condition, event or act which with the giving of notice or the passage of time or both would constitute such an Event of Default shall have occurred and be continuing or shall exist.

 

(c)  No Material Adverse Change.  Since September 30, 2010, there shall have been no material adverse change, as reasonably determined by Bank, in the financial condition or business of any Loan Party, nor any material decline, as reasonably determined by Bank, in the market value of any collateral required hereunder or a substantial or material portion of the assets of any Loan Party.

 

(d)  Documentation.  Bank shall have received all additional documents which may be required in connection with such extension of credit or Letter of Credit, as the case may be.”

 

Section 2.5.  Addition of Section 6.3 to the Credit Agreement.  A new Section 6.3 is hereby added to and made part of the Credit Agreement and shall read as follows:

 

“SECTION 6.3. CASH COLLATERAL.     If any Event of Default shall occur and be continuing or the termination of the Agreement shall have occurred, Borrower shall, if requested by Lender, immediately deposit with and pledge to Lender cash or cash equivalent investments in an amount equal to the outstanding Letter of Credit Liabilities as security for the indebtedness and obligations of Borrower hereunder.”

Section 2.6.  Amendment to Section 7.4 of the Credit Agreement.  Subparagraph (c) of Section 7.4 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(c)           any and all other liabilities, losses, damages, penalties, judgments, suits, claims, costs and expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel) in connection with the foregoing and any other investigative, administrative or judicial proceedings, whether or not such Indemnitee shall be designated a party thereto, which may be imposed on, incurred by or asserted against any such Indemnitee, in any manner related to or arising out of or in connection with the making of any loans or advances hereunder, the use or intended use of the proceeds of such loans or advances or any Letter of Credit, or any and all taxes, levies, deductions, and charges imposed on Lender or any of Lender’s correspondents in respect of any Letter of Credit. Notwithstanding the foregoing, Borrower shall not be obligated to indemnify any Indemnitee for any Indemnified Liability caused by the gross negligence or willful misconduct of such Indemnitee.

 

Section 2.7.  Replacement of Borrowing Base Certificate.  The Borrowing Base Certificate attached as Exhibit A to the Credit Agreement is hereby amended and restated in its entirety with the form of Borrowing Base Certificate attached hereto as Exhibit A.

Section 3.1.  Conditions.  The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived by the Lender:

 

(a)  The following instruments shall have been duly and validly executed and delivered to Lender by the parties thereto, all in form, scope and content satisfactory to the Lender:

 

(i)  this Amendment executed by Borrower and Guarantors; and

 

(ii)  Resolutions of the Board of Directors (or other governing body) of Borrower and each Guarantor certified by the Secretary or an Assistant Secretary (or other custodian of records of each such entity) which authorize the execution, delivery, and performance by Borrower and each Guarantor of this Amendment and the other Loan Documents to be executed in connection herewith.

 

(b)  The representations and warranties contained herein, in the Credit Agreement, as amended hereby, and in each other Loan Document shall be true and correct as of the date hereof, as if made on the date hereof, except to the extent such representation and warranties relate to an earlier date.

 

(c)  No Event of Default shall have occurred and be continuing and no Default shall exist, unless such Event of Default or Default has been specifically waived in writing by Lender.

Section 4.1.  Ratifications.  The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect.  Borrower and Guarantors agree that the Credit Agreement, as amended hereby, and the other Loan Documents shall continue to be legal, valid, binding obligations of Borrower and Guarantors, enforceable against Borrower and Guarantors in accordance with their respective terms.

 

Section 4.2.  Renewal of Security Interests.  Each of Borrower and Guarantors hereby renews, regrants and affirms the liens and security interests created and granted in the Credit Agreement and in all other Loan Documents (including, without limitation, those certain Pledge and Security Agreements to which it is a party, as amended), to secure the prompt payment of all indebtedness and obligations of Borrower and each Guarantor under the Loan Documents as amended and increased by the terms hereof, including without limitation any Letter of Credit Liabilities.  Each of Borrower and Guarantors agree that this Amendment shall in no manner affect or impair the liens and security interests securing the indebtedness of Borrowers and Guarantors to Bank and that such liens and security interests shall not in any manner be waived, the purposes of this Amendment being to modify the Credit Agreement as herein provided, and to carry forward all liens and security interests securing same, which are acknowledged by Borrower and Guarantors to be valid and subsisting.

Section 4.3.  Representations and Warranties.  Borrower and Guarantors hereby represent and warrant to Lender as follows:

 

(a)  The execution, delivery and performance of this Amendment and any and all other Loan Documents executed and delivered in connection herewith have been authorized by all requisite corporate action on the part of Borrower and each Guarantor and do not and will not conflict with or violate any provision of any applicable laws, rules, regulations or decrees, the organizational documents of Borrower or any Guarantor, or any agreement, document, judgment, license, order or permit applicable to or binding upon Borrower or any Guarantor or their respective assets.  No consent, approval, authorization or order of, and no notice to or filing with, any court or governmental authority or third person is required in connection with the execution, delivery or performance of this Amendment or to consummate the transactions contemplated hereby;

 

(b)  The representations and warranties contained in the Credit Agreement, as amended hereby, and the other Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof, except to the extent such representations and warranties relate to an earlier date;

 

(c)  No Event of Default under the Credit Agreement or any Loan Document has occurred and is continuing;

 

(d)  Borrower and Guarantors are in full compliance with all covenants and agreements contained in the Credit Agreement, as amended hereby, and the other Loan Documents to which each is a party;

(e)  Neither Borrower nor any Guarantor has amended any of its organizational documents since the date of the execution of the Credit Agreement; and

 

(f)  As of the date of this Amendment, the unpaid principal amount of the Line of Credit Note is $0.00, which amount is unconditionally owed by Borrower to Bank without offset, defense or counterclaim of any kind or nature whatsoever.

 

Section 4.4.  Guarantors’ Consent and Ratification.  Each Guarantor hereby consents and agrees to the terms of this Amendment, and agrees that the Guaranty Agreement to which it is a party shall remain in full force and effect and shall continue to be the legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms.  Furthermore, each Guarantor hereby agrees and acknowledge that (a) the  Guaranty Agreements are Loan Document, (b) the Guaranty Agreements are not subject to any claims, defenses or offsets, (c) nothing contained in this Amendment or any other Loan Document shall adversely affect any right or remedy of Bank under the Guaranty Agreements, (d) the execution and delivery of this Amendment shall in no way reduce, impair or discharge any obligations of any Guarantor pursuant to the Guaranty Agreements and shall not constitute a waiver by Bank against any Guarantor, (e) by virtue hereof and by virtue of the Guaranty Agreements, each Guarantor hereby guarantees to Lender the prompt and full payment and full and faithful performance by the Borrower of the entirety of the Guaranteed Indebtedness (as defined in the Guaranty Agreements) including, without limitation, all amounts owing under the Line of Credit Note and all Letter of Credit Liabilities, (f) no Guarantor’s consent is required to the effectiveness of this Amendment, and (g) no consent by any Guarantor is required for the effectiveness of any future amendment, modification, forbearance or other action with respect to the Credit Agreement or any present or future Loan Document.

Section 5.1.  Survival of Representations and Warranties.  All representations and warranties made in the Credit Agreement or any other Loan Document, including without limitation, any Loan Document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Bank or any closing shall affect such representations and warranties or the right of Bank to rely thereon.

 

Section 5.2.  Reference to Credit Agreement.  Each of the Loan Documents, including the Credit Agreement and any and all other agreements, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby amended so that any reference in such Loan Documents to the Credit Agreement shall mean a reference to the Credit Agreement, as amended hereby.

 

Section 5.3.  Expenses of Bank.  As provided in the Credit Agreement, Borrower agrees to pay on demand all reasonable costs and expenses incurred by Bank in connection with the preparation, negotiation and execution of this Amendment and the other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements hereto, including, without limitation, the reasonable costs and fees of Bank’s legal counsel, and all reasonable costs and expenses incurred by Lender in connection with the enforcement or preservation of any rights under the Credit Agreement, as amended hereby, and any other Loan Document, including, without limitation, the reasonable costs and fees of Bank’s legal counsel.

 

 

Section 5.4.  RELEASE. BORROWER AND EACH GUARANTOR HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE BANK, ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN.  ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH BORROWER AND ANY GUARANTOR MAY NOW OR HEREAFTER HAVE AGAINST BANK, ITS DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY LOAN, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS, AND NEGOTIATIONS FOR AND EXECUTION OF THE LOAN DOCUMENTS.

 

Section 5.5.  Severability.  Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.

 

Section 5.6.  GOVERNING LAW.  THIS AMENDMENT SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.

 

Section 5.7.  Successors and Assigns.  This Amendment is binding upon and shall inure to the benefit of the parties hereto and their respective successors, assigns, heirs, executors, and legal representatives, except that none of the parties hereto other than Bank may assign or transfer any of its rights or obligations hereunder without the prior written consent of Bank.

 

Section 5.8.  WAIVER OF TRIAL BY JURY.  THE PARTIES HERETO AGREE THAT NO PARTY SHALL REQUEST A TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN THEM CONCERNING THE LOAN DOCUMENTS OR ANY CLAIMS OR TRANSACTIONS IN CONNECTION THEREWITH, IN EITHER A STATE OR FEDERAL COURT, THE RIGHT TO TRIAL BY JURY BEING EXPRESSLY WAIVED BY BANK, BORROWER AND GUARANTORS.  EACH OF BANK, BORROWER AND GUARANTORS ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.

 

Section 5.9.  Counterparts.  This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument.

 

Section 5.10.  Descriptive Headings.  The captions in this Amendment are for convenience only and shall not define or limit the provisions hereof.

 

Section 5.11.  ENTIRE AGREEMENT.  THIS AMENDMENT, THE CREDIT AGREEMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION WITH AND PURSUANT TO THIS AMENDMENT AND THE CREDIT AGREEMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.