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EXHIBIT 10.12(c)
THE TIMBERLAND COMPANY
200 DOMAIN DRIVE
STRATHAM, NEW HAMPSHIRE 03885
SECOND AMENDMENT
Dated as of
June 28, 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
Ladies and Gentlemen:
The undersigned, THE TIMBERLAND COMPANY, a corporation duly organized
and validly existing under the laws of the State of Delaware, (the "Company"),
agrees with you as follows:
SECTION 1. INTRODUCTION.
Reference is made to the separate Note Agreements, each dated as of
April 1, 1994, as amended by the separate First Amendments thereto, each dated
as of April 15, 1995 collectively, (the "Original Note Agreements"), between
the Company and the Purchasers named in Schedule I thereto, respectively.
Unless otherwise herein defined or the context hereof otherwise requires, the
capitalized terms in this Second Amendment shall have the respective meanings
specified in the Original Note Agreements. The holders of the Notes at the
time of reference are referred to herein as the "Holders".
Reference is also made to that certain Amendment No. 2 to Amended and
Restated Credit Agreement dated as of June 28, 1995 (the "Credit Agreement
Amendment") among the Company, the Banks listed on the signature pages thereof
and Morgan Guaranty Trust Company of New York, as Agent, which is being
executed and delivered concurrently herewith.
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The Timberland Company Second Amendment
The Company has requested that, subject to the satisfaction of the
conditions set forth herein, the Original Note Agreements be amended as of June
28, 1995 (the "Effective Date") 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 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to you as follows:
(a) After giving effect to this Second Amendment and the Credit
Agreement Amendment and the transactions contemplated hereby and thereby, no
Default or Event of Default has occurred and is continuing, and no event has
occurred and no condition exists which with the lapse of time or the giving of
notice, or both, would constitute an event of default 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 is outstanding.
(b) The Company has no Unrestricted Subsidiaries.
SECTION 3. CONDITIONS PRECEDENT.
The effectiveness of this Second Amendment shall be subject to the
following conditions precedent:
Section 3.1. Execution of the Credit Agreement Amendment. The
Company, the Agent named therein and the Required Banks (as defined in the
Credit Agreement) shall have duly executed and delivered the Credit Agreement
Amendment, which shall be a legal, valid, binding and enforceable agreement of
the Company.
Section 3.2. Warranties and Representations True. The warranties
and representations of the Company set forth in Section 2 hereof shall be true
and correct in all material respects on the Effective Date with the same effect
as though made on and as of the Effective Date.
Section 3.3. Payment of Closing Fees. In consideration of your
execution and delivery of this Second Amendment, the Company shall have paid to
each Holder a closing fee in an amount equal to .375% of the outstanding
principal amount of the Notes held by such Holder on the Effective Date.
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Section 3.4. Proceedings Satisfactory. All proceedings taken in
connection with the transactions contemplated or provided for in this Second
Amendment and all documents and papers relating thereto shall be satisfactory
to you and your special counsel. You and your special counsel shall have
received copies of such documents and papers as you or they may reasonably
request in connection therewith, all in form and substance satisfactory to you
and your special counsel.
SECTION 4. AMENDMENTS.
The following amendments to the Original Note Agreements shall become
effective on the Effective Date and shall terminate and be of no further force
and effect on February 28, 1997:
Section 4.1. Amendment to Section 5.7. Section 5.7 of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"Section 5.7. Minimum Consolidated Tangible Net
Worth. Consolidated Tangible Net Worth will at no time during
any period set forth below be less than the sum of (i) the
amount set forth below opposite such period and (ii) 80% of the
net cash proceeds of all issuances by the Company of shares of
its capital stock after the Second Amendment Effective Date:
PERIOD AMOUNT
Second Amendment Effective Date
through the next to last day of
the third fiscal quarter of 1996 $100,000,000
Last day of the third fiscal quarter
of 1996 through the next to last
day of the fourth fiscal quarter
of 1996 $120,000,000
Last day of the fourth fiscal quarter
of 1996 and thereafter $125,000,000
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"The following terms shall have the following
meanings solely for purposes of this SECTION 5.7:
"'Consolidated Net Worth' means at any date
the consolidated stockholders' equity of the Company
and its Consolidated Subsidiaries (without giving
effect to (i) any write-ups or write-downs resulting
from foreign currency translations after December 31,
1994 or (ii) up to $17,000,000 (calculated on a
pre-tax basis) of certain extraordinary items that
may be booked after April 19, 1995) as of such date.
"'Consolidated Subsidiary' means at any date
any Subsidiary or other entity the accounts of which
would be consolidated with those of the Company in
its consolidated financial statements if such
statements were prepared as of such date.
"'Consolidated Tangible Net Worth' means at
any date Consolidated Net Worth less the consolidated
Intangible Assets of the Company and its Consolidated
Subsidiaries, all determined as of such date. For
purposes of this definition "Intangible Assets" means
the amount (to the extent reflected in determining
such Consolidated Net Worth) of (i) all write-ups
(other than write-ups of assets of a going concern
business made within twelve months after the
acquisition of such business) subsequent to December
31, 1993 in the book value of any asset owned by the
Company or a Consolidated Subsidiary, (ii) all
Investments in unconsolidated Subsidiaries and all
equity investments in Persons which are not
Subsidiaries and (iii) all unamortized debt discount
and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names,
anticipated future benefit of tax loss
carry-forwards, copyrights, organization or
developmental expenses and other intangible assets.
"'Investment' means any investment in any
Person, whether by means of share purchase, capital
contribution, loan, time deposit or otherwise."
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Section 4.2. Amendments to Section 5.8. Section 5.8 of the
Original Note Agreements shall be, and the same is hereby amended as follows:
(a) Section 5.8(a)(3) is amended in its entirety to read as follows:
"(3) [Intentionally Reserved]".
(b) Section 5.8(a)(5) is amended in its entirety to read as follows:
"(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, Specified Debt does not exceed 15% of Consolidated
Tangible Net Worth."
Section 4.3. Amendment to Section 5.9. Section 5.9 of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"Section 5.9. Fixed Charge Coverage Ratio. The
Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters ending during any period set forth below will
not be less than the ratio set forth opposite such period:
PERIOD RATIO
First day of the second fiscal
quarter of 1995 through the last day
of such quarter 1.35 to 1
First day of the third fiscal quarter
of 1995 through the last day of the
second fiscal quarter of 1996 0.75 to 1
First day of the third fiscal quarter
of 1996 and thereafter 1.50 to 1"
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"The following terms shall have the following meanings solely for
purposes of this SECTION 5.9:
"'Consolidated EBITR' means, for any period, the sum
of (i) consolidated net income of the Company and its
Consolidated Subsidiaries for such period plus (ii) to the
extent deducted in determining such consolidated net income,
the sum of (A) Consolidated Interest Expense, (B) Consolidated
Rental Expense (C) consolidated taxes of the Company and its
Consolidated Subsidiaries for such period and (D) up to
$17,000,000 (calculated on a pre-tax basis) of certain
extraordinary items that may be booked after April 19, 1995.
"'Consolidated Interest Expense' means, for any
period, the interest expense (less interest income) of the
Company and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"'Consolidated Rental Expense' means, for any period,
the rental expense of the Company and its Consolidated
Subsidiaries (other than with respect to capital leases)
determined on a consolidated basis for such period.
"'Consolidated Subsidiary' is defined in SECTION 5.7.
"'Fixed Charge Coverage Ratio' means, for any period,
the ratio of (i) Consolidated EBITR for such period to (ii)
the sum of (A) Consolidated Interest Expense for such period,
(B) Consolidated Rental Expense for such period and (C)
dividends on preferred stock of the Company and its
Consolidated Subsidiaries for such period (other than any such
dividends paid to the Company or its Consolidated
Subsidiaries)."
Section 4.4. Amendment to Section 5.10. Section 5.10(j) of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
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"(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 15% of
Consolidated Tangible Net Worth; and"
Section 4.5. Amendment to Section 5.11. Section 5.11 of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"Section 5.11. Restricted Payments. Neither the
Company nor any Subsidiary will declare or make any Restricted
Payment unless, after giving effect thereto, the aggregate of
all Restricted Payments declared or made subsequent to December
31, 1990 does not exceed 25% of consolidated net income (less
consolidated net loss, if any) of the Company and its
Consolidated Subsidiaries for the period from January 1, 1991
through the end of the Company s then most recent fiscal
quarter (treated for this purpose as a single accounting
period). Nothing in this Section 5.11 shall prohibit the
payment of any dividend or distribution within 60 days after
the declaration thereof if such declaration was not prohibited
by this Section 5.11.
"The following term shall have the following meaning
solely for purposes of this SECTION 5.11:
"'Restricted Payment' means (i) any dividend
or other distribution on any shares of the Company's
capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment
(other than payments for the repurchase of shares of
the Company's common stock from employees or former
employees of the Company or any of its Subsidiaries
pursuant to the 1987 Employee Stock Purchase Plan, the
1991 Employee Stock Purchase Plan or the 1987 Employee
Stock Option Plan, in each case as amended (other than
to change in any material respect any provisions
relating to repurchases of any such shares) from time
to time (or any successor plans with substantially
similar provisions), in an aggregate amount not to
exceed the proceeds received by the Company after the
date hereof
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of sales of shares of the Company's common stock to
employees of the Company and its Subsidiaries) on
account of the purchase, redemption, retirement or
acquisition of (a) any shares of the Company's capital
stock or (b) any option, warrant or other right to
acquire shares of the Company's capital stock."
Section 4.6. Amendment to Section 5.19. Section 5.19(f) of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"(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 5.21, inclusive, at the end of the period covered by
the financial statements then being furnished, (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 and (iii) the
information and computations (in sufficient detail) required
in order to establish whether the Company was in compliance
with the requirements of SECTION 5.6 through SECTION 5.14,
inclusive, and SECTION 5.17 (as such Sections were in effect
immediately prior to the Second Amendment Effective Date) at
the end of the period covered by the financial statements then
being furnished, and the amount, if any, of the Credit Fee (as
defined in the Second Amendment) to be paid to the holders of
the Notes pursuant to Section 5 of the Second Amendment;"
Section 4.7. Additional Covenants of the Company. The following
Sections 5.20 through 5.24 shall be added to the Original Note Agreements
immediately following Section 5.19, to read in their respective entireties as
follows:
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The Timberland Company Second Amendment
"Section 5.20. Debt. Without limiting the provisions of
SECTION 5.8 the Company will not, and will not permit any of its
Subsidiaries to, incur or at any time be liable with respect to any Debt
except:
"(a) Debt outstanding under the Credit Agreement
as in effect on the date hereof giving effect to Amendment No.
2 thereto, provided that the sum of (i) the aggregate
principal amount of Loans outstanding under the Credit
Agreement and (ii) the aggregate principal amount of Permitted
Short-Term Debt shall not exceed (A) for a minimum of thirty
consecutive days in the period between December 1, 1995 and
March 1, 1996, $20,000,000 and (B) on any day, the Limitation
Amount for such day; and
"(b) Other Debt permitted by Section 5.08 of the
Credit Agreement as in effect on the date hereof giving effect
to Amendment No. 2 thereto.
"The following terms shall have the following meanings solely
for purposes of this SECTION 5.20:
"'Debt' of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price
of property or services, except trade accounts payable arising
in the ordinary course of business, (iv) all obligations of
such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all
non-contingent obligations (and, for purposes of SECTION 5.10
and the definitions of Material Debt and Material Financial
Obligations, all contingent obligations) of such Person to
reimburse or prepay any bank or other Person in respect of
amounts paid under a letter of credit, banker's acceptance or
similar instrument, whether drawn or undrawn, (vi) all Debt of
others secured by a Lien on any asset of such Person, whether
or not such
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Debt is assumed by such Person, and (vii) all Debt of others
guaranteed by such Person.
"'Derivatives Obligations' of any Person means all
obligations of such Person in respect of any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect
to any of the foregoing transactions) or any combination of
the foregoing transactions.
"'Limitation Amount' means, for any day set forth, or
for any day during any period set forth, below, the amount set
forth below opposite such day or period:
DAY OR PERIOD LIMITATION AMOUNT
Second Amendment Effective Date
through the last day of the
second fiscal quarter of 1995 $100,000,000
First day of the third fiscal
quarter of 1995 through the
next to last day of such
quarter $125,000,000
Last day of the third fiscal
quarter of 1995 through the
next to last day of the fourth
fiscal quarter of 1995 $115,000,000
Last day of the fourth fiscal
quarter of 1995 $ 20,000,000
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First day of the first fiscal
quarter of 1996 through the
last day of such quarter $ 30,000,000
First day of the second fiscal
quarter of 1996 through the
last day of such quarter $ 65,000,000
First day of the third fiscal
quarter of 1996 through the
next to last day of the fourth
fiscal quarter of 1996 $100,000,000
Last day of the fourth fiscal
quarter of 1996 and thereafter $ 20,000,000
"'Loan' means a Domestic Loan, a Euro-Dollar Loan or
a Money Market Loan (each as defined in the Credit Agreement)
and "Loans" means Domestic Loans, Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"'Material Debt' means Debt (other than the Loans) of
the Company and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, in an aggregate
principal amount exceeding $1,000,000.
"'Material Financial Obligations' means a principal
or face amount of Debt and/or payment obligations in respect
of Derivatives Obligations of the Company and/or one or more
of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $2,500,000
(or, in the case of foreign exchange transactions,
$5,000,000).
"'Permitted Short-Term Debt' means Debt (other than
Loans or Debt permitted under Section 5.08(g) of the Credit
Agreement) of the Company or any of its Subsidiaries having a
maturity, at the time such Debt is
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incurred, of not more than one year from the date such Debt is
incurred.
"Section 5.21. Leverage Ratio. The Leverage Ratio will at
no time during any period or on any day set forth below exceed the ratio
set forth below opposite such period or day:
PERIOD OR DAY LEVERAGE RATIO
First day of the second fiscal
quarter of 1995 through the
last day of such quarter 2.25 to 1.00
First day of the third fiscal
quarter of 1995 through the next
to last day of such quarter 2.30 to 1.00
Last day of the third fiscal
quarter of 1995 through the
next to last day of the fourth
fiscal quarter of 1995 2.25 to 1.00
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Last day of fourth fiscal quarter
of 1995 1.50 to 1.00
First day of the first fiscal
quarter of 1996 through the last
day of such quarter 1.60 to 1.00
First day of the second fiscal
quarter of 1996 through the
next to last day of the third
fiscal quarter of 1996 1.90 to 1.00
Last day of the third fiscal
quarter of 1996 through the
next to last day of the fourth
fiscal quarter of 1996 1.80 to 1.00
Last day of the fourth fiscal
quarter of 1996 1.25 to 1.00
First day of the first fiscal
quarter of 1997 and thereafter 1.45 to 1.00
"The following terms shall have the following meanings solely
for purposes of this SECTION 5.21:
"'Consolidated Debt' means at any date the Debt of
the Company and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"'Consolidated Subsidiaries' is defined in SECTION
5.7.
"'Debt' is defined in SECTION 5.20.
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"'Leverage Ratio' means, for any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated Net
Worth (as defined in Section 5.7) on such date.
"'Loan' is defined in SECTION 5.20.
"Section 5.22. No Unrestricted Subsidiaries. The Company
shall not designate any Subsidiary as an Unrestricted Subsidiary.
"Section 5.23. Payments with Respect to Credit Agreement.
The Company will not, without the prior written consent of Holders
holding not less than 51% of the unpaid principal amount of the Notes,
directly or indirectly pay or extend, or enter into any agreement with
any of the other Persons party to the Credit Agreement which provides
for the payment or extension by the Company of, any form of additional
compensation or security to any such Person in consideration for any
amendment of, waiver of the requirements of, or consent to a
modification of, Sections 2.13, 5.11, 5.12, 5.13 or 5.14 of the Credit
Agreement (or related definitions of terms), as amended to the date
hereof.
"Section 5.24. Restrictive Agreements. (a) The Company will
not, and will not permit any Subsidiary to, enter into any agreement
after the Second Amendment Effective Date which shall further limit (i)
the ability of the Company or any Subsidiary to amend or otherwise
modify this Agreement or any Note, (ii) the ability of any Subsidiary to
make any payments, directly or indirectly, to the Company, (iii) the
ability of any Subsidiary to guarantee any obligation of the Company
under the Agreement or any Note or (iv) the ability of the Company or
any Subsidiary to grant any Lien on any or all of its property to secure
its obligations under this Agreement, the Notes or any such guarantee;
provided that (x) the agreements and instruments entered into in
connection with the refinancing of any Debt of the Company or any
Subsidiary outstanding on the Second Amendment Effective Date (or on the
date such Subsidiary becomes a Subsidiary) may contain any such
limitations that were contained in the agreements and instruments
governing the Debt so refinanced and (y) it is understood that the
imposition by any governmental entity of any restriction of the
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kind set forth in this Section shall not be deemed to be a Default under
this Section.
"(b) The Company will not, and will not permit any
Subsidiary to, enter, after the Second Amendment Effective
Date, into any agreement (including, without limitation, any
amendment or modification of, or supplement to, any
outstanding agreement) with respect to any Debt of the Company
or any Subsidiary that contains conditions, covenants or
events of default that are more burdensome or restrictive to
the Company or such Subsidiary than those contained in the
Credit Agreement are to the Company on the Second Amendment
Effective Date.
"The following terms shall have the following
meanings solely for purposes of this SECTION 5.24:
"'Debt' is defined in SECTION 5.20.
"'Loan' is defined in SECTION 5.20."
Section 4.8. Amendment to Section 6.1. Section 6.1(f) of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"(f) Default shall occur in the observance or
performance of any covenant or agreement contained in Section
5.6 through Section 5.15, inclusive, SECTION 5.17, SECTION
5.20, SECTION 5.21, OR SECTION 5.23; or"
Section 4.9. Amendments to Section 8.1. The following definitions
shall be added to Section 8.1 of the Original Note Agreements in alphabetical
order and shall read as follows:
"'Credit Agreement' shall mean that certain Amended
and Restated Credit Agreement dated as of March 14, 1995,
among the Company, the Banks listed on the signature pages
thereof and Morgan Guaranty Trust Company of New York, as
Agent, as amended to date.
'Second Amendment' shall mean the Second Amendment to
this Agreement dated as of June 28, 1995 between the Company
and you.
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'Second Amendment Effective Date' shall mean the date
on which the Second Amendment becomes effective."
SECTION 5. CREDIT FEE.
If, on any interest payment date, the Company is not in compliance
(determined as of the end of the then most recent fiscal quarter of the
Company) with Sections 5.6 through 5.14, inclusive, or Section 5.17 of the
Original Note Agreements (as in effect immediately prior to the Effective
Date), the Company shall pay to each Holder a fee (the "Credit Fee") in an
amount equal to .125% of the outstanding principal amount of the Notes held by
such Holder on such interest payment date (each a "Non-Compliance Date"),
before giving effect to any payment of principal made on the Notes on such
Non-Compliance Date.
Each Credit Fee shall be due and payable 10 days following the delivery
to the Holders of the Company's financial statements for the fiscal quarter
immediately preceding the applicable Non-Compliance Date or, if earlier, on the
date such financial statements are required to be delivered to the holders of
the Notes pursuant to Section 5.19 of the Original Note Agreements, as amended
hereby.
In the event that the Company has not delivered the required financial
statements by the date provided in said Section 5.19 for any financial reporting
period ending immediately prior to an interest payment date, such interest
payment date shall be deemed to be a Non-Compliance Date hereunder, and the
Credit Fee relating to such Non-Compliance Date shall become immediately due and
payable.
SECTION 6. MISCELLANEOUS.
Section 6.1. Waiver of Default. Any Default or Event of Default
which might have existed under the Original Note Agreements prior to giving
effect to this Second Amendment but which would not constitute such a Default
or Event of Default under the Original Note Agreements as amended by this
Second Amendment is hereby waived.
Section 6.2. Notices. Any and all notices, requests, certificates
and other instruments executed and delivered after the effective date of this
Second Amendment may refer to the "Note Agreements dated as of April 1, 1994"
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 6.3. Expenses. The Company will pay all expenses relating
to this Second Amendment in accordance with Section 9.4 of the Original Note
Agreements.
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Section 6.4. Construction. This Second 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 6.5. 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 6.6. Governing Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Illinois.
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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 June 28,
1995.
THE TIMBERLAND COMPANY
By
Its
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Accepted as of June 28, 1995
[VARIATION]
By
Its
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By
Its
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Holding $[Variation] unpaid principal
amount of the Notes.
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