AMENDMENT
This Amendment (this "Amendment") is entered into as of this 31st day
of December, 2001, by and among LaCrosse Footwear, Inc. ("LaCrosse") and Xxxxxx
Shoe Manufacturing Co., ("Xxxxxx") (LaCrosse and Xxxxxx collectively referred to
as "Borrowers") and General Electric Capital Corporation, a New York corporation
("Agent").
WHEREAS, pursuant to that certain Credit Agreement dated as of June 15,
2001, by and among Borrowers, Agent and Lenders (including all annexes, exhibits
and schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Credit Agreement"), Lenders have made Loans to, and
incurred Letter of Credit Obligations on behalf of, the Borrowers;
WHEREAS, Borrowers have entered into a Security Agreement with Agent
dated as of June 15, 2001, whereby Borrowers have granted Liens to Agent to
secure payment of the obligations (the "Security Agreement");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in furtherance of the
Borrowers' duties to give further assurances to the Agent and Lenders pursuant
to the terms of the Credit Agreement and the Security Agreement, the parties
hereto agree as follows:
1. Defined Terms.
a. Each definition from Annex A to the Credit Agreement set forth on
Schedule A attached hereto is amended and restated in its entirety to read as
set forth on Schedule A attached hereto.
b. The following defined terms are added to Annex A to the Credit
Agreement in alphabetical order:
"Deposit Accounts" means all "deposit accounts" as such term
is defined in the Code, now or hereafter held in the name of any Credit
Party.
"Letter-of-Credit Rights" means letter-of-credit rights as
such term is defined in the Code, now owned or hereafter acquired by
any Credit Party, including rights to payment or performance under a
letter of credit, whether or not such Credit Party, as beneficiary, has
demanded or is entitled to demand payment or performance.
"Software" means all "software" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, other than
software embedded in any category of goods, including all computer
programs and all supporting information provided in connection with a
transaction related to any program.
"Supporting Obligations" means all supporting obligations as
such term is defined in the Code, including letters of credit and
guaranties issued in
support of Accounts, Chattel Paper, Documents, General Intangibles,
Instruments, or Investment Property.
"Uniform Commercial Code jurisdiction" means any jurisdiction
that had adopted all or substantially all of Article 9 as contained in
the 2000 Official Text of the Uniform Commercial Code, as recommended
by the National Conference of Commissioners on Uniform State Laws and
the American Law Institute, together with any subsequent amendments or
modifications to the Official Text.
2. Certain Covenants in the Credit Agreement.
a. The second and third sentences of Section 3.8 of the Credit
Agreement are hereby amended in their entirety to read as follows:
All of the issued and outstanding Stock of each Credit Party
is owned by each of the Stockholders and in the amounts set forth in
Disclosure Schedule (3.8), or as otherwise disclosed and reasonably
acceptable to the Agent. Except as set forth in Disclosure Schedule
(3.8), and subject to transactions permitted under Section 6.5(b),
there are no outstanding rights to purchase, options, warrants or
similar rights or agreements pursuant to which any Credit Party may be
required to issue, sell, repurchase or redeem any of its Stock or other
equity securities or any Stock or other equity securities of its
Subsidiaries.
b. Subsection (b) of the Section 6.2 of the Credit Agreement is hereby
amended in its entirety to read as follows:
(b) each Credit Party may maintain its existing investments in its
Subsidiaries as of the Closing Date and each Borrower may make
intercompany loans and advances to the other Borrower to the extent the
related indebtedness is permitted under Section 6.3(a)(vi);
c. Subclause (F) of the proviso in of Section 6.3(a)(vi) of the Credit
Agreement is hereby amended in its entirety to read as follows:
(F) in the case of intercompany Indebtedness, the Borrower
advancing such funds shall have Borrowing Availability under its
separate Borrowing Base of not less than $1,500,000 after giving effect
to such advance;
d. Subsection (b) of Section 6.5 of the Credit Agreement is hereby
amended in its entirety to read as follows:
(b) make any change to its capital structure as described in Disclosure
Schedule (3.8), or as otherwise disclosed and reasonably acceptable to
the Agent, including the issuance or sale
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of any shares of Stock, warrants or other securities convertible into
Stock or any revision of the terms of its outstanding Stock;
e. Subclause (ii) of the proviso in subsection (d) of Section 6.14 of
the Credit Agreement is hereby amended in its entirety to read as follows:
(ii) the Borrower making such Restricted Payment shall have Borrowing
Availability of at least $1,500,000 after giving effect to such
Restricted Payment pursuant to clause (d) above;
f. Disclosure Schedule (3.8) to the Credit Agreement is hereby amended
and restated in its entirety to read as set forth on Schedule B attached hereto.
3. Granting Clause to Security Agreement. Section 2(a) of the Security
Agreement is hereby amended and restated to read in its entirety as follows:
a. To secure the prompt and complete payment, performance and
observance of all of the Obligations (specifically including, without
limitation, each Grantor's Obligations arising under the cross-guaranty
provisions of Section 12 of the Credit Agreement), each Grantor hereby grants,
assigns, conveys, mortgages, pledges, hypothecates and transfers to Agent, for
itself and the benefit of Lenders, a Lien upon all of its right, title and
interest in, to and under all personal property and other assets whether now
owned by or owing to, or hereafter acquired by or arising in favor of such
Grantor (including under any trade names, styles or derivations thereof), and
whether owned or consigned by or to, or leased from or to, such Grantor, and
regardless of where located (all of which being hereinafter collectively
referred to as the "Collateral"), including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and
Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts, of any Grantor, including all Blocked
Accounts, Concentration Accounts, Disbursement Accounts, and
all other bank accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any Grantor;
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(x) all Supporting Obligations and Letter-of-Credit Rights of any
Grantor;
(xi) all commercial tort claims; and
(xii) to the extent not otherwise included, all Proceeds, tort
claims, insurance claims and other rights to payments not
otherwise included in the foregoing and products of the
foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the
foregoing.
4. Notices to Account Debtors and Obligors in Security Agreement.
Section 3(b) of the Security Agreement is amended and restated to read in its
entirety as follows:
Agent may at any time after an Event of Default has occurred
and is continuing, without prior notice to any Grantor, notify Account
Debtors and other Persons obligated on the Collateral that Agent has a
security interest therein, and that payments shall be made directly to
Agent. Upon the request of Agent during the continuance of an Event of
Default, each Grantor shall so notify Account Debtors and other Persons
obligated on Collateral. Once any such notice has been given to any
Account Debtor or other Person obligated on the Collateral, the
affected Grantor shall not give any contrary instructions to such
Account Debtor or other Person without Agent's prior written consent.
5. Payment Intangibles in Security Agreement. Section 3(c) of the
Security Agreement is amended as follows: After each reference to "Chattel
Paper", the following phrase is added:
and/or payment intangibles
6. Power to Transfer in Security Agreement. Section 4(a) of the
Security Agreement is amended and restated to read in its entirety as follows:
Each Grantor has rights in and the power to transfer each item
of the Collateral upon which it purports to xxxxx x Xxxx hereunder free
and clear of any and all Liens other than Permitted Encumbrances.
7. The second sentence of Section 4(c) of the Security Agreement is
amended and restated to read in its entirety as follows:
Such Lien is prior to all other Liens, except Permitted
Encumbrances that would be prior to Liens in favor of Agent for the
benefit of Agent and Lenders as a matter of law or pursuant to the Term
Intercreditor Agreement, and is enforceable as such as against any and
all creditors of and purchasers from any Grantor (other than purchasers
and lessees of Inventory in the ordinary course of business and
non-exclusive licensees of General Intangibles in the ordinary course
of business).
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8. Section 4(d) of the Security Agreement is amended and restated to
read in its entirety as follows:
Schedule II hereto lists all Instruments and Chattel Paper of
each Grantor. All action by any Grantor necessary or desirable to
protect and perfect the Lien of Agent on each item set forth on
Schedule II (including the delivery of all originals thereof to Agent
and the legending of all Chattel Paper as required by Section 5(b)
hereof) has been duly taken. The Lien of Agent, for the benefit of
Agent and Lenders, on the Collateral listed on Schedule II hereto is
prior to all other Liens, except Permitted Encumbrances that would be
prior to the Liens in favor of Agent as a matter of law, and is
enforceable as such against any and all creditors of and purchasers
from any Grantor.
9. Section 4(e) of the Security Agreement is amended and restated to
read in its entirety as follows:
Each Grantor's name as it appears in official filings in the
state of its incorporation or other organization, the type of entity of
each Grantor (including corporation, partnership, limited partnership
or limited liability company), organizational identification number
issued by each Grantor's state of incorporation or organization or a
statement that no such number has been issued, each Grantor's state of
organization or incorporation, the location of each Grantor's chief
executive office, principal place of business, offices, all warehouses
and premises where Collateral is stored or located, and the locations
of its books and records concerning the Collateral are set forth on
Schedule IIIA and Schedule III-B, respectively, hereto. Each Grantor
has only one state of incorporation or organization.
10. Certain Covenants in Security Agreement. Sections 5(a) through 5(e)
of the Security Agreement are hereby amended and restated to read in their
entirety as follows:
5. COVENANTS. Each Grantor covenants and agrees with Agent,
for the benefit of Agent and Lenders, that from and after the date of
this Security Agreement and until the Termination Date:
(a) Further Assurances: Pledge of Instruments; Chattel Paper.
(i) At any time and from time to time, upon the
written request of Agent and at the sole expense of Grantors,
each Grantor shall promptly and duly execute and deliver any
and all such further instruments and documents and take such
further actions as Agent may deem desirable to obtain the full
benefits of this Security Agreement and of the rights and
powers herein granted, including (A) using its best efforts to
secure all consents and approvals necessary or appropriate for
the assignment to or for the benefit of Agent of any License
or Contract held by such Grantor and to enforce the security
interests granted hereunder; and (B) filing any financing or
continuation statements under the Code
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with respect to the Liens granted hereunder or under any other
Loan Document as to those jurisdictions that are not Uniform
Commercial Code jurisdictions.
(ii) Upon Agent's written request, each Grantor shall
deliver to Agent all Collateral consisting of negotiable
Documents, certificated securities, Chattel Paper and
Instruments (in each case, accompanied by stock powers,
allonges or other instruments of transfer executed in blank)
promptly after such Credit Party receives the same.
(iii) Each Grantor shall, in accordance with the
terms of the Credit Agreement, obtain or use its best efforts
to obtain waivers or subordinations of Liens from landlords
and mortgagees, and each Credit Party shall in all instances
obtain signed acknowledgements of Agent's Liens from bailees
having possession of any Grantor's Goods that they hold for
the benefit of Agent.
(iv) If required by the terms of the Credit Agreement
and not waived by Agent in writing (which waiver may be
revoked), each Grantor shall obtain authenticated Control
Letters from each issuer of uncertificated securities,
securities intermediary, or commodities intermediary issuing
or holding any financial assets or commodities to or for any
Grantor.
(v) In accordance with Annex C to the Credit
Agreement, each Grantor shall obtain a blocked account,
lockbox or similar agreement with each bank or financial
institution holding a Deposit Account for such Grantor.
(vi) Each Grantor that is or becomes the beneficiary
of a letter of credit (other than letters of credit in an
aggregate amount at any given time of not more than $500,000)
shall promptly, and in any event within ten (10) Business Days
after becoming a beneficiary, notify Agent thereof and enter
into a tri-party agreement with Agent and the issuer and/or
confirmation bank with respect to Letter-of-Credit Rights
assigning such Letter-of-Credit Rights to Agent and directing
all payments thereunder to the Collection Account, all in form
and substance reasonably satisfactory to Agent.
(vii) Each Grantor shall take all steps necessary to
grant the Agent control of all electronic chattel paper in
accordance with the Code and all "transferable records" as
defined in each of the Uniform Electronic Transactions Act and
the Electronic Signatures in Global and National Commerce Act.
(viii) Each Grantor hereby irrevocably authorizes the
Agent at any time and from time to time to file in any filing
office in any Uniform Commercial Code jurisdiction any initial
financing statements and amendments thereto that (a) indicate
the Collateral (i) as all assets of such Grantor or words of
similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article
9 of the Code or such jurisdiction, or (ii) as being of an
equal or lesser scope or with greater detail, and (b) contain
any
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other information required by part 5 of Article 9 of the Code
for the sufficiency or filing office acceptance of any
financing statement or amendment, including (i) whether such
Grantor is an organization, the type of organization and any
organization identification number issued to such Grantor, and
(ii) in the case of a financing statement filed as a fixture
filing or indicating Collateral as as-extracted collateral or
timber to be cut, a sufficient description of real property to
which the Collateral relates. Each Grantor agrees to furnish
any such information to the Agent promptly upon request. Each
Grantor also ratifies its authorization for the Agent to have
filed in any Uniform Commercial Code jurisdiction any initial
financing statements or amendments thereto if filed prior to
the date hereof.
(ix) Each Grantor shall promptly, and in any event
within ten (10) Business Days after the same is acquired by
it, notify Agent of any commercial tort claim (as defined in
the Code) in an amount of $500,000 or more acquired by it and
unless otherwise consented by Agent, such Grantor shall enter
into a supplement to this Security Agreement, granting to
Agent a Lien in such commercial tort claim.
(b) Maintenance of Records. Grantors shall keep and maintain,
at their own cost and expense, satisfactory and complete records of the
Collateral, including a record of any and all payments received and any
and all credits granted with respect to the Collateral and all other
dealings with the Collateral. Grantors shall xxxx their books and
records pertaining to the Collateral to evidence this Security
Agreement and the Liens granted hereby. If any Grantor retains
possession of any Chattel Paper or Instruments with Agent's consent,
such Chattel Paper and Instruments shall be marked with the following
legend: "This writing and the obligations evidenced or secured hereby
are subject to the security interest of General Electric Capital
Corporation, as Agent, for the benefit of Agent and certain Lenders."
(c) Covenants Regarding Patent, Trademark and Copyright
Collateral.
(i) Grantors shall notify Agent immediately if they
know or have reason to know that any application or
registration relating to any material Patent, Trademark or
Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any adverse determination or development
(including the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any
court) regarding any Grantor's ownership of any material
Patent, Trademark or Copyright, its right to register the
same, or to keep and maintain the same.
(ii) In the event that any Grantor, either itself or
through any agent, employee, licensee or designee, shall file
an application for the registration of any Patent, Trademark
or Copyright with the United States Patent and Trademark
Office or the United States Copyright Office, such Grantor
shall give Agent prior written notice thereof within 30 days
after such filing, and, upon request of Agent, Grantor shall
execute and deliver any and all Patent Security
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Agreements, Copyright Security Agreements or Trademark
Security Agreements as Agent may request to evidence Agent's
Lien on such Patent, Trademark or Copyright, and the General
Intangibles of such Grantor relating thereto or represented
thereby.
(iii) Grantors shall take all actions necessary or
requested by Agent to maintain and pursue each application, to
obtain the relevant registration and to maintain the
registration of each of the Patents, Trademarks and Copyrights
(now or hereafter existing), including the filing of
applications for renewal, affidavits of use, affidavits of
noncontestability and opposition and interference and
cancellation proceedings, unless the applicable Grantor shall
determine that such Patent, Trademark or Copyright is not
material to the conduct of its business.
(iv) In the event that any of the Patent, Trademark
or Copyright Collateral is infringed upon, or misappropriated
or diluted by a third party, such Grantor shall comply with
Section 5(a)(ix) of this Security Agreement. Such Grantor
shall, unless such Grantor shall reasonably determine that
such Patent, Trademark or Copyright Collateral is in no way
material to the conduct of its business or operations,
promptly xxx for infringement, misappropriation or dilution
and to recover any and all damages for such infringement,
misappropriation or dilution, and shall take such other
actions as Agent shall deem appropriate under the
circumstances to protect such Patent, Trademark or Copyright
Collateral.
(d) Indemnification. In any suit, proceeding or action brought
by Agent or any Lender relating to any Collateral for any sum owing
with respect thereto or to enforce any rights or claims with respect
thereto, each Grantor will save, indemnify and keep Agent and Lenders
harmless from and against all expense (including reasonable attorneys'
fees and expenses), loss or damage suffered by reason of any defense,
setoff, counterclaim, recoupment or reduction of liability whatsoever
of the Account Debtor or other Person obligated on the Collateral,
arising out of a breach by any Grantor of any obligation thereunder or
arising out of any other agreement, indebtedness or liability at any
time owing to, or in favor of, such obligor or its successors from such
Grantor, except in the case of Agent or any Lender, to the extent such
expense, loss, or damage is attributable solely to the gross negligence
or willful misconduct of Agent or such Lender as finally determined by
a court of competent jurisdiction. All such obligations of Grantors
shall be and remain enforceable against and only against Grantors and
shall not be enforceable against Agent or any Lender.
(e) Compliance with Terms of Accounts, etc. In all material
respects, each Grantor will perform and comply with all obligations in
respect of the Collateral and all other agreements to which it is a
party or by which it is bound relating to the Collateral.
11. Limitations on Disposition in Security Agreement. Section 5(g) of
the Security Agreement is hereby amended and restated in its entirety to read as
follows:
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(g) Limitations on Disposition. No Grantor will sell, license,
lease, transfer or otherwise dispose of any of the Collateral, or
attempt or contract to do so except as permitted by the Credit
Agreement.
12. Additional Covenants in Security Agreement. The following clauses
(j), (k), (l) and (m) are added to Section 5 of the Security Agreement:
(j) Good Standing Certificates. Not less frequently than once
during each calendar year, each Grantor shall, upon Agent's reasonable
written request, provide to Agent a certificate of good standing from
its state of incorporation or organization.
(k) No Reincorporation. Without limiting the prohibitions on
mergers involving the Grantors contained in the Credit Agreement, no
Grantor shall reincorporate or reorganize itself under the laws of any
jurisdiction other than the jurisdiction in which it is incorporated or
organized as of the date hereof without the prior written consent of
Agent, which consent will not be unreasonably withheld or delayed.
(l) Terminations; Amendments Not Authorized. Each Grantor
acknowledges that it is not authorized to file any financing statement
or amendment or termination statement with respect to any financing
statement without the prior written consent of Agent and agrees that it
will not do so without the prior written consent of Agent, subject to
such Grantor's rights under Section 9-509(d)(2) of the Code.
(m) Authorized Terminations. Agent will promptly deliver to
each Grantor for filing or authorize each Grantor to prepare and file
termination statements and releases in accordance with Section 11.2(e)
of the Credit Agreement.
13. Power of Attorney in Security Agreement. Section 6 of the Security
Agreement is amended and restated in its entirety to read as follows:
6. AGENT'S APPOINTMENT AS ATTORNEY -IN- FACT.
On the Closing Date each Grantor shall execute and deliver to
Agent a power of attorney (the "Power of Attorney") substantially in
the form attached hereto as Exhibit A. The power of attorney granted
pursuant to the Power of Attorney is a power coupled with an interest
and shall be irrevocable until the Termination Date. The powers
conferred on Agent, for the benefit of Agent and Lenders, under the
Power of Attorney are solely to protect Agent's interests (for the
benefit of Agent and Lenders) in the Collateral and shall not impose
any duty upon Agent or any Lender to exercise any such powers. Agent
agrees that (a) except for the powers granted in clause (h) of the
Power of Attorney, it shall not exercise any power or authority granted
under the Power of Attorney unless an Event of Default has occurred and
is continuing, and (b) Agent shall account for any moneys received by
Agent in respect of any foreclosure on
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or disposition of Collateral pursuant to the Power of Attorney provided
that none of Agent or any Lender shall have any duty as to any
Collateral, and Agent and Lenders shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers.
NONE OF AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO
ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY
OR OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR
OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY,
INDIRECT OR CONSEQUENTIAL DAMAGES.
14. Remedies in Security Agreement. Section 7 of the Security Agreement
is amended and restated in its entirety to read as follows:
7. REMEDIES: RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it
under this Security Agreement, the Credit Agreement, the other Loan
Documents and under any other instrument or agreement securing,
evidencing or relating to any of the Obligations, if any Event of
Default shall have occurred and be continuing, Agent may exercise all
rights and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, each Grantor expressly agrees that in
any such event Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon such Grantor or
any other Person (all and each of which demands, advertisements and
notices are hereby expressly waived to the maximum extent permitted by
the Code and other applicable law), may forthwith enter upon the
premises of such Grantor where any Collateral is located through
self-help, without judicial process, without first obtaining a final
judgment or giving such Grantor or any other Person notice and
opportunity for a hearing on Agent's claim or action and may collect,
receive, assemble, process, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease,
license, assign, give an option or options to purchase, or sell or
otherwise dispose of and deliver said Collateral (or contract to do
so), or any part thereof, in one or more parcels at a public or private
sale or sales, at any exchange at such prices as it may deem
acceptable, for cash or on credit or for future delivery without
assumption of any credit risk. Agent or any Lender shall have the right
upon any such public sale or sales and, to the extent permitted by law,
upon any such private sale or sales, to purchase for the benefit of
Agent and Lenders, the whole or any part of said Collateral so sold,
free of any right or equity of redemption, which equity of redemption
each Grantor hereby releases. Such sales may be adjourned and continued
from time to time with or without notice. Agent shall have the right to
conduct such sales on any Grantor's premises or elsewhere and shall
have the right to use any Grantor's premises without charge for such
time or times as Agent deems necessary or advisable.
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If any Event of Default shall have occurred and be continuing,
each Grantor further agrees, at Agent's request, to assemble the
Collateral and make it available to Agent at a place or places
designated by Agent which are reasonably convenient to Agent and such
Grantor, whether at such Grantor's premises or elsewhere. Until Agent
is able to effect a sale, lease, or other disposition of Collateral,
Agent shall have the right to hold or use Collateral, or any part
thereof, to the extent that it deems appropriate for the purpose of
preserving Collateral or its value or for any other purpose deemed
appropriate by Agent. Agent shall have no obligation to any Grantor to
maintain or preserve the rights of such Grantor as against third
parties with respect to Collateral while Collateral is in the
possession of Agent. Agent may, if it so elects, seek the appointment
of a receiver or keeper to take possession of Collateral and to enforce
any of Agent's remedies (for the benefit of Agent and Lenders), with
respect to such appointment without prior notice or hearing as to such
appointment. Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the
Obligations as provided in the Credit Agreement, and only after so
paying over such net proceeds, and after the payment by Agent of any
other amount required by any provision of law, need Agent account for
the surplus, if any, to any Grantor. To the maximum extent permitted by
applicable law, each Grantor waives all claims, damages, and demands
against Agent or any Lender arising out of the repossession, retention
or sale of the Collateral except such as arise solely out of the gross
negligence or willful misconduct of Agent or such Lender as finally
determined by a court of competent jurisdiction. Each Grantor agrees
that ten (10) days prior notice by Agent of the time and place of any
public sale or of the time after which a private sale may take place is
reasonable notification of such matters. Grantors shall remain liable
for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all Obligations, including any
attorneys' fees and other expenses incurred by Agent or any Lender to
collect such deficiency.
(b) Except as otherwise specifically provided herein, each
Grantor hereby waives presentment, demand, protest or any notice (to
the maximum extent permitted by applicable law) of any kind in
connection with this Security Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the
Agent to exercise remedies in a commercially reasonable manner, each
Grantor acknowledges and agrees that it is not commercially
unreasonable for the Agent (i) to fail to incur expenses reasonably
deemed significant by the Agent to prepare Collateral for disposition
or otherwise to complete raw material or work in process into finished
goods or other finished products for disposition, (ii) to fail to
obtain third party consents for access to Collateral to be disposed of,
or to obtain or, if not required by other law, to fail to obtain
governmental or third party consents for the collection or disposition
of Collateral to be collected or disposed of, (iii) to fail to exercise
collection remedies against Account Debtors or other Persons obligated
on Collateral or to remove Liens on or any adverse claims against
Collateral, (iv) to exercise collection remedies against Account
Debtors and other Persons obligated on Collateral directly or through
the use of collection agencies and other collection specialists, (v) to
advertise dispositions of Collateral through publications or media of
general circulation, whether or not the Collateral is of a
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specialized nature, (vi) to contact other Persons, whether or not in
the same business as the Grantor, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or
more professional auctioneers to assist in the disposition of
Collateral, whether or not the Collateral is of a specialized nature,
(viii) to dispose of Collateral by utilizing internet sites that
provide for the auction of assets of the types included in the
Collateral or that have the reasonable capacity of doing so, or that
match buyers and sellers of assets, (ix) to dispose of assets in
wholesale rather than retail markets, (x) to disclaim disposition
warranties, such as title, possession or quiet enjoyment, (xi) to
purchase insurance or credit enhancements to insure the Agent against
risks of loss, collection or disposition of Collateral or to provide to
the Agent a guaranteed return from the collection or disposition of
Collateral, or (xii) to the extent deemed appropriate by the Agent, to
obtain the services of other brokers, investment bankers, consultants
and other professionals to assist the Agent in the collection or
disposition of any of the Collateral. Each Grantor acknowledges that
the purpose of this Section 7(c) is to provide non-exhaustive
indications of what actions or omissions by the Agent would not be
commercially unreasonable in the Agent's exercise of remedies against
the Collateral and that other actions or omissions by the Agent shall
not be deemed commercially unreasonable solely on account of not being
indicated in this Section 7(c). Without limitation upon the foregoing,
nothing contained in this Section 7(c) shall be construed to grant any
rights to any Grantor or to impose any duties on Agent that would not
have been granted or imposed by this Security Agreement or by
applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to
make any demand upon, or pursue or exhaust any of their rights or
remedies against, any Grantor, any other obligor, guarantor, pledgor or
any other Person with respect to the payment of the Obligations or to
pursue or exhaust any of their rights or remedies with respect to any
Collateral therefor or any direct or indirect guarantee thereof.
Neither the Agent nor the Lenders shall be required to marshal the
Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, and all of
its and their rights hereunder or under any other Loan Document shall
be cumulative. To the extent it may lawfully do so, each Grantor
absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Agent or any
Lender, any valuation, stay, appraisement, extension, redemption or
similar laws and any and all rights or defenses it may have as a surety
now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order
or decree of any court, or privately under the power of sale conferred
by this Security Agreement, or otherwise.
15. Change of Chief Executive Office Location of LaCrosse. The parties
acknowledge that, effective January 1, 2002, the location of LaCrosse's chief
executive office will change from 0000 Xx. Xxxxxx Xxxxxx, XxXxxxxx, XX 00000 to
00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, and that, effective January 1,
2002, the 0000 Xx. Xxxxxx Xxxxxx address shall cease to be a corporate office
address of LaCrosse. Agent acknowledges that no additional action by any Credit
Party shall be necessary in connection with such changes. Effective January 1,
2002, the address for notices to the Borrower Representative shall be:
12
LaCrosse Footwear, Inc.
00000 XX Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
16. Amendments to Schedules and Power of Attorney in Security
Agreement. Attached hereto are Schedule(s) II, IIIA and IIIB reflecting the
information required by Section 4(e) of the Security Agreement as amended
hereby. Attached as Exhibit A hereto is a revised form Power of Attorney to be
executed, notarized and delivered by each Grantor in connection herewith.
17. Representations And Warranties of Borrower.
a. The execution, delivery and performance by each Borrower of this
Amendment has been duly authorized by all necessary corporate action and this
Amendment is a legal, valid and binding obligation of such Borrower enforceable
against such Borrower in accordance with its terms, except as the enforcement
thereof may be subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law);
b. Each of the representations and warranties contained in the Credit
Agreement and the Security Agreement is true and correct in all material
respects on and as of the date hereof as if made on the date hereof, except to
the extent that such representations and warranties expressly relate to an
earlier date; and
c. Neither the execution, delivery and performance of this Amendment by
each Borrower nor the consummation of the transactions contemplated hereby does
or shall contravene, result in a breach of, or violate (i) any provision of such
Borrower's certificate or articles of incorporation or bylaws, (iii) any law or
regulation, or any order or decree of any court or government instrumentality,
or (iii) any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Borrower or any of its Subsidiaries is a party or by
which such Borrower or any of its Subsidiaries or any of their property is
bound, except in any such case to the extent such conflict or breach has been
waived by a written waiver document, a copy of which has been delivered to Agent
on or before the date hereof.
18. Effect on Credit Agreement and Security Agreement. All references
in the Loan Documents to the Credit Agreement or the Security Agreement shall be
deemed to refer to the Credit Agreement and Security Agreement each as amended
hereby. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or any Lender under
the Credit Agreement or any Loan Document, nor constitute an amendment of any
provision of the Credit Agreement, the Security Agreement or any other Loan
Document, except as specifically set forth herein. This Amendment does not
evidence a termination of the granting of the Liens contained in the Security
Agreement. The Liens granted
13
pursuant to the Security Agreement as in effect prior to the date hereof shall
remain in full force and effect and shall be continuing in all respects.
19. Costs and Expenses. As provided in Section 11.3 of the Credit
Agreement, Borrowers agree to reimburse Agent for all fees, costs and expenses,
including the fees, costs and expenses of counsel or other advisors for advice,
assistance, or other representation in connection with this Amendment.
20. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES).
21. Counterparts. This Amendment may be executed in any number of
several counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer as of the
date first set forth above.
GENERAL ELECTRIC CAPITAL
CORPORATION, Agent
By: /s/
-------------------------------
Name:
-----------------------------
Title:
----------------------------
LACROSSE FOOTWEAR, INC.
as Grantor
By: /s/
-------------------------------
Name:
-----------------------------
Title:
----------------------------
14
XXXXXX SHOE MANUFACTURING CO.,
as Grantor
By: /s/
-------------------------------
Name:
-----------------------------
Title:
----------------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC.,
By: /s/
-------------------------------
Name:
-----------------------------
Title:
----------------------------
[Signature Page to Amendment]
15
SCHEDULE A
"Account Debtor" means any Person who may become obligated to any
Credit Party under, with respect to, or on account of, an Account, Chattel Paper
or General Intangibles (including a payment intangible).
"Accounts" means all "accounts," as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, including (a) all accounts
receivable, other receivables, book debts and other forms of obligations (other
than forms of obligations evidenced by Chattel Paper, or Instruments),
(including any such obligations that may be characterized as an account or
contract right under the Code), (b) all of each Credit Party's rights in, to and
under all purchase orders or receipts for goods or services, (c) all of each
Credit Party's rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to any Credit Party for property sold, leased,
licensed, assigned or otherwise disposed of, for a policy of insurance issued or
to be issued, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with
any other transaction (whether or not yet earned by performance on the part of
such Credit Party), (e) all health care insurance receivables and (f) all
collateral security of any kind, given by any Account Debtor or any other Person
with respect to any of the foregoing.
"Chattel Paper" means any "chattel paper," as such term is defined in
the Code, including electronic chattel paper, now owned or hereafter acquired by
any Credit Party.
"Code" means the Uniform Commercial Code as the same may, from time to
time, be enacted and in effect in the State of Illinois; provided, that to the
extent that the Code is used to define any term herein or in any Loan Document
and such term is defined differently in different Articles or Divisions of the
Code, the definition of such term contained in Article or Division 9 shall
govern; provided further, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Agent's or any Lender's Lien on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of Illinois, the term "Code" shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such
provisions.
"Documents" means all "documents," as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, wherever located.
"Equipment" means all "equipment," as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, wherever located and, in
any event, including all such Credit Party's machinery and equipment, including
processing equipment, conveyors, machine tools, data processing and computer
equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery,
16
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"Fixtures" means all "fixtures" as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party.
"General Intangibles" means all "general intangibles," as such term is
defined in the Code, now owned or hereafter acquired by any Credit Party,
including all right, title and interest that such Credit Party may now or
hereafter have in or under any Contract, all payment intangibles, customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor
and reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all
liability, life, key man and business interruption insurance, and all unearned
premiums), uncertificated securities, choses in action, deposit, checking and
other bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Credit Party or any computer bureau or service company from time to time acting
for such Credit Party.
"Goods" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, including embedded
software to the extent included in "goods" as defined in the Code, manufactured
homes, standing timber that is cut and removed for sale and unborn young of
animals.
"Instruments" means all "instruments," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located,
and, in any event, including all certificated securities, all certificates of
deposit, and all promissory notes and other evidences of indebtedness, other
than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Inventory" means all "inventory," as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party, wherever located, and in
any event including inventory, merchandise, goods and other personal property
that are held by or on behalf of any Credit Party for sale or lease or are
furnished or are to be furnished under a contract of service, or that
17
constitute raw materials, work in process, finished goods, returned goods, or
materials or supplies of any kind, nature or description used or consumed or to
be used or consumed in such Credit Party's business or in the processing,
production, packaging, promotion, delivery or shipping of the same, including
all supplies and embedded software.
"Investment Property" means all "investment property" as such term is
defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"Proceeds" means "proceeds," as such term is defined in the Code,
including (a) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to any Credit Party from time to time with respect to any of
the Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to any Credit Party from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting under
color of governmental authority), (c) any claim of any Credit Party against
third parties (i) for past, present or future infringement of any Patent or
Patent License, or (ii) for past, present or future infringement or dilution of
any Copyright, Copyright License, Trademark or Trademark License, or for injury
to the goodwill associated with any Trademark or Trademark License, (d) any
recoveries by any Credit Party against third parties with respect to any
litigation or dispute concerning any of the Collateral including claims arising
out of the loss or nonconformity of, interference with the use of, defects in,
or infringement of rights in, or damage to, Collateral, (e) all amounts
collected on, or distributed on account of, other Collateral, including
dividends, interest, distributions and Instruments with respect to Investment
Property and pledged Stock, and (f) any and all other amounts, rights to payment
or other property acquired upon the sale, lease, license, exchange or other
disposition of Collateral and all rights arising out of Collateral.
18
SCHEDULE B
DISCLOSURE SCHEDULE 3.8
Ventures, Subsidiaries and Affiliates; Outstanding Stock
Credit Parties
LaCrosse Footwear, Inc.
Xxxxxx Shoe Manufacturing Co.
Subsidiaries of Credit Parties
Xxxxxx Shoe Manufacturing Co. is a wholly-owned direct subsidiary of LaCrosse
Footwear, Inc.
Directors of LaCrosse Footwear, Inc. and Xxxxxx Shoe Manufacturing Co. (same for
each)
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxx, Xx.
Xxxx X. Xxxxxxxxx
Officers of LaCrosse Footwear, Inc.
-------------------------------- -----------------------------------------------
Name Title
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxxx Chairman of the Board
-------------------------------- -----------------------------------------------
Xxxxx X. Xxxxxxx President & COO
LaCrosse/Rainfair Safety Products Division
-------------------------------- -----------------------------------------------
Xxxx X. Xxxxxxx Vice President - Information Technology
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxx Vice President - Product Development
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxxx President & CEO
-------------------------------- -----------------------------------------------
Xxxx X. Xxxx Assistant Secretary
-------------------------------- -----------------------------------------------
Xxxx Xxxxxxx Assistant Secretary
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxx Vice President - Finance/CFO
-------------------------------- -----------------------------------------------
19
Officers of Xxxxxx Shoe Manufacturing Co.
-------------------------------- -----------------------------------------------
Name Title
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxxx Chairman of the Board
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxxx CEO
-------------------------------- -----------------------------------------------
Xxxx Xxxxxxxxx Vice President - Marketing
-------------------------------- -----------------------------------------------
Xxxxx X. Xxxxxxx President & COO
-------------------------------- -----------------------------------------------
Xxxxx Xxxxx Vice President - Human Resources
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxxx Vice President
-------------------------------- -----------------------------------------------
Xxxx X. Xxxx Assistant Secretary
-------------------------------- -----------------------------------------------
Xxxxxx X. Xxxxxxx Vice President - Operations
-------------------------------- -----------------------------------------------
Stock Ownership
100% of the outstanding stock of Xxxxxx Shoe Manufacturing Co. is owned by
LaCrosse Footwear, Inc.
The common stock of LaCrosse Footwear, Inc. was, as of March 3, 2001, owned as
described in the following excerpt from LaCrosse's May 24, 2001 Notice of Annual
Meeting of Shareholders:
"PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding the
beneficial ownership of Common Stock as of March 30, 2001 by: (i) each director
and nominee; (ii) each of the executive officers named in the Summary
Compensation Table set forth below; (iii) all of the directors, nominees and
executive officers (including the executive officers named in the Summary
Compensation Table) as a group; and (iv) each person or other entity known by
the Company to own beneficially more than 5% of the Common Stock. Except as
otherwise indicated in the footnotes, each of the holders listed below has sole
voting and investment power over the shares beneficially owned.
Shares of Percent of
Common Stock Common Stock
Name of Beneficial Owner Beneficially Owned (1) Beneficially Owned
------------------------ ---------------------- ------------------
Xxxxxxxxx Family Voting Trust (2)......... 2,961,299 50.4%
Xxxxxx X. Xxxxxxxxx (3)................... 1,439,923(2) 24.5%
Xxxxxxxx X. Xxxxxxxxx (3)................. 1,439,923(2) 24.5%
Firstar Corporation and Firstar Bank,
N.A. (4).................................. 559,689 9.5%
Xxxxxx X. Xxxxxxxxx....................... 231,304(2) 3.9%
Xxxxx X. Xxxxx, Xx........................ 70,900(5) 1.2%
Xxxx X. Xxxx.............................. 58,000(6) *
Xxxxx X. Xxxxxxx.......................... 36,700 *
Xxxxxxx X. Xxxxxxxxx...................... 23,750 *
Xxxxxx X. Xxxxxxxx........................ 23,400 *
Xxxx X. Xxxxxxxxx......................... 9,000 *
20
Xxxx X. Xxxxxxx........................... 3,100 *
Xxxxxxx X. Xxxxxxx........................ 250 *
All directors, nominees and
executive officers as a group
(12 persons).............................. 1,964,337(2) 33.1%
------------------------
* Denotes less than 1%.
I. INCLUDES THE FOLLOWING SHARES SUBJECT TO STOCK OPTIONS WHICH ARE
EXERCISABLE WITHIN 60 DAYS OF MARCH 30, 2001: XXXXXX X. XXXXXXXXX,
19,400 SHARES; XXXXX X. XXXXXXX, 17,500 SHARES; XXXXXX X. XXXXXXXX,
22,700 SHARES; AND ALL DIRECTORS, NOMINEES AND EXECUTIVE OFFICERS AS A
GROUP, 68,050 SHARES.
II. SUBSTANTIALLY ALL OF THE SHARES OF COMMON STOCK BENEFICIALLY OWNED BY
XXXXXX X. XXXXXXXXX, XXXXXXXX X. XXXXXXXXX AND 12 OTHER MEMBERS (OR
AFFILIATED TRUSTS) OF THE XXXXXXXXX FAMILY HAVE BEEN DEPOSITED INTO A
VOTING TRUST ("VOTING TRUST"), PURSUANT TO WHICH THE FIVE TRUSTEES
THEREOF (CURRENTLY, XXXXXX X. XXXXXXXXX, XXXXXXXX X. XXXXXXXXX, XXXXXX
X. XXXXXXXXX, XXXXXX X. XXXXXXXXX AND XXXXXXX XXXXXX), ACTING BY
MAJORITY ACTION, HAVE SHARED VOTING POWER (SHARED WITH THE
BENEFICIARIES OF THE VOTING TRUST) AND SOLE INVESTMENT POWER OVER ALL
SUCH SHARES. THE TERMS OF THE VOTING TRUST ARE MORE PARTICULARLY
DESCRIBED BELOW UNDER "--VOTING TRUST." SHARES HELD IN THE VOTING TRUST
INCLUDE SHARES REPORTED ABOVE AS BENEFICIALLY OWNED BY OTHER NAMED
PERSONS AS FOLLOWS: (A) 1,267,005 OF THE SHARES REPORTED AS
BENEFICIALLY OWNED BY EACH OF XXXXXX X. XXXXXXXXX AND XXXXXXXX X.
XXXXXXXXX, AS CO-TRUSTEES OF THE XXXXXX X. AND XXXXXXXX X. XXXXXXXXX
TRUST U/A DATED SEPTEMBER 1, 1987, (B) 137,254 OF THE SHARES REPORTED
AS BENEFICIALLY OWNED BY XXXXXX X. XXXXXXXXX, AND (C) 1,404,259 OF THE
SHARES REPORTED AS BENEFICIALLY OWNED BY THE DIRECTORS, NOMINEES AND
EXECUTIVE OFFICERS OF THE COMPANY AS A GROUP. THE ADDRESS OF THE VOTING
TRUST IS 0000 XX. XXXXXX XXXXXX, XX XXXXXX, XXXXXXXXX 00000.
III. SHARES OF COMMON STOCK REPORTED AS BENEFICIALLY OWNED BY XXXXXX X.
XXXXXXXXX AND XXXXXXXX X. XXXXXXXXX INCLUDE (A) 120,919 SHARES WHICH
ARE DEPOSITED IN THE XXXXXX X. AND XXXXXXXX X. XXXXXXXXX TRUST U/A
DATED SEPTEMBER 1, 1987 OVER WHICH MR. AND XXX. XXXXXXXXX, AS
CO-TRUSTEES, HAVE SHARED VOTING AND INVESTMENT POWER AND (B) 51,999
SHARES WHICH ARE HELD BY A CHARITABLE FOUNDATION IN WHICH MR. AND XXX.
XXXXXXXXX ARE TRUSTEES (MR. AND XXX. XXXXXXXXX DISCLAIM
21
BENEFICIAL OWNERSHIP OF THESE 51,999 SHARES). SEE ALSO FOOTNOTE 2. XXX
XXXXXXX XX XXXXXX X. XXX XXXXXXXX X. XXXXXXXXX IS 0000 XX. XXXXXX
XXXXXX, XX XXXXXX, XXXXXXXXX 00000. THE ADDRESS OF THE XXXXXX X. AND
XXXXXXXX X. XXXXXXXXX TRUST U/A DATED SEPTEMBER 1, 1987 IS X.X. XXX 00,
XXXXXXX XXXXX, XXXXXXXXXX 00000.
IV. THE INFORMATION IS BASED ON AMENDMENT NUMBER 3 TO A REPORT ON SCHEDULE
13G, DATED FEBRUARY 8, 2001, FILED BY FIRSTAR CORPORATION ("FIRSTAR")
AND ITS SUBSIDIARY, FIRSTAR BANK, N.A., WITH THE SECURITIES AND
EXCHANGE COMMISSION. FIRSTAR BANK, N.A. REPORTED BENEFICIAL OWNERSHIP
OF ONLY 514,290 SHARES, OR 8.8%. THE ADDRESS OF FIRSTAR IS 000 XXXX
XXXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXX 00000 AND THE ADDRESS OF FIRSTAR
BANK, N.A. IS 000 XXXXXX XXXXXX, XXXXXXXXXX, XXXX 00000.
V. INCLUDES 58,885 SHARES HELD BY A TRUST IN WHICH XX. XXXXX IS ONE OF THE
TRUSTEES. XX. XXXXX DISCLAIMS BENEFICIAL OWNERSHIP OF THESE 58,885
SHARES.
VI. INCLUDES 18,000 SHARES HELD OF RECORD BY XX. XXXX' WIFE FOR THE BENEFIT
OF THEIR THREE CHILDREN.
Voting Trust
To help ensure the continuity and stability of the management of the
Company, Xxxxxx X. and Xxxxxxxx X. Xxxxxxxxx and 12 other members of their
family, including certain affiliated entities, entered into a voting trust
agreement in June 1982. Pursuant to the trust agreement, as amended, all shares
of Common Stock held by such individuals and entities were initially deposited
into the voting trust created thereunder the (the "Voting Trust"). Each
depositor and beneficiary holding Voting Trust certificates issued thereunder
(which now includes 12 other members (or affiliated trusts) of the Xxxxxxxxx
family) also agreed (with certain limited exceptions) to transfer to the Voting
Trust all shares of Common Stock thereafter acquired.
Under the Voting Trust, the five trustees (currently, Xxxxxx X.
Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and
Xxxxxxx Xxxxxx), acting by majority action, are vested with the exclusive right
to sell, transfer or dispose of the deposited shares and to vote such deposited
shares in their discretion on all matters on which such shares are entitled to
vote; provided, however, that in the event of a proposed recapitalization,
reorganization, merger, consolidation, liquidation, sale of all or substantially
all of the assets of the Company or a comparable transaction, in addition t the
necessary vote of the trustees, any such action shall also require the
affirmative vote or consent of the beneficiaries holding Voting Trust
certificates representing at least 75% of the aggregate number of votes of the
then deposited shares. The beneficiaries also are entitled to receive all cash
dividends or other distributions (other than in capital stock of the Company)
declared and paid on the deposited shares.
22
The deposited shares may only be withdrawn from the Voting Trust by a
beneficiary prior to the expiration or termination of the Voting Trust if the
trustees allow such withdrawal; provided, however, that on January 31 of each
year (commencing on January 31, 1998) each beneficiary will automatically
receive 10,000 shares.
The Voting Trust continues in effect until April 1, 2005, and
thereafter for an additional five-year period if the trustees so elect.
Notwithstanding the foregoing, in the event of a reorganization, merger or
consolidation in which the Company does not survive, a liquidation of the
Company, a sale of all or substantially all of the assets of the Company or sale
of all the Common Stock held by the trustees under the Voting Trust, the Voting
Trust shall automatically terminate. Additionally, the Voting Trust may be
terminated at any time prior to the expiration thereof by the trustees with the
affirmative vote or consent of the beneficiaries holding Voting Trust
certificates representing at least 75% of the aggregate number of votes of the
then deposited shares.
The Voting Trust also provides that the trustees shall cause the then
Chief Executive Officer of the Company to be elected as a director of the
company and shall not allow the number of directors of the Company who are
members of the Xxxxxxxxx family to exceed a majority of the directors, less one.
Additionally, the trustees, subject to certain exceptions, may correct defects
and omissions in the underlying trust agreement and make other amendments or
modifications thereto as in their judgment may be necessary or appropriate to
effectively carry out the trust agreement. The trustees are not entitled to
receive any remuneration for serving as such under the Voting Trust."
The common stock of LaCrosse Footwear, Inc. is publicly traded, and ownership
accordingly varies as the stock is traded.
Outstanding Rights to Purchase, Options, Warrants or Similar Rights
The following employee and director compensation plans provide for the
issuance of up to the indicated number of shares of common stock of LaCrosse
Footwear, Inc.: 1993 Employee Stock Incentive Plan - 250,000 shares; 1997
Employee Stock Incentive Plan - 300,000 shares; 2001 Stock Incentive Plan -
300,000 shares; and 2001 Non-Employee Directors Stock Option Plan - 100,000
shares. Shares or options to purchase shares may from time to time be issued or
granted by LaCrosse Footwear, Inc. in accordance with those plans. Pursuant to
the 2001 Non-Employee Directors Stock Option Plan, options were granted to each
non-employee director of LaCrosse Footwear, Inc. on the first business day of
January 2001 and will be granted on the first business day of each January
during the term of the plan. In addition, the following table indicates stock
options outstanding as of December 31, 2001 under the 1993 and 1997 plans:
[table omitted]
23
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS
AND
CHATTEL PAPER
1. $12,677,859 Promissory Note from Xxxxxx Shoe Manufacturing Co., dated
as of January 1, 1998 to LaCrosse Footwear, Inc.
2. Subordinated Demand Promissory Note dated as of June 15, 2001, from
Xxxxxx Shoe Manufacturing Co. to LaCrosse Footwear, Inc.
3. Subordinated Demand Promissory Note dated as of June 15, 2001, from
LaCrosse Footwear, Inc. to Xxxxxx Shoe Manufacturing Co.
Chattel Paper:
-------------
None
24
SCHEDULE IIIA
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING [XYZ]'S COLLATERAL
I. LaCrosse's official name: LaCrosse Footwear, Inc.
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by LaCrosse's state of
incorporation or organization: 1I03924
IV. State of Incorporation or Organization of LaCrosse: Wisconsin
V. Chief Executive Office and principal place of business of LaCrosse:
Prior to January 1, 2002: 0000 Xx. Xxxxxx Xxxxxx, XxXxxxxx, XX 00000 On
and after January 1, 2002: 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX
00000
VI. Corporate Offices of LaCrosse:
Prior to January 1, 2002: 0000 Xx. Xxxxxx Xxxxxx, XxXxxxxx, XX 00000
and 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx, XX 00000 On and after January 1,
2002: 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 and 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxx, XX 00000
VII. Warehouses:
0000 Xx Xxxxxx Xx.
Xx Xxxxxx, Xxxxxxxxx 00000
0000 Xx Xxxxxx Xx
Xx Xxxxxx, Xxxxxxxxx 00000
0000 Xxxxxxxxx Xx
Xx Xxxxxx, Xxxxxxxxx 00000
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
25
000 0xx Xx
Xxxxxx, Xxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxx 00000
VIII. Other Premises at which Collateral is Stored or Located:
0000 Xx Xxxxxx Xx
XxXxxxxx, Xxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxx 00000
0000 - 000 Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Xxx 00 00-00
Xxxxxxxxx, Xxxxxxxxx 00000
IX. Locations of Records Concerning Collateral:
1319 and 0000 Xx. Xxxxxx Xxxxxx, XxXxxxxx, XX 00000, 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000 and 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000
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SCHEDULE IIIB
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING XXXXXX'X COLLATERAL
X. Xxxxxx'x official name: Xxxxxx Shoe Manufacturing Co.
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identification number issued by Xxxxxx'x state of
incorporation or organization: R027030
IV. State or Incorporation or Organization of Xxxxxx: Wisconsin
V. Chief Executive Office and principal place of business of Xxxxxx: 00000
XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000
VI. Corporate Offices of Xxxxxx: 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX
00000
VII. Warehouses: 00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000
VIII. Other Premises at which Collateral is Stored or Located:
00000 X.X. Xxxxxxx Xxx, Xxxxxxxx, XX 00000
IX. Locations of Records Concerning Collateral:
00000 XX Xxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000 and 00000 X.X. Xxxxxxx
Xxx, Xxxxxxxx, XX 00000
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EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by ________________
___________, a _____________________ corporation ("Grantor") to General Electric
Capital Corporation, a New York corporation (hereinafter referred to as
"Attorney"), as Agent for the benefit of Agent and Lenders, under a Credit
Agreement and a Security Agreement, both dated as of __________________, and
other related documents (the "Loan Documents"). No person to whom this Power of
Attorney is presented, as authority for Attorney to take any action or actions
contemplated hereby, shall be required to inquire into or seek confirmation from
Grantor as to the authority of Attorney to take any action described below, or
as to the existence of or fulfillment of any condition to this Power of
Attorney, which is intended to grant to Attorney unconditionally the authority
to take and perform the actions contemplated herein, and Grantor irrevocably
waives any right to commence any suit or action, in law or equity, against any
person or entity which acts in reliance upon or acknowledges the authority
granted under this Power of Attorney. The power of attorney granted hereby is
coupled with an interest, and may not be revoked or canceled by Grantor without
Attorney' s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and all
officers, employees or agents designated by Attorney), with full power of
substitution, as Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor or in its own name, from time to time in Attorney's discretion,
to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of the Loan Documents and, without limiting the generality of the
foregoing, Grantor hereby grants to Attorney the power and right, on behalf of
Grantor, without notice to or assent by Grantor, and at any time, to do the
following: (a) change the mailing address of Grantor, open a post office box on
behalf of Grantor, open mail for Grantor, and ask, demand, collect, give
acquittances and receipts for, take possession of, endorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against Grantor or its property;
(d) defend any suit, action or proceeding brought against Grantor if Grantor
does not defend such suit, action or proceeding or if Attorney believes that
Grantor is not pursuing such defense in a manner that will maximize the recovery
to Attorney, and settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or releases
as Attorney may deem appropriate; (e) file or prosecute any claim, litigation,
suit or proceeding in any court of competent jurisdiction or before any
arbitrator, or take any other action otherwise deemed appropriate by Attorney
for the purpose of collecting any and all such moneys due to Grantor whenever
payable and to enforce any other right in respect of Grantor's property; (f)
cause the certified public accountants then engaged by Grantor to prepare and
deliver to Attorney at any time and from time to time, promptly upon Attorney's
request, the following reports: (1) a
28
reconciliation of all accounts, (2) an aging of all accounts, (3) trial
balances, (4) test verifications of such accounts as Attorney may request, and
(5) the results of each physical verification of inventory; (g) communicate in
its own name with any party to any Contract with regard to the assignment of the
right, title and interest of such Grantor in and under the Contracts and other
matters relating thereto; (h) to file such financing statements with respect to
the Security Agreement, with or without Grantor's signature, or to file a
photocopy of the Security Agreement in substitution for a financing statement,
as the Agent may deem appropriate and to execute in Grantor's name such
financing statements and amendments thereto and continuation statements which
may require the Grantor's signature; and (i) execute, in connection with any
sale provided for in any Loan Document, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral and to
otherwise direct such sale or resale, all as though Attorney were the absolute
owner of the property of Grantor for all purposes, and to do, at Attorney's
option and Grantor's expense, at any time or from time to time, all acts and
other things that Attorney reasonably deems necessary to perfect, preserve, or
realize upon Grantor's property or assets and Attorney's Liens thereon, all as
fully and effectively as Grantor might do. Grantor hereby ratifies, to the
extent permitted by law, all that said Attorney shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor, and
Grantor has caused its seal to be affixed pursuant to the authority of its board
of directors this _____________ day of ______________________.
[GRANTOR]
--------------------------------
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
NOTARY PUBLIC CERTIFICATE
On this _____ day of ______________, 200_, [officer's name] who is
personally known to me appeared before me in his/her capacity as the [title] of
[Grantor] ("Grantor") and executed on behalf of Grantor the Power of Attorney in
favor of General Electric Capital Corporation to which this Certificate is
attached.
--------------------------------
Notary Public
29
