Exhibit 10.2
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT LOAN AGREEMENT
This First Amendment to Amended and Restated Revolving Credit Loan
Agreement (the "Amendment"), dated as of September 20, 1995, is made and
entered into by and among Rocky Shoes & Boots, Inc., an Ohio corporation
("Rocky Inc."), Rocky Shoes & Boots Co., an Ohio corporation ("Rocky Co."),
Five Star Enterprises Ltd., a Cayman Islands corporation ("Five Star"), and
Lifestyle Footwear, Inc., a Delaware corporation ("Lifestyle") (the foregoing
parties being referred to herein individually as a "Borrower" and collectively
as the "Borrowers"), NBD Bank, an Ohio banking corporation ( "NBD"), Bank One,
Columbus, NA, a national banking association ("Bank One") (NBD and Bank One
being referred to herein individually as a "Bank" and collectively as the
"Banks"), and NBD Bank, as Agent (the "Agent"), acting in the manner and to the
extent described in Article IX of the Agreement (as defined herein).
BACKGROUND INFORMATION
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A. The Borrowers, the Banks and the Agent entered into a certain
Amended and Restated Revolving Credit Loan Agreement, dated as of March 30,
1995 (the "Agreement"), pursuant to which the Banks agreed to provide revolving
credit loans to the Borrowers, upon and subject to the terms and conditions as
set forth in the Agreement.
B. The Borrowers have requested a waiver and amendment of the
Agreement, and the Banks are willing to give such waiver and to amend the
Agreement, upon and subject to the terms and conditions as hereinafter set
forth.
PROVISIONS
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NOW, THEREFORE, in consideration of the foregoing, the provision of
the agreements and covenants hereinafter contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Banks, the Agent and the Borrowers hereby agree as follows
(capitalized terms not defined herein shall have the meanings set forth in the
Agreement):
SECTION 1. WAIVER. Without giving effect to the amendment of
the Agreement set forth in Section 2(c) below, the Banks hereby waive
compliance by the Borrowers with respect to the covenant regarding Capital
Expenditures set forth in Section 7.2(l)(v)(x) of the Agreement, specifically
that the Borrowers shall not permit Capital Expenditures to exceed $5,500,000
in Fiscal Year 1995.
SECTION 2. AMENDMENT OF THE AGREEMENT.
(a) The definition of "FISCAL YEAR" set forth in Section
1.1 of the Agreement is amended in its entirety to provide as follows:
"FISCAL YEAR" shall mean, as to the Borrowers, (a)
any period of twelve consecutive calendar months ending on June 30
through and including June 30, 1995, and (b) any period of twelve
consecutive calendar months ending on December 31 beginning with
December 31,1996.
(b) Section 7.2(l)(ii) of the Agreement shall be amended
in its entirety to provide as follows:
(ii) CONSOLIDATED TANGIBLE NET WORTH. Permit
Consolidated Tangible Net Worth to be less than $22,400,000, which
amount shall increase (x) annually on the last day of each Fiscal Year
by 75% of Consolidated Earnings for such Fiscal Year (but not
decreased by any losses), commencing with the Fiscal Year ending June
30, 1995, and (y) by 75% of Consolidated Earnings for the six-month
interim period ending December 31, 1995 (but not decreased by any
losses).
(c) Without affecting the waiver given in Section 1
above, Section 7.2(l)(v) of the Agreement shall be amended in its entirety to
provide as follows:
(v) CAPITAL EXPENDITURES. Permit Capital
Expenditures to exceed (w) $5,500,000 in Fiscal Year 1995, (x)
$1,000,000 in the interim six-month period from July 1, 1995 through
and including December 31, 1995, (y) $1,500,000 in the Fiscal Year
ending December 31, 1996, and (z) $2,000,000 in each Fiscal Year
thereafter.
SECTION 3. TRUTH OF REPRESENTATIONS AND WARRANTIES; NO DEFAULTS.
The Borrowers hereby represent and warrant that the following shall be true and
correct as of the date of this Amendment:
(a) The representations and warranties of the Borrower
contained in Article V of the Agreement are true and correct on and as
of the date of this Amendment as if made on and as of such date unless
stated to relate to a specific earlier date;
(b) No event or condition exists which constitutes a
Default or an Event of Default;
(c) All financial information heretofore provided to the
Banks and the Agent is true, accurate and complete in all material
respects; and
(d) Neither this Amendment nor any other document,
certificate or written statement furnished to the Banks or to the
Agent by or on behalf of the Borrowers in connection with the
transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements contained herein and therein not misleading.
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SECTION 4. REAFFIRMATION OF LIABILITY. The Borrowers hereby
reaffirm their respective liability to the Banks under the Agreement and all
other agreements and instruments executed by the Borrowers for the benefit of
the Banks in connection with the Agreement (the "Bank Documents"). In
addition, the Borrowers agree that the Banks and the Agent have performed all
of their respective obligations under the Agreement and the Bank Documents and
that neither the Banks are, nor the Agent is, in default under any obligation
they have or it has or any of them ever did have to the Borrowers under the
Agreement, the Bank Documents or any other agreement.
SECTION 5. EFFECTIVENESS OF AMENDMENT. All of the terms,
covenants and conditions of, and the obligations of the Borrowers under, the
Agreement and the Bank Documents shall remain in full force and effect as
amended hereby.
SECTION 6. PRESERVATION OF EXISTING SECURITY INTERESTS. Each
mortgage, security interest, pledge, assignment, lien or other conveyance or
encumbrance of any right, title, or interest in any Collateral or other
property of any kind delivered to the Banks and/or the Agent at any time by the
Borrowers or any Person in connection with the Agreement or the Bank Documents
or to secure the performance of the obligation of the Borrowers under the
Agreement and the Bank Documents shall remain in full force and effect
following the execution of this Amendment.
SECTION 7. RESERVATION OF RIGHTS; EFFECTIVE INSOLVENCY
PROCEEDING. Nothing herein shall be construed to release, waive, relinquish,
discharge, or in any other manner modify or affect the ability of any party
hereto to contest to the discharge or dischargeability in bankruptcy of the
obligation of any Person or entity in connection with the Agreement and the
Bank Documents.
SECTION 8. GOVERNING LAW. This Amendment is being delivered,
and is intended to be performed in, the State of Ohio and shall be construed
and enforced in accordance with, and governed by, the laws of the State of
Ohio.
SECTION 9. SEVERABILITY. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10. COUNTERPARTS. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 11. HEADINGS. The headings of the sections of this
Amendment are for convenience only and shall not affect the construction or
interpretation of this Amendment.
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SECTION 12. INTERPRETATION. This Amendment is to be deemed to
have been prepared jointly by the parties hereto, and any uncertainty or
ambiguity existing herein shall not be interpreted against any party but shall
be interpreted according to the rules for the interpretation of arm's length
agreements.
SECTION 13. WAIVER OF JURY TRIAL. THE BANKS, THE AGENT AND EACH
BORROWER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWING, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
AMENDMENT OR ANY RELATED INSTRUMENT OF AGREEMENT, OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY, OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN), OR ACTIONS OF ANY OF THEM. THIS WAIVER SHALL NOT IN ANY WAY
AFFECT THE AGENT'S OR THE BANKS' ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED HEREIN, IN THE AGREEMENT
OR ANY RELATED INSTRUMENT OR AGREEMENT. NEITHER THE BANKS, THE AGENT NOR THE
BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN
MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE BANKS, THE AGENT OR THE
BORROWERS EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of the date first
above written.
BORROWERS: BANKS:
ROCKY SHOES & BOOTS, INC., NBD BANK,
an Ohio corporation an Ohio banking corporation
By: /s/ Mike Brooks By: /s/ Kathleen T. Coleman
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Title: President & CEO Title: Second Vice President
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ROCKY SHOES & BOOTS CO., BANK ONE, COLUMBUS, NA,
an Ohio corporation a national banking association
By: /s/ David Fraedich By: /s/ Elizabeth E. Cadwallader
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Title: Executive Vice President & CFO Title: Vice President
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FIVE STAR ENTERPRISES, LTD., AGENT:
a Cayman Islands corporation
NBD BANK, AS AGENT,
By: /s/ Mike Brooks an Ohio banking corporation
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Title: President & CEO By: /s/ Kathleen T. Coleman
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Title: Second Vice President
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LIFESTYLE FOOTWEAR, INC.,
a Delaware corporation
By: /s/ David Fraedrich
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Title: Executive Vice President & CFO
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