EXHIBIT 10(21)(e)
AMENDMENT NO. 2
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AMENDMENT NO. 2 (this "Amendment"), dated as of December 13, 1996, to the
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Amended and Restated Credit Agreement, dated as of September 6, 1994, among
Tambrands Inc. (the "Company"), Tambrands Limited, the Lenders party thereto
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(the "Lenders") and The Bank of New York, as agent (the "Agent"), as amended by
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Amendment No. 1, dated as of May 5, 1995 (the "Agreement").
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RECITALS
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1. Capitalized terms used herein that are not herein defined shall have
the meanings ascribed thereto by the Agreement.
2. The Borrowers have requested that the Agreement be amended as set
forth herein. The Agent is willing to amend the Agreement upon the terms and
conditions herein contained.
Therefore, in consideration of the RECITALS and the terms and conditions
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrowers and the Agent hereby
agree that the Agreement be amended in the following respects:
3. Paragraph 1.1 is amended to add the following definitions thereto in
their appropriate alphabetic order:
"Intercompany Indebtedness": Indebtedness of a Subsidiary of the Company
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due to the Company or to another Subsidiary of the Company.
"MTN Notes": the Medium-Term Notes of the Company issued under the
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Indenture, dated as of December 1, 1993, between the Company and Citibank, N.A.,
as Trustee, as amended or supplemented from time to time.
"MTN Notes Guaranties": the Guaranties (contained in the First Supplemental
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Indenture referred to below) by each of the Transferee Subsidiaries of the
payment of the MTN Notes outstanding at the time of the execution and delivery
of the First Supplemental Indenture, dated as of December 31, 1996, among the
Company, the Transferee Subsidiaries and Citibank, N.A., as Trustee.
"Transferee Subsidiaries": each of Tampax Corporation, a Delaware
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corporation and a wholly-owned Subsidiary of the Company ("Tampax") and
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Tambrands Mfg., Inc. and Tambrands Sales Corp., each a Delaware corporation and
each a wholly-owned Subsidiary of Tampax, and indirectly, of the Company.
4. Paragraph 8.3 is amended in its entirety to read as follows:
8.3 Sale of Assets.
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Sell, assign, exchange, lease, transfer or otherwise dispose of, or
enter into sales and leasebacks with respect to, any of its assets (other than
Margin Stock), other than in the ordinary course of business, or permit any of
its Subsidiaries so to do, in an aggregate amount, on and after the Effective
Date, in excess of 15% of its Consolidated assets (determined in accordance with
GAAP), such assets to be valued at book value, provided, however, that the
foregoing shall not prohibit (i) the Company from selling or transferring any of
its assets to Transferee Subsidiaries, or (ii) a Transferee Subsidiary from
selling or transferring any of its assets to the Company or to another
Transferee Subsidiary.
5. Paragraph 8.7 is amended in its entirety to read as follows:
"8.7 Contingent Obligations.
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Create, incur, assume or suffer to exist any Contingent Obligation, or
permit any Subsidiary so to do, if, after giving effect thereto, the aggregate
amount of all Contingent Obligations (other than the MTN Notes Guaranties) of
the Company and its Subsidiaries (determined in accordance with GAAP) would
exceed $10,000,000 or, except with respect to the MTN Notes Guaranties, permit
any Transferee Subsidiary to create, incur, assume or suffer to exist any
Contingent Obligation."
6. The following paragraph is added to the Agreement immediately after
paragraph 8.7:
"8.8 Indebtedness of Transferee Subsidiaries.
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Permit any Transferee Subsidiary to create, incur, assume or suffer to
exist any Indebtedness (other than Intercompany Indebtedness) if, after giving
effect thereto, the aggregate amount of all Indebtedness (other than
Intercompany Indebtedness) of all Transferee Subsidiaries would exceed
$10,000,000."
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7. This Amendment shall not be effective until such time (the "Amendment
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No. 2 Effective Date") as each of the following conditions has been fulfilled:
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(i) The Agent shall have received an original of this Amendment (i)
executed by a duly authorized officer or officers of each of the
Borrowers, and (ii) consented to by the Required Lenders.
(ii) On and as of the Amendment No. 2 Effective Date, no Default or
Event of Default shall have occurred or be continuing.
(iii) The MTN Notes Guaranties shall be in substantially the form
attached to this Amendment.
8. The Borrowers reaffirm and admit the validity and enforceability of
the Loan Documents and all of their obligations thereunder, agree and admit that
they have no defenses to or offsets against any of their obligations to the
Lenders or the Agent under the Loan Documents, and represent and warrant that
there exists no Default or Event of Default, and that the representations and
warranties contained in the Agreement are true and correct on and as of the date
hereof, except such thereof as relate solely to an earlier date.
9. Except as amended hereby, the Loan Documents shall remain in full
force and effect, and no amendment of any term or condition of the Agreement
herein contained shall be deemed to be an amendment of any other term or
condition contained in the Agreement or any other Loan Document or constitute a
waiver of any Default or Event of Default.
10. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
11. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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The Borrowers and the Agent have caused this Amendment No. 2 to be duly
executed as of the date first above written.
TAMBRANDS INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Senior Vice President -
Chief Financial Officer
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TAMBRANDS LIMITED
By: /s/ Xxxx X. Xxxxxxx
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Title: Director
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THE BANK OF NEW YORK,
Individually and as Agent
By /s/ Xxxxxxx X. Pan-Kita
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Title: Assistant Vice President
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Each of the Lenders hereby
consents to the execution and
delivery of this Amendment by
the Agent:
BANK BRUSSELS XXXXXXX,
NEW YORK BRANCH
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By: /s/ Xxx X. Xxxxx
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Title: Assistant Vice President
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By: /s/ Xxxxxxxx Vangaever
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Title: Senior Vice President - Credit
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CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx III
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Title: Attorney-in-Fact
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NATIONAL WESTMINSTER BANK plc
By: / s/ Grey Stoehle
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Title: Vice President
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ROYAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxxxxx
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Title: Manager
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FLEET NATIONAL BANK
By: /s/ X.X. Xxxxxxx
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Title: Senior Vice President
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FORM OF MTN NOTES GUARANTIES
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SECTION 1 Each of Tampax, Manufacturing and Sales hereby expressly
agrees to be unconditionally bound by the terms and provisions of the Guarantee
set forth below:
For value received, each of TAMPAX CORPORATION ("Tampax"),
TAMBRANDS MFG. INC. ("Manufacturing") and TAMBRANDS SALES CORP.
("Sales") (each, a "Guarantor" and, collectively, the "Guarantors"),
hereby, jointly and severally, unconditionally guarantees to the
Holders of Securities Outstanding at the time of the execution and
delivery of the First Supplemental Indenture dated as of December 31,
1996 among the Company, Tampax, Manufacturing, Sales and the Trustee
(i) the due and punctual payment of the principal of, premium, if any,
and interest on such Securities, when and as the same shall become due
and payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption or otherwise, according to the terms
thereof and of the Indenture referred to therein, and (ii) the
performance or observance of every covenant of the Company under the
Indenture. In case of the failure of the Company punctually to make
any such payment of principal, premium, if any, or interest, the
Guarantors, jointly and severally, hereby agree to cause any such
payment to be made punctually when and as the same shall become due
and payable, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, and as if such payment
were made by the Company.
Each Guarantor hereby agrees that its obligations hereunder shall
be as if it were the principal debtor and not merely surety, shall be
joint and several with each of the other Guarantors, and shall be
absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of such
Securities or such Indenture, any failure to enforce the provisions of
such Securities or such Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the holder
of such Securities hereof or the Trustee or any other circumstance
which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without
the consent of the Guarantors, increase the principal amount of such
Securities, change the redemption terms of such Securities or alter
the Stated Maturity thereof. The Guarantors hereby waive diligence,
presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect
to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenant that this Guarantee will not be discharged
except by strict and complete performance of the obligations contained
in such Securities and this Guarantee.
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The Guarantors shall be subrogated to all rights of the Holders
of such Securities and the Trustee against the Company in respect of
any amounts paid to such Holder by the Guarantors pursuant to the
provisions of this Guarantee; provided, however, that the Guarantors
shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal
of, premium if any, and interest on all Securities issued under such
Indenture and Outstanding on the date hereof shall have been paid in
full.
The guarantee set forth above shall be enforceable by the Holders
of the Securities to which it applies whether or not such guarantee is
endorsed upon or attached to such Securities.
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