1
Exhibit 10.21
SECOND AMENDMENT TO INSTALLMENT BUSINESS LOAN NOTE
This Second Amendment to Installment Business Loan Note (the
"Amendment"), is made and entered into as of January 28, 1997, by and among
Bank One, Columbus, NA, a national banking association, with its principal
place of business located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000
(hereinafter the "Bank"), and Rocky Shoes & Boots, Inc., an Ohio corporation
("Rocky Inc."), individually and as successor by merger to 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") (Rocky Inc., Five Star and Lifestyle shall
hereinafter be referred to individually as a "Borrower" and collectively as the
"Borrowers"), with their principal place of business located at 00 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxx 00000.
Background Information
A. The Borrowers and Rocky Co. executed and delivered to NBD Bank a
certain Installment Business Loan Note in the principal amount of $815,000,
dated as of May 11, 1994, as amended by a First Amendment to Installment
Business Loan Note, dated as of August 11, 1994 (such note, as so amended, the
"Note").
B. The Bank purchased the Note from NBD Bank pursuant to a Loan
Purchase, Assignment and Master Amendment Agreement dated as of February 1,
1996, and the Note was endorsed payable to the order of the Bank.
C. The Bank and the Borrowers desire to amend the Note, all as
hereinafter set forth.
Provisions
NOW, THEREFORE, in consideration of the foregoing, the
agreement of the Bank to enter into this Amendment, the agreements and
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Bank and the
Borrowers do hereby agree as follows:
Section 1. Amendment of the Note. Effective as of January 28, 1997,
the reference to "prime" rate in the first paragraph entitled Promise to Pay on
page 1 of the Note shall be amended to be the "prime" rate as announced from
time to time by the Bank.
Section 2. Continuing Effect of Note. Except as set forth in this
Amendment, all terms, conditions and provisions of the Note shall remain the
same and continue to be in full force and effect.
Section 3. 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.
2
Section 4. WAIVER OF JURY TRIAL. EACH BORROWER AND THE BANK, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
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 THE NOTE OR ANY RELATED
INSTRUMENT OR 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 BANK'S
ABILITY TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED HEREIN, IN THE NOTE OR ANY RELATED INSTRUMENT OR AGREEMENT.
NO BORROWER NOR THE BANK SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR
OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER
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 ANY
BORROWER OR THE BANK EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
Section 5. Confession of Judgment. Each Borrower irrevocably
authorizes any attorney-at-law, including any attorney-at-law employed or
retained by the Bank, to appear for the Borrower in any court of record in
Franklin County, Ohio (which the Borrower acknowledges to be the place where
the Note and this Amendment were made) or any other state or jurisdiction
wherein the Borrower may then reside, to (i) waive the issuing and service of
process, (ii) confess judgment against the Borrower in favor of the holder of
the Note for the amount then due, together with costs of suit, (iii) release
all errors, and (iv) waive all rights of appeal. The Borrower consents to the
jurisdiction and venue of that court. The Borrower waives any conflict of
interest that any attorney-at-law employed or retained by the Bank may have in
confessing judgment under the Note (as amended by this Amendment) and consents
to payment of a legal fee to any attorney-at-law confessing judgment under the
Note (as amended by this Amendment). After judgment is entered against one or
more of the Borrowers, the power conferred may be exercised as to one or more
of the other Borrowers.
-2-
3
IN WITNESS WHEREOF, the undersigned have executed this Amendment at
Columbus, Ohio, as of the date first above written.
Rocky Shoes & Boots Inc.,
an Ohio corporation
By: /s/ XXXXX XXXXXXXXX
---------------------------
Title: Executive Vice President
& Chief Financial Officer
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
Five Star Enterprises Ltd., Lifestyle Footwear, Inc.,
a Cayman Islands Corporation a Delaware Corporation
By: /s/ XXXXX XXXXXXXXX By: /s/ XXXXX XXXXXXXXX
----------------------------- -----------------------------
Title: Treasurer Title: Treasurer
Bank One, Columbus, NA,
a national banking association
By: /s/ Xxxxxxxxx Calwalder
-----------------------------
Title: Vice President
-3-
