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EXHIBIT 10.3
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The Timberland Company
Amended and Restated
Note Agreement
Dated as of April 1, 1994
Re: Note Agreements dated as of September 30, 1989
relating to the issue and sale of
$35,000,000 9.70% Senior Notes
due December 1, 1999
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
ARTICLE I AMENDMENT AND RESTATEMENT OF THE ORIGINAL NOTE
AGREEMENTS..................................................... 2
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.................. 2
Section 1.1. Description of Notes.............................. 2
Section 1.2. Commitment, Closing Date.......................... 2
SECTION 2. PREPAYMENT OF NOTES.................................. 3
Section 2.1. Required Prepayments.............................. 3
Section 2.2. Optional Prepayments With Premium................. 3
Section 2.3. Prepayment on Failure of Holders to Give
Certain Consents.................................. 3
Section 2.4. Notice of Prepayments............................. 4
Section 2.5. Allocation of Prepayments......................... 4
Section 2.6. Direct Payment.................................... 4
SECTION 3. REPRESENTATIONS...................................... 5
Section 3.1. Representations of the Company.................... 5
Section 3.2. Representations of the Purchaser.................. 5
SECTION 4. CLOSING CONDITIONS................................... 6
Section 4.1. Conditions........................................ 6
Section 4.2. Waiver of Conditions.............................. 6
SECTION 5. COMPANY COVENANTS.................................... 7
Section 5.1. Corporate Existence, Etc.......................... 7
Section 5.2. Insurance......................................... 7
Section 5.3. Taxes, Claims for Labor and
Materials, Compliance with Laws................... 7
Section 5.4. Maintenance, Etc.................................. 8
Section 5.5. Nature of Business................................ 8
Section 5.6. Current Ratio..................................... 8
Section 5.7. Consolidated Tangible Net Worth................... 8
Section 5.8. Limitations on Indebtedness....................... 8
Section 5.9. Fixed Charges Coverage............................ 9
Section 5.10. Limitation on Liens............................... 9
Section 5.11. Restricted Payments............................... 11
Section 5.12. Sale and Leasebacks............................... 12
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Section 5.13. Mergers, Consolidations and Sales of Assets....... 13
Section 5.14. Guaranties........................................ 16
Section 5.15. Repurchase of Notes............................... 16
Section 5.16. Transactions with Affiliates...................... 16
Section 5.17. Investments....................................... 16
Section 5.18. Termination of Pension Plans...................... 18
Section 5.19. Reports and Rights of Inspection.................. 18
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.............. 21
Section 6.1. Events of Default................................. 21
Section 6.2. Notice to Holders................................. 23
Section 6.3. Acceleration of Maturities........................ 23
Section 6.4. Rescission of Acceleration........................ 24
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS..................... 24
Section 7.1. Consent Required.................................. 24
Section 7.2. Effect of Amendment or Waiver..................... 25
SECTION 8. INTERPRETATION OF AGREEMENT.......................... 25
Section 8.1. Definitions....................................... 25
Section 8.2. Accounting Principles............................. 34
Section 8.3. Directly or Indirectly............................ 34
SECTION 9. MISCELLANEOUS........................................ 35
Section 9.1. Registered Notes.................................. 35
Section 9.2. Exchange of Notes................................. 35
Section 9.3. Loss, Theft, Etc. of Notes........................ 35
Section 9.4. Expenses, Stamp Tax Indemnity..................... 36
Section 9.5. Powers and Rights Not Waived;
Remedies Cumulative............................... 36
Section 9.6. Notices........................................... 36
Section 9.7. Successors and Assigns............................ 36
Section 9.8. Survival of Covenants and Representations......... 37
Section 9.9. Severability...................................... 37
Section 9.10. Governing Law..................................... 37
Section 9.11. Captions.......................................... 37
ARTICLE II AMENDMENTS TO EXHIBITS TO ORIGINAL NOTE AGREEMENTS............. 37
Section 2.1. Amendment to Exhibit A............................... 37
Section 2.2. Amendment to Exhibit B............................... 37
Section 2.3. Amendment to Exhibit E............................... 37
Section 2.4. Schedule I to the Original Note Agreement............ 37
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ARTICLE III MISCELLANEOUS................................................ 38
Section 3.1. Ratification of Original Note Agreements;
Condition Precedent.................................. 38
Section 3.2. Counterparts......................................... 38
Section 3.3. Fees and Expenses.................................... 38
Section 3.4. References to Original Note Agreements............... 38
Section 3.5. Governing Law........................................ 38
Signatures................................................................ 39
ATTACHMENTS TO AMENDED
AND RESTATED NOTE AGREEMENT
Schedule I - List of Holders and Principal Amount of Notes Held
Schedule II - Name and Addresses of Purchasers of the Notes
Exhibit A - Form of 9.70% Senior Note due December 1, 1999
Exhibit B - Description of Debt and Leases
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THE TIMBERLAND COMPANY
11 MERRILL INDUSTRIAL DRIVE
HAMPTON, NEW HAMPSHIRE 03842-5050
AMENDED AND RESTATED NOTE AGREEMENT
Re: Note Agreements dated as of September 30, 1989
relating to the issue and sale of
$35,000,000 9.70% Senior Notes
Due December 1, 1999
Dated as of
April 1, 1994
To the Holder named In Schedule I
hereto which is a signatory of this
Agreement
Ladies and Gentlemen:
Reference is hereby made to (a) the separate Note Agreements dated as
of September 30, 1989 (the "1989 Note Agreements"), between The Timberland
Company, a Delaware corporation (the "Company"), and the Purchasers named
in Schedule I thereto (the "Holders") respectively, under and pursuant to
which $35,000,000 principal amount of the 9.70% Senior Notes of the Company
due December 1, 1999 (the "Notes") were originally issued, as amended by
those separate First Amendments dated September 15, 1993 (the "First
Amendments", which together with the 1989 Note Agreements are collectively
referred to herein as the "Original Note Agreements") between the Company
and the Holders and (b) the separate Note Agreements dated as of April 1,
1994 (the "1994 Note Agreements"), to be executed by, and to be between,
the Company and each Purchaser signatory thereto, respectively, under and
pursuant to which $65,000,000 aggregate principal amount of the 7.16%
Senior Notes of the Company due April 15, 2000 will be issued.
In connection with the execution and delivery of the 1994 Note
Agreements, the Company desires to amend and restate the Original Note
Agreements in their entirety to conform to the 1994 Note Agreements by
entering into separate counterparts of this Amended and Restated Note
Agreement (the "Second Amendment") with each of the Holders, respectively.
Pursuant to #7.1 of the Original Note Agreements, holders of at least 51%
in aggregate principal amount of the outstanding Notes must consent to all
such amendments. As you are the holder of the aggregate principal amount
of outstanding Notes set forth opposite your name on Schedule I hereto, the
Company hereby requests that you accept each of the amendments as set forth
below in the manner herein provided. The Company now wishes to amend and
restate the Original Note Agreements in the respects, but only in the
respects, hereinafter set forth, and, by your execution hereof, you hereby
agree to such amendments on the terms hereinafter set forth:
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ARTICLE I
AMENDMENT AND RESTATEMENT
OF THE ORIGINAL NOTE AGREEMENTS
Sections 1 through 9 of the Original Note Agreements shall be and are
hereby amended and restated in their entirety to read as follows:
"The undersigned, THE TIMBERLAND COMPANY, a Delaware corporation
(the "Company"), agrees with you as follows:
SECTION 1. DESCRIPTION OF NOTES AND COMMITMENT.
Section 1.1. Description of Notes. The Company will authorize the
issue and sale of $35,000,000 aggregate principal amount of its 9.70%
Senior Notes (the "Notes") to be dated the date of issue, to bear
interest from such date at the rate of 9.70% per annum, payable
semiannually in arrears on the first day of each June and December in
each year (commencing June 1, 1990) and at maturity and to bear
interest on overdue principal (including any overdue required or
optional prepayment of principal) and premium, if any, and (to the
extent legally enforceable) on any overdue installment of interest at
the rate of 11.70% per annum after maturity, whether by acceleration
or otherwise, until paid, to be expressed to mature on December 1,
1999, and to be substantially in the form attached hereto as Exhibit
A. Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months. The Notes are not subject to prepayment
or redemption at the option of the Company prior to their expressed
maturity dates except on the terms and conditions and in the amounts
and with the premium, if any, set forth in Section 2 of this Agreement.
The term "Notes" as used herein shall include each Note delivered
pursuant to this Agreement and the separate agreements with the other
purchasers named in Schedule I. You and the other purchasers named in
Schedule I are hereinafter sometimes referred to as the "Purchasers".
Section 1.2. Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and
warranties hereinafter set forth, the Company agrees to issue and sell
to you, and you agree to purchase from the Company, the aggregate
principal amount of the Notes set forth opposite your name in
Schedule I hereto, at a price of 100% of the principal amount thereof
on the Closing Date hereinafter mentioned.
Delivery of the Notes will be made at the offices of Chapman and Cutler,
111 West Monroe Street, Chicago, Illinois 60603, against payment therefor
in Federal Reserve or other funds current and immediately available at the
principal office of The First National Bank of Boston, Boston,
Massachusetts in the amount of the purchase price at 10:00 A.M., Chicago,
Illinois time, on December 8, 1989 or such earlier date as the Company
shall specify by not less than five business days' prior written notice to
you (the "Closing Date"). The Notes delivered to you on the Closing Date
will be delivered to you in the form of registered Notes for the full
amount of
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your purchase (unless different denominations are specified by you),
registered in your name or in the name of such nominee as you may specify
and in substantially the form attached hereto as Exhibit A, all as you
may specify at any time prior to the date fixed for delivery.
SECTION 2. PREPAYMENT OF NOTES.
Section 2.1. Required Prepayments. (a) The Company agrees that
on December 1, in each year commencing December 1, 1995 and ending
December 1, 1998, both inclusive (herein called "Fixed Payment Dates"),
it will prepay and apply and there shall become due and payable the
sum of $7,000,000 on the principal indebtedness evidenced by the
Notes. No premium shall be payable in connection with any required
prepayment made pursuant to this [Section] 2.1.
(b) Any prepayment of the Notes pursuant to the provisions of
[Section] 2.2 shall be credited against the obligations of the Company to
make payment at maturity and the prepayments required on the Notes in
accordance with the terms of this [Section] 2.1 in the inverse order of
maturity. If and to the extent that any prepayment of the Notes pursuant
to the provisions of [Section]2.3 does not result in the prepayment of all
Notes, the prepayments required to be made pursuant to the provisions of
this [Section] 2.1 shall be reduced by an amount that bears the same
relationship to the amount of the prepayment required by this [Section] 2.1
immediately prior to such partial prepayment pursuant to [Section] 2.3 as
the amount of such partial prepayment pursuant to [Section] 2.3 bears to
the principal amount of Notes outstanding immediately preceding such
partial prepayment.
Section 2.2. Optional Prepayments With Premium. Upon compliance with
[Section] 2.4, the Company shall have the privilege at any time and from
time to time of prepaying the outstanding Notes, either in whole or in part
(but if in part then in a minimum principal amount of $100,000) by payment
of the principal amount of the Notes, or portion thereof to be prepaid, and
accrued interest thereon to the date of such prepayment, together with a
premium equal to the Make-Whole Amount with respect to such principal
amount then to be prepaid.
Section 2.3. Prepayment on Failure of Holders to Give Certain
Consents. In the event that (i) the Company shall have determined in
good faith to enter into a transaction which will result in a violation of
any the provisions of [Section] 5.13, (ii) the Company shall have
requested the holders of the Notes in writing (accompanied by a
reasonably detailed description of the proposed transaction) to consent to
such transaction, and (iii) the holders of more than 49% of the aggregate
unpaid principal amount of the Notes shall have failed to consent to such
transaction within 30 days from the date of such request, then and in such
event the Company may upon the consummation of such transaction, within
90 days after the expiration of such 30-day period, prepay all (but not
less than all) of the Notes held by such holders who have failed to
consent to such transaction. Any such prepayment shall be made by
payment of the principal amount of the Notes being prepaid, and accrued
interest thereon
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to the date of such prepayment, together with a premium equal to the
Make-Whole Amount with respect to such principal amount then to be
prepaid.
Section 2.4. Notice of Prepayments. The Company will give notice of
any prepayment of the Notes (other than the prepayments required by
[Section] 2.1) to each holder thereof not less than 30 days nor more than
60 days before the date fixed for such optional prepayment specifying (i)
such date, (ii) the section of this Agreement under which the prepayment
is to be made, (iii) the principal amount of the holder's Notes to be
prepaid on such date, (iv) that a premium may be payable, (v) the date
when such premium will be calculated, and (vi) the accrued interest
applicable to the prepayment. Such notice of prepayment shall also
certify all facts which are conditions precedent to any such prepayment.
Notice of prepayment having been so given, the aggregate principal amount
of the Notes specified in such notice, together with the premium, if any,
and accrued interest thereon shall become due and payable on the date of
consummation of the related transaction (in the case of any prepayment
pursuant to [Section] 2.3) or on the date specified in the notice given
pursuant to the first sentence of this [Section] 2.4 (in the case of any
other prepayment). Not later than the prepayment date the Company shall
provide each holder of a Note written notice of the amount of the premium
payable in connection with such prepayment, whether or not any premium is
payable, together with a reasonably detailed computation thereof.
Section 2.5. Allocation of Prepayments. All partial prepayments, other
than prepayments pursuant to [Section] 2.3, shall be applied on all
outstanding Notes ratably in accordance with the unpaid principal amounts
thereof.
Section 2.6. Direct Payment. Notwithstanding anything to the
contrary in this Agreement or the Notes, in the case of any Note owned
by the Purchaser or its nominee or owned by any other institutional
holder who has given written notice to the Company requesting that the
provisions of this Section shall apply, the Company will promptly and
punctually pay when due the principal thereof and premium, if any, and
interest thereon, without any presentment thereof directly to the
Purchaser or such subsequent holder at the address of the Purchaser
set forth in Schedule I or at such other address as the Purchaser or
such subsequent holder may from time to time designate in writing to
the Company or, if a bank account is designated for the Purchaser on
Schedule I hereto or in any written notice to the Company from the
Purchaser or any such subsequent holder, the Company will make such
payments in immediately available funds to such bank account, marked
for attention as indicated, or in such other manner or to such other
account of the Purchaser or such holder in any bank in the United
States as the Purchaser or any such subsequent holder may from time to
time direct in writing. No such notice shall be effective with
respect to any payment if such notice is given to the Company less
than 14 days before the date of such payment. The holder of any Notes
to which this Section applies agrees that in the event it shall sell
or transfer any such Notes (i) it will, prior to the delivery of such
Notes (unless it has already done so), make a notation thereon of all
principal, if any, prepaid on such Notes and will also note thereon
the date to which interest has been paid on such Notes, and (ii) it
will promptly notify the Company of the name and
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address of the transferee of any Notes so transferred. With respect to
Notes to which this Section applies, the Company shall be entitled to
presume conclusively that the original or such subsequent institutional
holder as shall have requested the provisions hereof to apply to its Notes
remains the holder of such Notes until (y) the Company shall have received
notice from the transferor of the transfer of such Notes, and of the name
and address of the transferee, or (z) such Notes shall have been presented
to the Company as evidence of the transfer.
SECTION 3. REPRESENTATIONS.
Section 3.1. Representations of the Company. The Company
represents and warrants that all representations set forth in the form
of certificate attached hereto as Exhibit B are true and correct as of
the date hereof and are incorporated herein by reference with the same
force and effect as though herein set forth in full.
Section 3.2. Representations of the Purchaser. (a) Purchase for
Investment. You represent, and in entering into this Agreement the
Company understands, that you are acquiring the Notes for the purpose
of investment and not with a view to the resale or distribution
thereof, and that you have no present intention of selling,
negotiating or otherwise disposing of the Notes; provided that the
disposition of your property shall at all times be and remain within
your control.
(b) You represent and warrant that either:
(i) you are acquiring the Notes for your own account and with
your general corporate assets and not with the assets of any separate
account in which any employee benefit plan has any interest; or
(ii)(A)(1) you are an insurance company and a portion of the
funds to be used to make your investment hereunder constitutes plan
assets allocated to a separate account maintained by you, and
(2) the names of each employee benefit plan whose assets in
such account exceed five percent of the total assets or are expected
to exceed five percent of the total assets of such account as of the
date of such investment (for the purposes of this
[Section] 3.2(b)(ii)(A)(2), all employee benefit plans maintained by
the same employer or employee organization are deemed to be a single
plan) have been disclosed in writing to the Company; and
(B) the remaining portion of the funds used to purchase the
Notes does not constitute assets allocated to any separate account
maintained by you such that the application of such funds constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended.
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(c) You acknowledge that the Notes have not been registered under the
Securities Act of 1933, as amended, and you understand that the Notes must
be held indefinitely unless they are subsequently registered under said
Securities Act or an exemption from such registration is available. You
have been advised that the Company does not contemplate registering, and is
not legally required to register, the Notes under said Securities Act.
SECTION 4. CLOSING CONDITIONS
Section 4.1. Conditions. Your obligation to purchase the Notes on
the Closing Date shall be subject to the performance by the Company of
its agreements hereunder which by the terms hereof are to be performed
at or prior to the time of delivery of the Notes and to the following
further conditions precedent:
(a) Closing Certificate. You shall have received a certificate
dated the Closing Date, signed by the President or a Vice President of
the Company substantially in the form attached hereto as Exhibit B, the
truth and accuracy of which shall be a condition to your obligation to
purchase the Notes proposed to be sold to you.
(b) Legal Opinions. You shall have received from Chapman and
Cutler, who are acting as your special counsel in this transaction, and
from Ropes & Gray, counsel for the Company, their respective opinions
dated the Closing Date, in form and substance satisfactory to you, and
covering the matters set forth in Exhibits C and D, respectively,
hereto.
(c) Related Transactions. The Company shall have consummated
the sale of the entire principal amount of the Notes scheduled to be
sold on the Closing Date pursuant to this Agreement and the other
agreements referred to in [Section] 1.3.
(d) Satisfactory Proceedings. All proceedings taken in
connection with the transactions contemplated by this Agreement, and
all documents necessary to the consummation thereof, shall be
satisfactory in form and substance to you and your special counsel, and
you shall have received a copy (executed or certified as may be
appropriate) of all legal documents or proceedings taken in connection
with the consummation of said transactions.
Section 4.2. Waiver of Conditions. If on the Closing Date the Company
fails to tender to you the Notes to be issued to you on such date or if the
conditions specified in [Section]4.1 have not been fulfilled, you may
thereupon elect to be relieved of all further obligations under this
Agreement. Without limiting the foregoing, if the conditions specified in
[Section] 4.1 have not been fulfilled, you may waive compliance by the
Company with any such condition to such extent as you may in your sole
discretion determine. Nothing in this [Section] 4.2 shall operate to
relieve the Company of any of its obligations hereunder or to waive any of
your rights against the Company.
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SECTION 5. COMPANY COVENANTS.
From and after the Closing Date and continuing so long as any amount
remains unpaid on any Note:
Section 5.1.Corporate Existence, Etc. The Company will preserve
and keep in force and effect, and will cause each Restricted
Subsidiary to preserve and keep in force and effect, its corporate
existence and all licenses and permits reasonably necessary to the
proper conduct of its business the absence of which might materially
and adversely affect the properties, business or condition of the
Company or of the Company and its Restricted Subsidiaries taken as a
whole, provided that the foregoing shall not prevent any transaction
permitted by [Section] 5.13.
Section 5.2. Insurance. The Company will maintain, and will cause
each Restricted Subsidiary to maintain, insurance coverage by
financially sound and reputable insurers accorded a rating by A.M.
Best Company, Inc. of A:XII or better at the time of the issuance of
any such policy and in such forms and amounts and against such risks
as are customary for corporations of established reputation engaged in
the same or a similar business and owning and operating similar
properties; provided, however, that if, during the term of any such
insurance policy, the rating accorded the insurer shall be less than
A:XII, the Company will, on the date of renewal of any such policy
(or, if such change in rating shall occur within 90 days prior to such
renewal date, within 90 days of the date of such change in rating),
obtain such insurance policy from an insurer so rated.
Section 5.3. Taxes, Claims for Labor and Materials, Compliance with
Laws. The Company will promptly pay and discharge, and will cause each
Restricted Subsidiary promptly to pay and discharge, all lawful taxes,
assessments and governmental charges or levies imposed upon the Company
or such Restricted Subsidiary, respectively, or upon or in respect of all
or any part of the property or business of the Company or such Restricted
Subsidiary, all trade accounts payable in accordance with usual and
customary business terms, and all claims for work, labor or materials,
which if unpaid might become a Lien upon any property of the Company or
such Restricted Subsidiary not permitted by [Section] 5.10; provided the
Company or such Restricted Subsidiary shall not be required to pay any
such tax, assessment, charge, levy, account payable or claim if (i) the
validity, applicability or amount thereof is being contested in good
faith by appropriate actions or proceedings which will prevent the
forfeiture or sale of any property of the Company or such Restricted
Subsidiary or any material interference with the use thereof by the
Company or such Restricted Subsidiary if such forfeiture, sale or
interference might have a material adverse effect on the properties,
business or condition of the Company or of the Company and its Restricted
Subsidiaries taken as a whole, and (ii) the Company or such Restricted
Subsidiary shall set aside on its books, reserves deemed by it to be
adequate with respect thereto. The Company will promptly comply and will
cause each Restricted Subsidiary to comply with all laws, ordinances or
governmental rules and regulations to which it is subject, including
without limitation, the Occupational Safety and Health
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Act of 1970, the Employee Retirement Income Security Act of 1974 and all
laws, ordinances, governmental rules and regulations relating to
environmental protection in all applicable jurisdictions, the violation
of which would materially and adversely affect the properties, business,
prospects, profits or condition of the Company and its Restricted
Subsidiaries or would result in any Lien upon any material property of the
Company or any Restricted Subsidiary.
Section 5.4. Maintenance, Etc. The Company will maintain,
preserve and keep, and will cause each Restricted Subsidiary to
maintain, preserve and keep, its properties which are used or useful
in the conduct of its business (whether owned in fee or a leasehold
interest) in good repair and working order and from time to time will
make all necessary and reasonable repairs, replacements, renewals and
additions so that at all times the efficiency thereof shall be
maintained, unless the failure to do so would not have a material
adverse effect on the properties, business or condition of the Company
or of the Company and its Restricted Subsidiaries taken as a whole.
Section 5.5. Nature of Business. Neither the Company nor any
Restricted Subsidiary will engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis, which
would then be engaged in by the Company and its Restricted
Subsidiaries would be substantially changed from the general nature of
the business engaged in by the Company and its Restricted Subsidiaries
on the date of this Agreement.
Section 5.6. Current Ratio. The Company will at all times keep
and maintain Consolidated Current Assets at an amount not less than
125% of Consolidated Current Liabilities.
Section 5.7. Consolidated Tangible Net Worth. The Company will at
all times keep and maintain Consolidated Tangible Net Worth at an
amount not less than (i) for the fiscal quarter of the Company ending
June 30, 1994, the sum of $56,759,000 plus 25% of Consolidated Net
Income for the fiscal quarter of the Company ended March 31, 1994 (but
without deduction in the case of a deficit in Consolidated Net Income)
and (ii) for each fiscal quarter thereafter, the sum of (x) the amount
required to be maintained during the immediately preceding fiscal
quarter of the Company, and (y) an amount equal to 25% of Consolidated
Net Income for such preceding fiscal quarter (but without deduction in
the case of a deficit in Consolidated Net Income).
Section 5.8. Limitations on Indebtedness. (a) The Company will not
and will not permit any Restricted Subsidiary to create, assume or
incur or in any manner be or become liable in respect of any Current
Debt or Funded Debt, except:
(1) the Notes;
(2) Current Debt and Funded Debt of the Company and its
Restricted Subsidiaries outstanding as of the date of the Second
Amendments and reflected
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in Annex B to Exhibit B attached hereto (including any amendment,
modification, or other change to the Current Debt and Funded Debt
described in such Annex B and which does not increase the principal
amount thereof);
(3) Current Debt or Funded Debt of the Company, provided that
at the time of incurrence thereof and after giving effect thereto and
to the application of the proceeds thereof:
(i) Total Debt will not exceed 175% of Total Equity, and
(ii) Net Income Available for Interest Charges for the four
immediately preceding fiscal quarters shall have been at least 200%
of Pro Forma Interest Charges for such period;
(4) Current Debt or Funded Debt of a Restricted Subsidiary to
the Company or to a Wholly-owned Restricted Subsidiary; and
(5) Current Debt or Funded Debt of a Restricted Subsidiary,
other than that permitted by [Section]5.8(a)(4), provided that at the
time of incurrence thereof and after giving effect thereto and to the
application of the proceeds thereof, (i) Specified Debt does not exceed
20% of Consolidated Tangible Net Worth, (ii) Total Debt does not exceed
175% of Total Equity and (iii) Net Income Available for Interest
Charges for the four immediately preceding fiscal quarters shall have
been at least 200% of Pro Forma Interest Charges for such period.
(b) Any corporation which becomes a Restricted Subsidiary after the
date hereof shall for all purposes of this [Section] 5.8 be deemed to have
created, assumed or incurred at the time it becomes a Restricted Subsidiary
all Funded Debt and Current Debt of such corporation existing immediately
after it becomes a Restricted Subsidiary.
Section 5.9. Fixed Charges Coverage. The Company will keep and
maintain Net Income Available for Fixed Charges for each period of
four consecutive fiscal quarters at an amount which is not less than
150% of Fixed Charges for such period.
Section 5.10. Limitation on Liens. The Company will not, and
will not permit any Restricted Subsidiary to, create or incur, or
suffer to be incurred or to exist, any Lien on its or their property
or assets, whether now owned or hereafter acquired, or upon any income
or profits therefrom, to secure any Indebtedness or transfer any
property for the purpose of subjecting the same to the payment of
obligations in priority to the payment of its or their general
creditors, or acquire or agree to acquire, or permit any Restricted
Subsidiary to acquire, any property or assets upon conditional sales
agreements or other title retention devices, except:
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(a) Liens for property taxes and assessments or governmental
charges or Liens securing claims or demands of mechanics and material
men, provided that such claims or demands are being contested in a
manner permitted by [Section]5.3;
(b) Liens of or resulting from any judgment or award, the time
for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Company or a Restricted Subsidiary
shall at any time in good faith be prosecuting an appeal or proceeding
for a review and in respect of which a stay of execution pending such
appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including warehousemen's and
attorneys' Liens and statutory landlords' Liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to secure
statutory obligations, surety or appeal bonds or other Liens of like
general nature incurred in the ordinary course of business and not in
connection with the borrowing of money, provided in each case, the
obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings;
(d) Liens securing Indebtedness of a Restricted Subsidiary to
the Company or to another Restricted Subsidiary;
(e) Liens on property of a Restricted Subsidiary which secure
Specified Debt of such Restricted Subsidiary, provided that all such
Specified Debt shall have been incurred within the applicable
limitations provided in [Section] 5.8;
(f) Liens (including Capitalized Leases) (i) existing as of the
date of the Second Amendments and reflected in Annex B to Exhibit B
attached hereto, securing Indebtedness of the Company or any Restricted
Subsidiary outstanding on such date and (ii) securing refundings,
refinancings, restructurings or replacements of Indebtedness secured by
Liens (including Capitalized Leases) permitted by clause (i) of this
[Section]5.10(f), provided that each such refunding, refinancing,
restructuring and replacement shall not exceed the total principal
amount of Indebtedness being refunded, refinanced, restructured or
replaced and such Indebtedness may not be secured by any additional
property of the Company and its Subsidiaries;
(g) Liens incurred after the date hereof (1) given to secure
the payment of the purchase price incurred in connection with the
acquisition of fixed assets useful and intended to be used in carrying
on the business of the Company or a Restricted Subsidiary, including
Liens existing on such fixed assets at the time of acquisition thereof
or at the time of acquisition by the Company or a Restricted Subsidiary
of any business entity then owning such fixed assets, whether or not
such existing Liens were given to secure the
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15
payment of the purchase price of the fixed assets to which they attach
so long as they were not incurred, extended or renewed in contemplation
of such acquisition, provided that (i) the Lien shall attach solely to
the property acquired or purchased, (ii) at the time of acquisition of
such fixed assets, the aggregate amount remaining unpaid on all
Indebtedness secured by Liens on such fixed assets whether or not
assumed by the Company or a Restricted Subsidiary shall not exceed an
amount equal to 100% of the lesser of the total purchase price or fair
market value at the time of acquisition of such fixed assets (as
determined in good faith by the Board of Directors of the Company), and
(iii) all such Indebtedness shall have been incurred within the
applicable limitations provided in [Section]5.8 and (2) given to secure
refundings, refinancings, restructurings or replacements of
Indebtedness secured by Liens permitted by clause (1) of this
[Section] 5.10(g), provided that each such refunding, refinancing,
restructuring and replacement shall not exceed the total principal
amount of Indebtedness being refunded, refinanced, restructured or
replaced and such Indebtedness may not be secured by any additional
property of the Company and its Subsidiaries;
(h) Liens on documents and the underlying goods securing
obligations in respect of documentary letters of credit and bankers'
acceptances;
(i) Liens that may arise from the sale or transfer of
receivables pursuant to a Securitized Asset Transaction (as defined in
[Section] 5.13(d)(3));
(j) provided that no Default or Event of Default exists at the
time of creation thereof, other Liens on fixed assets (in addition to
those permitted by the foregoing provisions of this [Section] 5.10) if,
after giving effect thereto (and to the application of the proceeds
thereof), the aggregate amount of Specified Debt would not exceed 20%
of Consolidated Tangible Net Worth; and
(k) other Liens securing Funded Debt or Current Debt (in
addition to those permitted by the foregoing provisions of this
[Section] 5.10), provided that the Notes shall be equally and ratably
secured pursuant to agreements or instruments in form and substance
satisfactory to the Noteholders as evidenced by their prior written
consent thereto in accordance with the provisions of [Section] 7.1.
Section 5.11. Restricted Payments. The Company will not, except
as hereinafter provided:
(a) Declare any dividends, either in cash or property, on any
shares of its capital stock of any class (except dividends or other
distributions payable solely in shares of capital stock of the
Company); or
(b) Directly or indirectly, or through any Subsidiary,
purchase, redeem or retire any shares of its capital stock of any
class or any warrants,
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16
rights or options to purchase or acquire any shares of its capital
stock, other than purchases, redemptions or retirements of its capital
stock in connection with any employee benefit plans to the extent that
the aggregate amount of such purchases, redemptions and retirements
during the fiscal year which includes the date of the purchase,
redemption or retirement in question does not exceed the sum of (1)
$100,000 plus (2) the proceeds from sales of shares of the Company's
capital stock in connection with employee benefit plans during such
fiscal year; or
(c) Make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital stock;
or
(d) make, or permit any Restricted Subsidiary to make, any
Restricted Investment;
(such declarations or payments of dividends, purchases, redemptions or
retirements of capital stock and warrants, rights or options, and all
such other distributions and Restricted Investments being herein
collectively called "Restricted Payments"), if after giving effect
thereto the aggregate amount of Restricted Payments made during the
period from and after December 31, 1988 to and including the date of
the making of the Restricted Payment in question, would exceed the sum
of (i) $33,879,500 plus (ii) 50% of Consolidated Net Income for the
period from and after December 31, 1993, computed on a cumulative basis
for said entire period (or if such Consolidated Net Income is a
deficit figure, then minus 100% of such deficit), plus (iii) the
aggregate net cash proceeds to the Company during such period from the
sale of shares of its capital stock or warrants, rights or option to
purchase or acquire any shares of its capital stock (other than any
such sale in connection with employee benefit plans), plus (iv) the
aggregate amount of net proceeds received by the Company and its
Restricted Subsidiaries in connection with any sale or disposition of
Restricted Investments made during such period provided that for the
purposes of this [Section] 5.11 the amount of proceeds from the sale or
disposition of any Restricted Investment may not exceed the original
amount of such Restricted Investment.
The Company will not declare any dividend which constitutes a Restricted
Payment payable more than 60 days after the date of declaration thereof.
For the purposes of this [Section]5.11 the amount of any Restricted
Payment declared, paid or distributed in property of the Company shall be
deemed to be the greater of the book value or fair market value (as
determined in good faith by the Board of Directors of the Company) of such
property at the time of the making of the Restricted Payment in question.
Section 5.12. Sale and Leasebacks. The Company will not, and will
not permit any Restricted Subsidiary to, enter into any arrangement
whereby the Company or any Restricted Subsidiary shall sell or
transfer any property owned by the Company or any Restricted
Subsidiary to any Person other than the Company or a Restricted
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Subsidiary and thereupon the Company or any Restricted Subsidiary
shall lease or intend to lease, as lessee, the same property unless
(i) such property was constructed or installed for the Company or such
Restricted Subsidiary and is sold and leased back to the Company or
such Restricted Subsidiary within 18 months after such construction or
installation, and (ii) such sale by the Company or such Restricted
Subsidiary and leaseback to the Company or such Restricted Subsidiary
would not violate the provisions of [Section] 5.8 hereof.
Section 5.13. Mergers, Consolidations and Sales of Assets. (a) The
Company will not, and will not permit any Restricted Subsidiary to (i)
consolidate with or be a party to a merger with any other corporation
or (ii) sell, lease or otherwise dispose of all or any substantial
part (as defined in paragraph (d) of this Section) of the assets of
the Company and its Restricted Subsidiaries, provided, however, that:
(1) any Restricted Subsidiary may merge or consolidate with or
into any other corporation so long as (i) in any merger or
consolidation involving the Company, the Company shall be the
surviving or continuing corporation and (ii) in any merger or
consolidation involving a corporation other than the Company, (x)
the survivor shall be a Restricted Subsidiary and the Minority
Interests in the surviving corporation, expressed as a percentage of
the net worth of such surviving corporation after giving effect to
such merger or consolidation, would not exceed the lesser of (I) 25%
and (II) 10% plus the Minority Interests in such Restricted
Subsidiary on the date of this Agreement or, if the Restricted
Subsidiary is acquired or designated after the date of this
Agreement, on the date of such acquisition or designation, and (y)
aggregate Tangible Minority Interests (as defined in paragraph (d)
of this Section) in all Restricted Subsidiaries after giving effect
to such merger or consolidation would not exceed 10% of Consolidated
Tangible Net Worth;
(2) the Company may consolidate or merge with any other
corporation if (i) the surviving or continuing corporation is a
corporation organized under the laws of any state of the United
States, (ii) at the time of such consolidation or merger and after
giving effect thereto no Default or Event of Default shall have
occurred and be continuing, and (iii) after giving effect to such
consolidation or merger the surviving corporation would be permitted
to incur at least $1.00 of additional Funded Debt under the
provisions of [Section] 5.8(a)(3);
(3) any Restricted Subsidiary may sell, lease or otherwise
dispose of all or any substantial part of its assets to the Company
or any Wholly-owned Restricted Subsidiary;
(4) the Company or any Restricted Subsidiary may sell, transfer
or otherwise dispose of any Restricted Investment and any shares of
stock in any Unrestricted Subsidiary; and
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(5) a Restricted Subsidiary may consolidate or merge with any
other corporation in a transaction permitted under the provisions of
[Section] 5.13(c).
(b) The Company will not permit any Restricted Subsidiary to issue or
sell any shares of stock of any class (including as "stock" for the
purposes of this [Section]5.13, any warrants, rights or options to purchase
or otherwise acquire stock or other Securities exchangeable for or
convertible into stock) of such Restricted Subsidiary to any Person other
than the Company or a Wholly-owned Restricted Subsidiary, unless (i) such
issue or sale does not constitute a substantial part (as hereinafter
defined) of the assets of the Company and its Restricted Subsidiaries, and
(ii) to the extent that (x) the Minority Interests in such Restricted
Subsidiary, expressed as a percentage of the net worth of such Restricted
Subsidiary after giving effect to such issuance or sale would not exceed
the lesser of (I) 25% and (II) 10% plus the Minority Interests in such
Restricted Subsidiary on the date of this Agreement or, if such Restricted
Subsidiary is acquired or designated after the date of this Agreement, on
the date of such acquisition or designation, and (y) aggregate Tangible
Minority Interests in all Restricted Subsidiaries after giving effect to
such issuance or sale would not exceed 10% of Consolidated Tangible Net
Worth.
(c) The Company will not sell, transfer or otherwise dispose of
any shares of stock in any Restricted Subsidiary (except to qualify
directors) or any Indebtedness of any Restricted Subsidiary, and will
not permit any Restricted Subsidiary to sell, transfer or otherwise
dispose of (except to the Company or a Wholly-owned Restricted
Subsidiary) any shares of stock or any Indebtedness of any other
Restricted Subsidiary, unless:
(1) either (x) such sale, transfer or disposition is made
within the limitations of [Section]5.13(b), or (y) simultaneously
with such sale, transfer, or disposition, all shares of stock and
all Indebtedness (excluding any trade receivables) owed by such
Restricted Subsidiary at the time owned by the Company and by every
other Subsidiary shall be sold, transferred or disposed of as an
entirety;
(2) the Board of Directors of the Company shall have
determined, as evidenced by a resolution thereof, that such sale,
transfer or disposition is in the best interests of the Company;
(3) such stock and Indebtedness is sold, transferred or
otherwise disposed of to a Person, for consideration and on terms
reasonably deemed by the Board of Directors to be adequate and
satisfactory, provided that (i) the amount of any non-cash
consideration received by the Company or a Restricted Subsidiary
shall be determined in good faith by the Board of Directors of the
Company, as evidenced by a certificate of the president or any
vice president of the Company setting forth in reasonable detail
the basis of such determination and delivered to the Note
Purchasers, which determination shall, upon the written request of
the holder or holders of not less than 25% of the unpaid
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principal amount of the Notes, be subject to verification by an
independent appraiser designated and compensated by the Company and
not objected to by such holders, and (ii) any non-cash
consideration will be deemed a Restricted Investment made by the
Company or such Restricted Subsidiary on the date of such sale,
transfer or disposition in the amount of such valuation;
(4) except in the case of transactions permitted by
[Section]5.13(b), the Restricted Subsidiary being disposed of shall
not have any continuing investment in the Company or any other
Restricted Subsidiary not being simultaneously disposed of; and
(5) such sale or other disposition does not involve a
substantial part (as hereinafter defined) of the assets of the
Company and its Restricted Subsidiaries.
(d) As used in this [Section]5.13:
(1) A sale, lease or other disposition of assets (other
than Restricted Investments and investments in Unrestricted
Subsidiaries) shall be deemed to be a "substantial part" of the
assets of the Company and its Restricted Subsidiaries only if the
book value of such assets when added to the book value of all other
assets sold, leased or otherwise disposed of by the Company and its
Restricted Subsidiaries (other than Securitized Asset Transactions
and other transactions in the ordinary course of business) during
the same fiscal year, exceeds 15% of the Consolidated Net Tangible
Assets of the Company and its Restricted Subsidiaries determined as
of the end of the immediately preceding fiscal year or contributed
more than 15% of Net Income Available for Interest Charges, during
the next preceding three fiscal years taken as a whole. Sales or
other realization on delinquent receivables shall not be included in
any computation of sales or other dispositions hereunder. Sales of
assets shall not be included in any computations under this
paragraph (d) to the extent that (x) the proceeds from such sale are
applied to prepay the Notes pursuant to [Section] 2.2 hereof, (y)
the proceeds from such sale are applied to the voluntary prepayment
of Funded Debt, or (z) the proceeds of such sale are applied, within
one year of such sale, to the purchase of other property useful and
to be used in the business of the Company and its Restricted
Subsidiaries and, pending such application, are maintained by the
Company or any Restricted Subsidiary in a separate segregated
account.
(2) The term "Tangible Minority Interests" shall mean, with
respect to any Restricted Subsidiary, the amount that bears the same
relationship to Minority Interests in such Subsidiary as the
Consolidated Tangible Net Worth of such Subsidiary bears to the net
worth of such Subsidiary. For purposes of this definition, the
"Consolidated Tangible Net Worth" of a Restricted Subsidiary shall
be determined for such Subsidiary and its Restricted Subsidiaries in
accordance with the definitions set forth in [Section] 8.1, mutatis
mutandis.
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(3) "Securitized Asset Transaction" shall mean a sale or other
transfer by any of the Company and its Restricted Subsidiaries of
receivables which were produced in the ordinary course of business
and not contingent upon any performance or product guarantee on the
part of the Company or any Restricted Subsidiary, which sale or
transfer does not involve the creation of any recourse obligation in
respect thereof on the part of the Company or any Restricted
Subsidiary (other than matters of title to, and the character of,
the receivables so sold or transferred).
Section 5.14. Guaranties. The Company will not and will not
permit any Restricted Subsidiary to become or be liable in respect of
any Guaranty except Guaranties by the Company and its Restricted
Subsidiaries of the obligations of any Person so long as the Company
and/or the Restricted Subsidiary guaranteeing such obligation could
have incurred such obligation within the limits of this Agreement,
provided that such underlying obligation shall be deemed to have been
incurred by, and to be the continuing direct obligation of, the
guarantor for all purposes of this Agreement.
Section 5.15. Repurchase of Notes. Neither the Company nor any
Restricted Subsidiary or Affiliate, directly or indirectly, may
repurchase or make any offer to repurchase any Notes unless the offer
has been made to repurchase Notes, pro rata, from all holders of the
Notes at the same time and upon the same terms. In case the Company
repurchases any Notes, such Notes shall thereafter be canceled and no
Notes shall be issued in substitution therefor.
Section 5.16. Transactions with Affiliates. The Company will not,
and will not permit any Restricted Subsidiary to, enter into or be a
party to, any transaction or arrangement with any Affiliate (including
without limitation, the purchase from, sale to or exchange of property
with, or the rendering of any service by or for, any Affiliate),
except in the ordinary course of and pursuant to the reasonable
requirements of the Company's or such Restricted Subsidiary's business
and upon fair and reasonable terms (as determined in good faith by the
Board of Directors of the Company) no less favorable to the Company or
such Restricted Subsidiary than would obtain in a comparable
arm's-length transaction with a Person other than an Affiliate.
Section 5.17. Investments. The Company will not, and will not permit
any Restricted Subsidiary to, make any investments in or loans, advances or
extensions of credit to, any Person, except:
(a) investments, loans, advances and extensions of credit by
the Company and its Restricted Subsidiaries in a corporation which,
after giving effect to such investment, will be a Restricted
Subsidiary;
(b) investments in commercial paper maturing in 270 days or
less from the date of issuance which, at the time of acquisition by the
Company or any
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Restricted Subsidiary, is accorded a rating of P-1 by Standard &
Poor's Corporation or a rating of A-1 by Moody's Investors Services,
Inc.; (c)investments in direct obligations issued or guaranteed by the
full faith and credit of the United States of America, maturing,
except in the case of investments made with security deposits of rental
customers, in twelve months or less from the date of acquisition
thereof;
(d) investments in certificates of deposit maturing within one
year from the date of origin or other obligations (including repurchase
agreements), issued by a bank or trust company organized under the laws
of the United States or any state thereof, having capital, surplus and
undivided profits aggregating at least $250,000,000 and a long term
deposit rating of A or better from either Standard & Poor's Corporation
or Moody's Investors Service, Inc.;
(e) loans or advances not exceeding $1,000,000 in the aggregate
in the usual and ordinary course of business to officers, directors and
employees of the Company and its Restricted Subsidiaries;
(f) Investments in money market preferred stock, which, at the
time of acquisition by the Company or any Restricted Subsidiary, is
accorded a rating of AA or better by Standard & Poor's Corporation or a
rating of Aa2 or better by Moody's Investors Services, Inc.;
(g) Investments in money market mutual funds having total
assets aggregating at least $1,000,000,000 or which invests primarily
in assets described in clauses (b), (c), (d) and (f) of this
[Section] 5.17;
(h) Investments in demand deposits and endorsements for
collection;
(i) Investments to the extent that the consideration therefor
consists of capital stock of the Company; and
(j) Restricted Investments, subject to the limitations of
[Section] 5.11.
In valuing any investments, loans and advances for the purpose of
applying the limitations set forth in this [Section] 5.17 and [Section]
5.11 such investments, loans and advances shall be taken at the original
cost thereof, without allowance for any subsequent write-offs or
appreciation or depreciation therein, but less any amount repaid or
recovered on account of capital or principal.
For purposes of this [Section] 5.17, at any time when a corporation
becomes a Restricted Subsidiary, all investments of such corporation at
such time shall be deemed to have been made by such corporation, as a
Restricted Subsidiary, at such time.
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Section 5.18. Termination of Pension Plans. The Company will not
and will not permit any Subsidiary to permit any employee benefit plan
maintained by it to be terminated in a manner which could result in
the imposition of a Lien on any property of the Company or any
Subsidiary pursuant to Section 4068 of the Employee Retirement Income
Security Act of 1974, as amended, if the incurrence of such Lien would
not be permitted by [Section] 5.10.
Section 5.19. Reports and Rights of Inspection. The Company will keep,
and will cause each Subsidiary to keep, proper books of record and account
in which full and correct entries will be made of all dealings or
transactions of or in relation to the business and affairs of the Company
or such Subsidiary, in accordance with generally accepted accounting
principles consistently applied (except for changes disclosed in the
financial statements furnished to you pursuant to this [Section]5.19 and
concurred in by the independent public accountants referred to in
[Section] 5.19(b) hereof), and will furnish to you so long as you are the
holder of any Note and to each other institutional holder of the then
outstanding Notes (in duplicate if so specified below or otherwise
requested):
(a) Quarterly Statements. As soon as available and in any
event within 55 days after the end of each quarterly fiscal period
(except the last) of each fiscal year, duplicate copies of:
(1) consolidated and consolidating balance sheets of the
Company and its Restricted Subsidiaries and of the Company and
its consolidated Subsidiaries as of the close of such quarter
setting forth, in the case of such consolidated statements, in
comparative form the amount for the end of the preceding fiscal
year,
(2) consolidated and consolidating statements of income
of the Company and its Restricted Subsidiaries and of the
Company and its consolidated Subsidiaries for such quarterly
period, setting forth, in the case of such consolidated
statements, in comparative form the amount for the corresponding
period of the preceding fiscal year, and
(3) consolidated statements of cash flows of the Company
and its Restricted Subsidiaries and of the Company and its
consolidated Subsidiaries for the portion of the fiscal year
ending with such quarter, setting forth in comparative form the
amount for the corresponding period of the preceding fiscal year,
all in reasonable detail and certified as complete and correct, by an
authorized financial officer of the Company, provided that so long as
the Company shall file a quarterly report on Form 10-Q or any similar
form with the Securities and Exchange Commission or any successor
agency which contains the information set forth in this paragraph (a),
the requirements of this paragraph (a) shall be satisfied by
forwarding Form 10-Q to the holders of the Notes within 55 days after
the end of such quarterly fiscal period but, in any event, within five
days of filing such Form 10-Q with the
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Securities and Exchange Commission, and provided, further that so long as
the Unrestricted Subsidiaries of the Company taken as a whole do not
constitute a Significant Subsidiary, the Company shall not be required to
deliver to you financial statements of the Company and its Restricted
Subsidiaries referred to in paragraphs (1), (2) and (3) of this
[Section] 5.19(a);
(b) Annual Statements. As soon as available and in any event
within 110 days after the close of each fiscal year of the Company,
duplicate copies of:
(1) consolidated and consolidating balance sheets of the
Company and its Restricted Subsidiaries and of the Company and its
consolidated Subsidiaries as of the close of such fiscal year, and
(2) consolidated and consolidating statements of income and
stockholders' equity and cash flows of the Company and its
Restricted Subsidiaries and of the Company and its consolidated
Subsidiaries for such fiscal year,
in each case setting forth in comparative form the consolidated figures for
the preceding fiscal year, all in reasonable detail and accompanied by an
opinion thereon of a firm of independent public accountants of recognized
national standing selected by the Company to the effect that the
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied (except for
changes in application in which such accountants concur) and present fairly
the financial condition of the companies reported on and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and accordingly, includes such tests of the accounting records
and such other auditing procedures as were considered necessary in the
circumstances, provided that so long as the Company shall file an annual
report on Form 10-K or any similar form with the Securities and Exchange
Commission or any successor agency which contains the information set forth
in this paragraph (b), the requirements of this paragraph (b) shall be
satisfied by forwarding Form 10-K to the holders of the Notes within 110
days after the end of such fiscal year but, in any event, within five days
of filing such Form 10-K with the Securities and Exchange Commission, and
provided further that so long as the Unrestricted Subsidiaries of the
Company taken as a whole do not constitute a Significant Subsidiary, the
Company shall not be required to deliver to you financial statements of the
Company and its Restricted Subsidiaries referred to in paragraphs (1) and
(2) of this [Section] 5.19(b).
(c) Audit Reports. Promptly upon receipt thereof, one copy of
each interim or special audit made by independent accountants of the
books of the Company or any Restricted Subsidiary and any management
letter received from such accountants;
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24
(d) SEC and Other Reports. Promptly upon their becoming
available, one copy of each financial statement, report, notice or
proxy statement sent by the Company to stockholders generally and of
each regular or periodic report, and any registration statement or
prospectus filed by the Company or any Subsidiary with any securities
exchange or the Securities and Exchange Commission or any successor
agency, and copies of any orders in any proceedings to which the
Company or any of its Subsidiaries is a party, issued by any
governmental agency, Federal or state, having jurisdiction over the
Company or any of its Subsidiaries;
(e) Requested Information. With reasonable promptness, such
other data and information as you or any such institutional holder may
reasonably request, provided, that with respect to any data and
information obtained by you as a result of any request pursuant to this
paragraph (e), you agree that, to the extent that such data and
information has not theretofore otherwise been disclosed by or as
authorized by the Company in such a manner as to render such data and
information no longer confidential, you will use reasonable efforts
(consistent with your established procedures) to reasonably maintain
(and cause persons referred to in (i) below to maintain) the
confidential nature of the data and information therein contained;
provided, that anything herein contained to the contrary
notwithstanding, you may, to the extent necessary, disclose or
disseminate such data and information to: (i) your employees, agents,
attorneys, and accountants who would ordinarily have access to such
data and information in the normal course of the performance of their
duties; (ii) such third parties as you may, in your discretion, deem
reasonably necessary or desirable in connection with or in response to
(x) compliance with any law, ordinance or governmental order,
regulation, rule, policy, subpoena, investigation, regulatory authority
request or request, or (y) any order, decree, judgment, subpoena,
notice of discovery or similar ruling or pleading issued, filed, served
or purported on its face to be issued, filed or served (A) by or under
authority of any court, tribunal, arbitration board of any governmental
or industry agency, commission, authority, board or similar entity or
(B) in connection with any proceeding, case or matter pending (or on
its face purported to be pending) before any court, tribunal,
arbitration board or any governmental agency, commission, authority,
board or similar entity; (iii) any prospective purchaser, securities
broker or dealer or investment banker in connection with the resale or
proposed resale by you of any portion of the Notes who shall agree in
writing to accept such information subject to the provisions of this
paragraph (e); (iv) any Person holding your debt Securities who shall
have requested to inspect such information subject to the provisions of
this paragraph (e); (v) the National Association of Insurance
Commissioners; and (vi) any entity utilizing such information to rate
or classify your debt or equity Securities or to report to the public
concerning the industry of which you are a part; and, provided further,
that you shall not be liable to the Company or any other Person for
damages for any failure by you, despite your reasonable efforts so to
do, to comply with the provisions of this paragraph (e).
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(f) Officers' Certificates. Within the periods provided in
paragraphs (a) and (b) above, a certificate of an authorized financial
officer of the Company stating that he has reviewed the provisions of
this Agreement and setting forth: (i) the information and computations
(in sufficient detail) required in order to establish whether the
Company was in compliance with the requirements of [Section] 5.5
through [Section] 5.18, inclusive, at the end of the period covered by
the financial statements then being furnished, and (ii) whether there
existed as of the date of such financial statements and whether, to the
best of his knowledge, there exists on the date of the certificate or
existed at any time during the period covered by such financial
statements any Default or Event of Default and, if any such condition
or event exists on the date of the certificate, specifying the nature
and period of existence thereof and the action the Company is taking
and proposes to take with respect thereto;
(g) Accountant's Certificates. Within the period provided in
paragraph (b) above, a certificate of the accountants who render an
opinion with respect to such financial statements, stating that they
have reviewed this Agreement and stating further, whether in making
their audit, such accountants have become aware of any Default or Event
of Default under any of the terms or provisions of [Section] 5.6
through [Section] 5.14, inclusive, [Section]5.17 or [Section] 5.18 of
this Agreement insofar as any such terms or provisions pertain to or
involve accounting matters or determinations, and if any such
condition or event then exists, specifying the nature and period of
existence thereof; and
(h) Unrestricted Subsidiaries. Within the respective periods
provided in paragraph (b) above, financial statements of the character
and for the dates and periods as in said paragraph (b) provided
covering Unrestricted Subsidiaries on a consolidated and consolidating
basis.
Without limiting the foregoing, the Company will permit you, so long as
you are the holder of any Note, and each institutional holder of the then
outstanding Notes (or such Persons as either you or such holder may
designate) to visit and inspect, under the Company's guidance, any of the
properties of the Company or any Subsidiary, to examine all their books of
account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts
with their respective officers, employees, and independent public
accountants (and by this provision the Company authorizes said accountants
to discuss with you the finances and affairs of the Company and its
Subsidiaries) all at such reasonable times and as often as may be
reasonably requested. The Company shall not be required to pay or
reimburse you or any such holder for expenses which you or any such holder
may incur in connection with any such visitation or inspection.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
Section 6.1. Events of Default. Any one or more of the following
shall constitute an "Event of Default" as the term is used herein:
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(a) Default shall occur in the payment of interest on any Note
when the same shall have become due and such default shall continue for
more than five days; or
(b) Default shall occur in the making of any required
prepayment on any of the Notes as provided in [Section] 2.1; or
(c) Default shall occur in the making of any other payment of
the principal of any Note or the premium thereon at the expressed or
any accelerated maturity date or at any date fixed for prepayment; or
(d) Default shall be made in the payment of the principal of or
interest on any Indebtedness of the Company or any Restricted
Subsidiary for borrowed money in an aggregate principal amount in
excess of $1,000,000, as and when the same shall become due and payable
by the lapse of time, by declaration, by call for redemption or
otherwise, and such default shall continue beyond the period of grace,
if any, allowed with respect thereto; or
(e) Default or the happening of any event shall occur under any
indenture, agreement, or other instrument under which any Indebtedness
of the Company or any Restricted Subsidiary for borrowed money in an
aggregate principal amount in excess of $1,000,000 may be issued and
such default or event shall continue for a period of time sufficient to
permit the acceleration of the maturity of any Indebtedness of the
Company or any Restricted Subsidiary outstanding thereunder; or
(f) Default shall occur in the observance or performance of any
covenant or agreement contained in [Section]5.6 through [Section] 5.15,
inclusive, or [Section] 5.17 hereof; or
(g) Default shall occur in the observance or performance of any
other provision of this Agreement which is not remedied within 30 days
after notice thereof to the Company by the holder of any Note; or
(h) If any representation or warranty made by the Company
herein, or made by the Company in any statement or certificate
furnished by the Company in connection with the consummation of the
issuance and delivery of the Notes or furnished by the Company
pursuant hereto, is untrue in any material respect as of the date of
the issuance or making thereof; or
(i) The Company or any Significant Subsidiary which is a
Restricted Subsidiary becomes insolvent or bankrupt, is generally not
paying its debts as they become due or makes an assignment for the
benefit of creditors, or the Company or any Significant Subsidiary
which is a Restricted Subsidiary causes or suffers an order for relief
to be entered with respect to it under applicable Federal bankruptcy
law or applies for or consents to the appointment of a
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custodian, trustee or receiver for the Company or such Significant
Subsidiary which is a Restricted Subsidiary or for the major part
of the property of either; or
(j) A custodian, trustee or receiver is appointed for the
Company or any Significant Subsidiary which is a Restricted Subsidiary
or for the major part of the property of either and is not discharged
within 30 days after such appointment; or
(k) Final judgment or judgments for the payment of money
aggregating in excess of $100,000 is or are outstanding against the
Company or any Significant Subsidiary which is a Restricted Subsidiary
or against any property or assets of either and any one of such
judgments has remained unpaid, unvacated, unbonded or unstayed by
appeal or otherwise for a period of 30 days from the date of its entry;
or
(l) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or
against the Company or any Significant Subsidiary which is a Restricted
Subsidiary and, if instituted against the Company or any Significant
Subsidiary which is a Restricted Subsidiary, are consented to or are
not dismissed within 60 days after such institution.
Section 6.2. Notice to Holders. When any Event of Default described in
the foregoing [Section] 6.1 has occurred, or if the holder of any Note or
of any other evidence of Indebtedness of the Company gives any notice or
takes any other action with respect to a claimed default, the Company
agrees to give prompt notice of such event to all holders of the Notes then
outstanding, such notice to be in writing and sent by registered or
certified mail or by telegram.
Section 6.3. Acceleration of Maturities. When any Event of Default
described in paragraph (a), (b) or (c) of [Section]6.1 has happened and is
continuing, any holder of any Note may declare its Notes to be, and its
Notes shall thereupon become, forthwith due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived. When any Event of Default described in paragraphs
(a) through (h), inclusive, and (k) of said [Section] 6.1 has happened and
is continuing, the holder or holders of 25% or more of the principal amount
of Notes at the time outstanding may, by notice in writing sent by
registered or certified mail to the Company, declare the entire principal
and all interest accrued on all Notes to be, and all Notes shall thereupon
become, forthwith due and payable, without any presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived.
When any Event of Default described in paragraphs (i), (j) and (l) of
[Section] 6.1 has occurred, then all outstanding Notes shall immediately
become due and payable without presentment, demand or notice of any kind.
Upon any or all Notes becoming due and payable as a result of any Event of
Default as aforesaid, the
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Company will forthwith pay to the holders of such Notes the entire
principal and interest accrued on such Notes and, with respect to a payment
made as a result of an Event of Default described in paragraph (a), (b),
(c) or (f) of [Section] 6.1, and to the extent permitted by law, liquidated
damages for the loss of the bargain evidenced hereby in an amount equal to
the Make-Whole Amount. No course of dealing on the part of any Noteholder
nor any delay or failure on the part of any Noteholder to exercise any
right shall operate as a waiver of such right or otherwise prejudice such
holder's rights, powers and remedies. The Company further agrees, to the
extent permitted by law, to pay to the holder or holders of the Notes all
costs and expenses incurred by them in the collection of any Notes upon any
default hereunder or thereon, including reasonable compensation to such
holder's or holders' attorneys for all services rendered in connection
therewith.
Section 6.4. Rescission of Acceleration. The provisions of [Section]
6.3 are subject to the condition that if the principal of and accrued
interest on all or any outstanding Notes have been declared immediately
due and payable by reason of the occurrence of any Event of Default
described in paragraphs (a) through (h), inclusive, and (k) of [Section]
6.1, the holders of 51% in aggregate principal amount of the Notes then
outstanding may, by written instrument filed with the Company, rescind and
annul such declaration and the consequences thereof, provided that at the
time such declaration is annulled and rescinded:
(a) no judgment or decree has been entered for the payment of
any monies due pursuant to the Notes or this Agreement;
(b) all arrears of interest upon all the Notes and all other
sums payable under the Notes and under this Agreement (except any
principal, interest or premium on the Notes which has become due and
payable solely by reason of such declaration under [Section] 6.3)
shall have been duly paid; and
(c) each and every other Default and Event of Default shall
have been made good, cured or waived pursuant to [Section] 7.1;
and provided further, that no such rescission and annulment shall
extend to or affect any subsequent Default or Event of Default or
impair any right consequent thereto.
SECTION 7. AMENDMENTS, WAIVERS AND CONSENTS.
Section 7.1. Consent Required. (a) Any term, covenant, agreement
or condition of this Agreement may, with the consent of the Company,
be amended or compliance therewith may be waived (either generally or
in a particular instance and either retroactively or prospectively),
if the Company shall have obtained the consent in writing of the
holders of at least 51% in aggregate principal amount of outstanding
Notes; provided that without the written consent of the holders of all
of the Notes then outstanding, no such waiver, modification,
alteration or amendment shall be effective (i) which will change the
time of payment (including any prepayment required by
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[Section] 2.1) of the principal of or the interest on any Note or change
the principal amount thereof or change the rate of interest thereon, or
(ii) which will change any of the provisions with respect to optional
prepayments, or (iii) which will change the percentage of holders of the
Notes required to consent to any such amendment, alteration or modification
or any of the provisions of this [Section] 7 or [Section] 6.
(b) So long as any outstanding Notes are owned by you, the
Company will not solicit, request or negotiate for or with respect to
any proposed waiver or amendment of any of the provisions of this
Agreement or the Notes unless each holder of the Notes (irrespective
of the amount of Notes then owned by it) shall be informed thereof by
the Company and shall be afforded the opportunity of considering the
same and shall be supplied by the Company with sufficient information
to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected
pursuant to the provisions of this [Section]7.1 shall be delivered by the
Company to each holder of outstanding Notes forthwith following the
date on which the same shall have been executed and delivered by the
holder or holders of the requisite percentage of outstanding Notes.
The Company will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any holder of the Notes as
consideration for or as an inducement to the entering into by any
holder of the Notes of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently
paid, on the same terms, ratably to the holders of all of the Notes
then outstanding, provided however, that if any holder of Notes fails
to consent to a transaction which will result in a violation of
[Section] 5.13 hereof, and as a result of such failure the Notes of such
holder are prepaid pursuant to [Section] 2.3 hereof, such holder shall not
be entitled to any remuneration pursuant to this [Section] 7.1(b) in
connection with the requested consent to such transaction.
Section 7.2. Effect of Amendment or Waiver. Any such amendment or
waiver shall apply equally to all of the holders of the Notes and
shall be binding upon them, upon each future holder of any Note and
upon the Company, whether or not such Note shall have been marked to
indicate such amendment or waiver. No such amendment or waiver shall
extend to or affect any obligation not expressly amended or waived or
impair any right consequent thereon.
SECTION 8. INTERPRETATION OF AGREEMENT; DEFINITIONS.
Section 8.1. Definitions. Unless the context otherwise requires,
the terms hereinafter set forth when used herein shall have the
following meanings and the following definitions shall be equally
applicable to both the singular and plural forms of any of the terms
herein defined:
"Affiliate" shall mean any Person (other than a Restricted Subsidiary)
(i) which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, the
Company, (ii) which beneficially owns or holds 5% or more of any class of
the Voting Stock of the Company or (iii) 5% or
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more of the Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is beneficially
owned or held by the Company or a Subsidiary. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Capitalized Lease" shall mean any lease the obligation for Rentals with
respect to which is required to be capitalized on a balance sheet of the
lessee in accordance with generally accepted accounting principles.
"Capitalized Rentals" shall mean as of the date of any determination the
amount at which the aggregate Rentals due and to become due under all
Capitalized Leases under which the Company or any Restricted Subsidiary is
a lessee would be reflected as a liability on a consolidated balance sheet
of the Company and its Restricted Subsidiaries.
"Consolidated Current Assets" and "Consolidated Current Liabilities"
shall mean such assets and liabilities of the Company and its Restricted
Subsidiaries on a consolidated basis as shall be determined in accordance
with generally accepted accounting principles to constitute current assets
and current liabilities (including in current liabilities, in any event,
Guaranties of current liabilities of others), respectively. "Consolidated
Net Income" for any period shall mean the gross revenues of the Company and
its Restricted Subsidiaries for such period less all expenses and other
proper charges (including taxes on income), determined on a consolidated
basis in accordance with generally accepted accounting principles
consistently applied and after eliminating earnings or losses attributable
to outstanding Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
investments or fixed or capital assets, to the extent any such gain or
loss constitutes an "extraordinary item" under generally accepted
accounting principles, and any taxes on such excluded gains and any tax
deductions or credits on account of any such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Restricted Subsidiary
accrued prior to the date it became a Restricted Subsidiary;
(d) net earnings and losses of any corporation (other than a
Restricted Subsidiary), substantially all the assets of which have been
acquired in any manner, realized by such other corporation prior to the
date of such acquisition;
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(e) net earnings and losses of any corporation (other than a
Restricted Subsidiary) with which the Company or a Restricted
Subsidiary shall have consolidated or which shall have merged into or
with the Company or a Restricted Subsidiary prior to the date of such
consolidation or merger;
(f) net earnings of any business entity (other than a
Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest unless such net earnings shall
have actually been received by the Company or such Subsidiary in the
form of cash distributions;
(g) any portion of the net earnings of any Restricted
Subsidiary which for any reason is unavailable for payment of
dividends to the Company or any other Restricted Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the
amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any Securities of
the Company or any Restricted Subsidiary; and
(k) any reversal of any contingency reserve, except to the
extent that provision for such contingency reserve shall have been
made from income arising during such period.
"Consolidated Net Tangible Assets" shall mean as of the date of any
determination thereof the total amount of all Tangible Assets of the
Company and its Restricted Subsidiaries after deducting all Restricted
Investments and all items which in accordance with generally accepted
accounting principles would be included on the liability side of a
consolidated balance sheet, except deferred income taxes, deferred
investment tax credits, capital stock of any class, surplus, and Funded
Debt.
"Consolidated Tangible Net Worth" shall mean, as of the date of any
determination thereof, Consolidated Net Tangible Assets less all
outstanding Funded Debt, deferred income taxes, deferred investment tax
credits and Minority Interests, all determined in accordance with generally
accepted accounting principles consolidating the Company and its Restricted
Subsidiaries.
"Current Debt" as of the date of any determination thereof shall mean
(i) all Indebtedness for money borrowed other than Funded Debt, (ii) all
Indebtedness with respect to documentary letters of credit and bankers'
acceptances, and (iii) Guaranties of Current Debt of others.
"Consolidated" when used as a prefix to any Current Debt
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shall mean the aggregate amount of all such Current Debt of the Company and
its Restricted Subsidiaries on a consolidated basis eliminating
intercompany items.
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute
an Event of Default as defined in [Section] 6.1.
"Fixed Charges" for any period shall mean on a consolidated basis the
sum of (i) all Rentals (other than Rentals on Capitalized Leases) payable
during such period by the Company and its Restricted Subsidiaries, and (ii)
all Interest Charges during such period on all Indebtedness (including the
interest component of Rentals on Capitalized Leases) of the Company and its
Restricted Subsidiaries.
"Funded Debt" of any Person shall mean (i) all Indebtedness for borrowed
money or which has been incurred in connection with the acquisition of
assets in each case having a final maturity of one or more than one year
from the date of origin thereof (or which is renewable or extendible at the
option of the obligor for a period or periods of one or more than one year
from the date of origin, but excluding revolving lines of credit renewable
or extendible at the option of the obligor for a period or periods of one
or more than one year from the date of origin except to the extent such
option shall have been exercised), including all payments in respect
thereof that are required to be made within one year from the date of any
determination of Funded Debt, whether or not included in Consolidated
Current Liabilities, (ii) all Capitalized Rentals, and (iii) all Guaranties
of Funded Debt of others. "Consolidated" when used as a prefix to any
Funded Debt shall mean the aggregate amount of all such Funded Debt of the
Company and its Restricted Subsidiaries on a consolidated basis eliminating
intercompany items.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing, or in effect
guaranteeing, any Indebtedness, dividend or other obligation of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to purchase
such Indebtedness or obligation or any property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, (y) to maintain working capital
or other balance sheet condition or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness or obligation, or
(iii) to lease property or to purchase Securities or other property or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of the primary obligor to make
payment of the Indebtedness or obligation, or (iv) otherwise to assure the
owner of the Indebtedness or obligation of the primary obligor against loss
in respect thereof. For the purposes of all computations made under this
Agreement, a Guaranty in respect of any Indebtedness for borrowed money
shall be deemed to be Indebtedness equal to the principal amount of such
Indebtedness for borrowed money which has been
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guaranteed, and a Guaranty in respect of any other obligation or liability
or any dividend shall be deemed to be Indebtedness equal to the maximum
aggregate amount of such obligation, liability or dividend.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with generally accepted accounting
principles shall be classified upon a balance sheet of such Person as
liabilities of such Person, and in any event shall include all (i)
obligations of such Person for borrowed money or which has been incurred in
connection with the acquisition of property or assets, (ii) obligations
secured by any Lien upon property or assets owned by such Person, even
though such Person has not assumed or become liable for the payment of such
obligations, (iii) obligations created or arising under any conditional
sale or other title retention agreement with respect to property acquired
by such Person,notwithstanding the fact that the rights and remedies of the
seller, lender or lessor under such agreement in the event of default are
limited to repossession or sale of property, and (iv) Capitalized Rentals
under any Capitalized Lease. For the purpose of computing the Indebtedness
of any Person, there shall be excluded any particular Indebtedness to the
extent that, upon or prior to the maturity thereof, there shall have been
deposited with the proper depository in trust the necessary funds (or
evidences of such Indebtedness, if permitted by the instrument creating
such Indebtedness) for the payment, redemption or satisfaction of such
Indebtedness; and thereafter such funds and evidences of Indebtedness so
deposited shall not be included in any computation of the assets of such
Person.
"Interest Charges" for any period shall mean all interest and all
amortization of debt discount and expense on any particular Indebtedness
for which such calculations are being made. Computations of Interest
Charges on a pro forma basis for Indebtedness having a variable interest
rate shall be calculated at the rate in effect on the date of any
determination.
"Lien" shall mean any mortgage, pledge, security interest, lien,
encumbrance or other charge of any kind on any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Make-Whole Amount" as at any date a payment thereof is due (the
"payment date") in connection with a payment or prepayment in respect of
the Notes shall mean the excess of (i) the present value as at the payment
date of the remaining principal and interest payments to become due in
respect of that portion of the principal amount of the Notes to be so paid
or prepaid, discounted semiannually at an annual rate which is equal to the
Treasury Rate plus 0.50% over (ii) the aggregate principal amount of the
Notes then to be paid or prepaid plus accrued interest on such principal
amount. To the extent that the Treasury Rate plus 0.50% at the time of
determination of the Make-Whole Amount is equal to or higher than 9.70%,
the Make-Whole Amount is zero. For purposes of any determination of the
Make-Whole Amount:
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(a) The applicable "Treasury Rate" means the mean of the yields
to maturity of customarily-issued United States Treasury obligations
with a constant maturity (as compiled by and published in the United
States Federal Reserve Bulletin H.15(519) or its successor publication
for each of the two weeks immediately preceding the payment date) most
nearly equal to the remaining Weighted Average Life to Maturity of the
Notes as at the payment date. If no maturity exactly corresponding to
such remaining Weighted Average Life to Maturity shall appear therein,
yields for the two most closely corresponding published maturities
shall be calculated pursuant to the foregoing sentence and the Treasury
Rate shall be interpolated from such yields on a straight-line basis
(rounding to the nearest month). If such rates shall not have been so
published, the Treasury Rate in respect of such determination date
shall be calculated pursuant to the next preceding sentence on the
basis of the arithmetic mean of the arithmetic means of the secondary
market ask rates, as of approximately 3:30 P.M., New York City time, on
the last business days of each of the two weeks preceding the payment
date, for the actively traded U.S. Treasury security or securities with
a maturity or maturities most closely corresponding to such Weighted
Average Life to Maturity, as reported by three primary United States
Government securities dealers in New York City of national standing
selected in good faith by the Company.
(b) "Weighted Average Life to Maturity" with respect to the
Notes means, as at the payment date, the number of years obtained by
dividing the then Remaining Dollar-years of the Notes by the
outstanding principal amount of the Notes. The term "Remaining
Dollar-years" of the Notes means the product obtained by (i)
multiplying (A) the amount of each then remaining required principal
repayment (including repayment at final maturity), by (B) the number
of years (calculated to the nearest one-twelfth) which will elapse
between the time of determination and the date such required
repayment is due, and (ii) totaling all the products obtained in the
computations described in clause (i).
"Minority Interests" shall mean any shares of stock of any class of a
Restricted Subsidiary (other than directors' qualifying shares as required
by law, and other than shares of the Class A Stock of The Outdoor Footwear
Company so long as the number of outstanding shares of such Class A Stock
do not exceed 50,000 at any time and the certificate of incorporation of
The Outdoor Footwear Company is not amended after the date hereof to
increase the rights of the holders of Class A Stock in the event of a
liquidation of The Outdoor Footwear Company) that are not owned by the
Company and/or one or more of its Restricted Subsidiaries. Minority
Interests shall be valued by valuing Minority Interests constituting
preferred stock at the voluntary or involuntary liquidating value of such
preferred stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of capital and surplus
applicable thereto adjusted, if necessary, to reflect any changes from the
book value of such common stock required by the foregoing method of valuing
Minority Interests in preferred stock.
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"Net Income Available for Fixed Charges" for any period shall mean the
sum of (i) Consolidated Net Income during such period plus (to the extent
deducted in determining Consolidated Net Income), (ii) all provisions for
any Federal, state or other income taxes made by the Company and its
Restricted Subsidiaries during such period and (iii) Fixed Charges of the
Company and its Restricted Subsidiaries during such period.
"Net Income Available for Interest Charges" for any period shall mean
the sum of (i) Consolidated Net Income during such period plus (to the
extent deducted in determining Consolidated Net Income), (ii) all
provisions for any Federal, state or other income taxes made by the Company
and its Restricted Subsidiaries during such period and (iii) Interest
Charges during such period, determined on a pro forma basis giving effect
as of the beginning of such period (x) to the disposition during such
period of assets constituting a substantial part of the assets of the
Company and its Restricted Subsidiaries taken as a whole, (y) to the
acquisition or disposition during such period of all or substantially all
of the stock or assets of an entity or assets consisting of a line of
business of an entity, and (z) to the acquisition, designation or
disposition during such period of a Restricted Subsidiary; provided,
however, that any such determination of the amount to be included in
Consolidated Net Income on a pro forma basis taking into account the
earnings of an entity, the stock or assets of which have been acquired by
the Company or a Restricted Subsidiary, shall include only such amounts as
are based on the actual historical financial results of such entity during
such period, determined in accordance with generally accepted accounting
principles.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political
subdivision thereof.
"Pro Forma Interest Charges" for any period shall mean, as of the date
of any determination thereof, the maximum aggregate amount of Interest
Charges which would have become payable by the Company and its Restricted
Subsidiaries in such period determined on a pro forma basis giving effect
as of the beginning of such period to the incurrence of any Funded Debt
(including Capitalized Rentals) and the retirement of outstanding Funded
Debt or termination of any Capitalized Leases.
"Rentals" shall mean and include all fixed rents (including as such all
payments which the lessee is obligated to make to the lessor on termination
of the lease or surrender of the property) payable by the Company or a
Restricted Subsidiary, as lessee or sublessee under a lease of real or
personal property, but shall be exclusive of any amounts required to be
paid by the Company or a Restricted Subsidiary (whether or not designated
as rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges. Fixed rents under any so-called,
"percentage leases" shall be computed solely on the basis of the minimum
rents, if any, required to be paid by the lessee regardless of sales volume
or gross revenues.
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"Restricted Investments" shall mean all investments, loans and advances
existing on or made after the date of this Agreement of the Company and its
Restricted Subsidiaries other than investments, loans or advances permitted
by paragraphs (a) through (i), inclusive, of [Section]5.17 hereof. The
Company and its Restricted Subsidiaries shall be deemed to have made a
Restricted Investment (i) to the extent of the equity of the Company and
its Restricted Subsidiaries in the net assets of a Restricted Subsidiary
which has become an Unrestricted Subsidiary on the date that the Restricted
Subsidiary becomes an Unrestricted Subsidiary and (ii) to the extent of the
value of any non-cash consideration received by the Company and its
Restricted Subsidiaries in connection with a sale of stock or Indebtedness
permitted by [Section] 5.13(c)(3) hereof.
"Restricted Subsidiary" shall mean any Subsidiary which is designated as
a Restricted Subsidiary on Annex A of the Closing Certificate or any other
Subsidiary (i) which is organized under the laws of the United States or
any State thereof, Canada, Cayman Islands, the Dominican Republic, France,
Puerto Rico, the United Kingdom, West Germany, Australia, Austria, Belgium,
Denmark, Finland, Republic of Ireland, Italy, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, and U.S. Virgin
Islands; (ii) which conducts substantially all of its business and has
substantially all of its assets within the United States, Canada, the
Dominican Republic, France, Puerto Rico, the United Kingdom, West Germany,
Australia, Austria, Belgium, Denmark, Finland, Republic of Ireland, Italy,
Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden,
Switzerland, and U.S. Virgin Islands; (iii) of which more than 75% (by
number of votes) of the Voting Stock is owned by the Company and/or one or
more Restricted Subsidiaries; and (iv) which is designated a Restricted
Subsidiary at the time it first becomes a Subsidiary, provided, the Board
of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary but only if (i) after giving effect to such
designation the Company and its Restricted Subsidiaries could incur $1 of
additional Consolidated Funded Debt and (ii) at the time of such
designation and after giving effect thereto no Default or Event of Default
shall have occurred and be continuing. Any Subsidiary which is designated
by the Board of Directors of the Company as a Restricted Subsidiary after
having been an Unrestricted Subsidiary may not be redesignated an
Unrestricted Subsidiary. The Company shall give prompt notice to the
Noteholders of designation of a Restricted Subsidiary.
"Second Amendments" shall mean collectively, the separate Amended and
Restated Note Agreements dated as of April 1, 1994 between the Company and
the holders signatory thereto relating to the amending and restating of
this Agreement.
"Security" shall have the same meaning as in Section 2(1) of the
Securities Act of 1933, as amended.
"Significant Subsidiary" shall mean any Subsidiary which meets any of
the following conditions:
-32-
37
(1) The Company's and its other Subsidiaries' investments in
and advances to the Subsidiary exceed 10 percent of the Consolidated
Tangible Net Worth of the Company and its Subsidiaries as of the end
of the most recently completed fiscal year; or
(2) The Company's and its other Subsidiaries' proportionate
share of the Consolidated Tangible Net Worth of the Subsidiary
exceeds 10 percent of the Consolidated Tangible Net Worth of the
Company and its Subsidiaries as of the end of the most recently
completed fiscal year; or
(3) The Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principle of
the Subsidiary exceeds 10 percent of such income of the Company and
its Subsidiaries consolidated for the most recently completed fiscal
year.
"Specified Debt" shall mean, without duplication, any Indebtedness of
Restricted Subsidiaries which Indebtedness is permitted by
[Section] 5.8(a)(5) hereof and any Indebtedness of the Company secured by
Liens permitted by [Section] 5.10(j) hereof.
The term "subsidiary" shall mean, as to any particular parent
corporation, any corporation of which more than 50% (by number of votes) of
the Voting Stock shall be owned by such parent corporation and/or one or
more corporations which are themselves subsidiaries of such parent
corporation. The term "Subsidiary" shall mean a subsidiary of the Company.
"Tangible Assets" shall mean as of the date of any determination
thereof, the total amount of all assets of the Company and its Restricted
Subsidiaries (less depreciation, depletion and other properly deductible
valuation reserves) after deducting good will, patents, trade names, trade
marks, copyrights, franchises, experimental expense, organization expense,
unamortized debt discount and expense, deferred assets other than prepaid
insurance and prepaid taxes, the excess of cost of shares acquired over
book value of related assets and such other assets as are properly
classified as "intangible assets" in accordance with generally accepted
accounting principles.
"Total Debt" of the Company and its Restricted Subsidiaries as at any
date shall mean the sum of (i) Consolidated Funded Debt of the Company and
its Restricted Subsidiaries as at such date, plus (ii) the Average
Outstanding during the applicable Low Period. For purposes of this
definition:
(a) "Average Outstanding" shall mean the average of the unpaid
principal amounts of Consolidated Current Debt of the Company and its
Restricted Subsidiaries outstanding at the close of business on each
day within a period of 30 consecutive days; and
-33-
38
(b) "Low Period" shall mean the period of 30 consecutive days
for which Average Outstanding is the lowest of any period of 30
consecutive days during the period of 15 consecutive months ending
with the date of determination of Total Debt.
"Total Equity" as at any date shall mean stockholders' equity determined
in accordance with generally accepted accounting principles consolidating
the Company and its Restricted Subsidiaries.
"Unrestricted Subsidiary" shall mean any Subsidiary which is not a
Restricted Subsidiary; provided, that the Board of Directors may designate
any Restricted Subsidiary as an Unrestricted Subsidiary but only if (i)
the Subsidiary so designated shall then own no Funded Debt or capital stock
of any Restricted Subsidiary, (ii) after giving effect to such designation,
the Company and its Restricted Subsidiaries could issue $1 of additional
Consolidated Funded Debt and (iii) at the time of such designation and
after giving effect thereto no Default or Event of Default shall have
occurred and be continuing. Any Subsidiary which is designated by the
Board of Directors of the Company as an Unrestricted Subsidiary after
having been a Restricted Subsidiary may not be redesignated a Restricted
Subsidiary. The Company shall give prompt notice to the Noteholders of any
designation of an Unrestricted Subsidiary.
"Voting Stock" shall mean Securities of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or Persons performing
similar functions).
"Wholly-owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock
(except shares required as directors' qualifying shares and, in the case of
The Outdoor Footwear Company, Class A Stock so long as such Class A Stock
is excluded from the definition of "Minority Interests") are owned by the
Company and its Wholly-owned Subsidiaries.
Section 8.2. Accounting Principles. Where the character or amount
of any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation is
required to be made for the purposes of this Agreement, the same shall
be done in accordance with generally accepted accounting principles,
to the extent applicable, except where such principles are
inconsistent with the requirements of this Agreement.
Section 8.3. Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable
whether the action in question is taken directly or indirectly by such
Person.
-34-
39
SECTION 9. MISCELLANEOUS.
Section 9.1. Registered Notes. The Company shall cause to be kept
at its principal office a register for the registration and transfer
of the Notes (hereinafter called the "Note Register"), and the Company
will register or transfer or cause to be registered or transferred, as
hereinafter provided and under such reasonable regulations as it may
prescribe, any Note issued pursuant to this Agreement.
At any time and from time to time the registered holder of any Note
which has been duly registered as hereinabove provided may transfer such
Note upon surrender thereof at the principal office of the Company duly
endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of such Note or its attorney duly authorized in
writing.
The Person in whose name any registered Note shall be registered shall
be deemed and treated as the owner and holder thereof for all purposes of
this Agreement. Payment of or on account of the principal, premium, if
any, and interest on any registered Note shall be made to or upon the
written order of such registered holder.
Section 9.2. Exchange of Notes. At any time, and from time to time,
upon not less than ten days' notice to that effect given by the holder of
any Note initially delivered or of any Note substituted therefor pursuant
to [Section] 9.1, this [Section] 9.2 or [Section] 9.3, and, upon surrender
of such Note at its office, the Company will deliver in exchange therefor,
without expense to the holder, except as set forth below, Notes for the
same aggregate principal amount as the then unpaid principal amount of the
Note so surrendered, in the denomination of $100,000 or any amount in
excess thereof as such holder shall specify, dated as of the date to which
interest has been paid on the Note so surrendered or, if such surrender is
prior to the payment of any interest thereon, then dated as of the date of
issue, payable to such Person or Persons, or order, as may be designated by
such holder, and otherwise of the same form and tenor as the Notes so
surrendered for exchange. The Company may require the payment of a sum
sufficient to cover any stamp tax or governmental charge imposed upon such
exchange or transfer.
Section 9.3. Loss, Theft, Etc. of Notes. Upon receipt of evidence
satisfactory to the Company of the loss, theft, mutilation or destruction
of any Note, and in the case of any such loss, theft or destruction upon
delivery of a bond of indemnity in such form and amount as shall be
reasonably satisfactory to the Company, or in the event of such mutilation
upon surrender and cancellation of the Note, the Company will make and
deliver without expense to the holder thereof, a new Note, of like tenor,
in lieu of such lost, stolen, destroyed or mutilated Note. If the
Purchaser or any subsequent institutional holder is the owner of any such
lost, stolen or destroyed Note, then the affidavit of an authorized officer
of such owner, setting forth the fact of loss, theft or destruction and of
its ownership of the Note at the time of such loss, theft or destruction
shall be accepted as satisfactory evidence thereof and no further
-35-
40
indemnity shall be required as a condition to the execution and
delivery of a new Note other than the written agreement of such owner
to indemnify the Company.
Section 9.4. Expenses, Stamp Tax Indemnity. Whether or not the
transactions herein contemplated shall be consummated, the Company
agrees to pay directly all of your reasonable out-of-pocket expenses
in connection with the preparation, execution and delivery of this
Agreement and the transactions contemplated hereby, including but not
limited to the reasonable charges and disbursements of Chapman and
Cutler, your special counsel, duplicating and printing costs and
charges for shipping the Notes, adequately insured to you at your home
office or at such other place as you may designate, and all such
expenses relating to any amendment, waivers or consents pursuant to
the provisions hereof. The Company also agrees that it will pay and
save you harmless against any and all liability with respect to stamp
and other taxes (other than transfer taxes or taxes on income or
revenues), if any, which may be payable or which may be determined to
be payable in connection with the execution and delivery of this
Agreement or the Notes, whether or not any Notes are then outstanding.
The Company agrees to protect and indemnify you against any liability
for any and all brokerage fees and commissions payable or claimed to
be payable to any Person in connection with the transactions
contemplated by this Agreement. You hereby represent and warrant that
you have not engaged any investment banker or broker in connection
with your purchase of the Notes.
Section 9.5. Powers and Rights Not Waived; Remedies Cumulative.
No delay or failure on the part of the holder of any Note in the
exercise of any power or right shall operate as a waiver thereof; nor
shall any single or partial exercise of the same preclude any other or
further exercise thereof, or the exercise of any other power or right,
and the rights and remedies of the holder of any Note are cumulative
to and are not exclusive of any rights or remedies any such holder
would otherwise have, and no waiver or consent, given or extended
pursuant to [Section]7 hereof, shall extend to or affect any obligation or
right not expressly waived or consented to.
Section 9.6. Notices. All communications provided for hereunder
shall be in writing and, if to you, delivered or mailed by registered
or certified mail, addressed to you at your address appearing on
Schedule I to this Agreement or such other address as you or the
subsequent holder of any Note initially issued to you, may designate
to the Company in writing, and if to the Company, delivered or mailed
by registered or certified mail to the Company at 11 Merrill
Industrial Drive, Hampton, New Hampshire 03842-5050, Attention:
Chief Financial Officer or to such other address as the Company may in
writing designate to you or to a subsequent holder of the Note
initially issued to you. Notice shall be effective upon the earlier
of (i) three business days after such notice is sent or (ii) actual
receipt of such notice.
Section 9.7. Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns and shall
inure to your benefit and to the benefit of your successors and
assigns, including each successive holder or holders of any Notes.
-36-
41
Section 9.8. Survival of Covenants and Representations. All
covenants, representations and warranties made by the Company herein
and in any certificates delivered pursuant hereto, whether or not in
connection with the Closing Date, shall survive the closing and the
delivery of this Agreement and the Notes.
Section 9.9. Severability. Should any part of this Agreement for
any reason be declared invalid, such decision shall not affect the
validity of any remaining portion, which remaining portion shall
remain in force and effect as if this Agreement had been executed with
the invalid portion thereof eliminated and it is hereby declared the
intention of the parties hereto that they would have executed the
remaining portion of this Agreement without including therein any such
part, parts, or portion which may, for any reason, be hereafter
declared invalid.
Section 9.10. Governing Law. This Agreement and the Notes issued
and sold hereunder shall be governed by and construed in accordance
with Illinois law.
Section 9.11. Captions. The descriptive headings of the various
Sections or parts of this Agreement are for convenience only and shall
not affect the meaning or construction of any of the provisions
hereof."
ARTICLE II
AMENDMENTS TO EXHIBITS TO
ORIGINAL NOTE AGREEMENTS
Section 2.1. Amendment to Exhibit A. Exhibit A to the Original Note
Agreements is hereby amended in its entirety so that the same shall henceforth
read as provided in Exhibit A attached hereto. You covenant and agree that
prior to transfer of any Note you will either (i) surrender the same to the
Company in exchange for a new Note of the same tenor and dated as provided in
Section 9.2 of the Original Note Agreements as amended and restated by this
Second Amendment but reflecting in the text thereof the modifications effected
by this [Section]2.1 or (ii) cause such Note to be endorsed with a legend
reflecting the modifications effected by this [Section] 2.1.
Section 2.2. Amendment to Exhibit B. Annex B to Exhibit B to the
Original Note Agreements is hereby amended in its entirety so that the same
shall henceforth read as provided in Exhibit B attached hereto.
Section 2.3. Amendment to Exhibit E. Exhibit E to the Original Note
Agreements is hereby deleted in its entirety.
Section 2.4. Schedule I to the Original Note Agreement. Schedule I to
the Original Note Agreements is hereby attached hereto as Schedule II.
-37-
42
ARTICLE III
MISCELLANEOUS
Section 3.1. Ratification of Original Note Agreements; Condition
Precedent. Except as amended and restated herein, the terms and provisions of
the Original Note Agreements and the Notes are hereby ratified, confirmed and
approved in all respects. If the 1994 Note Agreements and the 7.16% Senior
Notes due April 15, 2000 are not executed and delivered as set forth above, this
Second Amendment shall be null and void.
Section 3.2. Counterparts. This Second Amendment may be executed in
any number of counterparts, each executed counterpart constituting an original
but altogether one and the same instrument.
Section 3.3. Fees and Expenses. The Company agrees to pay all
reasonable fees and expenses of you and your special counsel connected with the
preparation of this Second Amendment.
Section 3.4. References to Original Note Agreements. Any and all
notices, requests, certificates and any other instruments, including the Notes,
may refer to the Original Note Agreements or the Note Agreements dated as of
September 30, 1989 without making specific reference to this Second Amendment,
but nevertheless all such references shall be deemed to include this Second
Amendment unless the context shall otherwise require.
Section 3.5. Governing Law. This Second Amendment shall be construed
in accordance with and governed by the laws of the State of Illinois.
-38-
43
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By /s/ Jon C. Heiny
-------------------------------
Its Jon C. Heiny
---------------------------
Counsel
By /s/ Jon M. Davidson
-------------------------------
Its Jon M. Davidson
---------------------------
Assistant Director Securities
Investment
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
44
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
NORTHWESTERN NATIONAL LIFE INSURANCE
COMPANY
By /s/ Mark S. Jordahl
-------------------------------
Its Mark S. Jordahl
---------------------------
Authorized Representative
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
45
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
NORTHERN LIFE INSURANCE COMPANY
By /s/ Mark S. Jordahl
-------------------------------
Its Mark S. Jordahl
---------------------------
Assistant Treasurer
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
46
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
BENEFICIAL STANDARD LIFE INSURANCE
COMPANY
By /s/
-------------------------------
Its
---------------------------
By
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
47
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FARM BUREAU LIFE INSURANCE COMPANY
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
48
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FB ANNUITY COMPANY
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
49
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FARM BUREAU MUTUAL INSURANCE
COMPANY OF MICHIGAN
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
50
The Timberland Company Second Amendment
9.70% Senior Notes due December 1, 1999
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
SUN LIFE ASSURANCE COMPANY OF CANADA
(U.S.)
By /s/ L. Brock Thomson
-------------------------------
Its L. Brock Thomson, Treasurer
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
51
The Timberland Company Second Amendment
9.70% Senior Notes due December 1, 1999
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
SUN LIFE INSURANCE AND ANNUITY
COMPANY OF NEW YORK
By /s/ L. Brock Thomson
-------------------------------
Its L. Brock Thomson, Treasurer
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
52
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
GUARANTEE MUTUAL LIFE COMPANY
By /s/ Steven A. Scanlan
-------------------------------
Its Steven A. Scanlan
---------------------------
Senior Investment Officer -
Securities
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
53
SCHEDULE I
PRINCIPAL
HOLDERS AMOUNT
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY $16,000,000
711 High Street
Des Moines, Iowa 50392-0800
Attention: Investment Department
Securities Division
NORTHWESTERN NATIONAL LIFE INSURANCE $4,500,000
COMPANY
c/o Washington Square Capital, Inc.
Private Placement Servicing
100 Washington Square
Suite 800, Route 3070
Minneapolis, Minnesota 55401-2147
Attention: Kathy Gunderson
NORTHERN LIFE INSURANCE COMPANY $2,000,000
c/o Washington Square Capital, Inc.
Private Placement Servicing
100 Washington Square
Suite 800, Route 3070
Minneapolis, Minnesota 55401-2147
Attention: Kathy Gunderson
BENEFICIAL STANDARD LIFE INSURANCE COMPANY $3,000,000
c/o CONSECO, INC.
11825 N. Pennsylvania Street
Carmel, Indiana 46032
Attention: Nora Bamman
FARM BUREAU LIFE INSURANCE COMPANY $1,000,000
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw, P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
54
FB ANNUITY COMPANY $1,000,000
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw, P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
FARM BUREAU MUTUAL INSURANCE COMPANY OF MICHIGAN $500,000
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw, P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) $4,000,000
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02181-0001
Attention: Investment Department
Private Placement Section
SUN LIFE INSURANCE AND ANNUITY COMPANY OF $1,000,000
NEW YORK
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02181-0001
Attention: Investment Department
Private Placement Section #1303
GUARANTEE MUTUAL LIFE COMPANY $2,000,000
1 Guarantee Center
8801 Indian Hills Drive
Omaha, Nebraska 68114
Attention: Investment Division
I-2
55
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY $16,000,000
711 High Street (Two Notes, No.
Des Moines, Iowa 50309 R-1 for $13,000,000
Attention: Investment Department, and No. R-2 for
Securities Division, $3,000,000)
Regarding Note No. R-1
or No. R-2
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior Note due
December 1, 1999, [in the case of Note No. R-1,
"Bond No. 1-B-22948" or in the case of Note
No. R-2, "Bond No. 16-B-22948"], principal or
interest") to:
Norwest Bank Des Moines, N.A.
Seventh and Walnut Streets
Des Moines, Iowa 50304
(a) in the case of payments on Note No. R-1:
for credit to Principal Mutual
Life Insurance Company's General
Account No. 014752
(b) in the case of payments on Note No. R-2:
for credit to Principal Mutual
Life Insurance Company's
Account No. 032395
56
NOTICES
All notices and communications,
including notices with respect to
payments, and written confirmation of
each such payment, to be addressed as
first provided above.
Name of Nominee in which Notes are to be issued: None
II-2
57
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
NORTHWESTERN NATIONAL LIFE INSURANCE $3,500,000
Company
c/o Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
First National Bank of Minneapolis
120 South Sixth Street
Minneapolis, Minnesota
(ABA No. 091000022)
for credit to Northwestern National
Life Insurance Company's
Account No. 102-4001-446
NOTICES
All notices and communications, including
notices with respect to payments and written
confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
II-3
58
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
AMERICAN INVESTORS LIFE INSURANCE $3,000,000
COMPANY
415 Southwest 8th Avenue
Topeka, Kansas 66603
Attn: Lynn Hammes,
Vice President-Comptroller
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
Commerce Bank/Topeka
ABA No. 101100728
reference AIL Trust No. 567
Account No. 04-565-9
NOTICES
Only financial statements, compliance
certificates and notices of payments,
on or in respect of the Notes, and
written confirmation of each such payment
to be addressed as first provided above.
All other notices and communications,
including waiver requests and special
communications concerning the financial
condition of the Company, to:
II-4
59
Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
Name of Nominee in which Notes are to be issued: AIL & Co.
II-5
60
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
BENEFICIAL STANDARD LIFE INSURANCE $3,000,000
COMPANY
5700 Wilshire Boulevard
Suite 307D
Los Angeles, California 90036
Attention: Donna M. Coogan
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
Security Pacific National Bank
(ABA No. 122000043)
SPSTC Business Services - Pasadena No. 0956
DDA No. 0014-043-543
Attention: Special Assets
reference Beneficial Standard Life
Insurance Company's
Account No. 337-201-970
NOTICES
Only financial statements, compliance
certificates and notices of payments,
on or in respect of the Notes, and
written confirmation of each such payment
to be addressed as first provided above.
All other notices and communications,
including waiver requests and special
communications concerning the financial
condition of the Company, to:
II-6
61
Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
Name of Nominee in which Notes are to be issued: EBENCO
II-7
62
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
FARM BUREAU LIFE INSURANCE COMPANY $1,000,000
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw
P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
MFRS/Detroit
No. 072000339, F/A/O: Farm Bureau Insurance
Attention: Sue Blanchette, Department 530
Trust Account, Income Unit
(Combine wire payment with other payments
to Farm Bureau group participants)
NOTICES
Only financial statements, compliance
certificates and notices of payments,
on or in respect of the Notes, and
written confirmation of each such payment
to be addressed as first provided above.
All other notices and communications,
including waiver requests and special
communications concerning the financial
condition of the Company, to:
II-8
63
Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
Name of Nominee in which Notes are to be issued: None
II-9
64
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
FB ANNUITY COMPANY $1,000,00
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw
P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
MFRS/Detroit
No. 072000339, F/A/O: Farm Bureau Insurance
Attention: Sue Blanchette, Department 530
Trust Account, Income Unit
(Combine wire payment with other payments
to Farm Bureau group participants)
NOTICES
Only financial statements, compliance
certificates and notices of payments,
on or in respect of the Notes, and
written confirmation of each such payment
to be addressed as first provided above.
All other notices and communications,
including waiver requests and special
communications concerning the financial
condition of the Company, to:
II-10
65
Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
Name of Nominee in which Notes are to be issued: None
II-11
66
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
FARM BUREAU MUTUAL INSURANCE COMPANY $500,000
OF MICHIGAN
c/o Farm Bureau Insurance Group
Investment Division
7373 West Saginaw
P.O. Box 30400
Lansing, Michigan 48917
Attention: Steven Harkness, Portfolio Manager
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
MFRS/Detroit
No. 072000339, F/A/O: Farm Bureau Insurance
Attention: Sue Blanchette, Department 530
Trust Account, Income Unit
(Combine wire payment with other payments
to Farm Bureau group participants)
NOTICES
Only financial statements, compliance
certificates and notices of payments,
on or in respect of the Notes, and
written confirmation of each such payment
to be addressed as first provided above.
All other notices and communications,
including waiver requests and special
communications concerning the financial
condition of the Company, to:
II-12
67
Washington Square Capital, Inc.
1500 Northstar West
625 Marquette Avenue South
Minneapolis, Minnesota 55402
Attention: Robert Corrick
Name of Nominee in which Notes are to be issued: None
II-13
68
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) $4,000,000
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02181
Attention: Investment Department
Private Placement SC [Section]1303
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
Chemical Bank (ABA No. 021-000-128)
55 Water Street
New York, New York 10041
for credit to Sun Life Assurance Company
of Canada (U.S.) Account No. 323-023177
NOTICES
All notices of payments, on or in respect
of the Notes and written confirmation of each
such payment to:
Sun Life Assurance Company of Canada (U.S.)
Three Sun Life Executive Park
Wellesley Hills, Massachusetts 02181
Attention: Manager, Investment Accounting SC #3327
All notices and communications, other than
those with respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
II-14
69
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
SUN LIFE INSURANCE AND ANNUITY COMPANY $1,000,000
OF NEW YORK
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02181-0001
Attention: Investment Department
Private Placement Section
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
Chemical Bank (ABA No. 021-000-128)
55 Water Street
New York, New York 10041
for credit to Sun Life Insurance and Annuity
Company of New York Account No. 322-022703
NOTICES
All notices of payments, on or in respect
of the Notes and written confirmation of each
such payment to:
Sun Life Insurance and Annuity Company of
New York
Three Sun Life Executive Park
Wellesley Hills, Massachusetts 02181
Attention: Manager, Investment Accounting SC #3327
All notices and communications, other than
those with respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
II-15
70
SCHEDULE II
PRINCIPAL AMOUNT
NAME AND ADDRESSES OF NOTES TO BE
OF PURCHASERS PURCHASED
GUARANTEE MUTUAL LIFE COMPANY $2,000,000
1 Guarantee Center
8801 Indian Hills Drive
Omaha, Nebraska 68114
Attention: Investment Division
PAYMENTS
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately available
funds (identifying each payment as
"The Timberland Company, 9.70% Senior
Note due December 1, 1999, principal or
interest") to:
Bankers Trust Company
New York, New York
for credit to Guarantee Mutual Life
Company's Account No. 50-035-201
NOTICES
All notices and communications, including
notices with respect to payments and written
confirmation of each such payment, to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
II-16
71
THE TIMBERLAND COMPANY
9.70% Senior Note
Due December 1, 1999
PPN: 887100 A# 2
NO. R-
_____________, 19__
THE TIMBERLAND COMPANY, a Delaware corporation (the "Company"), for
value received, hereby promises to pay to
or registered assigns
on the first day of December, 1999
the principal amount of
DOLLARS ($_______________)
and to pay interest (computed on the basis of a 360-day year of twelve
30-day months) on the principal amount from time to time remaining unpaid
hereon at the rate of 9.70% per annum from the date hereof until maturity,
payable semiannually on the first of each June and December in each year
commencing June 1, 1990, and at maturity. The Company agrees to pay
interest on overdue principal (including any overdue required or optional
prepayment of principal) and premium, if any, and (to the extent legally
enforceable) on any overdue installment of interest, at the rate of 11.70%
per annum after maturity, whether by acceleration or otherwise, until paid.
Both the principal hereof and interest hereon are payable at the principal
office of the Company in Hampton, New Hampshire in coin or currency of the
United States of America which at the time of payment shall be legal tender
for the payment of public and private debts.
This Note is one of the 9.70% Senior Notes due December 1, 1999 (the
"Notes") of the Company in the aggregate principal amount of $35,000,000
issued or to be issued under and pursuant to the terms and provisions of
the separate Note Agreements, each dated as of September 30, 1989 (the
"Original Note Agreements"), entered into by the Company with the
original purchaser therein referred to, each as amended and restated
pursuant to the separate Amended and Restated Note Agreements dated as of
April 1, 1994 entered into by the Company with the Holder therein referred
to (the Original Note Agreements as amended and restated by the Amended and
Restated Note Agreements being referred to herein as the "Note
Agreements"). This Note and the holder hereof are entitled equally and
ratably with the holders of all other Notes outstanding under the Note
Agreements to all the benefits and security provided for thereby or
referred to therein. Reference is hereby made to the Note Agreements for a
statement of such rights and benefits.
This Note and the other Notes outstanding under the Note Agreements
may be declared due prior to their expressed maturity dates and certain
prepayments are required to
EXHIBIT A
(to Second Amendment)
72
be made thereon, all in the events, on the terms and in the manner and
amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in
the Note Agreements.
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly endorsed
or accompanied by a written instrument of transfer duly executed by the
registered holder of this Note or its attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
note shall be made only to or upon the order in writing of the registered
holder.
THE TIMBERLAND COMPANY
By ___________________________
Its
A-2
73
DESCRIPTION OF DEBT AND LEASES
1. Current Debt of the Company and its Restricted Subsidiaries
outstanding on April 15, 1994 is as follows:
Effective Maturity Original Face Outstanding
Date Date Amount Liability
MONEY MARKET LINES
LIBOR (Bank Hapoalim) 3/21/94 4/20/94 $ 9,000,000 $ 9,000,000
LIBOR (Credito Italiano) 4/14/94 4/15/94 5,000,000 5,000,000
=========== ===========
$14,000,000 $14,000,000
MORGAN GUARANTY REVOLVING CREDIT AGREEMENT
LIBOR 3/17/94 4/18/94 $ 3,000,000 $ 3,000,000
LIBOR 3/23/94 4/22/94 5,000,000 5,000,000
LIBOR 3/24/94 4/25/94 5,000,000 5,000,000
=========== ===========
$13,000,000 $13,000,000
MISCELLANEOUS OTHER LIENS(1)*
Copy Machines, Computers,
Equipment and other Maximum
miscellaneous - - $ 3,000,000 $ -
=========== ===========
<FN>
_____________________________
* Secured by lien
EXHIBIT B
(to Second Amendment)
74
2. Funded Debt of the Company and its Restricted Subsidiaries outstanding
on February 25, 1994 is as follows:
Effective Maturity Original Face Outstanding
Date Date Amount Liability
PRIVATE PLACEMENT SENIOR NOTES
Principal Mutual Life Insurance
Company and other insurance companies 12/06/89 12/01/99 $35,000,000 $35,000,000
=========== ===========
CHASE MANHATTAN CREDIT AGREEMENT 11/23/93 5/15/99 $50,000,000 $50,000,000
=========== ===========
CAPITAL EQUIPMENT LEASES(2)*
BayBanks Financing & Leasing Co. Inc. 6/90 6/95 $ 2,096,332 $ 664,194
BayBanks Financing & Leasing Co. Inc. 10/90 11/95 456,507 177,756
BayBanks Financing & Leasing Co. Inc. 12/90 12/95 459,431 195,129
=========== ===========
$ 3,012,270 $ 1,037,079
INDUSTRIAL REVENUE BOND*
Shawmut Bank, N.A., Trustee 12/27/84 12/2014 $ 6,680,000 $ 5,345,000
3. Capitalized Leases of the Company and its Restricted Subsidiaries
outstanding on February 25, 1994 are as follows:
-See Item 2 Above-
[FN]
_________________________
* Secured by lien
B-2
75
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By /s/ Jon C. Heiny
-------------------------------
Its Jon C. Heiny
---------------------------
Counsel
By /s/ Jon M. Davidson
-------------------------------
Its Jon M. Davidson
---------------------------
Assistant Director Securities
Investment
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
76
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
NORTHWESTERN NATIONAL LIFE INSURANCE
COMPANY
By /s/ Mark S. Jordahl
-------------------------------
Its Mark S. Jordahl
---------------------------
Authorized Representative
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
77
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
NORTHERN LIFE INSURANCE COMPANY
By /s/ Mark S. Jordahl
-------------------------------
Its Mark S. Jordahl
---------------------------
Assistant Treasurer
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
78
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
BENEFICIAL STANDARD LIFE INSURANCE
COMPANY
By /s/
-------------------------------
Its
---------------------------
By
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
79
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FARM BUREAU LIFE INSURANCE COMPANY
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
80
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FB ANNUITY COMPANY
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
81
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
FARM BUREAU MUTUAL INSURANCE
COMPANY OF MICHIGAN
By /s/
-------------------------------
Its
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
82
The Timberland Company Second Amendment
9.70% Senior Notes due December 1, 1999
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
SUN LIFE ASSURANCE COMPANY OF CANADA
(U.S.)
By /s/ L. Brock Thomson
-------------------------------
Its L. Brock Thomson, Treasurer
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
83
The Timberland Company Second Amendment
9.70% Senior Notes due December 1, 1999
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
SUN LIFE INSURANCE AND ANNUITY
COMPANY OF NEW YORK
By /s/ L. Brock Thomson
-------------------------------
Its L. Brock Thomson, Treasurer
---------------------------
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto
84
The Timberland Company Second Amendment
Upon the acceptance of this Second Amendment by Holders holding at least
51% in aggregate unpaid principal amount of all outstanding Notes, this
agreement shall become effective and the Original Note Agreements shall be
amended as herein set forth, such amendment to be effective as of April 15, 1994
THE TIMBERLAND COMPANY
By /s/ Carden N. Welsh
-------------------------------
Its Carden N. Welsh
---------------------------
Treasurer
Accepted as of April 1, 1994
GUARANTEE MUTUAL LIFE COMPANY
By /s/ Steven A. Scanlan
-------------------------------
Its Steven A. Scanlan
---------------------------
Senior Investment Officer -
Securities
Holding the unpaid principal amount of
the Notes set out opposite its name
in Schedule I hereto