1
Exhibit 10.23
FOURTH AMENDMENT TO PROMISSORY NOTE
THIS FOURTH AMENDMENT TO PROMISSORY 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. NBD Bank, Rocky Co. and the Borrowers entered into a certain
Construction and Term Loan Agreement, dated as of October 27, 1993, as amended
by a certain (i) First Amendment to Construction and Term Loan Agreement, dated
as of January 28, 1994, (ii) Second Amendment to Construction and Term Loan
Agreement, dated as of December 31, 1994, and (iii) Third Amendment to
Construction and Term Loan Agreement, dated as of March 30, 1995 (such
agreement, as so amended, being referred to herein as the "Agreement").
B. The "Loan" (as defined in the Agreement) by the Bank to the
Borrowers is evidenced by a certain Promissory Note, dated October 27, 1993,
executed and delivered by Rocky Co. and the Borrowers to NBD Bank in the
original principal amount of $2,000,000.00, as amended by a certain (i) First
Amendment to Promissory Note, dated January 28, 1994, (ii) Second Amendment to
Promissory Note, dated December 31, 1994, and (iii) Third Amendment to
Promissory Note, dated March 30, 1995 (such note, as so amended, being referred
to herein as the "Note").
C. 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.
D. 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:
2
Section 1. Amendment of Note.
(a) Effective as of January 28, 1997, the reference to "Prime
Rate" in subsection (a) of the second paragraph on page 1 of the Note shall be
amended to be the "prime" rate as announced from time to time by the Bank.
(b) The language in the parenthetical (ii) in subsection (b)
of the second paragraph on Page 1 of the Note shall be amended in its entirety
to read as follows:
(ii) the sum of (y) the yield on United State
Treasury issues (as published in The Wall Street Journal, as
determined by the Bank) having a comparable term to the remaining term
of this Note, plus (z) 275 basis points.
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.
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, THE AGREEMENT,
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, IN THE AGREEMENT 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
-2-
3
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.
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
-3-
4
Bank One, Columbus, NA,
a national banking association
By: /s/ Xxxxxxxxx Calwalder
------------------------------
Title: Vice President
-4-
