EXHIBIT 10.1
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
entered into as of the 21st day of June, 2002, by and between GMAC BUSINESS
CREDIT, LLC, a Delaware limited liability company ("Lender"), and ROCKY SHOES &
BOOTS, INC., an Ohio corporation, and LIFESTYLE FOOTWEAR, INC., a Delaware
corporation (each a "Borrower" and collectively, the "Borrowers").
WITNESSETH:
WHEREAS, Lender and Borrowers entered into that certain Loan and
Security Agreement dated as of September 18, 2000, as amended from time to time
(collectively, the "Agreement"); and
WHEREAS, as a result of certain changes in law regarding the granting
and perfection of security interests, the parties hereto now desire to amend the
Agreement to reflect such changes in the law.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms and
conditions of this Amendment, the parties, intending to be bound, hereby agree
as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms that are not
defined hereunder shall have the same meanings as set forth in the Agreement,
and the Agreement, to the extent not inconsistent with this Amendment, is
incorporated herein by this reference as though the same were set forth in its
entirety. To the extent any terms and provisions of the Agreement are
inconsistent with the amendments set forth in PARAGRAPH 2 below, such terms and
provisions shall be deemed superseded hereby. Except as specifically set forth
herein, the Agreement shall remain in full force and effect and its provisions
shall be binding on the parties hereto.
2. AMENDMENT OF THE AGREEMENT. The Agreement is hereby amended as
follows:
(a) Any and all references to the Agreement shall be deemed to
refer to and include this Amendment, as the same may be further amended,
modified, restated or supplemented from time to time.
(b) The definitions of the terms "Commercial Tort Claim,"
"Deposit Account," "Electronic Chattel Paper," "Letter-of-Credit Rights,"
"Payment Intangibles," "Software," "Supporting Obligations" and "Tangible
Chattel Paper" shall have the meanings assigned thereto in the Uniform
Commercial Code.
(c) The definitions of the terms "Computer Hardware and
Software," "New Collateral," "Organizational I.D. Number," "Type of
Organization" and "Uniform Commercial Code" are hereby appended to Section 2 of
the Agreement to read in their entirety as follows:
"Computer Hardware and Software" means all rights (including
rights as licensee and lessee) with respect to (i) computer and other
electronic data processing hardware, including all integrated computer
systems, central processing units, memory units, display terminals,
printers, computer elements, card readers, tape drives, hard and soft
disk drives, cables, electrical supply hardware, generators, power
equalizers, accessories, peripheral devices and other related computer
hardware; (ii) all Software and all software programs designed for use
on the computers and electronic data processing hardware described in
clause (i) above, including all operating system software, utilities
and application programs in whatsoever form (source code and object
code in magnetic tape, disk or hard copy format or any other listings
whatsoever); (iii) any firmware associated with any of the foregoing;
and (iv) any documentation for hardware, software and firmware
described in clauses (i), (ii) and (iii) above, including flow charts,
logic diagrams, manuals, specifications, training materials, charts and
pseudo codes; including all rights with respect thereto, including any
and all licenses, options, warranties, service contracts, program
services, test rights and indemnifications, and any substitutions,
replacements, additions or model conversions of any of the foregoing.
"New Collateral" shall mean, collectively, Accounts,
Commercial Tort Claims, Deposit Accounts, Electronic Chattel Paper,
Letter-of-Credit Rights, Payment Intangibles, Software, Supporting
Obligations, Tangible Chattel Paper and Computer Hardware and Software;
provided, however, notwithstanding anything to the contrary contained
herein, the term "New Collateral" shall not include any Excluded
Property, "Excluded Property" means (i) any Equipment that is subject
to a "purchase money security interest", as such term is now or
hereafter defined in the UCC, which (x) constitutes a Permitted Lien
under the Agreement and (y) prohibits the creation by a Borrower of a
junior security interest therein, unless the holder thereof has
consented to the creation of such a junior security interest; (ii) any
Computer Hardware and Software, General Intangibles, contract right,
license agreement or any other agreement if and to the extent that (A)
in the case of any such Collateral, (x) any contract evidencing the
same contains a contractual restriction or limitation which prohibits
the grant or creation of a security interest therein, or (y) a
restriction or limitation imposed by applicable law, regulation, rule,
order or other directive of any governmental body, agency or authority,
or the order of any court of competent jurisdiction, prohibits the
grant or creation of a security interest in such item of Collateral, or
(B) in the case of any such item of Collateral, such item would be
subject to loss or forfeiture upon the grant or creation of a security
interest therein by reason of (x) a contractual restriction or
limitation contained in any such contract evidencing the same, or (y) a
restriction or limitation imposed by applicable law, regulation, rule,
order or other directive of any governmental body, agency or authority,
or the order of any court of competent jurisdiction; and (iii) any
depository account maintained by any Borrower used solely (A) for xxxxx
cash purposes; (B) for payroll; (C) for charitable contributions; or
(D)
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for medical expenses or payments, pension benefits, employee benefits,
employee taxes, stock options and like special purpose employee
accounts.
"Organizational I.D. Number" means, with respect to a Borrower, the
organizational identification number assigned to such Borrower by the applicable
governmental unit or agency of the jurisdiction of organization for the
Borrower.
"Type of Organization" means, with respect to a Borrower, the kind or
type of entity of such Borrower, such as a corporation or limited liability
company.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect in the State of Michigan on the date of this Agreement, as may be amended
or otherwise modified and in effect from time to time; provided that, if the
context so requires, "Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in any applicable jurisdiction.
(d) The definition of the terms "Accounts" and "General
Intangibles" appearing in Section 2 of the Agreement are hereby amended and
restated in their entirety to read as follows:
"Accounts" shall have the meaning given to such term in the
Uniform Commercial Code.
"General Intangibles" shall have the meaning given to such
term in the Uniform Commercial Code.
(e) The definition of the term "Collateral" appearing in
Section 2 of the Agreement is deemed amended to add thereto and include, without
limitation (including for purposes of this Amendment), the New Collateral as of
the date of the original grant of security interest by each Borrower to Lender.
(f) The introductory paragraph of SECTION 2 is hereby amended
by inserting the following sentence at the beginning of such paragraph:
Except as otherwise defined in this Agreement or the Loan
Documents, all words, terms and/or phrases used herein and therein
shall be defined by the applicable definition therefor (if any) in the
Uniform Commercial Code.
(g) SECTION 5.1 is hereby amended by renumbering the current
text of SECTION 5.1 as subparagraph (a) and inserting the following text as
SECTION 5.1(b):
(b) In addition to the grant of security interest set forth
above, each Borrower hereby grants to Lender, to secure payment when due (at
maturity or otherwise) of such Borrower's Obligations, a continuing, first
priority lien and security interest in and to each item
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of New Collateral (subject to Permitted Liens), whether now existing or owned,
or hereafter arising or acquired, regardless of where located.
(h) A new Section 5.6 is hereby appended to the Agreement to
read in its entirety as follows:
5.6 FURTHER ASSURANCES. Each Borrower hereby irrevocably
authorizes Lender at any time, and from time to time, to file in any
jurisdiction any initial financing statements and amendments thereto
with respect of any property in which any of the Borrowers have granted
to Lender a security interest or collateral assignment that (A)
indicate the Collateral (y) as all assets of a Borrower or words of
similar effect, regardless of whether any particular asset comprised in
the Collateral falls within the scope of Article 9 of the Uniform
Commercial Code of the jurisdiction wherein such financing statement or
amendment is filed, or (z) as being of an equal or lesser scope or
within greater detail, and (B) contain any other information required
by Part 5 of Article 9 of the Uniform Commercial Code of the
jurisdiction wherein such financing statement or amendment is filed
regarding the sufficiency or filing office acceptance of any financing
statement or amendment, including (y) the Type of Organization and the
Organizational I.D. Number issued to the Borrower and (z) in the case
of a financing statement filed as a fixture filing or indicating
Collateral to be extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates. Each
Borrower further ratifies and affirms its authorization for any
financing statements and/or amendments thereto, filed by Lender in any
jurisdiction prior to the date of this Agreement.
(i) A new Section 5.7 is hereby appended to the Agreement to
read in its entirety as follows:
5.7 ADDITIONAL COLLATERAL. Each Borrower shall promptly notify
Lender, in writing, of the existence of any Collateral consisting of
Deposit Accounts, Investment Property, Letter-of-Credit Rights or
Electronic Chattel Paper and shall, upon the request of Lender,
promptly execute such other documents, and do such other acts or things
deemed appropriate by Lender to deliver to Lender control with respect
to such Collateral; with respect to Collateral in the possession of a
third party, other than Certificated Securities and Goods covered by a
Document, an acknowledgment from the third party that it is holding the
Collateral for benefit of the Lender; and promptly notify Lender, in
writing, upon incurring or otherwise obtaining a Commercial Tort Claim
in excess of the sum of $100,000 after the date hereof against any
third party, and, upon the request of Lender, will promptly enter into
an amendment to this Agreement, and do such other acts or things deemed
reasonably appropriate by Lender to give Lender a security interest in
such Commercial Tort Claim.
(j) A new Section 6.25 is hereby appended to the Agreement to
read in its entirety as follows:
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6.25 ORGANIZATION. Each Borrower's state of organization, Type
of Organization, and Organizational I.D. Number are as follows:
ROCKY SHOES & BOOTS, INC.
State of Organization: Ohio
Type of Organization: corporation
Organizational I.D. Number: 821674
LIFESTYLE FOOTWEAR, INC.
State of Organization: Delaware
Type of Organization: corporation
Organizational I.D. Number: 2109896
(k) SECTION 12.21(d) is hereby amended and restated to
read in its entirety as follows:
(d) RESERVED.
3. REPRESENTATIONS, COVENANTS AND WARRANTIES; NO DEFAULT. The
representations, covenants and warranties set forth in the Agreement shall be
deemed remade as of the date hereof by each Borrower (other than representations
and warranties made as of a particular date), except that any and all references
to the Agreement in such representations and warranties shall be deemed to
include this Amendment. Each Borrower hereby represents and confirms that no
Event of Default has occurred and is continuing and no event has occurred and is
continuing that, with the lapse of time, the giving of notice, or both, would
constitute such an Event of Default under the Agreement.
4. DELIVERY OF DOCUMENTS. Notwithstanding any of the foregoing, prior
to or contemporaneously with the making of the Amendment, Lender shall have
received from each Borrower a fully executed copy of this Amendment and each
other document, instrument or agreement requested by Lender, each in form and
substance satisfactory to Lender, and all of the transactions contemplated by
each such document shall have been consummated or each condition contemplated by
each such document shall have been satisfied.
5. FEES AND EXPENSES. Each Borrower agrees to pay on demand all costs
and expenses of or incurred by Lender (including, but not limited to, legal fees
and expenses) in connection with the evaluation, negotiation, preparation,
execution and delivery of this Amendment and all related documents, instruments
and agreements.
6. EFFECTUATION. The amendments to the Agreement contemplated by this
Amendment shall be deemed effective immediately upon the full execution of this
Amendment and without any further action required by the parties hereto. There
are no conditions precedent or subsequent to the effectiveness of this
Amendment.
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7. CONTINUING. EFFECT. Except as otherwise specifically set forth
herein, the provisions of the Agreement shall remain in full force and effect.
Each Borrower hereby reaffirms its grant of the security interest in the
Collateral, as amended hereby.
8. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
Amendment to Loan and Security Agreement Signature Page
IN WITNESS WHEREOF, the parties hereto have duty executed this
Amendment to Loan and Security Agreement as of the date first above written.
ROCKY SHOES & BOOTS, INC.,
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxxx
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Name: Xxxxx X. XxXxxxxx
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Title: V.P. & C.F.O.
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LIFESTYLE FOOTWEAR, INC.,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxxx
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Name: Xxxxx X. XxXxxxxx
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Title: V.P. & C.F.O.
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GMAC BUSINESS CREDIT, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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