EXHIBIT 10.0
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Amended and Restated Credit Agreement
Dated as of March 20, 2002
among
MATTEL, INC.,
as Borrower
BANK OF AMERICA, N.A.,
as Administrative Agent
and
The Financial Institutions Party Hereto
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
CITICORP USA, INC., and FLEET NATIONAL BANK,
as Syndication Agents
SOCIETE GENERALE and BNP PARIBAS,
as Documentation Agents
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TABLE OF CONTENTS
Section Page
SECTION 1. DEFINITIONS........................................................1
1.01 Certain Defined Terms...........................................1
1.02 Other Definitional Provisions..................................14
SECTION 2. THE COMMITMENTS...................................................14
2.01 The Aggregate Facilities Commitment............................14
2.02 Loan Accounts and Notes........................................15
2.03 Borrowing Procedure............................................15
2.04 Conversion and Continuation Elections..........................16
2.05 Reduction or Termination of Aggregate Facilities Commitment....17
2.06 Voluntary Prepayments..........................................17
2.07 Repayment of Loans.............................................18
2.08 Interest on the Loans..........................................18
2.09 Fees...........................................................18
2.10 Calculation of Interest and Fees...............................19
2.11 Payments by the Company........................................19
2.12 Payments by the Lenders to the Administrative Agent............20
2.13 Sharing of Payments, Etc.......................................21
SECTION 3. PAYMENTS IN GENERAL...............................................21
3.01 Taxes..........................................................21
3.02 Capital Adequacy...............................................23
3.03 Illegality.....................................................23
3.04 Increased Costs and Reduction of Return........................24
3.05 Funding Losses.................................................24
3.06 Inability to Determine Rates...................................25
3.07 Survival.......................................................25
SECTION 4. CONDITIONS PRECEDENT..............................................25
4.01 Conditions to Effectiveness....................................25
4.02 Conditions to All Loans........................................27
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................27
5.01 Organization and Powers........................................27
5.02 Good Standing..................................................28
5.03 Material Subsidiaries..........................................28
5.04 Authorization of Borrowing.....................................28
5.05 No Conflict....................................................28
5.06 Governmental Consents..........................................28
5.07 Binding Obligation.............................................28
5.08 Financial Condition............................................29
5.09 Changes, Etc...................................................29
5.10 Title to Properties............................................29
5.11 Litigation; Adverse Facts......................................29
5.12 Payment of Taxes...............................................30
5.13 Agreements.....................................................30
5.14 Performance....................................................30
5.15 Governmental Regulation........................................30
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Mattel, Inc. Amended and Restated Credit Agreement
5.16 Employee Benefit Plans.........................................30
5.17 Environmental Matters..........................................30
5.18 Disclosure.....................................................30
5.19 Subordination Agreements.......................................31
SECTION 6. AFFIRMATIVE COVENANTS.............................................31
6.01 Financial Statements...........................................31
6.02 Certificates; Other Information................................32
6.03 Notices........................................................33
6.04 Corporate Existence, etc.......................................34
6.05 Payment of Taxes and Claims; Tax Consolidation.................34
6.06 Maintenance of Properties; Insurance...........................34
6.07 Inspection of Property and Books and Records...................35
6.08 Use of Proceeds of Loans.......................................35
6.09 Environmental Laws.............................................35
6.10 Subordination Agreements.......................................35
6.11 Compliance with Laws...........................................35
SECTION 7. NEGATIVE COVENANTS................................................35
7.01 Indebtedness...................................................36
7.02 Liens..........................................................36
7.03 Restriction on Fundamental Changes.............................36
7.04 Sale or Discount of Receivables................................37
7.05 Consolidated Funded Indebtedness to Total Capitalization.......37
7.06 Interest Coverage Ratio........................................37
7.07 ERISA..........................................................38
7.08 Margin Regulations.............................................38
7.09 Independence of Covenants......................................38
SECTION 8. EVENTS OF DEFAULT.................................................38
8.01 Events of Default..............................................38
8.02 Remedies.......................................................41
8.03 Rights Not Exclusive...........................................41
SECTION 9. THE ADMINISTRATIVE AGENT..........................................41
9.01 Appointment and Authorization..................................41
9.02 Delegation of Duties...........................................41
9.03 Liability of Administrative Agent..............................41
9.04 Reliance by Administrative Agent...............................42
9.05 Notice of Default..............................................42
9.06 Credit Decision................................................43
9.07 Indemnification................................................43
9.08 Administrative Agent in Individual Capacity....................44
9.09 Successor Administrative Agent.................................44
9.10 Other Agents; Lead Managers....................................44
SECTION 10. MISCELLANEOUS................................................ ...45
10.01 Amendments and Waivers.........................................45
10.02 Notices and Other Communications; Facsimile Copies.............46
10.03 Failure or Indulgence Not Waiver; Remedies Cumulative..........47
10.04 Fees and Expenses..............................................47
10.05 Indemnity......................................................47
10.06 Set Off........................................................48
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Mattel, Inc. Amended and Restated Credit Agreement
10.07 Survival of Warranties and of Certain Agreements...............48
10.08 Successors and Assigns.........................................49
10.09 Severability...................................................51
10.10 Obligations Several............................................52
10.11 Certain Changes................................................52
10.12 Headings.......................................................52
10.13 Counterparts...................................................52
10.14 Integration....................................................52
10.15 Tax Forms......................................................52
10.16 Applicable Law.................................................53
10.17 Waiver of Right to Trial by Jury...............................54
10.18 Amendment and Restatement......................................54
SIGNATURE PAGES S-1
EXHIBITS
Form of:
A Note
B Notice of Borrowing
C Notice of Conversion/Continuation
D Officers' Certificate
E Opinion of Assistant General Counsel or Senior Counsel of
Company
F-1 ▇▇▇▇▇▇-▇▇▇▇▇ Continuing Guaranty
F-2 Mattel Sales Continuing Guaranty
G-1 ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreements
G-2 Mattel Sales Subordination Agreements
H Assignment and Assumption
SCHEDULES
1.01 Commitments and Pro Rata Shares
5.03 Material Subsidiaries of Company
5.11 Material Litigation
7.02 Certain Liens
10.02 Address and Notice Information
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Mattel, Inc. Amended and Restated Credit Agreement
MATTEL, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is dated
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as of March 20, 2002 and is entered into by and among MATTEL, INC., a Delaware
corporation (the "Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
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PAGES HEREOF (individually referred to herein as a "Lender" and collectively as
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the "Lenders"), BANK OF AMERICA, N.A., as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), BANC OF AMERICA SECURITIES LLC,
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as sole lead arranger and sole book manager (in such capacity, the "Arranger"),
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CITICORP USA, INC., and FLEET NATIONAL BANK, as syndication agents (in such
capacity, the "Syndication Agents") and SOCIETE GENERALE, and BNP PARIBAS as
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documentation agents (in such capacity, the "Documentation Agents").
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PRELIMINARY STATEMENTS
A. The Company, certain of the Lenders and the Administrative
Agent are parties to that certain Credit Agreement dated as of March 10, 1995
(as amended) as amended and restated by a First Amended and Restated Credit
Agreement dated as of March 13, 1997 (as amended) as further amended and
restated by a Second Amended and Restated Credit Agreement dated as of March
11, 1998 (as amended) (as so amended and restated, the "Existing Multi-Year
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Credit Agreement") pursuant to which the Lenders agreed to make certain credit
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facilities available to the Company in accordance with the terms of the
Existing Multi-Year Credit Agreement.
B. The Company, the Lenders and the Administrative Agent desire
to further amend and restate the Existing Multi-Year Credit Agreement in its
entirety on the terms and conditions set forth herein.
In consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company, the Lenders and the Administrative Agent agree to further amend and
restate the Existing Multi-Year Credit Agreement in its entirety as follows:
SECTION 1.
DEFINITIONS
1.01 Certain Defined Terms. The following terms used in this
Agreement shall have the following meanings:
"Administrative Agent" has the meaning assigned to that term in the
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introduction to this Agreement.
"Administrative Agent's Office" means the Administrative Agent's
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address and, as appropriate, account identified as such on Schedule 10.02, or
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such other address or account as the Administrative Agent may from time to time
notify to the Company and the Lenders.
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Mattel, Inc. Amended and Restated Credit Agreement
"Administrative Agent-Related Persons" means Administrative Agent and
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any successor administrative agent arising under Section 9.09, together with
their respective Affiliates (including, in the case of Bank of America, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Affiliate", as applied to any Person, means any other Person directly
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or indirectly controlling, controlled by or under common control with, that
Person. For the purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Aggregate Facilities Commitment" means the combined Commitments of all
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the Lenders and is the amount set forth opposite "Total" under "Aggregate
Facilities Commitments" on Schedule 1.01, as such amount may be reduced from
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time to time in accordance with this Agreement.
"Agreement" means this Credit Agreement, as it may hereafter be
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amended, supplemented, restated or otherwise modified from time to time.
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Mattel, Inc. Amended and Restated Credit Agreement
"Applicable Amount" means the commitment fee, utilization fee or the
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margin applicable to Loans (expressed in basis points per annum) set forth in
the chart below opposite the second highest rating issued by S&P, ▇▇▇▇▇'▇ or
Fitch on the Company's senior unsecured long-term debt:
Utilization Fee
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Senior Unsecured Long-Term Debt Eurodollar Rate When Loans exceed When Loans exceed
Ratings Loans Commitment Fee 33%/1/ 66%/1/
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A or higher by S&P 30.0 10.0 12.5 25.0
A2 or higher by ▇▇▇▇▇'▇
A or higher by Fitch
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A- by S&P
A3 by ▇▇▇▇▇'▇ 50.0 12.5 12.5 25.0
A- by Fitch
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BBB+ by S&P 62.5 15.0 12.5 25.0
Baa1 by ▇▇▇▇▇'▇
BBB+ by Fitch
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BBB by S&P
Baa2 by ▇▇▇▇▇'▇ 75.0 17.5 12.5 25.0
BBB by Fitch
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BBB- by S&P
Baa3 by ▇▇▇▇▇'▇ 112.5 22.5 12.5 25.0
BBB- by Fitch
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None of above criteria satisfied 125.0 30.0 12.5 25.0
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Any change in the commitment fee, utilization fee or the margin
applicable to Loans shall become effective upon any public announcement of any
change in the above ratings that requires such a change according to the above
chart.
"Arranger" means Banc of America Securities LLC, in its capacity as
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sole lead arranger and sole book manager.
"Availability Period" means the period from the Effective Date to but
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excluding the Termination Date.
"Assignment and Assumption" means an Assignment and Assumption
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substantially in the form of Exhibit H.
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/1/The specified utilization fee applicable when the aggregate
principal amount of outstanding Loans exceeds the indicated percentage of an
amount equal to (i) the Aggregate Facilities Commitment less (ii) the
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aggregate outstanding amount of the Purchasers' Investments.
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Mattel, Inc. Amended and Restated Credit Agreement
"Bank of America" means Bank of America, N.A.
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"Base Rate" means for any day a fluctuating rate per annum equal to the
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higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loans" means Loans made by the Lenders bearing interest at
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rates determined by reference to the Base Rate.
"Business Day" means any day other than a Saturday, Sunday or other day
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on which commercial banks are authorized to close under the laws of, or are in
fact closed in, California or the state where the Administrative Agent's Office
is located (which, as of the date hereof, is California) and, if such day
relates to any Eurodollar Rate Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
"Capital Assets" means, as at any date of determination, those assets
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of a Person that would, in conformity with GAAP, be classified as property,
plant or equipment on the balance sheet of that Person.
"Capital Lease" as applied to any Person, means any lease of any
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property (whether real, personal or mixed) by that Person as lessee which would,
in conformity with GAAP, be required to be accounted for as a capital lease on
the balance sheet of that Person other than, in the case of the Company or any
of its Subsidiaries, any such lease under which the Company or any of its
Subsidiaries is the lessor.
"Change of Control" means, with respect to any Person, an event or
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series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan) becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have "beneficial ownership" of all securities that such
person or group has the right to acquire (such right, an "option
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right"), whether such right is exercisable immediately or only after
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the passage of time), directly or indirectly, of 33% or more of the
equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a
partially-diluted basis (i.e., taking into account all such securities
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that such person or group has the right to acquire pursuant to any
option right); or
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Mattel, Inc. Amended and Restated Credit Agreement
(b) during any period of 12 consecutive months, a
majority of the members of the board of directors or other
equivalent governing body of such Person cease to be
composed of individuals (i) who were members of that board
or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election
or nomination to that board or other equivalent governing
body was approved by individuals referred to in clauses (i)
and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent
governing body.
"Combined Purchasers' Investments" means an amount equal to the sum of
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(a) the Purchasers' Investments under the Receivables Purchase Agreement plus
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(b) the analogous amount under Other Permitted Accounts Receivable Financing
Facilities relating to the sales of accounts receivable of Domestic Subsidiaries
(without duplication for accounts receivable sold to a Subsidiary of the Company
and then sold to a third party purchaser).
"Commitment" means, as to each Lender, (a) its obligation to make Loans
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to the Company pursuant to Section 2.01 and (b) its Purchaser Commitment under
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the Receivables Purchase Agreement, in an aggregate amount equal to the amount
set forth opposite such Lender's name on Schedule 1.01, as such amount may be
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reduced from time to time in accordance with this Agreement.
"Company" means Mattel, Inc., a Delaware corporation.
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"Company Party" means the Company, Mattel Sales, ▇▇▇▇▇▇-▇▇▇▇▇ and
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Mattel Factoring, Inc.
"Consolidated Funded Indebtedness" means, at any date of determination,
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for the Company and its Subsidiaries on a consolidated basis, the sum of (a) all
obligations and liabilities, whether current or long-term, for borrowed money,
(b) that portion of obligations with respect to Capital Leases which is
capitalized on the consolidated balance sheet of the Company and its
Subsidiaries, and (c) all guaranties of unconsolidated funded obligations for
borrowed money, all determined in conformity with GAAP.
"Consolidated Net Income" for any period, means the net income (or
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loss) of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP.
"Contingent Obligation", as applied to any Person, means, without
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duplication, any direct or indirect liability, contingent or otherwise, of that
Person (i) with respect to any indebtedness, lease, dividend or other obligation
of another if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such obligation
of another that such obligation of another will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part) against loss in respect
thereof or (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for
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Mattel, Inc. Amended and Restated Credit Agreement
reimbursement of drawings. Contingent Obligations shall include, without
limitation, (a) the direct or indirect guaranty, endorsement (otherwise than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another and (b) any liability of such Person for the obligations
of another through any agreement (contingent or otherwise) (x) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise)
or (y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another, if in the case of any agreement described under
subclauses (x) or (y) of this sentence the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported. The amount of any Contingent Obligation denominated in a currency
other than Dollars shall be equal to the Dollar Equivalent of such Contingent
Obligation.
"Contractual Obligation", as applied to any Person, means any provision
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of any security issued by that Person or of any material written indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Default" means any event or circumstance which, with the giving of
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notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus 2%
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per annum; provided, however, that with respect to the principal of a Eurodollar
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Rate Loan prior to the end of the Interest Period therefor, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Amount) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
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portion of its Loans hereunder or Purchasers' Investment under the Receivables
Purchase Agreement required to be funded by it within one Business Day of the
date required to be funded by it, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder or under the Receivables Purchase Agreement within one Business Day
of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent by the Federal Deposit Insurance Company, the Comptroller
of the Currency or the Federal Reserve Board or become the subject of a
bankruptcy or insolvency proceeding.
"Dollars" means lawful money of the United States of America.
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"Domestic Subsidiary" means a Subsidiary of the Company that is
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incorporated in a jurisdiction of the United States of America.
"Effective Date" means the date on or after March 20, 2002 on which all
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the conditions in Section 4.01 are satisfied or waived.
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Mattel, Inc. Amended and Restated Credit Agreement
"Eligible Assignee" has the meaning specified in Section 10.08(f).
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"Environmental Claims" means all claims, however asserted, by any
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Governmental Person or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws, statutes,
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common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Person, in each case relating
to environmental, health, safety and land use matters.
"ERISA" means, at any time, the Employee Retirement Income Security Act
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of 1974, as amended from time to time and any successor statute, and the rules
and regulations promulgated thereunder.
"ERISA Affiliate", as applied to any Person, means any trade or
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business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
Section 414(b) and 414(c) of the Internal Revenue Code.
"Eurodollar Rate Loans" means Loans bearing interest at rates
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determined by reference to the Eurodollar Rate as provided in Section 2.08(a).
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"Eurodollar Rate" means for any Interest Period with respect to any
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Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = --------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
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(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to the
rate determined by Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
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Mattel, Inc. Amended and Restated Credit Agreement
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Administrative Agent as the rate of interest (rounded
upward to the next 1/100th of 1%) at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Administrative Agent (or its Affiliate) in
its capacity as a Lender and with a term equivalent to such Interest
Period would be offered by Bank of America's London Branch to major
banks in the offshore Dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any
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Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Lender, under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the
Eurodollar Base Rate by Administrative Agent shall be conclusive in the absence
of manifest error.
"Event of Default" means any of the events set forth in Section 8.01.
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"Exchange Act" means, at any time, the Securities Exchange Act of 1934,
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as amended from time to time, and any successor statute, and the rules and
regulations promulgated thereunder.
"Existing Multi-Year Credit Agreement" has the meaning set forth in
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Recital A hereto.
"Existing 364-Day Credit Agreement" means that certain Credit Agreement
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(364-Day Facility) dated as of March 29, 2001, among the Company, the banks
party thereto and Bank of America, N.A. as agent.
"Federal Funds Rate" means, for any day, the rate per annum equal to
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the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
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Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
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Reserve System or any successor thereof.
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Mattel, Inc. Amended and Restated Credit Agreement
"▇▇▇▇▇▇-▇▇▇▇▇" means ▇▇▇▇▇▇-▇▇▇▇▇, Inc., a Delaware corporation.
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"▇▇▇▇▇▇-▇▇▇▇▇ Guaranty" means the Amended and Restated Continuing
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Guaranty signed by ▇▇▇▇▇▇-▇▇▇▇▇ substantially in the form of Exhibit F-1 hereto,
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as amended, supplemented, restated or otherwise modified from time to time.
"▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement" means the Amended and Restated
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▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement substantially in the form of Exhibit G-1
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attached hereto signed by the Company and certain Affiliates of the Company with
respect to which ▇▇▇▇▇▇-▇▇▇▇▇ has material outstanding obligations, as it may
hereafter be amended, supplemented, restated or otherwise modified from time to
time.
"Fitch" means Fitch ICBA or any successor thereto.
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"Foreign Lender" has the meaning specified in Section 10.15(a).
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"Funding Date" means the Business Day of the funding of a Loan.
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"GAAP" means generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Person" means the government of the United States or any
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foreign government or the government of any state or locality therein, any
political subdivision or any governmental, quasi-governmental, judicial, public
or statutory instrumentality, authority, body or entity, or other regulatory
bureau, authority, body or entity of the United States, any foreign government
or any state or locality therein, including the Federal Deposit Insurance
Company, the Comptroller of the Currency or the Federal Reserve Board.
"Governmental Rule" means any law, statute, rule, regulation,
-----------------
ordinance, order, judgment, guidelines or decision of any Governmental Person.
"Indebtedness", as applied to any Person, means (i) all indebtedness
------------
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases which is required to be capitalized on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
which purchase price is (y) due more than twelve months from the date of
incurrence of the obligation in respect thereof, or (z) evidenced by a
promissory note and (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is non-recourse to the
credit of that Person. The amount of any Indebtedness shall be the principal
amount of and all interest, premium, if any, and other fees and expenses accrued
on any of the foregoing.
- 9 -
Mattel, Inc. Amended and Restated Credit Agreement
"Interest Payment Date" means, with respect to any Eurodollar Rate
---------------------
Loan, the last day of each Interest Period applicable to such Loan and, with
respect to any Base Rate Loan, the last Business Day of each calendar quarter,
and with respect to all Loans, the Termination Date; provided, however, that if
-------- -------
any Interest Period for a Eurodollar Rate Loan exceeds three months, interest
shall also be paid on the date which falls three months after the beginning of
such Interest Period.
"Interest Period" means, with respect to any Eurodollar Rate Loan, the
---------------
period commencing on the Business Day the Eurodollar Rate Loan is disbursed or
continued or on the date on which a Loan is converted into a Eurodollar Rate
Loan and ending on the date one, two, three or six months thereafter, as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
--------
(i) if any Interest Period pertaining to a Eurodollar
Rate Loan would otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate
Loan that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended to the date hereof and from time to time hereafter, and the rules and
regulations promulgated thereunder.
"Lender" has the meaning assigned to that term in the introduction to
------
this Agreement, together with any other financial institutions that become a
party hereto as a "Lender" pursuant to Section 10.08.
-------------
"Lending Office" means, with respect to any Lender, the office or
--------------
offices of the Lender specified as its "Lending Office" under its name on
Schedule 10.02 hereto, or such other office or offices of the Lender as it may
--------------
from time to time specify to the Company and the Administrative Agent in
writing.
"Lien" means any lien, mortgage, pledge, security interest, charge or
----
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any kind
of security interest).
"Loan Documents" means this Agreement, any Notes, the Mattel Sales
--------------
Guaranty, the ▇▇▇▇▇▇-▇▇▇▇▇ Guaranty, the Mattel Sales Subordination Agreement,
the ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement and all documents and instruments
delivered in connection herewith or therewith, but shall not include the
Transaction Documents.
- 10 -
Mattel, Inc. Amended and Restated Credit Agreement
"Loans" has the meaning set forth in Section 2.01.
----- ------------
"Margin Stock" has the meaning assigned to the term "Margin Stock" in
------------
Regulation U of the Federal Reserve Board as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
-----------------------
business, operations, properties, assets or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole, or (ii) a material
impairment of the ability of the Company to perform the Obligations or of the
Lenders to enforce the Obligations.
"Material Subsidiary" means Mattel Sales, ▇▇▇▇▇▇-▇▇▇▇▇, or any other
-------------------
Subsidiary of the Company which meets any of the following conditions:
(a) the Company's and its Subsidiaries' investments in, and
advances to, the Subsidiary exceed 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of the most recently
completed fiscal year (for a proposed business combination to be accounted for
as a pooling of interest, this condition is also met when the number of common
shares exchanged or to be exchanged by the Company exceeds 10 percent of its
total common shares outstanding at the date the combination is initiated); or
(b) the Company and its other Subsidiaries' proportionate share of
the total assets (after intercompany eliminations) of the Subsidiary exceeds 10
percent of the total assets of the Company and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year; or
(c) the Company and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 10 percent of such income of the Company and its Subsidiaries
consolidated for the most recently completed fiscal year.
For purpose of meeting the prescribed income test the following
guidance should be applied:
(i) When a loss has been incurred by either the Company
and its Subsidiaries consolidated or the tested Subsidiary, but not
both, the equity in the income or loss of the tested Subsidiary
should be excluded from the income of the Company and its
Subsidiaries consolidated for purposes of the computation.
(ii) If income of the Company and its Subsidiaries
consolidated for the most recent fiscal year is at least 10 percent
lower than the average of the income for the last five years, such
average income should be substituted for purposes of the computation.
Any loss years should be omitted for purposes of computing average
income.
(iii) Where the test involves combined entities, as in the
case of determining whether summarized financial data should be
presented, entities reporting losses shall not be aggregated with
entities reporting income.
"Mattel Sales" means Mattel Sales Corp., a California corporation.
------------
- 11 -
Mattel, Inc. Amended and Restated Credit Agreement
"Mattel Sales Guaranty" means the Amended and Restated Continuing
---------------------
Guaranty signed by Mattel Sales substantially in the form of Exhibit F-2 hereto,
-----------
as amended, supplemented, restated or otherwise modified from time to time.
"Mattel Sales Subordination Agreement" means the Amended and Restated
------------------------------------
Mattel Sales Subordination Agreement substantially in the form of Exhibit G-2
-----------
attached hereto signed by the Company and certain Affiliates of the Company with
respect to which Mattel Sales has material outstanding obligations, as it may
hereafter be amended, supplemented, restated or otherwise modified from time to
time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
-------
thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
------------------
4001(a)(3) of ERISA which is maintained for employees of the Company or any
ERISA Affiliate of the Company.
"Non-Priority Indebtedness" means Indebtedness which (a) is not senior
-------------------------
to the Obligations, (b) does not have any priority of payment over the
Obligations or (c) is not secured by Liens on any of the Company's or any
Subsidiary's assets.
"Note" means a promissory note of the Company payable to the order of a
----
Lender substantially in the form of Exhibit A hereto, evidencing the Loans made
---------
by such Lender to the Company.
"Notice of Borrowing" means a notice substantially in the form of
-------------------
Exhibit B hereto with respect to a proposed borrowing pursuant to Section
-------
2.03(a).
-------
"Notice of Conversion/Continuation" means a notice given by the Company
---------------------------------
to the Administrative Agent pursuant to Section 2.04, in substantially the form
------------
of Exhibit C hereto.
---------
"Obligations" means (a) all obligations of every nature of the Company,
-----------
▇▇▇▇▇▇-▇▇▇▇▇ and Mattel Sales from time to time owed to the Administrative
Agent, the Lenders or any other Person required to be indemnified hereunder, or
any of them, under any Loan Document and (b) all obligations of every nature of
any Seller Party (as defined in the Receivables Purchase Agreement) from time to
time owed to the Administrative Agent, the Purchasers or any other Person
required to be indemnified thereunder, or any of them, under any Transaction
Document.
"Officers' Certificate" means a certificate substantially in the form
--------
of Exhibit D hereto executed on behalf of the Company by two different officers
of the Company, one of which shall be (a) its Chairman of the Board (if an
officer), one of its Presidents, one of its Executive Vice Presidents, or one of
its Senior Vice Presidents, and the other one of which shall be (b) its Chief
Financial Officer, its Treasurer, one of its Assistant Treasurers, or its
Controller, delivered to the Lenders by the Company pursuant to Section 6.02(a).
---------------
"Other Permitted Accounts Receivable Financing Facility" means a
------------------------------------------------------
financing arrangement (other than the Receivables Purchase Agreement and the
Purchase and Sale Agreement) entered into in the ordinary course of business
under which accounts receivable of
- 12 -
Mattel, Inc. Amended and Restated Credit Agreement
the Company, Mattel Sales, ▇▇▇▇▇▇-▇▇▇▇▇ or any other Subsidiary are
periodically sold directly to third party purchasers, or sold to a Subsidiary
of the Company formed for such purpose which in turn sells such accounts
receivable to third party purchasers; provided, however, that in connection
-------- -------
with any such financing arrangement:
(a) there is no recourse to the Company or any of its Subsidiaries
on account of the creditworthiness of the obligor on such accounts receivable;
and
(b) no negative pledge or Lien is created on any accounts
receivables not actually sold or discounted.
"Participant" has the meaning set forth in Section 10.08(d).
----------- ----------------
"Pension Plan" means any employee plan which is subject to Section 412
------------
of the Internal Revenue Code and which is maintained for employees of the
Company or any ERISA Affiliate of the Company other than a Multiemployer Plan.
"Percentage" has the meaning set forth in the Receivables Purchase
----------
Agreement.
"Person" means any individual, partnership, corporation (including a
------
business trust), joint stock company, joint venture, trust, bank, trust company,
unincorporated association or other entity or a government or any agency or
political subdivision thereof.
"Pro Rata Share" means with respect to each Lender the percentage set
--------------
forth opposite such Lender's name on Schedule 1.01 hereto. Each Lender's Pro
-------------
Rata Share shall at all times be equal to its Percentage as a Purchaser under
the Receivables Purchase Agreement.
"Purchase and Sale Agreement" means the First Amended and Restated
---------------------------
Purchase and Sale Agreement dated as of even date herewith, among the sellers
party thereto, the Company, as servicer and guarantor, and Mattel Factoring,
Inc., as the buyer thereunder, as it may be amended, supplemented, restated or
otherwise modified from time to time.
"Purchasers" has the meaning set forth in the Receivables Purchase
----------
Agreement.
"Purchaser Commitment" means, for each Lender, the amount set forth for
--------------------
each Lender under "Purchaser Commitment" on Schedule 1.01, as such amount may be
-------------
reduced from time to time in accordance with this Agreement and the Receivables
Purchase Agreement. The Purchaser Commitment is part of, and not in addition to,
the Commitment.
"Purchasers' Investment" has the meaning set forth in the Receivables
----------------------
Purchase Agreement.
"Purchasers' Investment Limit" has the meaning set forth in the
----------------------------
Receivables Purchase Agreement and shall be equal to the lesser of the Aggregate
Facilities Commitment and $300,000,000, as such amount may be reduced pursuant
to the Receivables Purchase Agreement. The Purchasers' Investment Limit is part
of, and not in addition to, the Aggregate Facilities Commitment.
- 13 -
Mattel, Inc. Amended and Restated Credit Agreement
"Receivables Purchase Agreement" means the First Amended and Restated
------------------------------
Receivables Purchase Agreement dated as of even date herewith, among Mattel
Factoring, Inc., as transferor, the Company, servicer, the Purchasers and the
Administrative Agent, as it may be amended, supplemented, restated or otherwise
modified from time to time.
"Requisite Lenders" means, as of any date of determination, Lenders
-----------------
having at least 66-2/3% of the Aggregate Facilities Commitment or, if the
Aggregate Facilities Commitment has been terminated, Lenders holding in the
aggregate at least 66-2/3% of all Loans and Purchasers' Investment; provided
--------
that the Commitment of, and the outstanding principal amount of any Loans and
portion of Purchasers' Investment held by any Defaulting Lender shall be
excluded for purposes of making a determination of Requisite Lenders.
"Securities Act" means, at any time, the Securities Act of 1933, as
--------------
amended from time to time, and any successor statute, and the rules and
regulations promulgated thereunder.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Subsidiary" means any corporation, association or other business
----------
entity of which more than 50% of the total voting power of shares of stock
entitled to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by any Person or one or
more of the other Subsidiaries of that Person or a combination thereof.
"Termination Date" means (a) March 31, 2005, or (b) such earlier date
----------------
upon which the Commitments are terminated in accordance with the terms hereof.
At no time shall the Termination Date be earlier than the Facility Termination
Date under and as defined in the Receivables Purchase Agreement.
"Transaction Documents" has the meaning set forth in the Receivables
---------------------
Purchase Agreement.
1.02 Other Definitional Provisions. References to "Sections" shall
be to Sections of this Agreement unless otherwise specifically provided. Any of
the terms defined in Section 1.01 may, unless the context otherwise requires,
------------
be used in the singular or the plural depending on the reference.
SECTION 2.
THE COMMITMENTS
2.01 The Aggregate Facilities Commitment. Each Lender hereby
severally agrees during the Availability Period (a) to make advances to the
Company ("Loans") on the terms and conditions set forth in this Agreement and
-----
(b) to purchase receivables on the terms and conditions set forth in the
Receivables Purchase Agreement; provided, however, that: (i) the aggregate
-------- -------
outstanding amount of all Loans and Purchasers' Investment shall not exceed the
Aggregate Facilities Commitment; (ii) the aggregate outstanding Purchasers'
Investments shall not exceed the Purchasers' Investment Limit; (iii) the
aggregate outstanding principal amount of the Loans of any Lender, plus such
----
Lender's Percentage of the aggregate outstanding amount of
- 14 -
Mattel, Inc. Amended and Restated Credit Agreement
Purchasers' Investment in its capacity as a Purchaser under the Receivables
Purchase Agreement shall not exceed such Lender's Commitment; (iv) each
Lender's Percentage of the aggregate outstanding amount of Purchasers'
Investment in its capacity as a Purchaser under the Receivables Purchase
Agreement shall not exceed its Purchaser Commitment; and (v) each Lender's Pro
Rata Share hereunder shall at all times be equal to such Lender's Percentage
under, and as defined in, the Receivables Purchase Agreement. Within the limits
of each Lender's Commitment, and subject to the other terms and conditions
hereof, the Company may borrow under this Section 2.01, prepay pursuant to
------------
Section 2.06 and reborrow pursuant to this Section 2.01.
------------ ------------
2.02 LOAN ACCOUNTS AND NOTES.
(a) Subject to Section 2.02(b), the Loans made by each Lender
---------------
shall be evidenced by one or more loan accounts maintained by such Lender in
the ordinary course of business. The loan accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Loans made by the Lenders to the Company and the interest
and payments thereon. Any failure to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Company hereunder to
pay any amount owing with respect to the Loans.
(b) Upon the written request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes, instead of loan accounts. Each such Lender shall endorse on the
schedules annexed to its Note(s), the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the Company to
endorse the schedules annexed to its Note(s) and each Lender's record shall be
conclusive absent manifest error; provided, however, that the failure of a
-------- -------
Lender to make, or an error in making, a notation thereon with respect to any
Loan shall not limit or otherwise affect the obligations of the Company
hereunder or under any such Note to such Lender.
2.03 BORROWING PROCEDURE.
(a) Whenever the Company desires to borrow hereunder, it shall
deliver irrevocable telephonic notice to the Administrative Agent followed
immediately by written notice in the form of a Notice of Borrowing, which
telephonic notice must be received by the Administrative Agent no later than
(i) 8:00 a.m. (California time) on the proposed Funding Date in the case of
Base Rate Loans and (ii) 9:00 a.m. (California time) three Business Days in
advance of the proposed Funding Date in the case of Eurodollar Rate Loans,
specifying (A) the proposed Funding Date which shall be a Business Day, (B) the
amount of the proposed borrowing, (C) whether the proposed borrowing shall
consist of Base Rate Loans or Eurodollar Rate Loans, and (D) in the case of
Eurodollar Rate Loans, the requested Interest Period. Base Rate Loans made on
any Funding Date shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount. Eurodollar Rate Loans
made on any Funding Date shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $500,000 in excess of that amount.
- 15 -
Mattel, Inc. Amended and Restated Credit Agreement
(b) Promptly (and normally within two hours) after receipt of a
Notice of Borrowing (or telephone notice in lieu thereof), the Administrative
Agent shall notify each Lender of the proposed borrowing. Each Lender shall
make available to the Administrative Agent its Pro Rata Share of the amount (if
any) by which the principal amount of the proposed borrowing exceeds the
principal amount of the Loans (if any) maturing on the Funding Date, in same
day funds, by remitting such funds to the Administrative Agent's Office no
later than 11:00 a.m. (California time) on the Funding Date. Upon satisfaction
of the conditions set forth in Section 4.02, the Administrative Agent shall
------------
make available to the Company on such Funding Date the aggregate of the amounts
(if any) so made available by the Lenders by causing an amount of same day
funds equal to such aggregate amount (if any) received by the Administrative
Agent to be credited to the account of the Company at the Administrative
Agent's Office. To the extent that Eurodollar Rate Loans made by the Lenders
mature on any Funding Date, the Lenders shall apply the proceeds of the Loans
made on such Funding Date, to the extent thereof, to the repayment of such
maturing Loans, such Loans and repayments intended to be a contemporaneous
exchange.
2.04 CONVERSION AND CONTINUATION ELECTIONS.
(a) The Company may upon irrevocable written notice to the
Administrative Agent: (i) elect to convert any Base Rate Loans (or any part
thereof in an amount not less than $5,000,000 or an integral multiple of
$500,000 in excess thereof) on any Business Day into Eurodollar Rate Loans; (ii)
elect to convert any Eurodollar Rate Loans (or any part thereof) on the last day
of any Interest Period therefor into Base Rate Loans in an amount not less than
$1,000,000 or an integral multiple of $500,000 in excess thereof; or (iii) elect
to continue any Eurodollar Rate Loans (or any part thereof in an amount not less
than $5,000,000 or an integral multiple of $500,000 in excess thereof) on the
last day of any Interest Period therefor; provided, that if the aggregate amount
--------
of Eurodollar Rate Loans shall have been reduced, by payment, prepayment, or
conversion of part thereof to be less than $5,000,000, the Eurodollar Rate Loans
shall automatically convert into Base Rate Loans, and on and after such date the
right of the Company to continue such Loans as Eurodollar Rate Loans shall
terminate.
(b) Each conversion or continuation shall be made upon irrevocable
telephonic notice to the Administrative Agent followed immediately by written
notice in the form of a Notice of Conversion/ Continuation, which telephonic
notice must be received by the Administrative Agent prior to (i) 9:00 a.m.
(California time) at least three Business Days in advance of the conversion or
continuation date, if the Loans are to be converted into or continued as
Eurodollar Rate Loans and (ii) 9:00 a.m. (California time) on the conversion or
continuation date, if the Loans are to be converted into Base Rate Loans,
specifying: (A) the proposed conversion or continuation date; (B) the aggregate
amount of Loans to be converted or continued; (C) the nature of the proposed
conversion or continuation; and (D) the duration of the requested Interest
Period, if applicable.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Rate Loans, the Company has failed to select a new Interest Period to
be applicable to such Eurodollar Rate Loans or type of Loan or if any Default or
Event of Default shall then exist, the Company shall be deemed to have elected
to convert such Eurodollar Rate Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
- 16 -
Mattel, Inc. Amended and Restated Credit Agreement
(d) Upon receipt of a Notice of Conversion/Continuation, the
Administrative Agent will promptly notify each Lender thereof, or, if no timely
notice is provided, the Administrative Agent will promptly notify each Lender of
the details of any automatic conversion. All conversions and continuations shall
be made pro rata according to the respective outstanding principal amounts of
the Loans with respect to which the notice was given held by each Lender.
(e) Unless the Requisite Lenders shall otherwise agree, after the
occurrence of and during the continuance of a Default or Event of Default, the
Company may not elect to have a Loan be made as, or converted into or continued
as, a Eurodollar Rate Loan.
(f) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of any Loans,
there shall not be more than five different Interest Periods in effect.
2.05 REDUCTION OR TERMINATION OF AGGREGATE FACILITIES COMMITMENT.
(a) The Company may, upon notice to the Administrative Agent,
terminate the Aggregate Facilities Commitment, or permanently reduce the
Aggregate Facilities Commitment to an amount not less than the then aggregate
outstanding amount of all Loans and Purchasers' Investment; provided that (i)
--------
any such notice shall be received by the Administrative Agent not later than
8:00 a.m. (California time) three Business Days prior to the date of
termination or reduction, and (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof. The Administrative Agent shall promptly notify the Lenders of any such
notice of reduction or termination of the Aggregate Facilities Commitment. Once
reduced in accordance with this Section, the Aggregate Facilities Commitment
may not be increased. Any reduction of the Aggregate Facilities Commitment
shall be applied to the Commitment of each Lender according to its Pro Rata
Share. All commitment and utilization fees accrued until the effective date of
any termination of the Aggregate Facilities Commitment shall be paid on the
effective date of such termination.
(b) Any reduction or termination of the Purchasers' Investment
Limit pursuant to the Receivables Purchase Agreement shall automatically and
concurrently reduce the Purchasers' Investment Limit (but not the Aggregate
Facilities Commitment) for purposes of this Agreement to an amount equal to
such Purchasers' Investment Limit, as so reduced, or terminate the Purchasers'
Investment Limit, as the case may be.
2.06 Voluntary Prepayments. The Company may, upon not less than one
Business Days' prior written or telephonic notice confirmed in writing to the
Administrative Agent (in the case of a prepayment of a Base Rate Loan) or three
Business Days' prior written or telephonic notice confirmed in writing to the
Administrative Agent (in the case of a prepayment of a Eurodollar Rate Loan)
(which notice the Administrative Agent will promptly transmit by telecopy,
telex or telephone to each Lender), at any time and from time to time prepay
(i) any Eurodollar Rate Loans in whole or in part in an aggregate minimum
amount of $3,000,000 and integral multiples of $500,000 in excess of that
amount so long as the unpaid balance is not less than $5,000,000; or (ii) any
Base Rate Loans in whole or in part in an aggregate minimum amount of
$1,000,000 and integral multiples of $100,000 in excess of that amount;
provided that in the event of any such prepayment of any Eurodollar Rate Loans,
--------
the Company shall be
- 17 -
Mattel, Inc. Amended and Restated Credit Agreement
obligated to reimburse the Lenders in respect thereof pursuant to Section 3.05.
------------
If such notice of prepayment does not specify how such prepayment shall be
applied, it shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, as determined by the
Administrative Agent. All prepayments of Eurodollar Rate Loans shall be
applied to the payment of any interest that has accrued to the date of such
prepayment before application to principal. Prepayments of Base Rate Loans
shall be applied to principal only.
2.07 Repayment of Loans. Each Loan shall mature and the Company
shall repay the unpaid principal amount of each Loan on the Termination Date.
2.08 INTEREST ON THE LOANS.
(a) Subject to Section 2.08(c), the Loans shall bear interest on
---------------
the unpaid principal amount thereof from the Funding Date until paid in full at
a rate per annum equal to (i) with respect to Eurodollar Rate Loans, the
Eurodollar Rate plus the Applicable Amount for Eurodollar Rate Loans or (ii)
----
with respect to Base Rate Loans the Base Rate plus the Applicable Amount for
Base Rate Loans.
(b) Subject to Section 2.08(c), from and after the Effective Date,
---------------
interest shall be payable in arrears on the Loans on each Interest Payment Date
applicable to that Loan. Interest paid on the date of any partial prepayment of
Loans hereunder shall be paid in respect of the portion of the Loans so prepaid.
(c) Any principal payments on the Loans not paid when due and, to
the extent permitted by applicable law, any interest payments on the Loans not
paid when due, in each case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall thereafter bear interest
payable upon demand at a rate equal to the Default Rate. Furthermore, while any
Event of Default exists or after acceleration, the Company shall pay interest
on the principal amount of all outstanding Loans at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Governmental Rule. Accrued and unpaid interest on past
due amounts (including interest on past due interest) shall be due and payable
upon demand. Notwithstanding the foregoing, interest shall not commence
accruing at the Default Rate until the Administrative Agent, at the direction
of the Requisite Lenders, has notified the Company thereof; provided, however,
-------- -------
that upon the occurrence of an Event of Default specified in Section 8.01(f) or
---------------
(g), the Default Rate shall thereupon automatically commence accruing and be
---
due and payable without further act of or demand by the Administrative Agent or
any Lender.
2.09 FEES.
(a) The Company agrees to pay a commitment fee equal to the
Applicable Amount for the commitment fee on the daily actual unused portion of
the Aggregate Facilities Commitment during the Availability Period. The Company
shall pay the commitment fee to the Administrative Agent for distribution to
each Lender in accordance with its Pro Rata Share. The commitment fee shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
and shall be payable quarterly in arrears on the last Business Day of each
calendar quarter, for all amounts accrued to such date, and on the Termination
Date; provided that, in
--------
- 18 -
Mattel, Inc. Amended and Restated Credit Agreement
connection with any reduction or termination of the Aggregate Facilities
Commitment pursuant to Section 2.05, the accrued fee calculated on the portion
------------
so terminated or reduced for the period ending on such date shall also be paid
on the date of such reduction or termination.
(b) The Company agrees to pay a utilization fee equal to the
Applicable Amount therefor on the daily actual principal amount of all
outstanding Loans on each day that the aggregate principal amount of
outstanding Loans exceeds 33.00% or 66.00% of an amount equal to (i) the
Aggregate Facilities Commitment less (ii) the aggregate outstanding amount of
----
the Purchasers' Investments. The Company shall pay the utilization fee to the
Administrative Agent for distribution to each Lender in accordance with its Pro
Rata Share. The utilization fee shall be calculated on the basis of a 360-day
year and the actual number of days elapsed and shall be payable quarterly in
arrears on the last Business Day of each calendar quarter, for all amounts
accrued to such date, and on the Termination Date; provided that, in connection
--------
with any reduction or termination of the Aggregate Facilities Commitment
pursuant to Section 2.05, the accrued utilization fee calculated on the portion
------------
so terminated or reduced for the period ending on such date shall also be paid
on the date of such reduction or termination.
(c) The Company shall pay an arrangement fee to the Arranger for
the Arranger's own account, and shall pay an agency fee to the Administrative
Agent for the Administrative Agent's own account, in the amounts and at the
times specified in the letter agreement, dated February 6, 2002 (the
"Agent/Arranger Fee Letter"), among the Company, the Arranger and the
-------------------------
Administrative Agent. Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
(d) The Company shall pay to the Administrative Agent such fees
as may from time to time be agreed upon between the Company and the
Administrative Agent.
2.10 CALCULATION OF INTEREST AND FEES.
(a) Interest on all Loans and fees payable under this Agreement
shall be computed on the basis of a 360-day year and the actual number of days
elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of the Loan or the first day of an Interest
Period, as the case may be, shall be included and the date of payment shall be
excluded; provided that, if a Loan is repaid on the same day on which it is
--------
made, one day's interest shall be paid on that Loan.
(b) Any change in the interest rate on a Loan resulting from a
change in the Applicable Amount or Eurodollar Reserve Percentage shall become
effective as of the opening of business on the day on which such change in the
Applicable Amount or Eurodollar Reserve Percentage becomes effective. Each
determination of an interest rate by the Administrative Agent pursuant hereto
shall be conclusive and binding on the Company and the Lenders in the absence
of manifest error.
2.11 PAYMENTS BY THE COMPANY.
(a) All payments of principal, interest and fees hereunder and
under any Notes shall be made in Dollars without setoff, counterclaim,
recoupment or any other deduction, in same day
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Mattel, Inc. Amended and Restated Credit Agreement
funds and delivered to the Administrative Agent at the Administrative Agent's
Office for the account of the Lenders or the Administrative Agent not later
than 11:00 a.m. (California time) on the date due. The Administrative Agent
will promptly distribute to each Lender its Pro Rata Share (or other applicable
share as expressly provided herein) of such principal, interest, fees or other
amounts in like funds received. Any payment which is received by the
Administrative Agent after that time shall be deemed to have been paid by the
Company on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.
(b) Subject to the provisions in the definition of "Interest
Period", whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent shall have received notice
from the Company prior to the date on which any payment is due to the Lenders
hereunder that the Company will not make such payment in full as and when
required hereunder, the Administrative Agent may assume that the Company has
made such payment in full to the Administrative Agent on such date in
immediately available funds and the Administrative Agent may (but shall not be
so required), in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Company shall not have made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent on
demand such amount distributed to such Lender, together with interest thereon
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate as in effect for each such day.
2.12 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT.
(a) Unless the Administrative Agent shall have received notice
from a Lender on the Effective Date or, with respect to each borrowing after
the Effective Date, by 12:00 noon (California time) one Business Day prior to
the date of any proposed borrowing of Eurodollar Rate Loans, or by 10:00 a.m.
(California time) on the date of any proposed borrowing of Base Rate Loans,
that such Lender will not make available to the Administrative Agent as and
when required hereunder for the account of the Company the amount of that
Lender's Pro Rata Share of the borrowing, the Administrative Agent may assume
that each Lender has made such amount available to the Administrative Agent in
immediately available funds on the Funding Date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative
Agent in such circumstances has made available to the Company such amount, that
Lender shall on the next Business Day following the date of such borrowing make
such amount available to the Administrative Agent, together with interest at
the Federal Funds Rate for and determined as of each day during such period. A
notice of the Administrative Agent submitted to any Lender with respect to
amounts owing under this Section 2.12(a) shall be conclusive, absent manifest
---------------
error. If such amount is so made available, such payment to the Administrative
Agent shall constitute such Lender's Loan on the date of borrowing for all
purposes of this Agreement. If such amount is not made available to the
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Mattel, Inc. Amended and Restated Credit Agreement
Administrative Agent on the next Business Day following the date of such
borrowing, the Administrative Agent shall notify the Company of such failure to
fund and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such borrowing.
(b) The failure of any Lender to make any Loan on any date of
borrowing shall not relieve any other Lender of any obligation hereunder to
make a Loan on the date of such borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Loan to be made by such other
Lender on the date of any borrowing.
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its Pro Rata Share of payments on
account of the Loans obtained by all the Lenders, such Lender shall forthwith
(a) notify the Administrative Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from the purchasing Lender, such purchase shall
to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's Pro Rata Share (according to the proportion of (i) the amount
of such paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
------------
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence
of manifest error) of participations purchased pursuant to this Section 2.13
------------
and will in each case notify the Lenders following any such purchases or
repayments.
SECTION 3.
PAYMENTS IN GENERAL
3.01 TAXES.
(a) Subject to Section 3.01(d) and Section 3.01(f), any and all
--------------- ---------------
payments by the Company to each Lender or the Administrative Agent under this
Agreement shall be made free and clear of, and without deduction or withholding
for, any and all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each Lender's or the
Administrative Agent's net income by the jurisdiction under the laws of which
such Lender or the Administrative Agent, as the case may be, is organized or
maintains a Lending Office or any political subdivision
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Mattel, Inc. Amended and Restated Credit Agreement
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
-----
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents (hereinafter referred to as "Other Taxes").
-----------
(c) Subject to Section 3.01(f), the Company shall indemnify and
---------------
hold harmless each Lender and the Administrative Agent for the full amount of
Taxes or Other Taxes (including without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 3.01) paid by
------------
such Lender or the Administrative Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days from
the date such Lender or the Administrative Agent makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Administrative Agent, then, subject to Section 3.01(f): (i) the
---------------
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.01) such Lender or the Administrative Agent, as the case may be,
------------
receives an amount equal to the sum it would have received had no such
deductions been made; (ii) the Company shall make such deductions, and (iii)
the Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(f) The Company will not be required to pay any additional amounts
in respect of Taxes pursuant to this Section 3.01 to any Lender for the account
------------
of any Lending Office of such Lender: (i) if the obligation to pay such
additional amounts would not have arisen but for a failure by such Lender to
comply with its obligations under Section 10.15 in respect of such Lending
-------------
Office; or (ii) if such Lender shall have delivered to the Company the form(s)
in respect of such Lending Office pursuant to Section 10.15, and such Lender
-------------
shall not be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Company hereunder for
the account of such Lending Office for any reason other than a change in United
States law or regulations or in the official interpretation of such law or
regulations by any Governmental Person charged with the interpretation or
administration thereof (whether or not having the force of law) after the date
of delivery of such form(s).
(g) If, at any time, the Company requests any Lender to deliver
any forms or other documentation pursuant to Section 10.15, then the Company
-------------
shall, on demand of such Lender through the Administrative Agent, reimburse such
Lender for any costs and expenses (including
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Mattel, Inc. Amended and Restated Credit Agreement
expenses of outside legal counsel and the allocated costs of in-house counsel)
reasonably incurred by such Lender in the preparation or delivery of such forms
or other documentation.
(h) If the Company is required to pay additional amounts to any
Lender or the Administrative Agent pursuant to Section 3.01(d), then such Lender
---------------
shall use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
(i) The agreements and obligations of the Company contained in
this Section 3.01 shall survive the payment in full of all other Obligations.
------------
3.02 Capital Adequacy. If (a) any adoption of or any change in or
in the interpretation of any law, rule or regulation, or (b) compliance with any
guideline, request or directive of any central bank or other Governmental
Person or quasi-governmental authority exercising control over banks or
financial institutions generally or any court (whether or not having the force
of law), or (c) any change in the force or effectiveness of the regulations set
forth at 12 C.F.R. Part 3 (Appendix A), 12 C.F.R. Part 225 (Appendix A), 12
C.F.R. Part 208 (Appendix A) or ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇ (▇▇▇▇▇▇▇▇ ▇) requires that
the commitments of any Lender hereunder (including, without limitation,
commitments and obligations in respect of Loans) be treated as an asset or
otherwise be included for purposes of calculating the appropriate amount of
capital to be maintained by such Lender or any corporation controlling such
Lender (a "Change in Law"), the result of which is to reduce the rate of return
-------------
on such Lender's capital as a consequence of such commitments to a level below
that which such Lender could have achieved but for such Change in Law, taking
into consideration such Lender's policies with respect to capital adequacy, by
an amount which such Lender deems to be material, the Lender shall deliver to
the Company a statement of the amount necessary to compensate such Lender for
the reduction in the rate of return on its capital attributable to such
commitments (the "Capital Compensation Amount"). The Lender shall determine the
---------------------------
Capital Compensation Amount in good faith, using reasonable attribution and
averaging methods. The Lender shall from time to time notify the Company of the
amount so determined. Such amount shall be due and payable by the Company to
such Lender ten Business Days after such notice is given. As soon as
practicable after any Change in Law, each Lender seeking compensation under
this Section shall submit to the Company estimates of the Capital Compensation
Amounts that would be payable as a function of such Lender's commitments
hereunder.
3.03 ILLEGALITY.
(a) If any Lender shall determine that any Governmental Rule or
any change therein or in the interpretation or administration there of has made
it unlawful, or that any Governmental Person has asserted that it is unlawful,
for any Lender or its Lending Office to make Eurodollar Rate Loans, then, on
notice thereof by the Lender to the Company through the Administrative Agent,
the obligation of the Lender to make Eurodollar Rate Loans shall be suspended
until the Lender shall have notified the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exists.
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Mattel, Inc. Amended and Restated Credit Agreement
(b) If a Lender shall determine that any Governmental Rule or any
change therein or in the interpretation or administration thereof has made it
unlawful, or that any Governmental Person has asserted that it is unlawful, for
any Lender or its Lending Office to maintain any Eurodollar Rate Loan, the
Company shall prepay all Eurodollar Rate Loans of the Lender then outstanding,
together with interest accrued thereon, or convert all Eurodollar Rate Loans of
the Lender then outstanding to Base Rate Loans pursuant to Section 2.04, either
------------
on the last day of the Interest Period thereof if the Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or promptly, if
the Lender may not lawfully continue to maintain such Eurodollar Rate Loans,
together with any amounts required to be paid in connection therewith pursuant
to Section 3.05.
------------
(c) If the obligation of any Lender to make or maintain Eurodollar
Rate Loans has been terminated, the Company may elect, by giving notice to the
Lender through the Administrative Agent that all Loans which would otherwise be
made by the Lender as Eurodollar Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent pursuant
to this Section 3.03, the affected Lender shall designate a different Lending
------------
Office with respect to its Eurodollar Rate Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.
3.04 Increased Costs and Reduction of Return. If any Lender shall
determine that, due to either (a) the introduction of or any change (other than
any change by way of imposition of or increase in reserve requirements included
in the calculation of the Eurodollar Rate) in or in the interpretation of any
law or regulation or (b) the compliance with any guideline or request from any
Governmental Person (whether or not having the force of law), there shall be
any increase in the cost to such Lender of agreeing to make or making, funding
or maintaining any Eurodollar Rate Loans, then the Company shall be liable for,
and shall from time to time, upon demand therefor by such Lender (with a copy
of such demand to the Administrative Agent), pay to such Lender, additional
amounts as are sufficient to compensate such Lender for such increased costs.
Each Lender agrees to notify the Company of the occurrence of such an increased
cost event promptly after obtaining knowledge thereof.
3.05 Funding Losses. The Company agrees to reimburse each Lender
and to hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of: (a) the failure of the Company to make
any payment or prepayment of principal of any Eurodollar Rate Loan (including
payments made after any acceleration thereof); (b) the failure of the Company
to borrow, continue or convert a Loan after the Company has given (or is deemed
to have given) a Notice of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment after the Company has
given a notice in accordance with Section 2.06; or (d) the prepayment of a
------------
Eurodollar Rate Loan on a day which is not the last day of the Interest Period
with respect thereto; including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain its Eurodollar
Rate Loans hereunder or from fees payable to terminate the deposits from which
such funds were obtained. Solely for purposes of calculating amounts payable by
the Company to the Lenders under Section 3.04 and this Section 3.05, each
------------ ------------
Eurodollar Rate Loan made by a Lender (and each
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Mattel, Inc. Amended and Restated Credit Agreement
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Eurodollar Rate used in determining the
Eurodollar Rate for such Eurodollar Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan is in fact so
funded. This covenant shall survive the payment in full of all other
Obligations.
3.06 Inability to Determine Rates. If the Administrative Agent
shall have determined that for any reason adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan, or if the Requisite Lenders
advise the Administrative Agent in writing that the Eurodollar Rate applicable
for any requested Interest Period with respect to a proposed Eurodollar Rate
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will forthwith give notice of such
determination to the Company and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans hereunder shall be suspended
until the Administrative Agent upon the instruction of the Requisite Lenders
revokes such notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of Conversion/ Continuation then
submitted by it. If the Company does not revoke such notice with respect to
Loans, the Lenders shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Eurodollar Rate Loans.
3.07 Survival. The agreements and obligations of the Company in
this Section 3 shall survive the payment of all other Obligations.
---------
SECTION 4.
CONDITIONS PRECEDENT
4.01 Conditions to Effectiveness. The effectiveness of the
Agreement is subject to satisfaction of the following conditions precedent:
(a) The Company shall deliver to the Administrative Agent and
Lenders (or to the Administrative Agent for the Lenders with sufficient
originally executed copies for each Lender, except for any Notes):
(i) This Agreement, duly executed and delivered by the
Company, the Administrative Agent and all Lenders;
(ii) A Note, duly executed and delivered by the Company,
drawn to the order of each Lender requesting a Note, with appropriate
insertions;
(iii) The Mattel Sales Guaranty and the ▇▇▇▇▇▇-▇▇▇▇▇
Guaranty, duly executed and delivered by Mattel Sales and ▇▇▇▇▇▇-▇▇▇▇▇,
respectively;
(iv) The Mattel Sales Subordination Agreement and the
▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement duly executed and delivered by the
Company and each
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Mattel, Inc. Amended and Restated Credit Agreement
Affiliate of the Company to whom Mattel Sales or ▇▇▇▇▇▇-▇▇▇▇▇ owes any
material outstanding obligations;
(v) Copies of the resolutions of the board of directors
or the executive committee of each Company Party approving and
authorizing the execution, delivery and performance by such Company
Party of each Loan Document to which it is a party, certified as of
the Effective Date by the secretary or an assistant secretary of such
Company Party;
(vi) A certificate of the secretary or assistant secretary
of each Company Party, certifying the names and true signatures of the
officers of such Company Party authorized to execute and deliver the
Loan Documents to which it is a party;
(vii) The articles or certificate of incorporation or
organization of each Company Party as in effect on the Effective Date,
certified by the secretary of state of the state of its incorporation
or formation as of a recent date, and the bylaws or operating agreement
of each Company Party as in effect on the Effective Date, in each case,
certified by the secretary or assistant secretary of such Company Party
as of the Effective Date;
(viii) A good standing certificate for each Company Party
from the secretary of state of its state of incorporation or
formation dated as of a recent date;
(ix) Executed copies of one or more favorable written
opinions of ▇▇▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇, Esq., Assistant General Counsel of
the Company, or a Senior Counsel of the Company, dated as of the
Effective Date, substantially in the form of Exhibit E hereto
---------
relating to the Company Parties and as to such other matters as the
Administrative Agent and the Lenders may reasonably request;
(x) A certificate signed by one of the officers
authorized to deliver an Officers' Certificate certifying (A) that
the conditions specified in Sections 4.01(c) and (d) have been
----------------
satisfied, (B) that there has been no event or circumstance since the
date of the audited financial statements dated December 31, 2000
referred to in Section 5.08 which has a Material Adverse Effect; and
------------
(C) the current ratings on the Company's long-term unsecured
Indebtedness by S&P, ▇▇▇▇▇'▇ and Fitch;
(xi) Evidence that all conditions precedent to the initial
purchase under the Receivables Purchase Agreement have been, or
concurrently herewith are being, satisfied or waived thereunder; and
(xii) Evidence that the Existing 364-Day Credit Agreement
is being terminated concurrently herewith.
(b) The Company shall have paid all fees payable pursuant to
Sections 2.09(c) and (d).
---------------- ---
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Mattel, Inc. Amended and Restated Credit Agreement
(c) The representations and warranties of each Company Party
contained in any Loan Document shall be true, correct and complete in all
material respects on and as of the Effective Date.
(d) No Default or Event of Default shall exist.
(e) The Company shall have performed in all material respects all
agreements which this Agreement provides shall be performed by it on or before
the Effective Date
4.02 Conditions to All Loans. The obligation of each Lender to make
any Loan is subject to the following further conditions precedent that, as of
the applicable Funding Date:
(a) The Administrative Agent shall have received on or before that
Funding Date a Notice of Borrowing signed by the Chief Executive Officer, the
Chief Financial Officer, the Treasurer or an Assistant Treasurer of the Company
or any officer of the Company designated by any of the above described officers
on behalf of the Company in writing delivered to the Administrative Agent;
(b) The representations and warranties of the Company contained in
any Loan Document (except the representation and warranty contained in Section
-------
5.09 and, in the case of a borrowing of Loans where the aggregate principal
----
amount of the Loans being made on that Funding Date equals or is less than the
aggregate principal amount of Loans maturing on that Funding Date, the
representation and warranty contained in Section 5.11), shall be true, correct
------------
and complete in all material respects on and as of that Funding Date (except to
the extent that such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct in all material
respects as of such earlier date) to the same extent as though made on and as
of that Funding Date; and
(c) No Default or Event of Default shall exist or shall result
from such borrowing or continuation or conversion.
Each Notice of Borrowing submitted by the Company hereunder shall
constitute a representation and warranty by the Company hereunder, as of the
Funding Date, that the conditions in Section 4.02 are satisfied or waived.
------------
SECTION 5.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement and to make any extension of credit hereunder, the Company
represents and warrants to each Lender and the Administrative Agent that the
following statements are true, correct and complete:
5.01 Organization and Powers. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and, except for changes in the ordinary course of business or as
permitted or contemplated by this Agreement, each of the Material Subsidiaries
is a corporation duly organized, validly existing and in good
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Mattel, Inc. Amended and Restated Credit Agreement
standing under the laws of the jurisdiction of its incorporation; and each has
all requisite corporate power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be conducted and, in
the case of the Company, to enter into this Agreement, a ▇▇▇▇▇▇-▇▇▇▇▇
Subordination Agreement and a Mattel Sales Subordination Agreement, to issue
the Notes and to carry out the transactions contemplated hereby and thereby.
5.02 Good Standing. The Company and, except for changes in the
ordinary course of business or as permitted or contemplated by this Agreement,
each Material Subsidiary is in good standing wherever necessary to carry on its
present business and operations, except in jurisdictions in which the failure
to be in good standing has or will have no Material Adverse Effect.
5.03 Material Subsidiaries. Except for changes in the ordinary
course of business or as permitted or contemplated by this Agreement, Schedule
--------
5.03 hereto correctly sets forth the name, jurisdiction of incorporation and
----
ownership interest of the Company in each of its Material Subsidiaries as of
the date hereof.
5.04 Authorization of Borrowing. The execution, delivery and
performance of each Loan Document to which it is a party, and acknowledgement
of the ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement and the Mattel Sales Subordination
Agreement and the issuance, delivery and payment of the Notes have been duly
authorized by all necessary corporate action by the Company.
5.05 No Conflict. The execution, delivery and performance by the
Company of this Agreement and the acknowledgement of the ▇▇▇▇▇▇-▇▇▇▇▇
Subordination Agreement, the Mattel Sales Subordination Agreement and the
issuance, delivery and payment of the Notes do not and will not (a) violate the
Restated Certificate of Incorporation or Bylaws of the Company, (b) violate any
provision of law applicable to the Company, or any material order, judgment or
decree of any court or other agency of government binding on the Company, the
violation of which would result in a Material Adverse Effect, (c) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of the Company, (d) result in
or require the creation or imposition of any material lien, security interest,
charge or encumbrance of any nature whatsoever upon any of its material
properties or assets, or (e) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of the
Company.
5.06 Governmental Consents. The execution, delivery and performance
by the Company of each Loan Document to which it is a party and each agreement,
document, or instrument required hereunder, the acknowledgment of the
▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement, Mattel Sales Subordination Agreement, and
the issuance, delivery and payment of the Notes do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any Federal, state or other governmental authority or regulatory
body or other such person.
5.07 Binding Obligation. This Agreement is, and each other Loan
Document to which it is a party, when executed and delivered hereunder will be,
the legally valid and binding obligations of the Company, enforceable against
it in accordance with their respective terms,
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Mattel, Inc. Amended and Restated Credit Agreement
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally.
5.08 Financial Condition. The Company has heretofore delivered to
the Lenders a consolidated balance sheet of the Company and its Subsidiaries
for the fiscal year ended December 31, 2000 and related consolidated statements
of income, shareholders' equity and changes in financial position of the
Company and its Subsidiaries for such fiscal year, audited by
PriceWaterhouseCoopers. All such statements were prepared in accordance with
GAAP and fairly present the consolidated financial position of the Company and
its Subsidiaries as at the date thereof and the consolidated results of
operations and statement of cash flow of the Company and its Subsidiaries for
the period then ended. Neither the Company nor any of its Subsidiaries has any
material Contingent Obligation, liability for taxes or long-term lease which as
of the date of this Agreement, individually or in the aggregate, would, if it
became absolute, result in a Material Adverse Effect which is not reflected in
the foregoing statements or in the notes thereto.
5.09 Changes, Etc. Since December 31, 2000, there has been no event
or events that have, either individually or in the aggregate, resulted in a
Material Adverse Effect.
5.10 Title to Properties. The Company and its Subsidiaries have
good, sufficient and legal title to all the properties and assets reflected in
the consolidated balance sheet referred to in Section 5.08 except as set forth
------------
in said balance sheet or in the notes thereto, except for assets acquired or
disposed of in the ordinary course of business or as otherwise permitted by
this Agreement since December 31, 1996 and except for immaterial defects in
title as could not, individually or in the aggregate, have a Material Adverse
Effect.
5.11 Litigation; Adverse Facts. Except as set forth on Schedule
--------
5.11 hereto, there is no action, suit, proceeding or arbitration (whether or
----
not purportedly on behalf of the Company or any of its Subsidiaries) at law or
in equity or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of the Company's or
such Subsidiaries' properties which, in the reasonable judgment of the Company
and its executive officers (assuming adverse determination of facts which the
Company in good faith believes it would not successfully disprove, and
considering damages which in their best judgment is the maximum that would be
awarded upon, and the likelihood of, an adverse determination of the claim or
the amount which reflects their best judgment as to that required to be paid to
settle the claims) would result in a Material Adverse Effect and there is no
basis known to such executive officers for any such action, suit or proceeding.
Neither the Company nor any of its Subsidiaries is (i) in violation of any
applicable law which could result in a Material Adverse Effect, or (ii) subject
to or in default with respect to any final judgment, writ, injunction, decree,
rule or regulation of any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which could result in a Material Adverse Effect. There is
no action, suit, proceeding or investigation pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Subsidiaries which provides a reasonable basis for questioning the validity or
the enforceability of any Loan Document.
- 29 -
Mattel, Inc. Amended and Restated Credit Agreement
5.12 Payment of Taxes. All tax returns and reports of the Company
and its Material Subsidiaries required to be filed by any of them have been
timely filed, and all taxes, assessments, fees and other governmental charges
upon the Company and its Subsidiaries and upon their respective properties,
assets, income and franchises which are due and payable have been paid when due
and payable or bonded against, except to the extent permitted by Section 6.04.
------------
The Company knows of no proposed tax assessment against it or any of its
Subsidiaries that would result in a Material Adverse Effect.
5.13 Agreements. Neither the Company nor any of its Subsidiaries
is a party to or is subject to any material agreement or instrument or charter
or other internal restriction which results in a Material Adverse Effect.
5.14 Performance. Neither the Company nor any of its Subsidiaries
is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation of
the Company, and no condition exists which, with the giving of notice or the
lapse of time or both, would constitute such a default, except, in any such
case, where the consequences, direct or indirect, of such default or defaults,
if any, would not result in a Material Adverse Effect.
5.15 Governmental Regulation. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any Federal or state statute or regulation
limiting its ability in any material way to incur Indebtedness for money
borrowed.
5.16 Employee Benefit Plans. The Company and each of its ERISA
Affiliates is in compliance in all material respects with any applicable
provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Pension Plans. Neither the Company nor any of
its ERISA Affiliates has participated in or participates in any Multiemployer
Plan the withdrawal from which may result in any liability to any party in an
amount in excess of $100,000,000.
5.17 Environmental Matters. The Company conducts in the ordinary
course of business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and
as a result thereof the Company has reasonably concluded that such
Environmental Laws and Environmental Claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.18 Disclosure. No representation or warranty of the Company
contained in this Agreement or any other document, certificate or written
statement furnished to the Lenders by the Company since January 1, 2002 for use
in connection with the transactions contemplated by this Agreement as of the
date of this Agreement contains any untrue statement of a material fact or
omits to state a material fact (known to the officers of the Company in the
case of any document or fact not furnished by it) necessary in order to make
the statements contained herein or therein not misleading except to the extent
that any such statement or omission that was untrue or misleading at the time
made or that subsequently became untrue or misleading has been superseded or
corrected by information provided to the Lenders prior to the date of this
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Mattel, Inc. Amended and Restated Credit Agreement
Agreement. The projections and pro forma financial information contained in
such written materials are based upon good faith estimates and assumptions
believed by the Company to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by any
such projections may differ from the projected results. There is no fact known
to the officers of the Company as of the date of this Agreement (other than
matters of a general economic nature) which materially adversely affects the
business, operations, property, assets or condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a whole, which has not been
disclosed herein or in the written materials referred to in Section 5.08 other
------------
than as disclosed in writing to the Lenders on or before the date hereof.
5.19 Subordination Agreements. Neither ▇▇▇▇▇▇-▇▇▇▇▇ nor Mattel
Sales has any material outstanding obligations to any Affiliate of the Company
which has not signed a ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement or a Mattel Sales
Subordination Agreement, respectively.
SECTION 6.
AFFIRMATIVE COVENANTS
The Company agrees from the Effective Date until payment in full of
all Obligations and termination of the Aggregate Facilities Commitment and the
Receivables Purchase Agreement, unless Requisite Lenders shall otherwise give
prior written consent, the Company will perform all covenants in this Section 6.
---------
6.01 Financial Statements. The Company will maintain, and cause
each of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP. The Company will deliver to
the Administrative Agent and to each Lender:
(a) as soon as practicable and in any event not later than 55 days
after the end of each of the first three fiscal quarters of the Company,
consolidated balance sheets of the Company and its Subsidiaries as at the end
of such period and for the fiscal year to date and the related consolidated
statements of income, consolidated statements of stockholders' equity and
consolidated statements of cash flow all in reasonable detail and certified by
the Chief Financial Officer, Executive Vice President Finance or the Treasurer
of the Company that the consolidated statements (and to the best of his or her
belief, the consolidating statements) and other materials required by this
clause (a) fairly present the financial condition of the Company and its
Subsidiaries as at the dates indicated and the results of their operations for
the periods indicated, subject to changes resulting from year-end audit and
normal year-end adjustments; and
(b) as soon as practicable and in any event not later than 100
days after the end of each fiscal year of the Company, consolidated and
consolidating balance sheets of the Company and its Subsidiaries as at the end
of such year and the related consolidated (and, as to statements of income
only, consolidated and consolidating) statements of income, stockholders'
equity and cash flow of the Company and its Subsidiaries for such fiscal year,
setting forth in each case, in comparative form the consolidated figures for
the previous year, all in reasonable detail and (i) in
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Mattel, Inc. Amended and Restated Credit Agreement
the case of such consolidated financial statements, accompanied by a report
thereon of Price Waterhouse or other independent accountants of recognized
national standing selected by the Company which report shall state that such
consolidated financial statements present fairly the financial position of the
Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flow for the periods indicated in conformity with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards and (ii) in the case of such consolidating
financial statements, certified by the chief financial or accounting officer of
the Company.
6.02 Certificates; Other Information. The Company will deliver to
the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Requisite Lenders:
(a) together with each delivery of financial statements of the
Company and its Subsidiaries pursuant to Sections 6.01(a) and (b) above, an
---------------- ---
Officers' Certificate (i) stating that the signers have reviewed the terms of
this Agreement and the Notes and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and condition of
the Company and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of the Officers' Certificate, of
any condition or event which constitutes an Event of Default or Default, or, if
any such condition or event existed or exists, specifying the nature and period
of existence thereof, and (ii) demonstrating in reasonable detail compliance
during (to the extent required) and at the end of such accounting periods with
the restrictions contained in Sections 7.05 and 7.06.
------------- ----
(b) together with each delivery of consolidated financial
statements of the Company and its Subsidiaries pursuant to Section 6.01(b)
---------------
above, a written statement by the independent accountants giving the report
thereon (i) stating that their audit examination has included a review of the
terms of this Agreement and the Notes as they relate to accounting matters, and
(ii) stating whether, in connection with their audit examination, any condition
or event which constitutes an Event of Default or Default has come to their
attention, and if such a condition or event has come to their attention,
specifying the nature and period of existence thereof; provided that such
--------
accountants shall not be liable by reason of any failure to obtain knowledge of
any such Event of Default or Default that would not be disclosed in the course
of their audit examination. The Administrative Agent shall have the right, from
time to time, to discuss the affairs of the Company directly with such
independent certified public accountants;
(c) promptly upon receipt thereof, copies of all reports submitted
to the Company (including, without limitation, the Company's Board of
Directors) by the Company's independent accountants in connection with each
annual, interim or special audit of the consolidated financial statements of
the Company made by such accountants, including, without limitation, any
comment letter submitted by such accountants to management in connection with
their annual audit; and
- 32 -
Mattel, Inc. Amended and Restated Credit Agreement
(d) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Company to its security holders or by any Subsidiary
of the Company to its security holders other than the Company or another
Subsidiary, and, promptly upon their becoming effective, and in any event
within 15 days of filing, all regular and periodic reports and all registration
statements and prospectuses that have been filed by the Company or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission or any Governmental Person succeeding to any of its functions, and
all press releases and other statements made available generally by the Company
or any Subsidiary to the public concerning material developments in the
business of the Company and its Subsidiaries.
Each document required to be delivered pursuant to Section 6.01(a) or
---------------
(b) or Section 6.02(d) shall be deemed to have been delivered on the date on
--- ---------------
which the Company posts such document on the Company's website on the Internet
at the website address listed on Schedule 10.02, or when such document is
--------------
posted on the Securities and Exchange Commission's website at ▇▇▇.▇▇▇.▇▇▇ or on
IntraLinks; provided that the Company shall deliver paper copies of all such
--------
documents to the Administrative Agent or any Lender that requests the Company
to deliver such paper copies until a request to cease delivering paper copies
is given by the Administrative Agent or such Lender. The Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above in this paragraph, and in any event shall have no
responsibility to monitor compliance by the Company with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery
to it or maintaining its copies of such documents.
6.03 Notices. The Company will promptly notify the Administrative
Agent and each Lender:
(a) promptly upon any executive officer of the Company obtaining
knowledge (i) of any condition or event which constitutes an Event of Default
or Default, or becoming aware that the Administrative Agent or any Lender has
given any notice or taken any other action with respect to a claimed Event of
Default or Default under this Agreement, (ii) of any condition or event which
would be required to be disclosed in a current report filed by the Company with
the Securities and Exchange Commission on Form 8-K (Items 1, 2, 4 and 6 of such
Form as in effect on the date hereof) if the Company were required to file such
reports under the Exchange Act, (iii) that any Person has given any notice to
the Company or any Subsidiary of the Company or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 8.01, (iv) of the institution of any litigation involving an alleged
------------
liability of the Company or any of its Subsidiaries equal to or greater than
$20,000,000 or any adverse determination in any litigation involving a
potential liability of the Company or any of its Subsidiaries equal to or
greater than $20,000,000, or (v) of a Material Adverse Effect, in each case an
Officers' Certificate specifying the nature and period of existence of any such
condition or event, or specifying the notice given or action taken by such
holder or Person and the nature of such claimed default, Event of Default,
Default, event or condition, and what action the Company has taken, is taking
and proposes to take with respect thereto;
- 33 -
Mattel, Inc. Amended and Restated Credit Agreement
(b) as soon as available but no later than March 31 of each year,
copies of the Company's consolidated financial plan for the then current fiscal
year as customarily prepared for internal use;
(c) promptly after the acquisition of any Material Subsidiary,
notice of such acquisition;
(d) promptly upon any executive officer of the Company obtaining
knowledge, notice of any change in the ratings on the Company's long-term
unsecured Indebtedness by S&P, ▇▇▇▇▇'▇ and, Fitch; and
(e) with reasonable promptness, such other information and data
with respect to the Company or any of its Subsidiaries as from time to time may
be reasonably requested by any Lender or the Administrative Agent, including
any financial reports regularly prepared by the Company for internal use.
6.04 Corporate Existence, etc. Except as permitted or not
prohibited in Section 7.03, the Company will at all times preserve and keep in
------------
full force and effect its corporate existence and rights and franchises
material to its business and those of each of its Material Subsidiaries;
provided that the corporate existence and the rights and franchises of any
--------
Material Subsidiary may be terminated or permitted to lapse if such termination
or lapse is in the best interest of the Company, is approved by the Board of
Directors of the Company and is not materially disadvantageous to the holder of
any Note.
6.05 Payment of Taxes and Claims; Tax Consolidation. The Company
will, and will cause each of its Material Subsidiaries to, pay all taxes,
assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its franchises, business, income
or property before any penalty or interest accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided that no
--------
such charge or claim need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor. The Company will not, nor
will it permit any Material Subsidiary to, file or consent to the filing of any
consolidated income tax return with any Person (other than the Company or a
Subsidiary of the Company).
6.06 Maintenance of Properties; Insurance. Except as permitted or
not prohibited in Section 7.03, the Company will maintain or cause to be
------------
maintained in good repair, working order and condition all material properties
(other than obsolete properties) used or useful in the business of the Company
and its Material Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals, substitutions and replacements thereof.
The Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and business of its Material Subsidiaries against loss or damage
of the kinds customarily insured against by corporations of established
reputation engaged in the same or similar businesses and similarly
- 34 -
Mattel, Inc. Amended and Restated Credit Agreement
situated, of such types and in such amounts as are customarily carried under
similar circumstances by such other corporations; provided that the Company may
maintain a program of self insurance for the Company and its Material
Subsidiaries in accordance with sound business practices.
6.07 Inspection of Property and Books and Records. The Company
shall maintain and shall cause each of its Subsidiaries to maintain proper
books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company and
such Subsidiaries. The Company will permit any authorized representatives
designated by any Lender at the expense of that Lender, to visit and inspect
any of the properties of the Company or any of its Subsidiaries, including its
and their financial and accounting records, and to make copies and take
extracts therefrom (but not records relating to intellectual property), and to
discuss its and their affairs, finances and accounts with its and their
officers and independent public accountants, all upon reasonable notice and at
such reasonable times during normal business hours and as often as may be
reasonably requested.
6.08 Use of Proceeds of Loans. The Company shall use the proceeds
of Loans for general corporate purposes, including, without limitation, lending
to its Subsidiaries and acquiring other Persons or businesses so long as the
acquisition is approved by the board of directors of the Person being acquired.
6.09 Environmental Laws. The Company shall maintain and shall cause
each of its Subsidiaries to, conduct its operations and keep and maintain its
property in compliance with all Environmental Laws, except where the failure to
do so could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
6.10 Subordination Agreements. If from time to time ▇▇▇▇▇▇-▇▇▇▇▇ or
Mattel Sales has any material outstanding obligations owing to any Affiliate of
the Company which has not signed a ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement or a
Mattel Sales Subordination Agreement, respectively, the Company shall cause
such Affiliate to execute deliver a ▇▇▇▇▇▇-▇▇▇▇▇ Subordination Agreement or a
Mattel Sales Subordination Agreement, as the case may be, and deliver to the
Administrative Agent a signature and incumbency certificate of the officers of
each such Affiliate and cause ▇▇▇▇▇▇-▇▇▇▇▇ or Mattel Sales, as the case may be,
to acknowledge each such agreement.
6.11 Compliance with Laws. The Company shall maintain and shall
cause each of its Subsidiaries to, comply in all material respects with the
requirements of all Governmental Rules applicable to it, except in such
instances in which (i) such requirement of Governmental Rules is being
contested in good faith by appropriate proceedings diligently conducted or a
bona fide dispute exists with respect thereto; or (ii) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.
NEGATIVE COVENANTS
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Mattel, Inc. Amended and Restated Credit Agreement
The Company agrees from the Effective Date until payment in full of
all Obligations and termination of the Aggregate Facilities Commitment and the
Receivables Purchase Agreement, unless Requisite Lenders shall otherwise give
prior written consent, the Company will perform all covenants in this Section 7.
---------
7.01 Indebtedness. The Company will not, and will not permit any of
its Material Subsidiaries to, directly or indirectly incur, assume, guaranty or
otherwise become directly or indirectly liable with respect to any
Indebtedness; except:
------
(a) Indebtedness permitted to be secured under Section 7.02;
------------
(b) Non-Priority Indebtedness of the Company; and
(c) Non-Priority Indebtedness of Subsidiaries of the Company not
exceeding 20% of Consolidated Net Worth in the aggregate at any time.
7.02 Liens. The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of the Company or
any Subsidiary except:
(a) Liens securing Indebtedness for borrowed money not exceeding,
together with the aggregate outstanding face amount of sales or discounting of
notes or receivables permitted under Section 7.04(e), $100,000,000 in aggregate
---------------
principal amount at any time;
(b) Liens existing on the date hereof;
(c) Liens securing Indebtedness under the Receivables Purchase
Agreement;
(d) Liens securing Indebtedness under Other Permitted Accounts
Receivable Financing Facilities or otherwise arising under transactions
permitted pursuant to Section 7.04;
------------
(e) Liens listed on Schedule 7.02; and
-------------
(f) Liens on newly-acquired Capital Assets; provided that such
--------
Liens on Capital Assets located in the United States shall not secure
Indebtedness for borrowed money in excess of $25,000,000.
7.03 Restriction on Fundamental Changes.
(a) The Company shall not, and shall not permit any of its
Material Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by it on the date hereof.
(b) the Company shall not, and shall not suffer or permit any of
its Material Subsidiaries to, merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of whether in one transaction or in a
series of transactions, all or substantially all, of its assets to or in favor
of any Person, except:
- 36 -
Mattel, Inc. Amended and Restated Credit Agreement
(i) (A) the Company may merge or consolidate with any
other Person provided that the Company shall be the continuing or
surviving corporation, and (B) any Material Subsidiary may merge or
consolidate with any other Person provided that the Company or a
Material Subsidiary shall be the continuing or surviving corporation;
provided, further, that (1) if any transaction shall be between a
-------- -------
Subsidiary and a wholly-owned Subsidiary, a wholly-owned Subsidiary
shall be the continuing or surviving corporation, (2) no Default or
Event of Default shall result from such merger or consolidation, and
(3) except where a wholly-owned Subsidiary merges or consolidates
with another wholly-owned Subsidiary or the Company, no Default or
Event of Default shall exist prior to such merger or consolidation;
and
(ii) any Subsidiary of the Company may sell all or
substantially all of its assets (upon voluntary liquidation or
otherwise), to the Company or another Wholly-Owned Subsidiary of the
Company.
7.04 Sale or Discount of Receivables. The Company will not,
and will not permit any of its Domestic Subsidiaries to, directly or
indirectly, sell with or without recourse, or discount or otherwise
sell for less than the face value thereof any of its notes or
accounts receivable, except:
(a) discounts offered in the ordinary course of business for
early payment of accounts receivable and negotiated settlements of
bad debts and disputed accounts receivable in the ordinary course of
business;
(b) sales of accounts receivable under the Receivables Purchase
Agreement and agreements entered into in connection therewith;
(c) sales of accounts receivable under Other Permitted Accounts
Receivable Financing Facilities;
(d) sales of accounts receivable where the Company believes in
good faith that the collectability of such accounts receivable is or may be
jeopardized by the distressed financial condition of the obligor under such
accounts receivable; and
(e) sales or discounting of any other notes or receivables, the
aggregate outstanding face amount of which does not exceed, together with the
aggregate outstanding principal amount of secured Indebtedness permitted under
Section 7.02(a), $100,000,000 in the aggregate at any time.
---------------
7.05 Consolidated Funded Indebtedness to Total Capitalization. The
Company shall not permit the ratio of the sum of (a) Consolidated Funded
Indebtedness plus (b) Combined Purchasers' Investments to the sum of (x)
----
Consolidated Funded Indebtedness plus (y) Combined Purchasers' Investments plus
---- ----
(z) the consolidated net worth of the Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP to exceed 60% at the end
of each of the first three fiscal quarters in each fiscal year and 50% at the
end of each fiscal year.
7.06 Interest Coverage Ratio. The Company shall not permit, as of
the last day of each fiscal quarter, the ratio of (a) the sum of (i) its net
income from continuing operations, for
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Mattel, Inc. Amended and Restated Credit Agreement
the four consecutive fiscal quarters ending on such date, before (A) special
items, (B) minority interest, (C) gains on reacquisition of debt, plus (ii)
----
income taxes accrued for the four consecutive fiscal quarters ending on such
date, plus (iii) interest accrued for the four consecutive fiscal quarters
----
ending on such date, excluding capitalized interest and without regard to
interest income plus (iv) depreciation and amortization for the four
----
consecutive fiscal quarters ending on such date to (b) interest incurred for
the four consecutive fiscal quarters ending on such date, including capitalized
interest and without regard to interest income, to be less than 3.50 to 1.
7.07 ERISA. The Company will not, and will not permit any of its
ERISA Affiliates to, permit the aggregate actuarial present value of all
benefit liabilities under all Pension Plans to exceed the aggregate fair market
value of the assets of such Pension Plans allocable to such benefit liabilities
by more than $100,000,000, determined in accordance with the actuarial
assumptions and liabilities set forth in the most recent actuarial valuation
prepared with respect to such Pension Plans.
7.08 Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by the Company for the purpose of
"purchasing" or "carrying" any Margin Stock in violation of Regulation U, of
the Federal Reserve Board (or any other regulation of the Federal Reserve
Board) or the Exchange Act, in each case as in effect on the date or dates of
such borrowing and the use of such proceeds.
7.09 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of an Event of Default or Default if such action is
taken or condition exists.
SECTION 8.
EVENTS OF DEFAULT
8.01 Events of Default. Any of the following conditions or events
shall constitute an "Event of Default:"
----------------
(a) Failure to Make Payments When Due. (i) Failure by any Company
Party to pay any required payment of principal under this Agreement or the
Receivables Purchase Agreement or of any Loan or any Notes, when due, whether
at stated maturity, by acceleration, by notice of prepayment or otherwise, (ii)
failure by any Company Party to pay any required payment of interest under this
Agreement or the Receivables Purchase Agreement or on any Loan or any Note or
any fees payable pursuant to Section 2 for a period of five days or more after
---------
the date such payment is due, or (iii) failure by any Company Party to pay any
other amount due under this Agreement or the Receivables Purchase Agreement
within 90 days after written notice thereof; or
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Mattel, Inc. Amended and Restated Credit Agreement
(b) Default in Other Agreements. (i) Failure of the Company or any
of its Material Subsidiaries to pay or any default in the payment of any
principal or interest on any Indebtedness in an amount exceeding $15,000,000 or
any default in any other obligation for the payment of money in an amount in
excess of $15,000,000 beyond any period of grace allowed; or (ii) any breach or
default (unless cured or waived) with respect to any other term of any evidence
of such other Indebtedness for borrowed money in an amount exceeding
$15,000,000 or of any loan agreement, mortgage, indenture or other agreement
relating thereto, and such breach or default continues after the applicable
grace or notice period, if any, specified in the document relating thereto, if
the effect of such failure, default or breach is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness for borrowed money to become or be
declared due prior to its stated maturity; or
(c) Breach of Certain Covenants. Failure of the Company to
perform or comply with any term or condition contained in Sections 6.03(a),
----------------
6.04 or Section 7 of this Agreement; or
---- ---------
(d) Breach of Warranty. Any of the Company's, ▇▇▇▇▇▇-▇▇▇▇▇'▇ or
Mattel Sales' representations or warranties made in any Loan Document in
writing pursuant hereto or in connection herewith shall be false in any
material respect on the date as of which made; or
(e) Other Defaults Under Loan Documents. Failure of any Company
Party to perform or comply with any other term or condition contained in any
Loan Document to which it is a party thereto, other than the conditions
referred to in Subsections (a), (b), (c) and (d) above, and such default shall
not have been remedied or waived within 30 days after receipt of notice from
the Administrative Agent or any Lender of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company or any of its Material Subsidiaries in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, which decree or order is not stayed, or (ii)
any other similar relief shall be granted under any applicable federal or state
or applicable foreign law; a petition for an involuntary case shall be filed
against the Company or any of its Material Subsidiaries under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Company or any of its Material
Subsidiaries, or over all or substantially all of its property, shall have been
entered; or an interim receiver, trustee or other custodian of the Company or
any of its Material Subsidiaries for all or substantially all of the property
of the Company or any of its Material Subsidiaries shall be appointed
involuntarily; and the continuance of any such events in clause (ii) for 45
days unless dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc. The
Company or any of its Material Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in any involuntary case, or
to the conversion from an involuntary case, under any such law, or shall
consent to the appointment of
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Mattel, Inc. Amended and Restated Credit Agreement
or taking possession by a receiver, liquidator, sequestrator, trustee or other
custodian for all or substantially all of its property; the making by the
Company or any of its Material Subsidiaries of any assignment for the benefit
of creditors; or the inability or failure of the Company or any of its Material
Subsidiaries, or the admission by the Company or any of its Material
Subsidiaries in writing of its inability, to generally pay its debts as such
debts become due; or the Board of Directors of the Company or any of its
Material Subsidiaries adopts any resolution or otherwise takes action to
approve any of the foregoing; or
(h) Judgments. Any final money judgment involving in any case an
amount in excess of $20,000,000 or in excess of $40,000,000 in the aggregate at
any one time for all final judgments shall be entered or filed against the
Company or any Material Subsidiary or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 45 days or
in any event later than five days prior to the date of any proposed sale
thereunder; or
(i) Dissolution. Any order, judgment or decree shall be entered
against the Company or any Material Subsidiary decreeing the dissolution or
split up of the Company and such order shall remain undischarged or unstayed
for a period in excess of 30 days; or
(j) ERISA. (i) Any Pension Plan maintained by the Company or any
of its ERISA Affiliates shall be terminated within the meaning of Title IV of
ERISA, or (ii) a trustee shall be appointed by an appropriate United States
district court to administer any Pension Plan, or (iii) the Pension Benefit
Guaranty Corporation (or any successor thereto) shall institute proceedings to
terminate any Pension Plan or to appoint a trustee to administer any Pension
Plan, or (iv) the Company or any of its ERISA Affiliates shall withdraw (under
Section 4063 of ERISA) from a Pension Plan, if, as of the date of the event
listed in clauses (i)-(iv) above or any subsequent date, any of the Company or
its ERISA Affiliates has any liability (such liability to include, without
limitation, any liability to the Pension Benefit Guaranty Corporation, or any
successor thereto, or to any other party under Sections 4062, 4063 or 4064 of
ERISA or any other provision of law) resulting from or otherwise associated
with the events listed in clauses (i)-(iv) above for unfunded guarantied vested
benefits under the Pension Plans which exceeds the current value of assets
accumulated in such Pension Plan by more than $100,000,000; or
(k) Loss of Property. All, or a substantial part of, the property,
assets or business of the Company or any Material Subsidiary shall be condemned
or seized and such condemnation or seizure shall have (after taking into
account any insurance or condemnation award) a Material Adverse Effect; or
(l) Cessation of Business. The Company or any Material Subsidiary
shall at any time voluntarily or involuntarily suspend its business or a
substantial part thereof which would constitute a substantial part of, and
would have a Material Adverse Effect; or
(m) Servicer Default. A Servicer Default (as defined in the
Receivables Purchase Agreement) shall occur and be continuing; or
(n) Change of Control. There occurs any Change of Control.
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Mattel, Inc. Amended and Restated Credit Agreement
8.02 Remedies. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Requisite
Lenders, (a) declare the Commitment of each Lender to be terminated, whereupon
such Commitments shall forthwith be terminated; (b) declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable; without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Company; and (c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law; provided, however, that upon the occurrence of any event
-------- -------
specified in paragraph (f) or (g) of Section 8.01 above (in the case of clause
------------
(ii) of paragraph (f) upon the expiration of the 45-day period mentioned
therein), the obligation of each Lender to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of the Administrative Agent or any Lender.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising, including without limitation, under the Transaction Documents.
SECTION 9.
THE ADMINISTRATIVE AGENT
9.01 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
9.02 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.03 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Lenders for
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Mattel, Inc. Amended and Restated Credit Agreement
any recital, statement, representation or warranty made by the Company or any
Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or for the value of any Collateral or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Administrative Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the Properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Requisite Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Requisite Lenders or all Lenders, as applicable, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of
the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01 and 4.02, each Lender that has executed this
------------- ----
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter either sent by the Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender, unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from the Lender prior to any borrowing specifying its objection
thereto and either such objection shall not have been withdrawn by notice to
the Administrative Agent to that effect or the Lender shall not have made
available to the Administrative Agent the Lender's ratable portion of such
borrowing.
9.05 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Company referring to this Agreement, describing such
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Mattel, Inc. Amended and Restated Credit Agreement
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Requisite Lenders in accordance
with Section 8; provided, however, that unless and until the Administrative
--------- -------- -------
Agent shall have received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
9.06 Credit Decision. Each Lender expressly acknowledges that none
of the Administrative Agent-Related Persons has made any representation or
warranty to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Company and its Subsidiaries shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company. Except for
notices, reports and other documents expressly herein required to be furnished
to the Lenders by the Administrative Agent, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Company which may come into the
possession of any of the Administrative Agent-Related Persons.
9.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Lenders shall indemnify upon demand the
Administrative Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), ratably from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the repayment of the Loans and the termination or resignation of
the related Administrative Agent) be imposed on, incurred by or asserted
against any such Person any way relating to or arising out of this Agreement or
any document contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
any such Person under or in connection with any of the foregoing; provided,
--------
however, that no Lender shall be liable for the payment to the Administrative
-------
Agent-Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
- 43 -
Mattel, Inc. Amended and Restated Credit Agreement
disbursements resulting from such Person's gross negligence or willful
misconduct. The obligation of the Lenders in this Section shall survive the
payment of all Obligations hereunder.
9.08 Administrative Agent in Individual Capacity. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory or other business with the
Company and its Subsidiaries and Affiliates as though Bank of America were not
the Administrative Agent hereunder and without notice to or consent of the
Lenders. With respect to its Loans, Bank of America shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same
as though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include Bank of America in its individual capacity.
9.09 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of America shall also constitute its
resignation as Administrative Agent under the Receivables Purchase Agreement.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement, the Requisite Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders which successor administrative
agent shall be consented to by the Company at all times other than during the
existence of an Event of Default (which consent of the Company shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Company, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, and the
term "Administrative Agent" shall mean such successor administrative agent and
the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Section 9 and Sections 10.04 and 10.05 shall inure to its benefit as to any
--------- -------------- -----
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Requisite Lenders appoint a
successor agent as provided for above.
9.10 Other Agents; Lead Managers. None of the Lenders identified on
the facing page or signature pages of this Agreement as a "syndication agent,"
"documentation agent," "co-agent" or "lead manager" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as such. Without limiting the foregoing,
none of the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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Mattel, Inc. Amended and Restated Credit Agreement
SECTION 10.
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company therefrom, shall be effective unless
the same shall be in writing and signed by the Requisite Lenders and the
Company, and acknowledged by the Administrative Agent, and then such waiver
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
-------- -------
shall, unless in writing and signed by each of the Lenders directly affected
thereby and the Company, and acknowledged by the Administrative Agent, do any
of the following:
(a) increase or extend any Lender's Commitment or subject any
Lender to any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or of any fees or other amounts payable hereunder or under
any Loan Document;
(d) change the percentage of the Aggregate Facilities Commitment
or of the aggregate unpaid principal amount of the Loans and Purchasers'
Investment which is required for the Lenders or any of them to take any action
hereunder without the written consent of all of the Lenders;
(e) amend this Section 10.01 or Section 2.13; and
------------- ------------
(f) amend Section 2.01, the definitions of "Pro Rata Share" or
------------
"Requisite Lenders;" or
(g) discharge any Guarantor;
provided further, that no amendment, waiver or consent shall (i), unless in
----------------
writing and signed by the Administrative Agent in addition to the Requisite
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under any Loan Document, or (ii) have the effect of
making any Lender's Pro Rata Share hereunder a different percentage than its
Percentage under the Receivables Purchase Agreement. No notice to or demand on
the Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
Section 10.01 shall be binding upon each holder of any Notes at the time
outstanding, each future holder of the Notes and, if signed by the Company, on
the Company. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased or extended nor the principal owing to such Lender be reduced without
the consent of such Lender.
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Mattel, Inc. Amended and Restated Credit Agreement
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.02; or, in the case of the Company
--------------
or the Administrative Agent, to such other address as shall be designated by
such party in a notice to the other parties, and in the case of any other
party, to such other address as shall be designated by such party in a notice
to the Company or the Administrative Agent. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, upon the earlier of receipt and four Business Days after deposit in the
mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt
has been confirmed by telephone during a Business Day; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and
-------- -------
other communications to the Administrative Agent pursuant to Section 2 shall
not be effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder
shall be given, made or confirmed by means of a telephone call to the intended
recipient at the number specified on Schedule 10.02, it being understood and
--------------
agreed that a voicemail message shall in no event be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
---------------------------------------------------
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Governmental
Rule, have the same force and effect as manually-signed originals and shall be
binding on all Loan Parties, the Administrative Agent and the Lenders. The
Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
-------- -------
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
------------------------------
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
------------
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The
--------------------------------------------
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Notices of Borrowing and Notices of
Conversion/Continuation) purportedly given by or on behalf of the Company even
if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Company shall indemnify each Administrative
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Company. All telephonic notices to and
other communications with the Administrative Agent pursuant to Section 2 may be
---------
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
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Mattel, Inc. Amended and Restated Credit Agreement
10.03 Failure or Indulgence Not Waiver; Remedies Cumulative. No
-----------------------------------------------------
failure or delay on the part of any Lender or any holder of any Note in the
exercise of any power, right or privilege hereunder or under any Note shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof
or of any other right, power or privilege. All rights and remedies existing
under this Agreement or any Notes are cumulative to and not exclusive of, any
rights or remedies otherwise available.
10.04 Fees and Expenses. Whether or not the transactions
-----------------
contemplated hereby shall be consummated, the Company agrees to pay within 30
days after submission of an invoice therefor (a) all the actual and reasonable
out-of-pocket costs and expenses of preparation of the Loan Documents and all
the costs of furnishing all opinions by counsel for the Company (including
without limitation any opinions requested by the Lenders as to any legal
matters arising hereunder), and of the Company's performance of and compliance
with all agreements and conditions contained therein on its part to be
performed or complied with; (b) the cost of delivering to the Lenders any Notes
pursuant to the provisions of this Agreement; (c) the reasonable fees, expenses
and disbursements of the Administrative Agent and the Administrative Agent's
counsel (including the allocated cost of Administrative Agent's inhouse counsel
and staff) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and the Loans and any amendments and
waivers hereto; and (d) after the occurrence of an Event of Default, all actual
and reasonable out-of-pocket costs and expenses (including reasonable fees of
law firms engaged by the Lenders and the reasonable estimate of the allocable
costs of counsel in the staff of legal departments of the Lenders and costs of
settlement) incurred by the Administrative Agent and each Lender in enforcing
any Obligations or in collecting any payments due from the Company hereunder or
under any Notes by reason of such Event of Default or in connection with any
refinancing or restructuring of any Loan Document in the nature of a "work-out"
or of any insolvency or bankruptcy proceeding.
10.05 Indemnity. Whether or not the transactions contemplated hereby
are consummated, the Company shall indemnify and hold the Administrative
Agent-Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
------------------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable fees and
out-of-pocket expenses of counsel and the allocated cost of internal counsel)
of any kind or nature whatsoever which may at any time (including at any time
following repayment of the Loans and the termination, resignation or
replacement of the Administrative Agent or replacement of any Lender) be
imposed on, incurred by or asserted against any such Person arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, the Commitments, the use or proposed use of
the proceeds from the Loans, or any action taken or omitted by any such Person
under or in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any proceeding of the type
referred to in Section 8.01(f) or (g) or appellate proceeding) related to or
---------------
arising out of this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Company shall
----------------------- --------
have no obligation hereunder to any Indemnified Person with respect to
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Mattel, Inc. Amended and Restated Credit Agreement
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person. No Indemnified Person shall be liable
for any damages arising from the use by others of any information or other
materials obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement; provided, that the Company shall
--------
have no obligation hereunder to any Indemnified Person with respect to such
damages resulting from the gross negligence or willful misconduct of such
Indemnified Person. No Indemnified Person shall have any liability for any
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date).
The agreements in this Section shall survive payment of all other
Obligations.
10.06 Set Off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence of and during the continuance of any Event of Default (after the
giving of any notice and the expiration of any grace period contained in the
definition thereof), each Lender and each subsequent holder of any Note is
hereby authorized by the Company at any time or from time to time, without
notice to the Company, or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate any and all deposits
(including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured but not including trust accounts) and any
other indebtedness at any time held or owing by that Lender or that subsequent
holder to or for the credit or the account of the Company and to apply any such
amounts in accordance with the provisions of Section 2.13 irrespective of
------------
whether or not that Lender or that subsequent holder shall have made any demand
hereunder and whether or not such deposits or other indebtedness are otherwise
fully secured and Lender and that subsequent holder is hereby irrevocably
authorized to permit such setoff and appropriation. Each Lender agrees promptly
to notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
-------- -------
such notice shall not affect the validity of such set-off and application.
10.07 Survival of Warranties and of Certain Agreements.
(a) All agreements, representations and warranties made herein
shall survive the execution and delivery of this Agreement, the making of the
Loans hereunder and the execution and delivery of any Notes.
(b) Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of the Company set forth in Sections 2.09, 3,
------------- -
10.04 and 10.05 and the agreements of the Lenders set forth in Sections 2.13,
----- ----- -------------
9, 10.06 and 10.08 shall survive the payment of the Obligations by the Company
- ----- -----
and the termination of this Agreement.
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Mattel, Inc. Amended and Restated Credit Agreement
10.08 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Company may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Company
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) From time to time following the Effective Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Loan
Commitment and outstanding Loans; provided that (i) such Lender concurrently
--------
assigns a ratable portion of its Purchaser Commitment and its Percentage of the
Purchasers' Investment under the Receivables Purchase Agreement, (ii) such
assignment, if not to a Lender or an Affiliate of the assigning Lender, shall
be consented to by the Company at all times other than during the existence of
a Default or Event of Default and by the Administrative Agent (which approval
of the Company shall not be unreasonably withheld or delayed), (iii) a copy of
a duly signed and completed Assignment and Assumption shall be delivered to the
Administrative Agent and the Company, (iv) except in the case of an assignment
(A) to an Affiliate of the assigning Lender or to another Lender or an Approved
Fund (as defined in subsection (g) of this Section) with respect to a Lender or
(B) of the entire remaining Commitment of the assigning Lender, the portion of
the Aggregate Facilities Commitment assigned shall not be less than
$10,000,000, (v) the assigning Lender shall have delivered any Note or Notes
subject to the assignment to the Administrative Agent and (vi) the effective
date of any such assignment shall be as specified in the Assignment and
Assumption, but not earlier than the date which is five Business Days after the
date the Administrative Agent has received the Assignment and Assumption. Upon
satisfaction of the conditions set forth in the prior sentence, any forms
required by Section 10.15 and payment of the requisite fee described below, the
-------------
assignee named therein shall be a Lender for all purposes of this Agreement
effective as of the specified effective date to the extent of the Assigned
Interest (as defined in such Assignment and Assumption), and the assigning
Lender shall be released from any further obligations under this Agreement to
the extent of such Assigned Interest. Until satisfaction of the conditions set
forth herein to any assignment, the Company and Administrative Agent may
continue to deal solely and directly with the assigning Lender in connection
the Assigned Interest. Upon request following satisfaction of the conditions
set forth herein to any assignment, the Company shall execute and deliver new
or replacement Notes to the assigning Lender and the assignee Lender to
evidence Loans made by them. The Administrative Agent's consent to any
assignment shall not be deemed to constitute any representation or warranty by
any Administrative Agent-Related Person as to any matter.
(c) After receipt of a completed Assignment and Assumption, and
receipt of an assignment fee of $3,500 (which fee includes any assignment fees
in connection with the concurrent assignment of interests under the Receivables
Purchase Agreement) from such Eligible Assignee or such assigning Lender
(including in the case of assignments to Affiliates of
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Mattel, Inc. Amended and Restated Credit Agreement
assigning Lenders), the Administrative Agent shall, promptly following the
effective date thereof, provide to the Company and Lenders a revised Schedule
--------
10.02 giving effect thereto.
-----
(d) Upon advance written notice to the Company, any Lender may at
any time sell to one or more commercial banks or other Persons not Affiliates
of the Company (a "Participant") participating interests in any Loans, the
-----------
Commitment of that Lender and the other interests of that Lender (the
"originating Lender") hereunder and under the other Loan Documents; provided,
------------------ --------
however, that (i) such Lender shall concurrently with any sale of a
-------
participation herein sell a ratable participation in the Receivables Purchase
Agreement and thereafter cause any such participation herein to remain ratable
with such participation in the Receivables Purchase Agreement, (ii) the
originating Lender's obligations under this Agreement shall remain unchanged,
(iii) the originating Lender shall remain solely responsible for the
performance of such obligations, (iv) the Company and the Administrative Agent
shall continue to deal solely and directly with the originating Lender in
connection with the originating Lender's rights and obligations under this
Agreement and the other Loan Documents, and (v) no Lender shall transfer or
grant any participating interest under which the Participant shall have rights
to approve any amendment to, or any consent or waiver with respect to this
Agreement except to the extent such amendment, consent or waiver would require
unanimous consent as described in the first proviso to Section 10.01. The
-------------
Company hereby acknowledges and agrees that any such disposition will give rise
to a direct obligation of the Company to the Participant with respect to, and
the Participant shall be entitled to the benefit of, Sections 3.01, 3.02, 3.04,
------------- ---- ----
3.05 and 10.05 as if it were a "Lender." To the extent permitted by law, each
---- -----
Participant also shall be entitled to the benefits of Section 10.06 as though
-------------
it were a Lender, provided such Participant agrees to be subject to Section
-------
2.13 as though it were a Lender.
----
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01, 3.02, 3.04, or 3.05 or 10.05 than the applicable
------------ ---- ---- ---- -----
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Company is notified of the participation
------------
sold to such Participant and such Participant agrees, for the benefit of the
Company, to comply with Section 10.15 as though it were a Lender.
-------------
(f) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and the Note(s) held
by it in favor of any Federal Reserve Bank in accordance with Regulation A of
the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
-----------------
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a
natural person) approved by (A) the Administrative Agent and (B) unless
an Event of Default has occurred and is continuing, the Company (each
such approval not to be unreasonably withheld or
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Mattel, Inc. Amended and Restated Credit Agreement
delayed); provided that notwithstanding the foregoing, "Eligible
--------
Assignee" shall not include the Company or any of the Company's
Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is
----
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed
-------------
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Each Lender agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
provided to it by the Company or any Subsidiary of the Company, or by the
Administrative Agent on such Company's or Subsidiary's behalf, in connection
with this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information for any purpose or in any manner
other than pursuant to the terms contemplated by this Agreement and the
Receivables Purchase Agreement; except to the extent such information (i) was
or becomes generally available to the public other than as a result of a
disclosure by the Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company known to
the Lender; provided, however, that any Lender may disclose such information
-------- -------
(A) at the request or pursuant to any requirement of any Governmental Person to
which the Lender is subject or in connection with an examination of such Lender
by any such authority; (B) pursuant to subpoena or other court process and when
required to do so in accordance with the provisions of any applicable
Governmental Rule; provided, that a Lender shall disclose only the information
--------
required by such request and shall notify the Company in advance of such
disclosure so that the Company may seek an appropriate protective order, (C) to
such Lender's Affiliates and independent auditors and other professional
advisors provided such Persons are obligated to keep such information
confidential, (D) to any other party to this Agreement, and (E) if an Event of
Default exists, in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to any Loan Document or Transaction
Document or the enforcement of rights hereunder or thereunder. Notwithstanding
the foregoing, the Company authorizes each Lender to disclose to any assignee
or Participant and to any prospective assignee or Participant, such financial
and other information in such Lender's possession concerning the Company or its
Subsidiaries which has been delivered to Administrative Agent or the Lenders
pursuant to this Agreement or which has been delivered to the Administrative
Agent or the Lenders by the Company in connection with the Lenders' credit
evaluation of the Company prior to entering into this Agreement; provided that,
--------
unless otherwise agreed by the Company, such assignee or Participant agrees in
writing to such Lender to keep such information confidential to the same extent
required of the Lenders hereunder.
10.09 Severability. In case any provision in or obligation under
this Agreement or any Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
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Mattel, Inc. Amended and Restated Credit Agreement
10.10 Obligations Several. The obligation of each Lender hereunder
is several, and no Lender shall be responsible for any obligation or commitment
of any other Lender hereunder. Nothing contained in this Agreement and no
action taken by Lenders pursuant hereto shall be deemed to constitute Lenders
to be a partnership, an association, a joint venture or another entity.
10.11 Certain Changes. If (a) any changes in accounting principles
from those used in the preparation of the financial statements referred to in
Section 5.08 hereafter occasioned by the promulgation of rules, regulations,
------------
pronouncements and opinions by or requested by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) result in a change in
the method of calculation of financial covenants, standards or terms found in
Sections 1, 6 and 7, or (b) the Company changes the manner in which its fiscal
---------- - -
year, fiscal quarters and fiscal months are determined, the parties hereto
agree to enter into negotiations in order to amend the appropriate provisions
of this Agreement so as to equitably reflect such changes with the desired
result that the criteria for evaluating the Company's financial condition and
operations or establishing limitations hereunder shall be the same after such
changes as if such changes had not been made.
10.12 Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
10.13 Counterparts. This Agreement and any amendments, waivers,
consents, or supplements may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
10.14 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
--------
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.15 Tax Forms. (a) Each Lender that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
-------
Lender") shall deliver to the Administrative Agent, prior to receipt of any
------
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Person and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Person by the Company pursuant to this Agreement) or IRS Form W-8ECI or
any successor thereto (relating to all payments to be made to such Person by
the Company pursuant to this Agreement) or such other evidence satisfactory to
the Company and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (i) promptly submit to the Administrative Agent
such
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Mattel, Inc. Amended and Restated Credit Agreement
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
the Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Company pursuant to this Agreement, (ii) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (iii) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Governmental Rules that the Company make any deduction or withholding for taxes
from amounts payable to such Person. If such Person fails to deliver the above
forms or other documentation, then the Administrative Agent may withhold from
any interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction.
(b) Upon the request of the Administrative Agent, each Lender that
is a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent; provided, that no
--------
Lender shall have any obligation hereunder to the Administrative Agent with
respect to amounts resulting from the gross negligence or willful misconduct of
the Administrative Agent.. The obligation of the Lenders under this Section
shall survive the termination of the Aggregate Facilities Commitment, repayment
of all Obligations and the resignation of the Administrative Agent.
10.16 APPLICABLE LAW.
(a) This Agreement, any Notes and the other Loan Documents shall
be governed by, and shall be construed and enforced in accordance with, the
internal laws of the State of California, without regard to conflicts of laws
principles.
(b) Any legal action or proceeding with respect to this Agreement
and any other Loan Documents may be brought in the courts of the State of
California or of the United States for the Central District of California, and
by execution and delivery of this Agreement, each of the Company, the
Administrative Agent and the Lenders consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Each of the
Company, the Administrative Agent and the Lenders irrevocably waives any
objection, including any objection
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Mattel, Inc. Amended and Restated Credit Agreement
to the laying of venue or based on the grounds of forum non conveniens, which
it may now or hereafter have to the bringing of any action or proceeding in
such jurisdiction in respect of this Agreement or any document related hereto.
The Company, the Administrative Agent and the Lenders each waive personal
service of any summons, complaint or other process, which may be made by any
other means permitted by California law.
10.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 Amendment and Restatement. This Agreement amends and restates
the Existing Multi-Year Agreement. All notes issued under the Existing
Multi-Year Credit Agreement are hereby cancelled.
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Mattel, Inc. Amended and Restated Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
MATTEL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and
Treasurer
S - 1
Mattel, Inc. Amended and Restated Credit Agreement
BANK OF AMERICA, N.A.,
as Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
S - 2
Mattel, Inc. Amended and Restated Credit Agreement
BNP PARIBAS,
as a Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
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Mattel, Inc. Amended and Restated Credit Agreement
CITICORP USA, INC.,
as a Syndication Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name ▇▇▇▇ ▇▇▇▇▇▇
Title Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
FLEET NATIONAL BANK,
as a Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
SOCIETE GENERALE,
as a Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title Director, Corporate Banking
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Mattel, Inc. Amended and Restated Credit Agreement
THE BANK OF NOVA SCOTIA
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Director
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Mattel, Inc. Amended and Restated Credit Agreement
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
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Mattel, Inc. Amended and Restated Credit Agreement
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Associate
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Mattel, Inc. Amended and Restated Credit Agreement
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
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Mattel, Inc. Amended and Restated Credit Agreement
MANUFACTURERS & TRADERS TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
SANPAOLO IMI S.p.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: E.V.P./General Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ PEITTY CHOU
------------------------------------------------
Name: Peitty Chou
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
CREDIT LYONNAIS, Los Angeles Branch
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President and Manager
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Mattel, Inc. Amended and Restated Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
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Mattel, Inc. Amended and Restated Credit Agreement
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇. ▇. VAN DE BERGHE
------------------------------------------------
Name: ▇. ▇. Van de Berghe
Title: Vice President
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Mattel, Inc. Amended and Restated Credit Agreement