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Exhibit 10.14(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 December 15, 1994
$106,000,000 8.94% Senior Notes
Due December 15, 2001
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
December 15, 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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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
quarter of 1996 0.75 to 1
First day of the third fiscal quarter
of 1996 through the last day of such
quarter 1.00 to 1
First day of the fourth fiscal quarter
of 1996 through the last day of such
quarter 1.10 to 1
First day of the first fiscal quarter
of 1997 through the last day of the
second fiscal quarter of 1997 1.25 to 1.00
First day of the third fiscal quarter
of 1997 through the last day of such
quarter 1.40 to 1.00
First day of the fourth fiscal quarter
of 1997 and thereafter 1.50 to 1.00
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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 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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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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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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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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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
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
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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 December 15, 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 New York.
-16-
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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 $15,000,000
711 High Street
Des Moines, Iowa 50392-0800
Attention: Investment Department -- Securities Division
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
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA $31,000,000
c/o Structured Finance Group
One Gateway Center, 11th Floor
7-45 Raymond Boulevard West
Newark, New Jersey 07012-5311
Attention: Senior Managing Director
PRUCO LIFE INSURANCE COMPANY $4,000,000
c/o Structured Finance Group
One Gateway Center, 11th Floor
7-45 Raymond Boulevard West
Newark, New Jersey 07012-5311
Attention: Senior Managing Director
HARTFORD LIFE INSURANCE COMPANY $10,000,000
SEPARATE ACCOUNT CRC
c/o Hartford Life Insurance Company
c/o Life Investment Group A-4
Private Placements
P.O. Box 2999
Hartford, Connecticut 06104-2999
SCHEDULE I
(to Third Amendment)
19
HARTFORD FIRE INSURANCE COMPANY $10,000,000
c/o Hartford Life Insurance Company
c/o Life Investment Group A-4
Private Placements
P.O. Box 2999
Hartford, Connecticut 06104-2999
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY $5,000,000
c/o Hartford Life Insurance Company
c/o Life Investment Group A-4
Private Placements
P.O. Box 2999
Hartford, Connecticut 06104-2999
GREAT NORTHERN INSURED ANNUITY CORPORATION $10,000,000
Two Union Square, 601 Union Street
Seattle, Washington 98101
Attention: Investment Department, Dan Greenshields
JOHN ALDEN LIFE INSURANCE COMPANY $6,000,000
7300 Corporate Center Drive, 7A24
Miami, Florida 33126-1223
Attention: Investment Department Private Placements
THE OHIO CASUALTY INSURANCE COMPANY $5,000,000
136 North Third Street
Hamilton, Ohio 45025
Attention: Eric P. Scruggs, Portfolio Manager, Private
Placement Investments
PHYSICIANS LIFE INSURANCE COMPANY $1,000,000
c/o Asset Allocation & Management Companies
30 North LaSalle, Suite 3600
Chicago, Illinois 60602
Attention: Kathy Lange
FRONTIER INSURANCE COMPANY $750,000
c/o Asset Allocation & Management Companies
30 North LaSalle, Suite 3600
Chicago, Illinois 60602
Attention: Kathy Lange
GUARANTEE TRUST LIFE INSURANCE COMPANY $750,000
c/o Asset Allocation & Management Companies
30 North LaSalle, Suite 3600
Chicago, Illinois 60602
Attention: Kathy Lange
I-2
20
WORLD INSURANCE COMPANY $500,000
c/o Asset Allocation & Management Companies
30 North LaSalle, Suite 3600
Chicago, Illinois 60602
Attention: Kathy Lange
WASHINGTON NATIONAL INSURANCE COMPANY $2,000,000
300 Tower Parkway
Lincolnshire, Illinois 60069-3665
Attention: Investment Department-2
I-3