CONTINUING GUARANTY
Exhibit 10.2
CONTINUING GUARANTY
| TO: | XXXXX FARGO BANK, NATIONAL ASSOCIATION |
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 XXXXX 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 Xxxxx Fargo Bank,
National Association, Portland Regional Commercial Banking Office, 0000 X.X. Fifth Avenue, MAC
P6101-133, Xxxxxxxx, Xxxxxx 00000, 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.
6. GUARANTOR’S WAIVERS.
(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 otherwise, or which in any way impairs or suspends any rights or remedies of Bank against
any of the Subsidiaries; (vi) any impairment of the value of any interest in any security for the
Indebtedness or any portion thereof, including without limitation, the failure to obtain or
maintain perfection or recordation of any interest in any such security, the release of any such
security without substitution, and/or the failure to preserve the value of, or to comply with
applicable law in disposing of, any such security; (vii) any modification of the Indebtedness, in
any form whatsoever, including any modification made after revocation hereof to any Indebtedness
incurred prior to such revocation, and including without limitation the renewal, extension,
acceleration or other change in time for payment of, or other change in the terms of, the
Indebtedness or any portion thereof, including increase or decrease of the rate of interest
thereon, except for contract modifications relative to Indebtedness of a Subsidiary after Guarantor
has sold such Subsidiary, which modifications increase the amount of such Indebtedness; or (viii)
any requirement that Bank give any notice of acceptance of this Guaranty. Until all Indebtedness
shall have been paid in full,
Guarantor shall have no right of subrogation, and Guarantor waives any right to enforce any remedy
which Bank now has or may hereafter have against any of the Subsidiaries or any other person, and
waives any benefit of, or any right to participate in, any security now or hereafter held by Bank.
Guarantor further waives all rights and defenses Guarantor may have arising out of (A) any election
of remedies by Bank, even though that election of remedies, such as a non-judicial foreclosure with
respect to any security for any portion of the Indebtedness, destroys Guarantor’s rights of
subrogation or Guarantor’s rights to proceed against any of the Subsidiaries for reimbursement, or
(B) any loss of rights Guarantor may suffer by reason of any rights, powers or remedies of any of
the Subsidiaries in connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging Subsidiaries’ Indebtedness, whether by operation of law or otherwise, including any
rights Guarantor may have to a fair market value hearing to determine the size of a deficiency
following any foreclosure sale or other disposition of any real property security for any portion
of the Indebtedness.
7. BANK’S RIGHTS WITH RESPECT TO GUARANTOR’S PROPERTY IN BANK’S POSSESSION. In addition to
all liens upon and rights of setoff against the monies, securities or other property of Guarantor
given to Bank by law, Bank shall have a right of setoff against all monies, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with Bank, whether held
in a general or special account or deposit or for safekeeping or otherwise, and every such right of
setoff may be exercised without demand upon or notice to Guarantor. No right of setoff shall be
deemed to have been waived by any act or conduct on the part of Bank, or by any neglect to exercise
such right of setoff or to enforce such lien, or by any delay in so doing, and every right of
setoff shall continue in full force and effect until such right of setoff is specifically waived or
released by Bank in writing.
8. SUBORDINATION. Any Indebtedness of any of the Subsidiaries now or hereafter held by
Guarantor is hereby subordinated to the Indebtedness of Subsidiaries to Bank. Such Indebtedness of
Subsidiaries to Guarantor is assigned to Bank as security for this Guaranty and the Indebtedness
and, if Bank requests, shall be collected and received by Guarantor as trustee for Bank and paid
over to Bank on account of the Indebtedness of Subsidiaries to Bank but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of this Guaranty.
Any notes or other instruments now or hereafter evidencing such Indebtedness of any of the
Subsidiaries to Guarantor shall be marked with a legend that the same are subject to this Guaranty
and, if Bank so requests, shall be delivered to Bank. Bank is hereby authorized in the name of
Guarantor from time to time to file financing statements and continuation statements and execute
such other documents and take such other action as Bank deems necessary or appropriate to perfect,
preserve and enforce its rights hereunder.
9. REMEDIES; NO WAIVER. All rights, powers and remedies of Bank hereunder are cumulative. No
delay, failure or discontinuance of Bank in exercising any right, power or remedy hereunder shall
affect or operate as a waiver of such right, power or remedy; nor shall any single or partial
exercise of any such right, power or remedy preclude, waive or otherwise affect any other or
further exercise thereof or the exercise of any other right, power or remedy. Any waiver, permit,
consent or approval of any kind by Bank of any breach of this Guaranty, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only to the extent set
forth in writing.
10. COSTS, EXPENSES AND ATTORNEYS’ FEES. Guarantor shall pay to Bank immediately upon demand
the full amount of all payments, advances, charges, costs and expenses, including reasonable
attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house
counsel), expended or incurred by Bank in connection with the enforcement of any of Bank’s rights,
powers or remedies and/or the collection of any amounts which become due to Bank under this
Guaranty, and the prosecution or defense of any action in any way related to this Guaranty, whether
incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including
any of the foregoing incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought by Bank or any other
person) relating to Guarantor or any other person or entity. All of the foregoing shall be paid by
Guarantor with interest from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or Bank’s Prime Rate in effect from time to time.
11. SUCCESSORS; ASSIGNMENT. This Guaranty shall be binding upon and inure to the benefit of
the heirs, executors, administrators, legal representatives, successors and assigns of the parties;
provided however, that Guarantor may not assign or transfer any of its interests or rights
hereunder without Bank’s prior written consent. Guarantor acknowledges that Bank has the right to
sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest
in, any Indebtedness of Subsidiaries to Bank and any obligations with respect thereto, including
this Guaranty. In connection therewith, Bank may disclose all documents and information which Bank
now has or hereafter acquires relating to Guarantor and/or this Guaranty, whether furnished by
Subsidiaries, Guarantor or otherwise. Guarantor further agrees that Bank may disclose such
documents and information to Subsidiaries.
12. AMENDMENT. This Guaranty may be amended or modified only in writing signed by Bank and
Guarantor.
13. intentionally deleted.
14. APPLICATION OF SINGULAR AND PLURAL. In all cases where there is but a single Borrower,
then all words used herein in the plural shall be deemed to have been used in the singular where
the context and construction so require; and when there is more than one Borrower named herein, or
when this Guaranty is executed by more than one Guarantor, the word “Subsidiaries” and the word
“Guarantor” respectively shall mean all or any one or more of them as the context requires.
15. UNDERSTANDING WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor warrants and
agrees that each of the waivers set forth herein is made with Guarantor’s full knowledge of its
significance and consequences, and that under the circumstances, the waivers are reasonable and not
contrary to public policy or law. If any waiver or other provision of this Guaranty shall be held
to be prohibited by or invalid under applicable public policy or law, such waiver or other
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such waiver or other provision or any remaining provisions of this
Guaranty.
16. GOVERNING LAW. This Guaranty shall be governed by and construed in accordance with the
laws of the State of Oregon.
17. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to submit to
binding arbitration all claims, disputes and controversies between or among them (and their
respective employees, officers, directors, attorneys, and other agents), whether in tort, contract
or otherwise, in any way arising out of or relating to this Guaranty and its negotiation,
execution, collateralization, administration, repayment, modification, extension, substitution,
formation, inducement, enforcement, default or termination.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a location in
Oregon selected by the American Arbitration Association (“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law
provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such
other administrator as the parties shall mutually agree upon, in accordance with the AAA’s
commercial dispute resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the
arbitration shall be conducted in accordance with the AAA’s optional procedures for large, complex
commercial disputes (the commercial dispute resolution procedures or the optional procedures for
large, complex commercial disputes to be referred to herein, as applicable, as the “Rules”). If
there is any inconsistency between the terms hereof and the Rules, the terms and procedures set
forth herein shall control. Any party who fails or refuses to submit to arbitration following a
demand by any other party shall bear all costs and expenses incurred by such other party in
compelling arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by
any party that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar
applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (i) foreclose against real or personal
property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of
collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such
as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after
the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the
right or obligation of any party to submit any dispute to arbitration or reference hereunder,
including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii)
of this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in which the
amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected
according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any
dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote
of a panel of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed
in the State of Oregon or a neutral retired judge of the state or federal judiciary of Oregon, in
either case with a minimum of ten years experience in the substantive law applicable to the subject
matter of the dispute to be arbitrated. The arbitrator will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation in determining any claim. In any
arbitration proceeding the
arbitrator will decide (by documents only or with a hearing at the arbitrator’s discretion) any
pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions
for summary adjudication. The arbitrator shall resolve all disputes in accordance with the
substantive law of Oregon and may grant any remedy or relief that a court of such state could order
or grant within the scope hereof and such ancillary relief as is necessary to make effective any
award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose
sanctions and to take such other action as the arbitrator deems necessary to the same extent a
judge could pursuant to the Federal Rules of Civil Procedure, the Oregon Rules of Civil Procedure
or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. The institution and maintenance of an action for judicial relief or
pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any
party, including the plaintiff, to submit the controversy or claim to arbitration if any other
party contests such action for judicial relief.
(e) Discovery. In any arbitration proceeding, discovery will be permitted in
accordance with the Rules. All discovery shall be expressly limited to matters directly relevant
to the dispute being arbitrated and must be completed no later than 20 days before the hearing
date. Any requests for an extension of the discovery periods, or any discovery disputes, will be
subject to final determination by the arbitrator upon a showing that the request for discovery is
essential for the party’s presentation and that no alternative means for obtaining information is
available.
(f) Class Proceedings and Consolidations. No party hereto shall be entitled to join
or consolidate disputes by or against others in any arbitration, except parties who have executed
this Guaranty or any other contract, instrument or document relating to any Indebtedness, or to
include in any arbitration any dispute as a representative or member of a class, or to act in any
arbitration in the interest of the general public or in a private attorney general capacity.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award all costs and
expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and
the parties shall take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except for disclosures of
information by a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties potentially
applies to a dispute, the arbitration provision most directly related to the documents between the
parties or the subject matter of the dispute shall control. This arbitration provision shall
survive termination, amendment or expiration of any of the documents or any relationship between
the parties.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK CONCERNING LOANS AND
OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY
BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of October 13,
2008.
LACROSSE FOOTWEAR, INC.
By:
Xxxxxx X.
Xxxxxxxxx
Title: President & CEO
