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EXHIBIT 10.12(d)
THE TIMBERLAND COMPANY
200 DOMAIN DRIVE
STRATHAM, NEW HAMPSHIRE 03885
THIRD AMENDMENT
Dated as of
June 21, 1996
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 and by the separate Second Amendments thereto, each dated
as of June 21, 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 Third 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 Credit Agreement dated as of
June 21, 1996 (the "Credit Agreement") 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.
The Company has requested that, subject to the satisfaction of the
conditions set forth herein, the Original Note Agreements be amended as of June
21, 1996 (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.
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The Timberland Company Third Amendment
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to you as follows:
(a) After giving effect to this Third Amendment and the Credit
Agreement 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 Third Amendment shall be subject to the
following conditions precedent:
Section 3.1. Execution of the Credit Agreement. The Company, the Agent
named therein and the banks listed on the signature pages thereof shall have
duly executed and delivered the Credit Agreement, 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. Proceedings Satisfactory. All proceedings taken in
connection with the transactions contemplated or provided for in this Third
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, except with respect to the amendment to
Section 5.19 of the Original Note Agreements which shall remain in full force
and effect until all amounts under the Original Note Agreements and the Notes
have been paid in full, shall terminate and be of no further force and effect on
June 21, 1998:
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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 be less than the sum of
(i) $90,000,000, (ii) 60% of Consolidated Net Income for each fiscal
quarter beginning with the third fiscal quarter of 1996 which has ended
at or before such time for which Consolidated Net Income is positive
and (iii) 75% of the net cash proceeds of all issuances by the Company
of shares of its capital stock after the Third Amendment Effective Date
and at or before such time.
"The following terms shall have the following meanings solely
for purposes of this Section 5.7:
"'Consolidated Net Income' means, for any fiscal
period, the net income of the Company and its Consolidated
Subsidiaries, determined on a consolidated basis for such
period.
"'Consolidated Net Worth' means at any date the
consolidated stockholders' equity of the Company and its
Consolidated Subsidiaries (without giving effect to any
write-ups or write-downs resulting from foreign currency
translations after December 31, 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, 1995 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,
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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."
Section 4.2. 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
Third Amendment
Effective Date
through the last day
of the second fiscal 0.75 to 1
quarter of 1996
First day of the
third fiscal quarter
of 1996 through the 1.00 to 1
last day of such
quarter
First day of the
fourth fiscal quarter
of 1996 through the
last day of such 1.10 to 1
quarter
First day of the
first fiscal quarter
of 1997 through the
last day of the 1.25 to 1.00
second fiscal quarter
of 1997
First day of the
third fiscal quarter
of 1997 through the 1.40 to 1.00
last day of such
quarter
First day of the
fourth fiscal quarter
of 1997 and 1.50 to 1.00
thereafter
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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 and (C) consolidated
taxes of the Company and its Consolidated Subsidiaries for such period.
"'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 4.3. 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 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.
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The Timberland Company Third Amendment
"The following terms shall have the following meanings solely
for purposes of this Section 5.11:
"'Consolidated Net Income' is defined in Section 5.7.
"'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 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 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 4.4. Amendment to Section 5.17(j). Section 5.17(j) of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"(j) Restricted Investments; provided that the aggregate
amount of Restricted Investments does not exceed $10,000,000 at any one
time outstanding."
Section 4.5. Amendment to Section 5.19. Section 5.19 of the Original
Note Agreements shall be, and the same is hereby amended as set forth below:
(a) Section 5.19(a) and (b) is hereby amended as follows:
"(a) Quarterly Statements. As soon as available and
in any event within 45 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,
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(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 from 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 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 90 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
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The Timberland Company Third Amendment
accounting records and such other auditing procedures as were
considered necessary in the circumstances, provided, 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)."
(b) Section 5.19(g) is hereby amended by deleting "and" where it
appears at the end thereof.
(c) Section 5.19(h) is hereby amended by deleting the period at the end
thereof and inserting "; and".
(d) Section 5.19 is hereby amended by inserting the following at the
end thereof:
"(i) ERISA Reports. If and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412
of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA,
a copy of such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which
the Company or
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The Timberland Company Third Amendment
applicable member of the ERISA Group is required or proposes to take.
The following terms shall have the following meanings solely for purposes of
this Section 5.19(i):
"'Benefit Arrangement' means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or
a Multiemployer Plan and which is maintained or otherwise contributed
to by any member of the ERISA Group.
"'ERISA' means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"'ERISA Group' means the Company, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with the Company or any Subsidiary, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"'Multiemployer Plan' means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to
be a member of the ERISA Group during such five year period.
"'PBGC' means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"'Plan' means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code and either (i) is maintained, or contributed to,
by any member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding five years
been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group."
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The Timberland Company Third Amendment
Section 4.6. Amendment to Section 5.20. Section 5.20 of the Original
Note Agreements shall be, and the same is hereby amended in its entirety as
follows:
"Section 5.20. Debt. (a) In addition to 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:
"(i) Debt outstanding under the Credit Agreement as
in effect on the Third Amendment Effective Date, provided that
for a minimum of thirty consecutive days in the period between
November 1 and March 1 (inclusive) of every 12 months there
shall be no Loans outstanding under the Credit Agreement and
no Permitted Short-Term Debt outstanding; and
"(ii) Other Debt permitted by Section 5.08 of the
Credit Agreement as in effect on the Third Amendment
Effective Date.
"(b) The daily average outstanding Debt of the Company and its
Subsidiaries in respect of trade letters of credit (other than Letters
of Credit (as defined in the Credit Agreement as in effect on the Third
Amendment Effective Date)) during any fiscal quarter of the Company
shall not exceed the daily average outstanding Letter of Credit
Liabilities (as defined in the Credit Agreement as in effect on the
Third Amendment Effective Date) in respect of Trade Letters of Credit
(as defined in the Credit Agreement as in effect on the Third Amendment
Effective Date) during such fiscal quarter.
"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
5.20(b), all contingent obligations) of such Person to
reimburse or prepay any bank or other Person in respect of
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The Timberland Company Third Amendment
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 Debt is
assumed by such Person, and (vii) all Debt of others guaranteed by such
Person. "'Loan' means a Base Rate Loan, a Euro-Dollar Loan or a Money
Market Loan (each as defined in the Credit Agreement as in effect on
the Third Amendment Effective Date) and "Loans" means Base Rate Loans,
Euro-Dollar Loans or Money Market Loans or any combination of the
foregoing. "'Permitted Short-Term Debt' means Debt (other than Loans or
Debt permitted under Section 5.08(a)(vii) of the Credit Agreement) of
the Company or any of its Subsidiaries that is payable on demand or
that has a maturity, at the time such Debt is incurred or at any time
which such maturity is extended, of not more than one year from the
date such Debt is incurred or such maturity is extended, as the case
may be." Section 4.7. Amendment to Section 5.21. Section 5.21 of the
Original Note Agreements shall be, and the same is hereby amended in
its entirety as follows: "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
Third Amendment Effective Date
through the next to last day of the
fourth fiscal quarter of 1996 1.80 to 1.00
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Last day of the fourth fiscal
quarter of 1996 1.10 to 1.00
First day of the first fiscal
quarter of 1997 through the
last day of such quarter 1.40 to 1.00
First day of the second fiscal quarter
of 1997 through the next to last
day of the third fiscal quarter
of 1997 1.60 to 1.00
Last day of the third fiscal
quarter of 1997 through the next
to last day of the fourth fiscal
quarter of 1997 1.45 to 1.00
Last day of the fourth fiscal
quarter of 1997 1.00 to 1.00
First day of the first fiscal
quarter of 1998 through the
last day of such quarter 1.15 to 1.00
First day of the second fiscal
quarter of 1998 and thereafter 1.35 to 1.00
"The following terms shall have the following
meanings solely for purposes of this Section 5.21:
"'Adjusted Consolidated Cash Holdings' means, for any
date the excess, if any, of (i) the sum of cash and Temporary
Cash Investments of the Company and its Subsidiaries determined
on a consolidated basis on such date over (ii) $5,000,000.
"'Bank' means each bank listed on the signature pages
to the Credit Agreement, each assignee which becomes a Bank
pursuant to Section 11.06(c) of the Credit Agreement, and their
respective successors.
"'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 Subsidiary' is defined in Section 5.7.
"'Debt' is defined in Section 5.20.
"'Investment' is defined in Section 5.7.
"'Leverage Ratio' means, for any date, the ratio of
(i) Consolidated Debt less Adjusted Consolidated Cash Holdings
on such date to (ii) Consolidated Net Worth (as defined in
Section 5.7) on such date.
"'Loan' is defined in Section 5.20.
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"'Temporary Cash Investment' means any Investment in
(i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any
agency thereof, (ii) commercial paper rated at least A-1 by
Standard & Poor's Ratings Service or P-1 by Moody's Investors
Service, Inc., (iii) time deposits with, including certificates
of deposit issued by, (x) any office located in the United
States of (A) any bank or trust company which is organized
under the laws of the United States or any state thereof and
has capital, surplus and undivided profits aggregating at least
$100,000,000 or (B) any Bank or (y) in the case of Investments
made by a Subsidiary of the Company whose principal place of
business is located outside the United States, any office
located outside the United States of (A) any bank or trust
company the long-term unsecured senior debt of which is rated
AA or higher by Standard & Poor's Ratings Service or Aa or
higher by Moody's Investors Service, Inc. or (B) any Bank, (iv)
money market funds which invest only in securities described in
clauses (i), (ii) and (iii)(x) above or (v) repurchase
agreements with respect to securities described in clause (i)
above entered into with an office of a bank or trust company
meeting the criteria specified in clause (iii) above; provided
in each case that such Investment matures within one year from
the date of acquisition thereof by the Company or a
Subsidiary."
Section 4.8. Amendment to Section 5.23. Section 5.23 of the Original
Note Agreements shall be, and the same is hereby amended in its entirety as
follows:
"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)."
Section 4.9. Amendment to Section 5.24. Section 5.24 of the Original
Note Agreements shall be, and the same is hereby amended in its entirety as
follows:
"Section 5.24. Restrictive Agreements. (a) The Company will
not, and will not permit any Subsidiary to, enter into any
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agreement after the Third 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 Third 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 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 Third 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 Third 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 4.10. Amendments to Section 8.1.
(a) The following definitions shall be added to Section 8.1 of the Original Note
Agreements in alphabetical order and shall read as follows:
"'Third Amendment' shall mean the Third Amendment
to this Agreement dated as of June 21, 1996 between the Company
and you.
"'Third Amendment Effective Date' shall mean the
date on which the Third Amendment becomes effective."
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(b) The definition of Credit Agreement contained in Section 8.1 of the
Original Note Agreements shall be, and the same is hereby amended in its
entirety as follows:
"'Credit Agreement' shall mean that certain Credit Agreement
dated as of June 21, 1996, 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."
Section 5. EFFECTIVENESS OF ORIGINAL NOTE AGREEMENTS; PAYMENT OF CREDIT
FEE.
Section 5.1. Effectiveness of Original Note Agreements. The Company
hereby agrees that (i) the terms and provisions of the Original Note Agreements,
as amended by this Third Amendment, are hereby ratified and confirmed and (ii)
notwithstanding anything to the contrary contained in the Second Amendments
referred to in Section 1 hereof, the amendments contained in Sections 4.2, 4.4,
4.6, 4.7 (only with respect to the addition of Section 5.22 entitled "No
Unrestricted Subsidiaries"), 4.8 and 4.9 (only with respect to the definitions
of "Second Amendment" and "Second Amendment Effective Date") of the Second
Amendments referred to in Section 1 hereof shall remain in full force and effect
until June 21, 1998.
Section 5.2. Payment of Credit Fee. The Company hereby reaffirms its
obligation to pay the Credit Fee (as defined in the Second Amendments referred
to in Section 1 hereof) pursuant to and in accordance with the terms of Section
5 of the Second Amendments referred to in Section 1 hereof.
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 Third Amendment but which would not constitute such a Default or Event of
Default under the Original Note Agreements as amended by this Third 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 Third
Amendment may refer to the "Note Agreements dated as of April 1, 1994" without
making specific reference to this Third Amendment, but nevertheless all such
references shall be deemed to include this Third Amendment unless the context
shall otherwise require.
Section 6.3. Expenses. The Company will pay all expenses relating to
this Third Amendment in accordance with Section 9.4 of the Original Note
Agreements.
Section 6.4. Construction. This Third Amendment shall be construed in
connection with and as part of the Original Note Agreements, and all terms,
conditions and covenants
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16
The Timberland Company Third Amendment
contained in the Original Note Agreements, except as herein modified, shall be
and remain in full force and effect.
Section 6.5. Counterparts. This Third 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 Third Amendment shall be governed by
and construed in accordance with the laws of the State of Illinois.
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17
The Timberland Company Third Amendment
Upon the acceptance of this Third 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 21, 1996.
THE TIMBERLAND COMPANY
By
---------------------------------
Its
---------------------------------
Accepted as of June 21, 1996
(HOLDER)
By
---------------------------------
Its
---------------------------------
By
---------------------------------
Its
---------------------------------
Holding $(Holder Amount) unpaid principal
amount of the Notes.
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18
Schedule I
Principal Amount of
HOLDERS Notes Held
Principal Mutual Life Insurance Company $20,000,000
711 High Street
Des Moines, Iowa 50392-0800
Attention: Investment Department--Securities
Division
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) $10,000,000
One Sun Life Executive Park
Wellesley Hills, Massachusetts 02181
Attention: Investment Department/Private
Placements, SC #1303
NORTHERN LIFE INSURANCE COMPANY $5,500,000
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2121
Attention: James Tobin
NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY $2,000,000
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: James Tobin
GUARANTEE MUTUAL LIFE COMPANY $3,000,000
1 Guarantee Center
8801 Indian Hills Drive
Omaha, Nebraska 68114
Attention: Investment Division
GE CAPITAL ASSURANCE COMPANY TRUST $10,000,000
c/o GNA Corporation
Two Union Square, Suite 5600
P.O. Box 490
Seattle, Washington 98111-0490
Attention: Dan Greenshields
THE NORTH ATLANTIC LIFE INSURANCE COMPANY OF $1,500,000
AMERICA
c/o ReliaStar Investment Research, Inc.
100 Washington Avenue South, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: James Tobin
SCHEDULE I
(TO THIRD AMENDMENT)
19
Principal Amount of
HOLDERS Notes Held
THE FRANKLIN LIFE INSURANCE COMPANY $5,000,000
c/o American General Corporation
P. O. Box 3247
Houston, Texas 77253-3247
[2929 Allen Parkway
Houston, Texas 77019-2155]
Attention: Investment Research Department, A37-01
CENTURY LIFE OF AMERICA $3,000,000
c/o CUNA Mutual Insurance Group
Securities Management Department
5910 Mineral Point Road
Madison, Wisconsin 53705
Attention: Private Placements
CUNA MUTUAL INSURANCE SOCIETY $2,000,000
c/o CUNA Mutual Insurance Group
Securities Management Department
5910 Mineral Point Road
Madison, Wisconsin 53705
Attention: Private Placements
TMG LIFE INSURANCE COMPANY $3,000,000
401 North Executive Drive
Brookfield, Wisconsin 53008-0980
I-2