THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND OTHER LOAN DOCUMENTS
This Third Amendment to Loan and Security Agreement and Other Loan Documents
(this "Amendment") is made as of March 8, 2013, by and between ARI NETWORK
SERVICES, INC., a Wisconsin corporation (-Borrower"), and FIFTH THIRD BANK, an Ohio
banking corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower and Lender are parties to that certain Loan and Security
Agreement dated as of July 27, 2011, as amended from time to time (as amended, and as it may
be further amended, restated, modified or supplemented and in effect from time to time, the
-Loan Agreement"); and
WHEREAS, Borrower has requested that Lender amend the Loan Agreement and the
other Loan Documents in certain respects, and Lender is agreeable to such request, on and
subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Definitions. Capitalized terms used herein and defined in the Loan Agreement
and not otherwise defined herein are used with the meanings given such terms in the Loan
Agreement.
2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as
follows:
(a) by inserting each of the following definitions to Section 1.1 in their
respective proper alphabetical order:
“Adjusted EBITDA" shall mean, for any period, (a) the sum for
such period of: (i) consolidated Net Income, plus (ii) Interest Charges,
plus (iii) federal and state income taxes, plus (iv) depreciation and
amortization, plus (v) non-cash expenses limited to bonuses and board
director fees paid in stock (provided, however, any and all conversion of
non-cash expenses into cash payments shall not be permitted unless
Borrower has received express prior written consent from Lender), plus
(vi) actual transaction expenses ("Transaction Expenses") in an amount
not to exceed the amounts set forth below for the corresponding periods
set forth below incurred by Borrower in connection with closing the
Purchase Transaction and the 50 Below Purchase Transaction, provided
that all such transaction expenses are verified by Lender and consented to
by Lender in its sole discretion (which consent shall not be unreasonably
withheld), plus (vii) actual fees and expenses (-Third Amendment Fees
and Expenses") in an amount not to exceed the amounts set forth below
for the corresponding periods set forth below incurred by Borrower in
connection with the Third Amendment, provided that all such fees and
expenses are verified by Lender and consented to by Lender in its sole
discretion (which consent shall not be unreasonably withheld), in each
case to the extent included in determining Net Income for such period:
Maximum Third
Maximum Transaction Amendment Fees
Expenses Permitted and Exenses Permitted
to be added back to to be added back to
Quarter Ended EBIDTA EBITDA
July 31, 2012 $ 50,000 $ 0.00
October 31, 2012 200,000 0.00
January 31, 2013 400,000 0.00
April 30, 2013 0 65,000
July 31, 2013 and thereafter 0 0.00
"Equity Raise Transaction" shall have the meaning set forth in the
Third Amendment.
“Fundamental Transaction" shall mean (i) any merger or
consolidation of Borrower with or into another Person, or (ii) any sale,
lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of Borrower's assets in one or a series of related
transactions, or (iii) any purchase offer, tender offer or exchange offer
(whether by Borrower or another Person) that is completed pursuant to
which holders of Borrower's common stock are permitted to sell, tender or
exchange their shares for other securities, cash or property and which has
been accepted by the holders of 50% or more of the outstanding
Borrower's common stock, or (iv) Borrower effects any reclassification,
reorganization or recapitalization of its common stock or any compulsory
share exchange pursuant to which any of its common stock is effectively
converted into or exchanged for other securities, cash or property, or (v)
Borrower consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with any other Person
or group of Persons whereby such other Person or group acquires more
than 50% of the outstanding shares of the Borrower's common stock (not
including any shares of common stock held by the other Person or other
Persons making or party to, or associated or affiliated with the other
Persons making or party to, such stock or share purchase agreement or
other business combination), or (vi) any other transaction or occurrence
which is a "Fundamental Transaction" for purposes of section 3 of any of
the warrants issued or to be issued by Borrower in connection with the
Equity Raise Transaction.
“Third Amendment" shall mean that certain Third Amendment to
Loan and Security Agreement and Other Loan Documents dated as of
March 8, 2013 by and between Borrower and Lender, together with each
Consent and Reaffirmation of Guaranty by the applicable Guarantor
attached thereto.
(b) by amending and restating each of the following definitions in Section 1.1
as follows:
"EBITDA" shall mean, for any period, (a) the sum for such period
of (i) consolidated Net Income, plus (ii) Interest Charges, plus (iii) federal
and state income taxes, plus (iv) depreciation and amortization, plus actual
transaction expenses in an amount not to exceed the amounts set forth
below for the corresponding periods set forth below incurred by Borrower
in connection with closing the Purchase Transaction and the 50 Below
Purchase Transaction, provided that all such transaction expenses are
verified by Lender and consented to by Lender in its sole discretion
(which consent shall not be unreasonably withheld), in each case to the
extent included in determining Net Income for such period.
Maximum Transaction
Expenses Permitted to be
Quarter Ended Added back to EBITDA
July 31, 2012 $ 50,000
October 31, 2012 $ 200,000
January 31, 2013 $ 400,000
April 30, 2013 and thereafter $ 0.00
"Pledge Agreement" shall mean that certain Membership Interests
Security Agreement dated as of July 27, 2011 made by Borrower in favor
of Lender, and acknowledged to by ARE Europe B.V., in form and
substance acceptable to Lender, as it may be amended, restated, modified
or supplemented and in effect from time to time.
(c) by inserting the following as Section 2.2(f):
(f) Additional Term Loan Mandatory Prepayments. In
addition to the foregoing, Borrower shall make a mandatory prepayment
of the outstanding principal amount of the Term Loan concurrently with
the receipt by Borrower or by any Subsidiary of any net cash proceeds
generated from the Equity Raise Transaction in an amount equal to one
hundred percent (100%) of the first $1,500,000.00 of such net cash
proceeds. Such prepayment of the Term Loan shall be applied to the
scheduled installments of the Term Loan in inverse order of maturity.
(d) by amending and restating Section 6.2 in its entirety to read as follows:
6.2 Other Collateral. In addition, the Obligations are also
secured by the Pledge Agreement, the Guaranties, the Securities Pledge
Agreement and the Security Agreement.
(e) by inserting the following as Section 8.22:
8.22 Personal Financial Statements. Borrower shall deliver or
cause to be delivered, within one hundred twenty (120) days after the end
of each calendar year, a personal financial statement of Xxx X. Xxxxxxx for
such year, in form and substance acceptable to Lender and certified by
Xxx X. Xxxxxxx as true, correct and complete in all respects.
(f) by amending and restating Section 9.4 in its entirety to read as follows:
9.4 Transfer; Merger; Sales. Borrower shall not and not permit
any Subsidiary to, whether in one transaction or a series of related
transactions, (a) be a party to any Fundamental Transaction or any merger
or consolidation, or purchase or otherwise acquire all or substantially all of
the assets or any Capital Securities of any class of, or any partnership or
joint venture interest in, any other Person, except for (i) any such merger,
consolidation, sale, transfer, conveyance, lease or assignment of or by any
Wholly-Owned Subsidiary into Borrower or into any other domestic
Wholly-Owned Subsidiary; (ii) any such purchase or other acquisition by
Borrower or any domestic Wholly-Owned Subsidiary of the assets or
equity interests of any Wholly-Owned Subsidiary, (b) sell, transfer,
convey or lease all or any substantial part of its assets or Capital Securities
(including the sale of Capital Securities of any Subsidiary), except for
sales of Inventory in the ordinary course of business, or (c) sell or assign,
with or without recourse, any receivables other than receivables deemed
uncollectable by Borrower and transferred to third party collection
agencies.
(g) by amending and restating Section 9.5 in its entirety to read as follows:
9.5 Issuance of Capital Securities. Borrower shall not and shall
not permit any Subsidiary to issue any Capital Securities other than (a) any
issuance of shares of Borrower's common Capital Securities pursuant to
any option program, (b) the issuance of preferred stock pursuant to the
Rights Plan dated as of August 7, 2003 between Borrower and American
Stock Transfer & Trust Company, (c) any issuance of Capital Securities
by a Subsidiary to Borrower or another Subsidiary in accordance with
Section 9.6, (d) the issuance of common Capital Securities to Sifen in
connection with the Sifen Subordinated Loan Transaction, or (e) the
issuance of Capital Securities in connection with the Equity Raise
Transaction.
(h) by amending and restating the last sentence of Section 9.6 in its entirety to
read as follows:
Notwithstanding the foregoing, (i) any Subsidiary may pay dividends or
make other distributions to Borrower or to a domestic Wholly-Owned
Subsidiary; (ii) Borrower may make Earn-Out Payments and Holdback
Payments to the extent permitted under the Subordination Agreement; and
(iii) Borrower may (A) make regularly scheduled payments of interest to
Sifen under the Sifen Subordinated Loan Documents to the extent
permitted under the Sifen Subordination Agreement, and (B) if, upon
making the prepayment of the Term Loan as required under Section 2.2(f)
hereof, there shall be net cash proceeds of the Equity Raise Transaction in
excess of $1,500,000.00, then Borrower may use any or all of the
remainder of such excess net cash proceeds (and only such funds) to make
a principal prepayment of the Sifen Subordinated Loan or for working
capital.
|
(i) |
by amending and restating Section 10.1 in its entirety to read as follows: |
10.1 Fixed Charge Coverage Ratio. As of the end of each of its
fiscal quarters for the four fiscal quarter period then ending, Borrower and
its Subsidiaries shall maintain a ratio of (a) consolidated Adjusted
EB1TDA plus rent and operating lease payments, minus cash taxes paid,
distributions, dividends and Capital Expenditures (other than Capital
Expenditures financed with the proceeds of purchase money Debt or
Capitalized Lease Obligations to the extent permitted under this
Agreement) and other non-cash extraordinary items (excluding
extraordinary gains related to the Meppel sale in the amount of $70,000
and the Life Insurance sale in the amount of $123,000). to (b) the
consolidated sum of (i) Interest Charges of Borrower and its Subsidiaries
for such period paid in cash, plus (ii) all scheduled principal payments for
such period with respect to all Debt that were paid or were due and
payable by Borrower and its Subsidiaries during such period plus rent and
operating lease expense incurred in the same such period (the "Fixed
Charge Coverage Ratio"), of not less than the ratio set forth below for the
corresponding period set forth below:
Period Ratio
For the four fiscal quarter period ending on
January 31, 2013 0.90 to 1.00
For the four fiscal quarter period ending on
April 30, 2013 1.00 to 1.00
For the four fiscal quarter period ending on
July 31, 2013. 1.15 to 1.00
For the four fiscal quarter period ending on
October 31, 2013 and on the last day of
each fiscal quarter ending thereafter 1.20 to 1.00
3. Second Amended and Restated Revolving Note. That certain Amended and
Restated Revolving Note dated as of August 17, 2012 executed by Borrower and made payable
to the order of Lender in the maximum principal amount of $1.500,000.00 (the "Existing
Revolving Note") is hereby replaced with that certain Second Amended and Restated Revolving
Note dated as of even date herewith executed by Borrower and made payable to the order of
Lender in the maximum principal amount of $1,500,000.00 (the "Second Amended and Restated
Revolving Note"). The Second Amended and Restated Revolving Note amends and restates in
its entirety the Existing Revolving Note. Nothing contained in the Second Amended and
Restated Revolving Note shall be deemed to be payment and satisfaction or a novation of the
indebtedness evidenced by the Existing Revolving Note. All references in the Loan Agreement
and the other Loan Documents to "Revolving Note" shall, on and after the date hereof upon the
effectiveness of this Amendment, be deemed to mean the Second Amended and Restated
Revolving Note.
4. Second Amended and Restated Term Note. That certain Amended and Restated
Term Note dated as of August 17, 2012 executed by Borrower and made payable to the order of
Lender in the principal amount of $4,889,000.04 (the "Existing Term Note") is hereby replaced
with that certain Second Amended and Restated Term Note dated as of even date herewith
executed by Borrower and made payable to the order of Lender in the principal amount of
$4,305,666.73 (the "Second Amended and Restated Term Note”). The Second Amended and
Restated Term Note amends and restates in its entirety the Existing Term Note. Nothing
contained in the Second Amended and Restated Term Note shall be deemed to be payment and
satisfaction or a novation of the indebtedness evidenced by the Existing Term Note. All
references in the Loan Agreement and the other Loan Documents to "Term Note" shall, on and
after the date hereof upon the effectiveness of this Amendment, be deemed to mean the Second
Amended and Restated Term Note.
5. Amendment to the Other Loan Documents. The other Loan Documents are
hereby amended to the extent necessary to be consistent with the foregoing amendments to the
Loan Agreement and the amendment and restatement of the Revolving Note and the Term Note.
6. Consent to Equity Raise Transaction. Borrower has informed Lender that
Borrower intends to issue and sell to certain purchasers common stock and warrants to purchase
common stock of Borrower for a net purchase price of not less than $1,500,000.00 on or before
May 15, 2013 on and subject to the terms of a Securities Purchase Agreement, Registration
Rights Agreement and Common Stock Purchase Warrant by and between Borrower and each of
the purchasers, the forms of which have been provided to Lender, and, in connection therewith,
issue warrants to purchase common stock to Borrower's placement agent on terms identical in all
material respects to such form of Common Stock Purchase Warrant, for fair consideration as
approved by Borrower's Board of Directors (the "Equity Raise Transaction"). Certain
provisions of the Loan Agreement prohibit or can be construed to prohibit. the Equity Raise
Transaction, and Borrower has requested that Lender consent to the Equity Raise Transaction
and waive any provisions of the Loan Agreement which would otherwise prohibit the Equity
Raise Transaction. Subject to the terms and conditions hereof Lender hereby consents to the
Equity Raise Transaction and waives any Events of Default otherwise created thereby. The
consent and waiver set forth herein shall be effective only in the specific instances and for the
specific purposes set forth herein and shall neither extend to any other violations under, or
default of, the Loan Agreement, nor shall this consent and waiver prejudice any rights or
remedies of Lender under the Loan Agreement with respect to matters not specifically addressed
hereby. Notwithstanding anything to the contrary contained herein, Borrower hereby agrees that
(i) in the event that the Equity Raise Transaction does not generate at least $250,000.00 of
aggregate net cash proceeds on or before May 15, 2013 or any portion of the first $1,500,000.00
of such net cash proceeds are not used to prepay the outstanding principal balance of the Term
Loan as required under Section 2.2(f), an Event of Default shall be deemed to have occurred, (ii)
in the event that the Equity Raise Transaction does not generate at least $1,500,000.00 of
aggregate net cash proceeds on or before May 15, 2013 or any portion of such $1,500,000.00
amount is not used to prepay the outstanding principal amount of the Term Loan as required
under Section 2.2(f), Borrower shall pay to Lender a nonrefundable fee in the amount of
$100,000.00 on or before May 16, 2013, and (iii) in any event, one hundred percent (100%) of
the first $1,500,000.00 of the aggregate net cash proceeds generated from the Equity Raise
Transaction shall be used to prepay the outstanding principal amount of the Term Loan as
required under Section 2.2(f).
7. Waiver. Section 9(d) of the Second Amendment required that Borrower deliver
to Lender an original of a Collateral Access Agreement with respect to the leased property
located in Duluth, Minnesota (or such other Minnesota location or any other locations for the 50
Below business), in form and substance acceptable to Lender, together with a fully-executed
copy of the lease, on or before December 28, 2012. Borrower delivered to Lender a Collateral
Access Agreement and a copy of the lease subsequent to that date. Lender hereby waives
Borrower's violation of Section 9(d) of the Second Amendment and the Event of Default created
thereby. The waiver set forth herein shall be effective only in the specific instance and for the
specific purpose set forth herein and shall neither extend to any other violations under, or default
of this Amendment, the Loan Agreement or any of the other Loan Documents, nor shall this
waiver prejudice any rights or remedies of Lender under this Amendment, the Loan Agreement
and the other Loan Documents with respect to matters not specifically addressed hereby.
8. Reaffirmation and Confirmation of Security Interests. Borrower hereby confirms
to Lender that Borrower has granted to Lender a security interest in or Lien upon substantially all
of the property of Borrower, including, without limitation, the Collateral, to secure the
Obligations. Borrower hereby reaffirms its grant of such security interest and Lien to Lender for
such purpose in all respects.
9. Representations and Warranties. Borrower hereby represents, warrants and
covenants to Lender that:
(a) Authorization. Borrower is duly authorized to execute and deliver this
Amendment and all deliveries required hereunder, and is and will continue to be duly authorized
to borrow monies under the Loan Agreement, as amended hereby, and to perform its obligations
under the Loan Agreement and the other Loan Documents.
(b) No Conflicts. The execution and delivery of this Amendment, the Second
Amended and Restated Revolving Note, the Second Amended and Restated Term Note and all
other deliveries required hereunder, and the performance by Borrower of its obligations under
the Loan Agreement and the other Loan Documents do not and will not conflict with any
provision of law or of the charter or by-laws of Borrower or of any agreement binding upon
Borrower.
(c) Validity and Binding Effect. This Amendment, the Loan Agreement and
the other Loan Documents are a legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the availability of
equitable remedies.
(d) No Events of Default. As of the date hereof and after giving effect to the
amendments set forth herein and the waiver set forth in Section 7 hereof, no Unmatured Default
or Event of Default under the Loan Agreement or any of the other Loan Documents has occurred
or is continuing.
(e) Warranties. As of the date hereof, the representations and warranties in
the Loan Agreement and the other Loan Documents are true and correct as though made on such
date, except where a different date is specifically indicated.
10. Conditions to Effectiveness. This Amendment shall be deemed to be effective as
of the date hereof (the "Amendment Effective Date"), and the effectiveness of this Amendment
shall be subject to, the satisfaction of all of the following conditions:
(a) A pdf of this Amendment, duly authorized and fully executed by Borrower
and Lender, and a pdf of each Consent and Reaffirmation of Guaranty attached hereto and made
a part hereof, duly authorized and fully executed by the applicable Guarantor, shall have been
delivered to Lender; provided, however, Borrower agrees that it shall deliver or cause to be
delivered a fully-executed original of each of the foregoing within three (3) Business Days of the
date hereof.
(b) A pdf of the Second Amended and Restated Revolving Note, duly
authorized and fully executed by Borrower, shall have been delivered to Lender; provided,
however, Borrower agrees that it shall deliver a fully-executed original of the Second Amended
and Restated Revolving Note within three (3) Business Days of the date hereof.
(c) A pdf of the Second Amended and Restated Term Note, duly authorized
and fully executed by Borrower, shall have been delivered to Lender; provided, however,
Borrower agrees that it shall deliver a fully-executed original of the Second Amended and
Restated Term Note within three (3) Business Days of the date hereof.
(d) Payment by Borrower to Lender of a $30,000.00 amendment fee, which
amendment fee shall be fully earned and due and payable on the date hereof.
(e) Such other documents, instruments, agreements, certificates and opinions
as Lender may reasonably request in order to effectuate fully the transactions contemplated
herein shall have been duly executed and delivered to Lender.
11. Costs and Expenses. Borrower shall pay all costs and expenses in connection
with the preparation of this Amendment and other related Loan Documents, including, without
limitation, reasonable attorneys' fees and expenses.
12. Acknowledgment; Release.
(A) BORROWER HEREBY ACQUITS, AND FOREVER DISCHARGES,
LENDER AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY, AFFILIATE,
STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF LENDER FROM ANY AND ALL CLAIMS,
CAUSES OF ACTION, SUITS, DEBTS, LIENS, OBLIGATIONS, LIABILITIES,
DEMANDS, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) OF
ANY KIND, CHARACTER, OR NATURE WHATSOEVER, KNOWN OR UNKNOWN,
FIXED OR CONTINGENT, WHICH BORROWER MAY HAVE OR CLAIM TO HAVE
NOW OR WHICH MAY HEREAFTER ARISE OUT OF OR BE CONNECTED WITH
ANY ACT OF COMMISSION OR OMISSION OF LENDER EXISTING OR
OCCURRING PRIOR TO THE DATE OF THIS AMENDMENT, OR ANY
INSTRUMENT EXECUTED PRIOR TO THE DATE OF THIS AMENDMENT,
ARISING WITH RESPECT TO THIS AMENDMENT, THE LOAN AGREEMENT, THE
OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREIN AND THEREIN.
13. Miscellaneous.
(a) Captions. Section captions and headings used in this Amendment are for
convenience only and are not part of and shall not affect the construction of this Amendment.
(b) Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict of laws principles.
Whenever possible, each provision of this Amendment shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Amendment.
(c) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which shall together
constitute but one and the same document.
(d) Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
(e) References. From and after the Amendment Effective Date, any reference
to the Loan Agreement or the other Loan Documents contained in any notice, request, certificate
or other instrument, document or agreement executed concurrently with or after the execution
and delivery of this Amendment shall be deemed to include this Amendment unless the context
shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained herein, the
terms of this Amendment are not intended to and do not serve to effect a novation as to the Loan
Agreement. The parties hereto expressly do not intend to extinguish the Loan Agreement.
Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under
the Loan Agreement which is evidenced by the Notes provided for therein and secured by the
Collateral. The Loan Agreement and each of the other Loan Documents, except as modified
hereby, remain in full force and effect and are hereby reaffirmed in all respects.
(g) Customer Identification - USA Patriot Act Notice; OFAC and Bank
Secrecy Act. Lender hereby notifies Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the "Act"), and
Lender's policies and practices, Lender is required to obtain, verify and record certain
information and documentation that identifies Borrower, which information includes the name
and address of Borrower and such other information that will allow Lender to identify Borrower
in accordance with the Act. In addition, Borrower shall (a) ensure that no person who owns a
controlling interest in or otherwise controls Borrower or any subsidiary of Borrower is or shall
be listed on the Specially Designated Nationals and Blocked Person List or other similar lists
maintained by the Office of Foreign Assets Control (-0FAC-), the Department of the Treasury
or included in any Executive Orders, (b) not use or permit the use of the proceeds of the Loan to
violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive
Order relating thereto, and (c) comply, and cause any of its subsidiaries to comply, with all
applicable Bank Secrecy Act (-BSA") laws and regulations, as amended.
IN WITNESS WHEREOF, the parties have executed this Third Amendment to Loan and
Security Agreement and Other Loan Documents as of the date first set forth above.
BORROWER:
ARI NETWORK SERVICES, INC., a Wisconsin Corporation
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
V.P. of Finance and CFO
LENDER:
FIFTH THIRD BANK, an Ohio Banking Corporation
By: /s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Vice President
CONSENT AND REAFFIRMATION OF GUARANTY
Project Viking II Acquisition, Inc., a Wisconsin corporation ("Project Viking"), is a
guarantor of Borrower to Lender under the terms of that certain Continuing Unconditional
Guaranty dated as of November 28, 2012 made by Project Viking in favor of Lender (as
amended, restated, modified or supplemented and in effect from time to time, the "Project
Viking Guaranty").
Project Viking hereby expressly: (a) consents to the execution by Borrower and Lender
of the above Third Amendment to Loan and Security Agreement and Other Loan Documents
(the "Third Amendment"), the Second Amended and Restated Revolving Note and the Second
Amended and Restated Term Note; (b) acknowledges that the "Borrower's Liabilities- (as
defined in the Project Viking Guaranty) includes all of the obligations and liabilities owing from
time to time by Borrower to Lender, including, but not limited to, the obligations and liabilities
of Borrower to Lender under and pursuant to the Loan Agreement, as amended from time to
ti me; (c) acknowledges that Project Viking does not have any set-off, defense or counterclaim to
the payment or performance of any of the obligations of Borrower under the Loan Agreement or
Project Viking under the Project Viking Guaranty; (d) reaffirms, assumes and binds itself in all
respects to all of the obligations, liabilities, duties, covenants, terms and conditions that are
contained in the Project Viking Guaranty; (e) agrees that all such obligations and liabilities under
the Project Viking Guaranty shall continue in full force and that the execution and delivery of the
Third Amendment to, and its acceptance by, Lender shall not in any manner whatsoever (i)
impair or affect the liability of Project Viking to Lender under the Project Viking Guaranty, (ii)
prejudice, waive, or be construed to impair, affect, prejudice or waive the rights and abilities of
Lender at law, in equity or by statute, against Project Viking pursuant to the Project Viking
Guaranty, and/or (iii) release or discharge, nor be construed to release or discharge, any of the
obligations and liabilities owing to Lender by Project Viking under the Project Viking Guaranty;
(f) represents and warrants that each of the representations and warranties made by Project
Viking in any of the documents executed in connection with the Loans remain true and correct as
of the date hereof; and (g) acknowledges and agrees that the Project Viking Guaranty is
continuing and unconditional and shall not terminate until the indefeasible payment in full to
Lender of Borrower's Liabilities.
PROJECT VIKING HEREBY ACQUITS, AND FOREVER DISCHARGES,
LENDER AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY, AFFILIATE,
STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF LENDER FROM ANY AND ALL CLAIMS,
CAUSES OF ACTION, SUITS, DEBTS, LIENS, OBLIGATIONS, LIABILITIES,
DEMANDS, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) OF
ANY KIND, CHARACTER, OR NATURE WHATSOEVER, KNOWN OR UNKNOWN,
FIXED OR CONTINGENT, WHICH PROJECT VIKING MAY HAVE OR CLAIM TO
HAVE NOW OR WHICH MAY HEREAFTER ARISE OUT OF OR BE CONNECTED
WITH ANY ACT OF COMMISSION OR OMISSION OF LENDER EXISTING OR
OCCURRING PRIOR TO THE DATE OF THE THIRD AMENDMENT OR ANY
INSTRUMENT EXECUTED PRIOR TO THE DATE OF THE THIRD AMENDMENT
ARISING WITH RESPECT TO THE PROJECT VIKING GUARANTY, THE THIRD
AMENDMENT, THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS AND
THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN.
PROJECT VIKING II ACQUISITION, INC., a Wisconsin corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: VP of Finance and CFO
CONSENT AND REAFFIRMATION OF GUARANTY
Xxx X. Xxxxxxx, an individual (-Olivier"), is a guarantor of Borrower to Lender under the
terms of that certain Continuing Unconditional Limited Guaranty dated as of November 28, 2012
made by Olivier in favor of Lender (as amended, restated, modified or supplemented and in
effect from time to time, the "Olivier Guaranty").
Olivier hereby expressly: (a) consents to the execution by Borrower and Lender of the
above Third Amendment to Loan and Security Agreement and Other Loan Documents (the
"Third Amendment"), the Second Amended and Restated Revolving Note and the Second
Amended and Restated Term Note; (b) acknowledges that the "Borrower's Liabilities - (as
defined in the Olivier Guaranty) includes all of the obligations and liabilities owing from time to
ti me by Borrower to Lender, including, but not limited to, the obligations and liabilities of
Borrower to Lender under and pursuant to the Loan Agreement, as amended from time to time;
(c) acknowledges that Olivier does not have any set-off, defense or counterclaim to the payment
or performance of any of the obligations of Borrower under the Loan Agreement or Olivier
under the Olivier Guaranty; (d) reaffirms, assumes and binds himself in all respects to all of the
obligations, liabilities, duties, covenants, terms and conditions that are contained in the Olivier
Guaranty; (e) agrees that all such obligations and liabilities under the Olivier Guaranty shall
continue in full force and that the execution and delivery of the Third Amendment to, and its
acceptance by, Lender shall not in any manner whatsoever (i) impair or affect the liability of
Olivier to Lender under the Olivier Guaranty. (ii) prejudice, waive, or be construed to impair,
affect, prejudice or waive the rights and abilities of Lender at law, in equity or by statute, against
Olivier pursuant to the Olivier Guaranty. and/or (iii) release or discharge, nor be construed to
release or discharge, any of the obligations and liabilities owing to Lender by Olivier under the
Olivier Guaranty; (t) represents and warrants that each of the representations and warranties
made by Olivier in any of the documents executed in connection with the Loans remain true and
correct as of the date hereof; and (g) acknowledges and agrees that the Olivier Guaranty is
continuing and unconditional and shall not terminate until the indefeasible payment in full to
Lender of Borrower's Liabilities, except as provided in the Olivier Guaranty.
In addition the foregoing, Olivier hereby covenants and agrees that he shall furnish to
Lender within one hundred twenty (120) days after the end of each calendar year, a personal
financial statement for Olivier for such year, in form and substance acceptable to Lender and
certified by Olivier as true, correct and complete in all respects.
OLIVIER HEREBY ACQUITS, AND FOREVER DISCHARGES, LENDER AND
EACH AND EVERY PAST AND PRESENT SUBSIDIARY, AFFILIATE,
STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF LENDER FROM ANY AND ALL CLAIMS,
CAUSES OF ACTION, SUITS, DEBTS, LIENS, OBLIGATIONS, LIABILITIES,
DEMANDS, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) OF
ANY KIND, CHARACTER, OR NATURE WHATSOEVER, KNOWN OR UNKNOWN,
FIXED OR CONTINGENT, WHICH OLIVIER MAY HAVE OR CLAIM TO HAVE
NOW OR WHICH MAY HEREAFTER ARISE OUT OF OR BE CONNECTED WITH
ANY ACT OF COMMISSION OR OMISSION OF LENDER EXISTING OR
OCCURRING PRIOR TO THE DATE OF THE THIRD AMENDMENT OR ANY
INSTRUMENT EXECUTED PRIOR TO THE DATE OF THE THIRD AMENDMENT
ARISING WITH RESPECT TO THE OLIVIER GUARANTY, THE THIRD
AMENDMENT, THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS AND
THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN.
By: /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx
CEO
