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EXHIBIT 10.12(b)
THE TIMBERLAND COMPANY
200 DOMAIN DRIVE
STRATHAM, NEW HAMPSHIRE 03885
FIRST AMENDMENT
Dated as of
April 15, 1995
Re: Note Agreements dated as of April 1, 1994
$65,000,000 7.16% Senior Notes
Due April 15, 2000
To the Holder named in Schedule I
hereto which is a signatory of this
Agreement
Gentlemen:
Reference is made to the separate Note Agreements, each dated as of
April 1, 1994 (the "Original Note Agreements"), between the undersigned, THE
TIMBERLAND COMPANY, a Delaware corporation (the "Company"), and the Purchasers
named in Schedule I thereto (the "Holders") respectively. Unless otherwise
herein defined or the context hereof otherwise requires, the capitalized terms
in this First Amendment shall have the respective meanings specified in the
Original Note Agreements.
The Company now wishes to amend 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:
SECTION 1. AMENDMENTS.
Section 1.1. The definition of the term "CONSOLIDATED NET INCOME" in
Section 8.1 of ORIGINAL NOTE AGREEMENTS shall be, and the same hereby is,
amended as follows:
(a) by deleting the word "and" from the end of clause (j) thereof;
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The Timberland Company First Amendment
(b) by deleting the period from the end of clause (k) thereof and adding
the following thereto "; and"; and
(c) by adding the following new clause (l) thereto:
"(l) for any determination of `Consolidated Net Income' on
any date through and including March 31, 1996, certain extraordinary
or non-recurring items or charges in an aggregate amount not to
exceed $17,000,000 (calculated on a pre-tax basis) that are incurred
by the Company solely in connection with the closing by the Company
of its manufacturing facilities located in Boone, North Carolina and
Mountain City, Tennessee and the restructuring by the Company of its
manufacturing facility located in the Dominican Republic; provided
that the closing and the restructuring of such facilities shall have
occurred by March 31, 1996."
Section 1.2. The definition of the term "TOTAL EQUITY" in SECTION 8.1 of
ORIGINAL NOTE AGREEMENTS shall be, and the same hereby is, amended to read as
follows:
"'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; provided that for the purposes of calculating `Total
Equity' on any date through and including July 31, 1996, those
certain extraordinary or non-recurring items or charges in an
aggregate amount not to exceed $17,000,000 (calculated on a pre-tax
basis) that are incurred by the Company solely in connection with
the closing by the Company of its manufacturing facilities located
in Boone, North Carolina and Mountain City, Tennessee and the
restructuring by the Company of its manufacturing facility located
in the Dominican Republic shall be excluded from such determination
of `Total Equity' so long as the closing and the restructuring of
such facilities shall have occurred by March 31, 1996."
Section 1.3. Section 5.7 of the Original Note Agreement is hereby
amended to read in its entirety as follows:
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The Timberland Company First Amendment
"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, 1995, the sum of $80,000,000 plus 25% of Consolidated Net Income
for the fiscal quarter of the Company ended March 31, 1995 (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 2. MISCELLANEOUS.
Section 2.1. Any default or event of default which might have existed
under the Original Note Agreements prior to giving effect to this First
Amendment but which would not constitute such a default or event of default
under the Original Note Agreements as amended by this First Amendment is hereby
waived.
Section 2.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the effective date of this First
Amendment may refer to the "Note Agreements dated as of April 1, 1994" without
making specific reference to this First Amendment, but nevertheless all such
references shall be deemed to include this First Amendment unless the context
shall otherwise require.
Section 2.3. This First Amendment shall be construed in connection with
and as part of the Original Note Agreements, and all terms, conditions and
covenants contained in the original note agreements, except as herein modified,
shall be and remain in full force and effect.
Section 2.4. This First Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but altogether
one and the same instrument.
Section 2.5. Governing law. This First Amendment shall be governed by
and construed in accordance with the laws of the State of Illinois.
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The Timberland Company First Amendment
Upon the acceptance of this First 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,
1995.
THE TIMBERLAND COMPANY
By
Its
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Accepted as of April 15, 1995
[VARIATION]
By
Its
--------------------------------
By
Its
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Holding $[Variation] unpaid principal
amount of the Notes.
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