EXHIBIT 10.4
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "Amendment"), dated as of March 11, 1996, by
and among MATTEL SALES CORP., a California corporation, and ▇▇▇▇▇▇-▇▇▇▇▇,
INC., a Delaware corporation, as transferors (each, a "Transferor"),
MATTEL, INC., a Delaware corporation, as guarantor and servicer (the
"Guarantor" and the "Servicer"), THE BANKS LISTED ON THE SIGNATURE PAGES
HEREOF (collectively, other than Marine Midland Bank, the "Banks") and
NATIONSBANK OF TEXAS, N.A., a national banking association, as agent on
behalf of the Banks (the "Agent") amending that certain Second Amended and
Restated Transfer and Administration Agreement dated as of March 10, 1995,
by and among the Transferors, the Guarantor, the Servicer, the Banks and
the Agent (the "Original Agreement" and said agreement as amended through
and including the date hereof, the "Agreement").
PRELIMINARY STATEMENTS
WHEREAS, the Transferors have requested that the Banks agree to
certain amendments to the Original Agreement and subject to the terms and
conditions hereof the Banks have agreed to such amendments.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Definitions. All capitalized terms used herein which
are not otherwise defined are used as defined in the Original Agreement.
SECTION 2. Amendments to Original Agreement. The Original
Agreement is hereby amended as follows:
(a) The definition of "Commitment Commission Rate" in Section
1.1 of the Original Agreement shall be amended by deleting the chart
contained in such definition and by replacing it with the following chart:
Toys "R" Us, Inc.'s
long-term senior
unsecured debt ratings Commitment
S&P/▇▇▇▇▇'▇/Duff Commission
---------------------- ----------
AA-/Aa3/AA-or higher 8.0 bps
A/A2/A or higher 10.0 bps
A-/A3/A- 12.0 bps
The Commitment Commission Rate upon effectiveness of this
Amendment will be 8 basis points.
(b) The definition of "Commitment Fee" shall be deleted in its
entirety and shall be replaced with the following:
"Commitment Fee" means a fee equal to the applicable
Commitment Commission Rate payable by the Transferors on each
Remittance Date on the difference between the average Facility Limit
and the average Total Outstanding Investment on each day for the one-
year period preceding such date.
(c) The definition of "Facility Limit" in Section 1.1 of the
Original Agreement shall be amended by deleting the reference to
"$250,000,000" and by replacing it with "$400,000,000".
(d) The definition of "Participation Rate" in Section 1.1 of the
Original Agreement shall be amended by deleting the chart contained in such
definition and by replacing it with the following:
Toys "R" Us, Inc.'s
long-term senior
unsecured
debt ratings Spread
S&P/▇▇▇▇▇'▇/▇▇▇▇
-------------------- --------
AA-/Aa3/AA-or higher 20.0 bps
A/A2/A or higher 22.5 bps
A-/A3/A- 30.0 bps
2
The spread upon effectiveness of this Amendment will be 20 basis
points.
(e) The definition of "Remittance Date" in Section 1.1 of the
Original Agreement shall be amended by deleting the reference to "December
18, 1995, December 17, 1996, and December 17, 1997," and by replacing it
with "December 17, 1996, December 17, 1997, December 17, 1998, December 17,
1999 and December 17, 2000".
(f) The definition of "Termination Date" in Section 1.1 of the
Original Agreement shall be amended by deleting the reference to "December
17, 1997" and by replacing it with "December 17, 2000".
(g) The definition of "Weekly Report" in Section 1.1 of the
Original Agreement shall be renamed the "Servicer's Certificate" in such
Section and shall be renamed as such for all purposes of the Original
Agreement, and the reference in such definition to "weekly basis" shall be
deleted and replaced with the words "monthly basis and prior to a
Transfer".
(h) Section 2.2 of the Original Agreement shall be amended (i)
by deleting both references to "80%" in such Section and by replacing them
with "90%" and (ii) in the 25th line of such Section after the word
"Notice") and before the period by inserting the words ", and such
Transferor shall, at the time of delivery of the Transfer Notice, cause the
Servicer to prepare and deliver to the Agent a Servicer's Certificate
covering the period from the last day specified in the most recent
Servicer's Certificate delivered to the Agent to and including the day
prior to the date of delivery of the related Transfer Notice".
(i) Section 2.8 of the Original Agreement shall be amended (A)
in the third line thereof by deleting the words "each subsequent Monday"
and by replacing them with the words "the first Monday of each calendar
month" and (B) in the seventh line thereof by deleting the words "for the
preceding calendar week" and by replacing them with the words "covering a
period from the later to occur of (A) the first day of the preceding
calendar month and (B) the date on which the last such Servicer's
Certificate was delivered in connection with a
3
Transfer pursuant to Section 2.2, through and including the last day of
preceding calendar month".
(j) Section 2.6 shall be amended by deleting the references to
"125%" therein and by replacing them with "111%".
(k) Section 7.3(h) of the Original Agreement shall be amended by
deleting the references to "80%" therein and by replacing them with "90%".
(l) Exhibit A to the Agreement shall be amended by (i) deleting
the reference to "80%" in the fifth line of the second paragraph of such
Exhibit and by replacing it with "90%" and (ii) deleting the reference to
"20%" in the first line of the third paragraph of such Exhibit and by
replacing it with "10%".
(m) Exhibit B to the Agreement shall be amended by (i) deleting
the reference to "FORM OF WEEKLY SERVICER'S CERTIFICATE" on the first page
of such Exhibit and by replacing it with "FORM OF SERVICER'S CERTIFICATE",
(ii) deleting the second line of such Exhibit in its entirety and by
replacing it with the words "For the Period beginning ______, 199_ and
ending _______, 200_", (iii) deleting all references to "calendar week" and
"week" in such Exhibit and by replacing them with the word "period" in each
instance and (iv) deleting the reference to "125%" in the second line of
paragraph 10 of such Exhibit and by replacing it with "111%".
(n) Exhibit C to the Agreement shall be amended by (i) deleting
all references to "week" in such Exhibit and by replacing them with the
word "period" and (ii) deleting the reference to "80%" in the third line of
paragraph 13 of such Exhibit and by replacing it with "90%".
SECTION 3. Amendment to Bank Commitments; Funding.
(a) By its execution of this Amendment, each Bank a party to the
Original Agreement hereby agrees that its Bank Commitment shall be amended
as evidenced on the signature page hereto related to such Bank. Each Bank,
each Transferor, the Guarantor and the Servicer further acknowledges that,
as amended hereby, (i) the Bank Com-
4
mitment with respect to Marine Midland Bank has been reduced to zero, and
and Marine Midland Bank has been terminated as a party to the Agreement and
(ii) Societe Generale has become a Bank party to the Agreement (with the
Percentage and Bank Commitment specified on its signature page hereto and
all other rights, interests and obligations of a Bank under the Agreement)
as evidenced by its execution of this Amendment (without any further action
required pursuant to Section 11.9 of the Agreement).
(b) In furtherance of the foregoing, the Transferors agree on
the date hereof to remit, in immediately available funds, $100,869,352.09
to the Agent in the manner specified in Section 2.7 of the Original
Agreement, whereupon the Agent shall immediately distribute such funds to
the Banks party to the Original Agreement (and Marine Midland Bank) pro
rata based on each such Bank's (and Marine Midland Bank's) respective
Percentage. Following such distribution, each Bank a party to this
Amendment (and, after giving effect to this Amendment, the Agreement) shall
pay to the Agent its Percentage of $100,000,000.00, which amount shall be
immediately remitted by the Agent to the Transferors, in each case in
accordance with the procedures described in the second paragraph of Section
2.2 of the Original Agreement.
SECTION 4. Representations and Warranties. The Transferors
hereby make to each of the Banks, on and as of the date hereof, all of the
representations and warranties set forth in Section 3.1 of the Original
Agreement, except to the extent that any such representation or warranty
relates to an earlier date. In addition, Mattel, Inc. hereby makes to each
of the Banks, on and as of the date hereof, all the representations and
warranties set forth in Section 3.2 of the Original Agreement, except to
the extent that any such representation or warranty relates to an earlier
date.
SECTION 5. Conditions Precedent. This Amendment shall not
become effective until the Agent shall have received the following:
(a) An opinion of counsel to the Transferors with respect to
certain corporate matters and the enforceability against the Transferors of
the Original Agreement as amended hereby, in form and substance acceptable
to the Agent;
5
(b) An opinion of counsel to Servicer and the Guarantor with
respect to certain corporate matters and the enforceability against each of
the Servicer and the Guarantor of the Original Agreement as amended hereby,
in form and substance acceptable to the Agent;
(c) An executed copy of the Written Agreement, in form and
substance acceptable to the Agent;
(d) Certified copies of resolutions of the Board of Directors of
the Transferors authorizing this Amendment and the transactions
contemplated hereby; and
(e) Executed counterparts of this Amendment.
SECTION 6. Amendment and Waiver. No provision hereof may be
amended, waived, supplemented, restated, discharged or terminated without
the written consent of the parties hereto.
SECTION 7. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of California,
without regard to the conflicts of Governmental Rules provisions thereof.
This Amendment together with the Original Agreement contains the final and
complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire
Agreement among the parties hereto with respect to the subject matter
hereof superseding all prior oral or written understandings.
SECTION 8. Severability; Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and
the same Amendment. Any provisions of this Amendment which are prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6
SECTION 9. Captions. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the
terms or provisions hereof.
SECTION 10. Ratification. Except as expressly affected by the
provisions hereof, the Original Agreement as amended by this Amendment
shall remain in full force and effect in accordance with its terms and
ratified and confirmed by the parties hereto. On and after the date
hereof, each reference in the Original Agreement to "this Agreement",
"hereunder", "herein" or words of like import shall mean and be a reference
to the Original Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date and year first above written.
MATTEL SALES CORP.,
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇-▇▇▇▇▇, INC.,
as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
MATTEL, INC., as Guarantor
and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President and Treasurer
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
8
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
10.000000000 40,000,000 NATIONSBANK OF TEXAS,
N.A.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
9
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
12.500000000 50,000,000 BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
Notice Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
10
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
8.125000000 32,500,000 PNC BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇
-----------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Notice Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
11
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
10.000000000 40,000,000 CHEMICAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address: Corporate Banking Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
12
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
8.125000000 32,500,000 THE FIRST NATIONAL
BANK OF BOSTON
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, MAIL STOP 01-09-05
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
13
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
8.125000000 32,500,000 TORONTO-DOMINION
(TEXAS), INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
14
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 CITICORP USA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Notice Addresses: ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
15
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
8.125000000 32,500,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group Vice President/Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address: Los Angeles International Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
16
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 DRESDNER BANK AG
Los Angeles Agency
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Notice Address: Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
17
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 MANUFACTURERS &
TRADERS TRUST CO.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
18
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 ISTITUTO BANCARIO SAN
PAOLO DI TORINO SPA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Branch Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
19
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 THE BANK OF
CALIFORNIA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
20
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 BANQUE NATIONALE
DE PARIS
By: /s/ ▇▇▇▇-▇▇▇▇▇ Tourne
---------------------
Name: ▇▇▇▇-▇▇▇▇▇ Tourne
Title: Vice President & Deputy
Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
21
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
0.000000000 0.00 MARINE MIDLAND BANK
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
22
Dollar Amount
of Percentage
of Original
Facility
Percentage (%) Limit ($)
-------------- -------------
5.000000000 20,000,000 SOCIETE GENERALE
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
23