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TO:
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WELLS FARGO BANK, NATIONAL
ASSOCIATION
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1. GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to
Subsidiaries (as defined below), or any of them, by WELLS FARGO
BANK, NATIONAL ASSOCIATION (“ Bank ”), and for
other valuable consideration, the undersigned LACROSSE FOOTWEAR,
INC., a Wisconsin corporation (“ Guarantor ”),
unconditionally guarantees and promises to pay to Bank, or order,
on demand in lawful money of the United States of America and in
immediately available funds, any and all Indebtedness of any of the
Subsidiaries to Bank. The term “ Indebtedness ”
is used herein in its most comprehensive sense and includes any and
all advances, debts, obligations and liabilities of Subsidiaries,
or any of them, heretofore, now or hereafter made, incurred or
created, whether voluntary or involuntary and however arising,
whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, including under any swap,
derivative, foreign exchange, hedge, deposit, treasury management
or other similar transaction or arrangement, and whether
Subsidiaries may be liable individually or jointly with others, or
whether recovery upon such Indebtedness may be or hereafter becomes
unenforceable. This Guaranty is a guaranty of payment and not
collection. The term “ Subsidiaries ” means
entities, whether foreign or domestic and whether now existing or
hereafter acquired or formed, of which more than 50% of the voting
stock or other equity interests are directly or indirectly owned or
controlled by Guarantor.
2. MAXIMUM
LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION UNDER
OTHER GUARANTIES. This is a continuing guaranty and all rights,
powers and remedies hereunder shall apply to all past, present and
future Indebtedness of each of the Subsidiaries to Bank, including
that arising under successive transactions which shall either
continue the Indebtedness, increase or decrease it, or from time to
time create new Indebtedness after all or any prior Indebtedness
has been satisfied, and notwithstanding the death, incapacity,
dissolution, liquidation or bankruptcy of any of the Subsidiaries
or Guarantor or any other event or proceeding affecting any of the
Subsidiaries or Guarantor, however, this Guaranty shall not apply
to any new Indebtedness of a Subsidiary created or resulting from
contract modifications entered into after Guarantor has sold such
Subsidiary, which modifications allow for the increase of
Indebtedness or after actual receipt by Bank of written notice of
its revocation as to such new Indebtedness; provided however, that
loans or advances made by Bank to any of the Subsidiaries after
revocation under commitments existing prior to receipt by Bank of
such revocation, and extensions, renewals or modifications, of any
kind, of Indebtedness incurred by any of the Subsidiaries or
committed by Bank prior to receipt by Bank of such revocation,
shall not be considered new Indebtedness. Any such notice must be
sent to Bank by registered U.S. mail, postage prepaid, addressed to
its office at Wells Fargo Bank, National Association, Portland
Regional Commercial Banking Office, 1300 S.W. Fifth Avenue, MAC
P6101-133, Portland, Oregon 97208, or at such other address as Bank
shall from time to time designate. Any payment by Guarantor shall
not reduce Guarantor’s maximum obligation hereunder unless
written notice to that effect is actually received by Bank at or
prior to the time of such payment. The obligations of Guarantor
hereunder shall be in addition to any obligations of Guarantor
under any other guaranties of any liabilities or obligations of any
of the Subsidiaries or any other persons heretofore or hereafter
given to Bank unless said other guaranties are expressly modified
or revoked in writing; and this Guaranty shall not, unless
expressly herein provided, affect or invalidate any such other
guaranties.
3. OBLIGATIONS
JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF
LIMITATIONS; REINSTATEMENT OF LIABILITY. The obligations hereunder
are joint and several and independent of the obligations of
Subsidiaries, and a separate action or actions may be brought and
prosecuted against Guarantor whether action is brought against any
of the Subsidiaries or any other person, or whether any of the
Subsidiaries or any other person is joined in any such action or
actions. Guarantor acknowledges that this Guaranty is absolute and
unconditional, there are no conditions precedent to the
effectiveness of this Guaranty, and this Guaranty is in full force
and effect and is binding on Guarantor as of the date written
below, regardless of whether Bank obtains collateral or any
guaranties from others or takes any other action contemplated by
Guarantor. Guarantor agrees that any payment of any Indebtedness or
other act which shall toll any statute of limitations applicable
thereto shall similarly operate to toll such statute of limitations
applicable to Guarantor’s liability hereunder. The liability
of Guarantor hereunder shall be reinstated and revived and the
rights of Bank shall continue if and to the extent for any reason
any amount at any time paid on account of any Indebtedness
guaranteed hereby is rescinded or must otherwise be restored by
Bank, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, all as though such amount had not been
paid. The determination as to whether any amount so paid must be
rescinded or restored shall be made by Bank in its reasonable
discretion; provided however, that if Bank
chooses to
contest any such matter at the request of Guarantor, Guarantor
agrees to indemnify and hold Bank harmless from and against all
costs and expenses, including reasonable attorneys’ fees,
expended or incurred by Bank in connection therewith, including
without limitation, in any litigation with respect
thereto.
4. AUTHORIZATIONS
TO BANK. Guarantor authorizes Bank either before or after
revocation hereof, without notice to or demand on Guarantor, and
without affecting Guarantor’s liability hereunder, from time
to time to: (a) alter, compromise, renew, extend, accelerate
or otherwise change the time for payment of, or otherwise change
the terms of the Indebtedness or any portion thereof, including
increase or decrease of the rate of interest thereon; (b) take
and hold security for the payment of this Guaranty or the
Indebtedness or any portion thereof, and exchange, enforce, waive,
subordinate or release any such security; (c) apply such
security and direct the order or manner of sale thereof, including
without limitation, a non-judicial sale permitted by the terms of
the controlling security agreement, mortgage or deed of trust, as
Bank in its discretion may determine; (d) release or
substitute any one or more of the endorsers or any other guarantors
of the Indebtedness, or any portion thereof, or any other party
thereto; and (e) apply payments received by Bank from any of
the Subsidiaries to any Indebtedness of any of the Subsidiaries to
Bank, in such order as Bank shall determine in its sole discretion,
whether or not such Indebtedness is covered by this Guaranty, and
Guarantor hereby waives any provision of law regarding application
of payments which specifies otherwise. Bank may without notice
assign this Guaranty in whole or in part. Upon Bank’s
request, Guarantor agrees to provide to Bank copies of
Guarantor’s financial statements.
5. REPRESENTATIONS
AND WARRANTIES. Guarantor represents and warrants to Bank that:
(a) this Guaranty is executed at Subsidiaries’ request;
(b) intentionally deleted; (c) Bank has made no
representation to Guarantor as to the creditworthiness of any of
the Subsidiaries; and (d) Guarantor has established adequate means
of obtaining from each of the Subsidiaries on a continuing basis
financial and other information pertaining to Subsidiaries’
financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events or circumstances which might
in any way affect Guarantor’s risks hereunder, and Guarantor
further agrees that Bank shall have no obligation to disclose to
Guarantor any information or material about any of the Subsidiaries
which is acquired by Bank in any manner.
(a) Guarantor
waives any right to require Bank to: (i) proceed against any
of the Subsidiaries or any other person; (ii) marshal assets
or proceed against or exhaust any security held from any of the
Subsidiaries or any other person; (iii) (except with respect
to Subsidiaries which have been sold by Guarantor) give notice of
the terms, time and place of any public or private sale or other
disposition of personal property security held from any of the
Subsidiaries or any other person; (iv) take any other action
or pursue any other remedy in Bank’s power; or (v) make
any presentment or demand for performance, or give any notice of
nonperformance, protest, notice of protest or notice of dishonor
hereunder or in connection with any obligations or evidences of
indebtedness held by Bank as security for or which constitute in
whole or in part the Indebtedness guaranteed hereunder, or in
connection with the creation of new or additional
Indebtedness.
(b) Guarantor
waives any defense to its obligations hereunder based upon or
arising by reason of: (i) any disability or other defense of
any of the Subsidiaries or any other person; (ii) the
cessation or limitation from any cause whatsoever, other than
payment in full, of the Indebtedness of any of the Subsidiaries or
any other person; (iii) any lack of authority of any officer,
director, partner, agent or any other person acting or purporting
to act on behalf of any of the Subsidiaries which is a corporation,
partnership or other type of entity, or any defect in the formation
of any such Borrower; (iv) the application by any of the
Subsidiaries of the proceeds of any Indebtedness for purposes other
than the purposes represented by Subsidiaries to, or intended or
understood by, Bank or Guarantor; (v) except for (A) a
breach of contract by Bank, (B) Bank’s gross negligence
or (C) Bank’s willful misconduct, in each case as
determined by a final decision of an arbitrator(s) or a court, any
act or omission by Bank which directly or indirectly results in or
aids the discharge of any of the Subsidiaries or any portion of the
Indebtedness by operation of law or otherw
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