Exhibit 10.6
AGREEMENT
DATED 30th November, 2001
Between
SOCIETE GENERALE BANK NEDERLAND N.V.
as the Bank
MATTEL INTERNATIONAL HOLDINGS B.V.
as Depositor
and
MATTEL FRANCE S.A.
and
MATTEL GmbH
as the Sellers
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MASTER AGREEMENT
FOR THE
TRANSFER OF RECEIVABLES
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CONTENTS
Clause Page
1. Definitions ...................................................... 1
2. Purpose and Commitment Duration .................................. 20
3. Nature of Obligations ............................................ 21
4. Conditions Precedent ............................................. 22
5. Transfer of Relevant Receivables ................................. 23
6. Collection Mandates and Notices of Transfer ...................... 25
7. Collection ....................................................... 26
8. Settlement and Payments .......................................... 28
9. Deemed Collections ............................................... 31
10. Representations Relating to Transferred Receivables 34
11. Representations Relating to Eligible Transferred Receivables ..... 35
12. General Representations .......................................... 35
13. Information Undertakings ......................................... 38
14. General Undertakings ............................................. 41
15. Events of Early Amortisation ..................................... 49
16. The Bank's Funding ............................................... 53
17. Cancellation of the Maximum Amount of the Bank's Funding ......... 56
18. Deposits ......................................................... 56
19. Transfer Fee ..................................................... 57
20. Commitment Fee ................................................... 61
21. Taxes ............................................................ 62
22. Increased Costs .................................................. 63
23. Indemnities ...................................................... 65
24. Interest on Late Payments ........................................ 67
25. Fees and Expenses ................................................ 67
26. Payments ......................................................... 67
27. Substitution and Agency .......................................... 68
28. Confidentiality .................................................. 68
29. Transferability .................................................. 69
30. Notices .......................................................... 69
31. Waivers and Remedies Cumulative .................................. 70
32. Authentication ................................................... 70
33. Severability ..................................................... 70
34. Jurisdiction and Waiver of Immunity .............................. 71
35. Governing Law .................................................... 71
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Schedules Page
1. Conditions Precedent Documents
2. Criteria for Relevant Receivables and Eligible Transferred Receivables
Part I - Relevant Receivables
Part II -Eligible Transferred Receivables
3. Form of Assessment Reports
Part I - For use by Mattel GmbH
Part II - For use by Mattel France S.A.
4. Form of Notice of Transfer
5. Form of Transfer Documents
Part I - For use with French law Sales Contracts
Part II - For use with German law Sales Contracts
6. Form of Transfer Request
7. Form of Mandate Letter
8. Form of Solvency Certificates
Part I - Form of Auditors' Certificate
Part II - Form of Officer's Certificate
9. Reservations
Signatories
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THIS AGREEMENT is dated 30th November, 2001 and made BETWEEN:
(1) MATTEL INTERNATIONAL HOLDINGS B.V., a limited liability company
organised under the laws of the Netherlands, having its registered
office at ▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, registered
with the Commercial Register of the Chamber of Commerce and Industries
at Amsterdam under number 33 297 747 (the "Depositor");
(2) MATTEL FRANCE S.A., a societe anonyme organised under the laws of
France, having its registered office at ▇▇-▇▇ ▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, and registered with the Trade and Companies
Registry of Creteil under number 692 039 688;
(3) MATTEL GmbH, a limited liability company organised under the laws of
Germany, having its registered office at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and registered with the commercial registry of the
local court of Langen under number HRB3552,
(each of (2) and (3) being a "Seller" and together the "Sellers"); and
(4) SOCIETE GENERALE BANK NEDERLAND N.V., a limited liability company
organised under the laws of the Netherlands and licensed as a credit
institution, having its registered office at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, registered with the Trade Register of the
Chamber of Commerce at Amsterdam, The Netherlands under number 33 196
218 (the "Bank").
IT IS AGREED as follows:
1. DEFINITIONS
1.1 Interpretation
In this Agreement:
"Additional Deposit"
means the additional deposit made by the Depositor with the Bank in
accordance with the terms of Clause 18 (Deposits) and the Master
Additional Deposit Agreement.
"Adverse Claim"
means any claim of ownership, lien, security interest, mortgage,
charge, or encumbrance, or other right or claim by or of any person.
"Affiliate"
means a Subsidiary or a holding company of a person or any other
Subsidiary of that holding company and for these purposes "holding
company" in respect of a person means an entity of which that person is
a Subsidiary.
"Agreement Expiry Date"
means the earlier of the following:
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(a) the first Business Day after the Commitment Termination Date
on which the Bank's Funding and all other amounts due to the
Bank under this Agreement have been repaid or paid in full; or
(b) the first anniversary of the Commitment Termination Date.
"Amortisation Event"
means an Event of Early Amortisation or any event which, with the
giving of notice, expiration of any applicable grace period,
determination of materiality or fulfilment of any other applicable
condition (or any combination of the foregoing), would constitute an
Event of Early Amortisation.
"Amount Held by the Depositor"
means, at any time, the aggregate amount representing the Bank's Share
of Collections, which is standing to the credit of the Depositor's
Account.
"Amount Withheld by the Bank"
means, at any time, the amount representing the Bank's Share of
Collections, which is standing to the credit of the Bank's Account.
"Antalis"
means Antalis S.A., a company organised under French law, having its
registered office at ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, registered
with the Companies Registry of Paris under n(degrees) B ▇▇▇ ▇▇▇ ▇▇▇.
"Assessment Date"
means the last day of each calendar month or, in relation to any
Initial Transfer Date, any other day agreed upon between the Bank and
the Depositor (acting on behalf of the Obligors).
"Assessment Report"
means a report drawn up by a Seller or the Bank, as the case may be, on
an Assessment Date or Interim Assessment Date, substantially in the
form of the appropriate part of Schedule 3 for that Seller or in such
other modified form as may be agreed between the Obligors and the Bank.
"Associated Refinancing"
means, in relation to any Tranche, a refinancing transaction the amount
of which is applied exclusively to fund such Tranche.
"Auditors' Certificate"
means a certificate from a Seller's auditors substantially in the form
of the appropriate part of Part I of Schedule 8.
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"Authorisation"
means an authorisation, permit, authority, consent, approval,
resolution, agreement, certificate, notarisation, licence, exemption,
filing, registration or similar matter which may be required from any
authority or person.
"Average Term of Associated Refinancings"
means, at any time, in relation to any Tranche, the number of days
determined as being the weighted average of the number of days to
elapse until the Maturity Date of each Associated Refinancing relating
to such Tranche.
"Average Term of Transferred Receivables"
means, at any time, in relation to the Transferred Receivables, the
number of days determined as being the weighted average of the number
of days to elapse until the end of the month during which such
Transferred Receivables become due and payable.
"Bank's Account"
means the account in the Bank's name opened by the Bank in the books of
Societe Generale, Amsterdam branch, which shall record the Collections
received by the Bank.
"Bank's Funding"
means, at any time, the aggregate outstanding amount at that time of
Payments funded by the Bank out of its own resources (and not, for the
avoidance of doubt, funded by either Deposit) which have not been
repaid out of the allocation of Collections.
"Bank's Percentage"
means the percentage on each Initial Transfer Date and on each
Information Date immediately preceding a Transfer Date which (a) the
aggregate amount of the Bank's Funding on that date and the
Subordinated Deposit on that date bears to (b) the Net Pool Balance
(being the Net Pool Balance as at the immediately preceding Assessment
Date or Interim Assessment Date, as the case may be). Such Bank's
Percentage shall remain constant from the date it is calculated or
recalculated until the next Information Date on which it is
recalculated.
"Bank's Share of Collections"
means an amount initially equal to zero increased on each Settlement
Date, by the amount equal to (i) the aggregate Euro Amount of
Collections from the Collection Period ending on the immediately
preceding Assessment Date multiplied by (ii) the Bank's Percentage as
at the Initial Transfer Date or the Information Date occurring during
that Collection Period (as appropriate) and which is allocated in
accordance with Clause 8.2 (Allocation of Collections on Settlement
Dates which are not Transfer Dates) or Clause 8.3 (Allocation of
Collections on Settlement Dates which are Transfer Dates).
"BT Rate"
means the interest rate per annum applicable to the relevant tranche of
billets de tresorerie, issued or to be issued from time to time by
Antalis, and set in accordance with Clause 19.3 (Refinancing Rates).
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"Business Day"
means any day other than a Saturday or a Sunday on which banks are
simultaneously open for business in Amsterdam, Paris and Frankfurt and
which is a TARGET Day.
"Closing Documents"
means, this Agreement, the Master Subordinated Deposit Agreement, the
Master Additional Deposit Agreement, each Transfer Document and each
Mandate Letter and any other document designated as such by the Bank
and the Obligors.
"Collection Mandate"
has the meaning ascribed to it in Clause 6.1 (Collection Mandates).
"Collection Period"
means the period commencing on any Assessment Date, excluded, and
ending on the next following Assessment Date, included.
"Collections"
means, at any time, in relation to the Transferred Receivables the
aggregate of:
(a) all cash collections received by the Sellers or, as the case
may be, by the Bank which have actually been paid by the
Debtors or by any other person obliged to make payment in
respect of such Transferred Receivables or as a result of the
enforcement of the Related Security;
(b) Deemed Collections; and
(c) all payments made by the Sellers under Clause 5.5 (Transfer
back of Transferred Receivables) or Clause 9.2 (Transfers and
Deemed Collections).
"Commercial Discount"
means in relation to any Transferred Receivable, any decrease in the
face value of such receivable resulting from the granting of any rebate
or any discount for prompt payment, for quantity or as fidelity
premium.
"Commitment"
means the commitment of the Bank to make Payments in accordance with
this Agreement.
"Commitment Fee"
means the commitment fee to be paid in accordance with Clause 20
(Commitment Fee).
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"Commitment Termination Date"
means the earliest of the following dates:
(a) 30th June, 2002 or, if that is not a Business Day, the
immediately preceding Business Day, (as this date may be
extended from time to time in accordance with Clause 2.2
(Duration of Commitment); or
(b) the date on which the Commitment is terminated in accordance
with Clauses 17.1 (Reduction of the Maximum amount of the
Bank's Funding), 15.17 (Termination) or 21.1 (Gross up).
"Consolidated Tranche"
means any Tranche resulting from the consolidation of two or more
initial Tranches in accordance with Clause 16.5 (Division and
Consolidation of Tranches).
"Controlling Owner of the Sellers"
means a company that owns and controls (whether directly or indirectly)
at least 90% of the issued and fully paid up share capital and voting
rights of each Seller.
"CP Rate"
means the interest rate per annum applicable to the relevant tranche
euro-commercial paper, issued or to be issued from time to time by
Antalis, and set in accordance with Clause 19.3 (Refinancing Rates).
"Credit Insurance Policy"
means any credit insurance policy subscribed to by a Seller with a
Credit Insurer in order to cover the insolvency risk of any Debtor.
"Credit Insurer"
means any insurance company with which a Seller enters into a Credit
Insurance Policy in order to cover the insolvency risk of any Debtor
under one or more Relevant Receivables.
"Credit Note"
means, in relation to any Transferred Receivable, any rebate on, or
decrease in the face value of, such receivable granted by a Seller in
accordance with the Sales Administration Guidelines.
"Debtor"
means the primary obligor in respect of one or more Relevant
Receivables or Transferred Receivables.
"Deemed Collections"
means any amount that any Seller is deemed to have received in the
circumstances set out in Clause 9 (Deemed Collections).
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"Default Base"
means, in relation to any Collection Period (the "Relevant Collection
Period"), the total amount of the Relevant Receivables which had a
Maturity Date during the Collection Period which was two Collection
Periods prior to the Relevant Collection Period.
"Default Rate"
means, in relation to any Collection Period, the ratio determined as of
the Assessment Date related to such Collection Period by dividing (a)
the aggregate Euro Amount of the Outstanding Amount of Relevant
Receivables which became Defaulted Receivables during such Collection
Period, by (b) the Default Base for such Collection Period.
"Defaulted Receivable"
means, at any time, any Relevant Receivable:
(a) which remains unpaid by the relevant Debtor more than 60 days after
the Maturity Date of such Relevant Receivable;
(b) which is owed by a Debtor which has entered into Insolvency
Proceedings and which has not been counted under (a) above;
(c) for which, the relevant Debtor being doubtful, specific provisions
have been made in the accounts of the relevant Seller or which has
been written off in that Seller's accounts in accordance with
applicable accounting principles (and which has not been counted
for under (a) or (b) above).
"Delinquency Rate"
means, in relation to any Collection Period, the ratio determined as of
the Assessment Date on which that Collection Period ends by dividing
(a) the aggregate Euro Amount of Delinquent Receivables on such
Assessment Date, by (b) the Euro Amount of the Outstanding Amount of
Relevant Receivables on such Assessment Date.
"Delinquent Receivable"
means, at any time, any Relevant Receivable which:
(a) remains unpaid by the relevant Debtor more than 30 days after the
Maturity Date of such Relevant Receivable; and
(b) is not a Defaulted Receivable.
"Deposit"
means the Additional Deposit or the Subordinated Deposit as the context
so requires.
"Depositor's Account"
means the current account in the Depositor's name opened by the
Depositor in the books of Societe Generale, Amsterdam branch, for the
purposes of this Agreement.
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"Dilution"
means any Credit Notes, Commercial Discounts, decreases in the face
value of any Transferred Receivables (including, without limitation, as
a result of returned merchandise), discharges by way of set-off and
exchange fees and expenses on any Transferred Receivables charged by a
bank in connection with a payment made in any currency other than Euro.
"Dilution Rate"
means, in relation to any Collection Period, the ratio determined as of
the Assessment Date relating to that Collection Period by dividing the
amount of Dilutions arising in that Collection Period by the Euro
Amount of the Outstanding Amount of Relevant Receivables on the
Settlement Date immediately following the Assessment Date on which such
Collection Period has begun.
"Effective Date"
means, in relation to any Associated Refinancing, the Business Day on
which any amount raised under such Associated Refinancing is applied by
the Bank to a Tranche.
"Eligible Transferred Receivable"
means a Transferred Receivable which satisfies the criteria set out in
Part II of Schedule 2.
"EONIA"
means the reference rate known as the "Euro Overnight Index Average" in
the form of the rate listed under the aegis of the European Central
Bank and published at approximately 7.00 p.m. (Brussels time) by
TELERATE (page 247) or REUTERS (page EONIA) (or whatever page that may
be substituted therefor), and published (a) in relation to any
Associated Refinancing based on the EONIA, one Business Day after the
Effective Date of such Associated Refinancing, for the period of such
Associated Refinancing and (b) in any other cases, one Business Day
following the date when sums due shall bear interest at such rate.
"Euro" or "(Euro)"
means the currency of the participating member states of the European
Communities in accordance with the definition given in the article
109-L-4 of the European Union Treaty and in the Council Regulation (EC)
n(degrees) 974/98 of 3rd May, 1998 on the introduction of the euro.
"Euro Amount"
means, on any date:
(a) in relation to any Receivable, (i) the amount of such Receivable
if denominated in Euro or (ii) the amount changed into Euro of
such Receivable if denominated in a Euro-Linked Currency;
(b) in relation to any Collection, Credit Note or Commercial Discount,
(i) the amount thereof in respect of Receivables denominated in
Euro or (ii) the amount thereof changed into Euro in respect of
Receivables denominated in a Euro-Linked Currency,
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and for the purpose of this definition, a "Receivable" shall mean, as
appropriate, a Relevant Receivable, a Transferred Receivable, a
Delinquent Receivable, a Defaulted Receivable or an Eligible
Transferred Receivable.
"EURIBOR"
means, in relation to any period of a whole number of months, the
reference rate per annum known as the "European Inter-Bank Offered
Rate" in the form of the rate listed under the aegis of the European
Banking Federation and published at approximately 11.00 a.m. (Brussels
time) on TELERATE (page 248 and 249) or REUTERS (page EURIBOR) (or
whatever page that may be substituted therefor), two Business Days
before the first day of that period for the offering of deposits in
Euros for, and from the first day of, such period.
"EURIBOR Plus Rate"
means, in relation to a given period, the applicable EURIBOR for the
whole number of months closest to that period, plus a margin of 0.25
per cent. per annum or any such other margin as may be agreed from time
to time between the Bank and the Obligors.
"Euro-Linked Currencies"
means the national currency units of the member states of the European
Communities that adopt or have adopted the Euro as their currency in
accordance with legislation of the European Union relating to European
Economic and Monetary Union.
"Event of Early Amortisation"
means any of the events set out in Clause 15 (Events of Early
Amortisation).
"Excess Concentration"
means, on any Assessment Date the positive difference, if any, between:
(a) the largest of the following amounts:
(i) the Outstanding Amount of Eligible Transferred
Receivables standing against the largest Debtor
bearing a short term rating of A-1+, A1 or P1 or
being subject to an equivalent credit risk
appreciation, whether public or not, by the Rating
Agencies;
(ii) the Outstanding Amount of Eligible Transferred
Receivables standing against the two largest Debtors
bearing a short term rating of A-2 or P2 or being
subject to an equivalent credit risk appreciation,
whether public or not, by the Rating Agencies;
(iii) the Outstanding Amount of Eligible Transferred
Receivables standing against the three largest
Debtors bearing a short term rating of A-3 or P3 or
being subject to an equivalent credit risk
appreciation, whether public or not, by the Rating
Agencies; and
(iv) the Outstanding Amount of Eligible Transferred
Receivables standing against the five largest Debtors
bearing no short term rating;
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and
(b) the Rate of Overcollateralisation multiplied by the
Outstanding Amount of Eligible Transferred Receivables,
provided that in relation to paragraph (a):
(A) if a Debtor is an Affiliate of another Debtor, the Excess
Concentration for such Debtors shall be calculated as if such
Debtors were one Debtor;
(B) if a Debtor is a member of a network, association or buying
group, which is mainly active in the toys business and the
main purpose of which is to purchase toys directly or
indirectly, or to guarantee the liabilities of its members in
connection with the purchase of toys or to negotiate on behalf
of its members the terms of payments in relation to the
purchase of toys, the Excess Concentration for that Debtor
shall be calculated as if it, together with all the other
Debtors member of the same such network, association or buying
group were one Debtor;
(C) in relation to Debtors which are members of:
(1) ▇▇▇▇▇▇▇, the Excess Concentration of the 60 biggest
of those Debtors shall be calculated as if those
Debtors were one Debtor;
(2) Systeme U or Intermarche, the Excess Concentration of
the Debtors which are the two biggest purchasing
centre operations and the three biggest hypermarket
or supermarket operations amongst those Debtors shall
be treated as one Debtor,
and for these purposes of this paragraph (C), the size of the
Debtors concerned shall be determined by the aggregate amount
of Eligible Transferred Receivables owing by each such Debtor.
"Excluded Tax"
means any Tax arising other than by reason of a change of law, in any
jurisdiction by reason of the Bank or any of its Affiliates:
(a) being incorporated or resident in that jurisdiction; or
(b) having or being deemed to have an office, branch or permanent
establishment in that jurisdiction otherwise than by reason
of:
(i) any connection between any Obligor or its Affiliates
and such jurisdiction; or
(ii) the performance by the Bank of its obligations
pursuant to or contemplated by this Agreement or any
of the other Closing Documents; or
(iii) the performance by any of the Obligors or their
Affiliates of their obligations pursuant to or
contemplated by this Agreement or any of the other
Closing Documents, or any of their respective
employees or officers, whether or not also employees
or officers of any Obligor, acting in each case as
principal, agent or representative of an Obligor, by
reason of their involvement (if any)
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in this Agreement and the transactions contemplated by the
Closing Documents,
but for the avoidance of doubt, the Parties agree that the Excluded Tax
shall include (A) any Tax imposed on Societe Generale by reason of its
involvement (if any) in this Agreement and the transactions
contemplated by the Closing Documents and (B) any Tax imposed on the
Bank, acting outside the Netherlands through Societe Generale or any of
its Affiliates or any of their respective employees or officers,
whether or not also employees or officers of the Bank, acting in each
case as principal, agent or representative of the Bank, by reason of
their involvement (if any) in this Agreement and the transactions
contemplated by the Closing Documents.
"Financial Indebtedness"
means any indebtedness in respect of:
(a) moneys borrowed at banks and other financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance or documentary credit;
(d) receivables sold or discounted (otherwise than on a non-
recourse basis);
(e) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset;
(f) any lease entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
(g) any currency swap or interest swap, cap or collar arrangement
or any other derivative instrument;
(h) any amount raised under any other transaction having the
commercial effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance against
financial loss in relation to the indebtedness of any person.
"Group"
means the Depositor, each Seller and the Depositor's Subsidiaries.
"Increase in the Additional Deposit"
means, on any Transfer Date, the positive difference between:
(a) the difference between (i) the nominal Euro Amount of
Relevant Receivables to be transferred on such date, and
(ii) the Euro Amount of Collections related to the latest
Collection Period, and
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(b) the sum of the Variation in the Bank's Funding and of the
Variation in the Subordinated Deposit as calculated on such
Transfer Date.
"Increase in the Subordinated Deposit"
means, on any Settlement Date, the positive difference, if any, between
(a) the amount of the Subordinated Deposit on such date, calculated in
accordance with Clause 18 (Subordinated Deposit), and (b) the amount of
the Subordinated Deposit on the preceding Settlement Date.
"Information Date"
means the fourth Business Day following each Assessment Date.
"Initial Transfer Date"
means any Transfer Date on which the Bank's Funding is (without taking
into account any Payment to be made on such Transfer Date) zero.
"Insolvency Proceedings"
means proceedings and circumstances of the type referred to in Clauses
15.6 (Insolvency) to 15.10 (Analogous proceedings) inclusive.
"Interim Assessment Date"
means, so long as any Tranche is outstanding, any Business Day
determined by mutual agreement between the Obligors and the Bank.
"Interim EONIA Rate"
means the EONIA, plus a margin of 0.25 per cent. per annum (or such
other margin as may be agreed for time to time between the Bank and the
Obligors).
"Mandate Letter"
means each mandate letter substantially in the form of Schedule 7
executed by each Obligor in favour of Societe Generale containing the
instructions of each Obligor for operation of its Seller's Account or
the Depositor's Account (as appropriate).
"Margin"
means zero point one eight per cent. (0.18%) per annum (provided that
if an Event of Early Amortisation is outstanding the Margin shall, from
the date such event occurs until it is remedied, be two point five zero
per cent. (2.50%) per annum).
"Master Additional Deposit Agreement"
means the agreement dated the date of this Agreement between the Bank
and the Depositor, under which the Depositor makes the Additional
Deposit with the Bank.
"Master Subordinated Deposit Agreement"
means the agreement dated the date of this Agreement between the Bank
and the Depositor, under which the Depositor makes the Subordinated
Deposit with the Bank.
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"Material Adverse Effect"
means a material adverse effect:
(a) on the ability of any Obligor to comply with or perform its
payment or other material obligations under the Closing
Documents; or
(b) on the legal effectiveness or validity of any of the Closing
Documents; or
(c) on the Bank's rights, title or interest in, or the
collectability of Transferred Receivables (i) in an aggregate
Euro Amount of (euro)5,000,000 or (if higher) (ii) the
aggregate Euro Amount of which comprises 5 per cent. or more
of the aggregate Euro Amount of all Transferred Receivables.
"Material Seller Subsidiary"
as to a Seller, means a direct or indirect Subsidiary, including its
direct or indirect Subsidiaries, which meets any of the following
conditions:
(a) the Seller's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total
assets of the Seller and its Subsidiaries consolidated as of
the end of the most recently completed fiscal year; or
(b) the Seller 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
Seller and its Subsidiaries consolidated as of the end of the
most recently completed fiscal year; or
(c) the Seller and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting
principle of the Subsidiary exceeds 10 percent of such income
of the Seller and its Subsidiaries consolidated for the most
recently completed fiscal year.
"Mattel Wholly-Owned Subsidiary"
means a company as to which the Parent owns and controls (whether
directly or indirectly) the entirety (other than any minority holdings
of share capital or voting rights by directors of such company as
required by applicable law) of the issued and paid up share capital and
voting rights of such company.
"Maturity Date"
means:
(a) in relation to any Tranche and/or any Associated Refinancing,
the date on which the principal amount of the Associated
Refinancing falls due for repayment; and
(b) in relation to any Transferred Receivable or Relevant
Receivable, the date on which such Transferred Receivable or
Relevant Receivable becomes due and payable by the relevant
Debtor in accordance with the terms of the relevant Sales
Contract.
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"Maximum Amount of the Bank's Funding"
means:
(a) from 1st February to 31st July (both dates inclusive) in each
year, (Euro)60,000,000; and
(b) at any other time, (Euro)150,000,000.
"Net Pool Balance"
means, at any time, the Euro Amount of Eligible Transferred Receivables
less the Excess Concentration.
"Notice of Transfer"
means any notice issued by the Bank to any Debtor in accordance with
Clause 6.3 (Termination of Collection Mandates and Notices of
Transfer), substantially in the form of Schedule 4 of this Agreement.
"Obligor"
means the Depositor and each Seller.
"Officer's Certificate"
means a certificate from an authorised signatory of the Depositor
substantially in the form of Part II of Schedule 8.
"Original Accounts"
means the annual accounts of each Obligor (consolidated if available
and audited in the case of each Seller) and the audited consolidated
accounts of the Parent for the financial year ending 31st December,
2000.
"Outstanding Amount"
means, at any time in relation to Transferred Receivables or Eligible
Transferred Receivables, the aggregate amount outstanding in respect of
such Transferred Receivables or Eligible Transferred Receivables (as
appropriate).
"Parent"
means Mattel Inc., a corporation organised under the laws of the state
of Delaware, U.S.A.
"Party"
means a party to this Agreement.
"Payment"
means any payment made by the Bank to a Seller in accordance with
Clause 5.3 (Payments and Transfers).
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"Portion of Tranche"
means any part of a Tranche.
"Pro Rata Share"
means, in relation to a Seller and a particular period, the average
amount of Transferred Receivables transferred by that Seller to the
Bank during that period expressed as a percentage of the average amount
of the Transferred Receivables transferred to the Bank by all Sellers
during that period.
"Provisional Funding Rate"
means, on any date, the interest rate per annum determined as the sum
of:
(a) EURIBOR for one month published on such date; and
(b) 5 per cent.
"Rate of Overcollateralisation"
means the higher of the two following rates:
(a) 15%; and
(b) the ratio between:
(i) the Worst Default Assumption; and
(ii) the Outstanding Amount of Eligible Transferred
Receivables as of the latest Assessment Date.
"Rating Agencies"
means each of Standard & Poor's Rating Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and ▇▇▇▇▇'▇ France S.A., or such other
entity to which it may transfer the whole of its credit rating business
or with which it may consolidate, amalgamate or merge.
"Reference Banks"
means Credit Lyonnais, Credit Agricole Indosuez and BNP Paribas, each
acting through its principal Paris office.
"Refinancing Rate"
means, in relation to any Associated Refinancing, any one of the
following rates as determined in accordance with Clause 19.3
(Refinancing Rates):
(a) the BT Rate;
(b) the CP Rate;
(c) the Interim EONIA Rate; or
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(d) the Relevant EURIBOR Plus Rate (or the EURIBOR Plus Rate for one
month EURIBOR where specified).
"Related Rights"
means, with respect to any Relevant Receivable, Transferred Receivable
or Eligible Transferred Receivable (each a "Receivable") all of the
Seller concerned's rights, privileges, benefits and claims of any
nature whatsoever relating to that Receivable under the Sales Contract
under which the Relevant Receivable, Transferred Receivable or Eligible
Transferred Receivable arises (other than Related Security).
"Related Security"
means, with respect to any Relevant Receivable, Transferred Receivable
or Eligible Transferred Receivable (each a "Receivable") or Sales
Contract all Credit Insurance Policies (if any), security, deposits,
guarantees, indemnities, letters of credit, bills of exchange, cheques,
other negotiable instruments, warranties, retention of title, priority
claims and other agreements and arrangements created or made by the
relevant Debtor supporting or securing payment of such Receivable and
all other rights and benefits attached to such Receivable.
"Relevant EURIBOR Plus Rate"
means, in relation to any Associated Refinancing based on billets de
tresorerie or euro-commercial papers, the EURIBOR Plus Rate for the
whole number of months which is the closest to the terms of such
billets de tresorerie or euro-commercial papers.
"Relevant Group"
means the Depositor, each Seller, each company that is both a
Controlling Owner of the Sellers and a subsidiary of the Depositor, and
each Material Seller Subsidiary.
"Relevant Percentage"
means 90%.
"Relevant Receivable"
means a receivable satisfying the criteria set out in Part I of
Schedule 2.
"Reservations"
means those reservations or qualifications as to matters of law
referred to in Schedule 9.
"Reserve for Future Transfer Fee"
means in relation to any Tranche and on each Information Date, the
amount of such Tranche multiplied by:
(a) the Provisional Funding Rate;
(b) the positive difference (if any) between (i) the Average Term of
Transferred Receivables plus 20 and (ii) the Average Term of
Associated Refinancings; and
(c) 1/360.
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"Reserve for Transfer Fee"
means, at any time, in relation to any Tranche, the aggregate of:
(a) any Transfer Fee which shall fall due on any Transfer Fee Payment
Date related to any existing Associated Refinancing; and
(b) the Reserve for Future Transfer Fee.
"Residual Amount of the Reserve for Transfer Fee"
means, at any time and in relation to any Tranche, the amount
determined as the positive difference between:
(a) the Reserve for Transfer Fee as calculated on the Information
Date immediately preceding the latest Transfer Date; and
(b) the aggregate amount of Transfer Fee paid under such Tranche out
of the Reserve for Transfer Fee, since such Information Date in
accordance with Clause 19.6 (Payment of Transfer Fee).
"Sales Administration Guidelines"
means the sales administration, credit management, recovery and
collection procedures of each Seller described in the due diligence
report (and appendices thereto) dated October 2001 prepared by the Bank
in relation to this Agreement.
"Sales Contract"
means each contract in writing (or evidenced in writing by a purchase
order or confirmation, delivery note or invoice in each case (excepting
delivery notes) referring to or containing the Seller's standard terms
and conditions of sale) between a Seller and a Debtor under which
Relevant Receivables, Transferred Receivables or Eligible Transferred
Receivables arise or are outstanding.
"Seller's Account"
means the current account opened by each Seller in its own name in the
books of Societe Generale, Amsterdam branch for the purposes of this
Agreement.
"Sellers' Percentage"
means one less the Bank's Percentage.
"Sellers' Share of Collections"
means an amount initially equal to zero increased, on each Settlement
Date, by an amount equal to (i) the aggregate Euro Amount of
Collections from the Collection Period ending on the immediately
preceding Assessment Date multiplied by (ii) the Sellers' Percentage as
at the Initial Transfer Date or the Information Date occurring during
that Collection Period (as appropriate) and which is allocated in
accordance with Clause 8.2 (Allocation of Collections on Settlement
Dates which are not Transfer Dates) or Clause 8.3 (Allocation of
Collections on Settlement Dates which are Transfer Dates).
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"Settlement Date"
means the seventh Business Day after an Assessment Date (or such other
day as the Parties may agree from time to time).
"Societe Generale"
means the Societe Generale, a French credit institution, having its
registered office at ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
registered with the Companies Registry of Paris under n(degrees) B 552
120 222.
"Stamp Duty"
means any stamp duty, stamp duty reserve tax, registration or other
transaction or documentary tax (including, without limitation, any
penalty or interest payable in connection with any failure to pay or
any delay in paying any of the same).
"Subordinated Deposit"
means the subordinated deposit made by the Depositor with the Bank in
accordance with the terms of Clause 18.1 (Subordinated Deposit) and the
Master Subordinated Deposit Agreement.
"Subsidiary"
means an entity from time to time of which a person has direct or
indirect control or owns directly or indirectly 50 per cent. or more of
the share capital or similar right of ownership.
"TARGET Day"
means a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is operating.
"Taxes"
means all present and future transfer, value added and sales taxes,
notarial and registration fees, Stamp Duties or other charge or
withholdings in the nature or on account of income tax together with
interest thereon and penalties with respect thereto, if any, and
"Taxation" shall be construed accordingly.
"Tranche"
means all or a portion of the Bank's Funding.
"Transfer Date"
means, until the Commitment Termination Date, any Settlement Date on
which the Relevant Receivables are transferred by a Seller to the Bank
in accordance with the Agreement.
"Transfer Document"
means in relation to a transfer of Relevant Receivables arising under a
Sales Contract governed by:
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(a) French law, a Quittance Subrogative substantially in the form of
Part I;
(b) German law, an agreement substantially in the form of Part II,
in each case of Schedule 5.
"Transfer Fee"
means the transfer fee to be paid in accordance with Clause 19
(Transfer Fee).
"Transfer Fee Payment Date"
means the last day of each Transfer Fee Period.
"Transfer Fee Period"
means, in relation to any Tranche, the period beginning on (a) a
Settlement Date and ending on the next Settlement Date or (b) the
Transfer Date when such Tranche was created and ending on first
Settlement Date falling after such date.
"Transfer Request"
means any request made by a Seller to the Bank in the circumstances set
out in Clause 5, substantially in the form of Schedule 6.
"Transferred Receivable"
means each Relevant Receivable which has been transferred by any Seller
to the Bank pursuant to this Agreement by means of a Transfer Document
and which has not been transferred back to any such Seller pursuant to
Clause 5.5 (Transfer back of Transferred Receivables) or Clause 9.2
(Transfers and Deemed Collections).
"Variation in the Bank's Funding"
means, on any Settlement Date:
(a) the amount of the increase in the Bank's Funding, if any, as
calculated in accordance with Clause 16.3 (Increase in the Bank's
Funding), on the Information Date immediately preceding such
Settlement Date; or
(b) the amount of the Bank's Share of Collections allocated by the
Bank on such Settlement Date to the outstanding amount of the
Bank's Funding, in accordance with Clauses 8.2(a)(i) and
8.3(a)(i) which will be used to repay the Tranches at the
Maturity Dates of the Associated Refinancings.
"Variation in the Subordinated Deposit"
means, on any Settlement Date, the positive difference or, as the case
may be, the negative difference, if any, between:
(a) the amount of the Subordinated Deposit, as calculated on such
date, in accordance with Clause 18.1 (Subordinated Deposit); and
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(b) the amount of the Subordinated Deposit on the preceding
Settlement Date.
"Worst Default Assumptions"
means, in relation to any Collection Period,
(a) the aggregate amount of all Transferred Receivables (whether
outstanding or paid) which originally had a Maturity Date falling
between the date 60 days prior to the latest Assessment Date and
the date 210 days after the latest Assessment Date,
multiplied by
(b) the highest amount of the three-month (on a rolling basis)
average of the Default Rates on the last 12 Assessment Dates,
multiplied by
(c) 2.25.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an "amendment" includes a supplement, novation or re-enactment
and "amended" is to be construed accordingly;
"assets" includes present and future properties, revenues and
rights of every description;
"control" means the power to direct the management and policies
of an entity, whether through the ownership of voting capital, by
contract or otherwise;
a "change in law" means the introduction of, or any change in, or
any change in the interpretation or application of, any law or
regulation after the date of this Agreement;
a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month, except that:
(1) if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that calendar month; or
(2) if an Interest Period commences on the last Business Day of
a calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which it is to end;
a Party making a payment "out of its own resources" means that
Party does not fund that payment by, or out of, Collections;
a "person" includes any individual, company, unincorporated
association or body of persons (including a partnership, joint
venture or consortium), government, state, agency, international
organisation or other entity;
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a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, inter-governmental or
supranational body, agency, department or regulatory, self-
regulatory or other authority or organisation;
(ii) a provision of law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its permitted successors, transferees and
assigns;
(v) a Closing Document or another document is a reference to that
Closing Document or other document as amended;
(vi) a time of day is a reference to Amsterdam time; and
(vii) the singular includes the plural and vice versa.
(b) Unless the contrary intention appears, a term used in any other Closing
Document or in any notice given under or in connection with any Closing
Document has the same meaning in that Closing Document or notice as in
this Agreement.
(c) The index to and the headings in this Agreement are for convenience
only and are to be ignored in construing this Agreement.
(d) the Schedules form an integral part of this Agreement.
2. PURPOSE AND COMMITMENT DURATION
2.1 Purpose
The Bank agrees to purchase Relevant Receivables from the Sellers,
subject to and on the terms and conditions of this Agreement.
2.2 Duration of the Commitment
(a) Unless terminated or cancelled earlier in accordance with this
Agreement, the Commitment shall be cancelled in full on the Commitment
Termination Date.
(b) Subject to paragraph (c) below, at any time between 60 and 30 days
before the Commitment Termination Date, the Depositor (on behalf of the
Obligors) may request the Bank in writing to extend the Commitment
Termination Date. The Bank may agree to extend the Commitment
Termination Date by entering into an amendment letter relating to this
Agreement with the Obligors to that effect, provided that the new
Commitment Termination Date shall not be later than the earlier of:
(i) 364 days from the date upon which such extension comes into
effect; and
(ii) the fifth anniversary date of the date of this Agreement.
(c) Any agreement of the Bank under paragraph (b) above shall be subject
to, inter alia, the condition that (i) the Rating Agencies have first
been informed of such contemplated
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extension and (ii) the Rating Agencies have first confirmed that the
contemplated extension will not entail a deterioration or withdrawal of
the current rating of the billets de tresorerie or the euro commercial
paper issued by Antalis, or that the contemplated extension will reduce
such deterioration (if any) or prevent such withdrawal (if any), and
(iii) the Bank has first received (A) a new Auditors' Certificate in
relation to each Seller and (B) a new Officer's Certificate in relation
to the Depositor.
(d) The Bank shall notify the Obligors (through the Depositor) of its
decision on such extension on (or prior to) the later of (i) the date
which is 15 days after the Obligors' request and (ii) the date which is
30 days prior to the existing Commitment Termination Date or, if either
date is not a Business Day, the immediately succeeding Business Day
(and if the Bank agrees to the extension, paragraph (a) of the
definition of Commitment Termination Date shall be amended to refer to
the new date applicable).
3. NATURE OF OBLIGATIONS
(a) The obligations of each Seller under the Closing Documents are several.
No Seller shall be liable for the obligations under the Closing
Documents of any other Obligor. Failure of a Seller (or the Depositor)
to carry out any of its obligations under the Closing Documents shall
not relieve any other Obligor from its obligations under the Closing
Documents.
(b) The Depositor is jointly and severally liable with each Seller with
regard to any and all payments (including, without limitation,
indemnity payments) due from either Seller under the Closing Documents.
(c) The Depositor waives all rights arising at law of subrogation,
contribution or indemnity or otherwise against each Seller pursuant to
any payment made by the Depositor under the Closing Documents pursuant
to paragraph (b) above in respect of any amount initially due from a
Seller until all of the principal, interest and any additional amounts
required to be paid pursuant to the Closing Documents have been
irrevocably paid in full.
(d) The obligations of the Depositor under the Closing Documents
(including, without limitation, paragraph (b) above) shall remain in
full force and effect notwithstanding any dissolution or change in the
structure or legal form of either Seller or in the intercompany
relationship between the Obligors, any amendment or waiver relating to
any Closing Document, any invalidity or unenforceability of the
obligations of either Seller under the Closing Documents or any other
act or omission, matter or thing, whether or not known to the Bank,
which, but for this paragraph (d) would reduce, release or prejudice
the Depositor's obligations under the Closing Documents (including,
without limitation, paragraph (b) above) and shall benefit the Bank and
its successors and assigns.
(e) Until all amounts due to the Bank under the Closing Documents from the
Obligors (or any of them) have been irrevocably paid in full, each
Obligor undertakes not to claim, rank, prove or vote as a creditor of
any other Obligor or its estate in competition with the Bank if to do
so would result in any claim by the Obligor against another Obligor
competing with a claim of the Bank against the latter Obligor in
respect of an amount due from that Obligor to the Bank under the
Closing Documents.
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4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The Sellers may not deliver the first Transfer Request until the Bank
has notified the Obligors that it has received all of the documents set
out in Schedule 1 in form and substance satisfactory to the Bank.
4.2 Further conditions precedent
The obligation of the Bank to make any Payment following a Transfer
Request is subject to the further conditions precedent that:
(a) on both the date of such Transfer Request and the Transfer
Date referred to therein:
(i) the representations and warranties in Clauses 10
relating to the receivables to be transferred and 12
made or (in the case of Clause 12) deemed to be
repeated on those dates are true and accurate and
will be true and accurate immediately after the
Payment is made; and
(ii) no Event of Early Amortisation or Amortisation Event
has occurred and is continuing or will result from
the Payment being made;
(b) the Bank has received the Assessment Report for the Assessment
Date immediately preceding the Transfer Date referred to in
such Transfer Request;
(c) the Bank's Percentage, as at the Information Date immediately
preceding the Transfer Date referred to in such Transfer
Request, was less than or equal to the Relevant Percentage
(or, in the case of an Initial Transfer Date, is on that date
less than or equal to the Relevant Percentage);
(d) the Payment and the relevant Transfer Document do not violate
any applicable law or regulation in force on the date of that
Transfer Request;
(e) the making of the Payment will not result in the Bank's
Funding exceeding the then applicable Maximum Amount of the
Bank's Funding;
(f) the Transfer Date referred to in such Transfer Request does
not fall after the Commitment Termination Date;
(g) the amount of the Reserve for Transfer Fee is less than 2.5
per cent. of the Net Pool Balance as determined on the
Assessment Date relating to the latest Assessment Report;
(h) on the Transfer Date referred to in the Transfer Request
(unless it is an Initial Transfer Date) each Seller shall have
credited the amount of Collections received by it and Deemed
Collections due from it, in each case in respect of the
Collection Period immediately preceding that Transfer Date to
the Bank's Account in accordance with Clause 8.4 (Payments);
and
(i) on the Transfer Date referred to in the Transfer Request, the
Subordinated Deposit and the Additional Deposit have been duly
made and (if required) increased by the
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Depositor in accordance with Clause 18 (Deposits), the Master
Additional Deposit Agreement and the Master Subordinated Deposit
Agreement.
5. TRANSFER OF RELEVANT RECEIVABLES
5.1 Timing of transfer
On each Initial Transfer Date and (until the Commitment Termination
Date) on each other Transfer Date which is not an Initial Transfer
Date, all of the Sellers shall together have the option to transfer to
the Bank (in accordance with the relevant Transfer Document) not less
than all Relevant Receivables to which they each hold title together
with all Related Security and Related Rights in consideration for
payment by the Bank of the amount specified in Clause 5.3(a)(ii).
5.2 Delivery of Transfer Requests
A Seller intending to make a transfer of Relevant Receivables shall
send to the Bank by no later than 11.00 a.m. on the Information Date
immediately preceding the relevant Transfer Date a duly completed
Transfer Request, setting out the aggregate nominal amount of the
Relevant Receivables to be transferred. Each Transfer Request shall be
irrevocable.
5.3 Payments and transfers
(a) Following delivery of a Transfer Request on the relevant Transfer
Date:
(i) the Seller shall deliver to the Bank a duly completed and
appropriate Transfer Document, duly signed by the Seller, vesting
in the Bank all its title, ownership and rights in respect of the
Relevant Receivables and all Related Security and Related Rights
relating thereto in accordance with the law governing the
Transfer Document and the relevant Sales Contracts; and
(ii) subject to Clause 4.2 (Further Conditions Precedent), the Bank
shall make a Payment to the Seller by crediting the Seller's
Account for that Seller in an amount equal to the nominal Euro
Amount of the Relevant Receivables to be transferred by that
Seller referred to in the Transfer Request.
(b) Each Transfer shall take effect upon the delivery of a Transfer
Document and the making of the relevant Payment, and in this Clause
5.3 "Transfer" means the transfer to the Bank of:
(i) the Relevant Receivables referred to in a Transfer Document,
including in particular any change in the amount of those
Relevant Receivables as a result of (i) the terms of such
Relevant Receivables allowing such change occurring in accordance
with Clause 14.14(b) (Amendments to Sales Contracts and Sales
Administration Guidelines) or (ii) a material error, whether or
not a new invoice has been issued due to such change or material
error; and
(ii) all Related Security (but, in the case of negotiable instruments,
only to the extent required by Clause 14.10 (Promissory notes and
negotiable instruments)) and Related Rights relating thereto,
in each case in accordance with, and to the fullest extent permitted
by, the governing law of the relevant Transfer Document or the law
applicable to the Related Security and Related Rights (as
appropriate).
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5.4 Transfer Documents
(a) A Transfer Document shall not be regarded as having been duly
completed unless it sets out a description of the Relevant
Receivables, all Related Security and Related Rights in respect
thereof in sufficient detail to enable:
(i) the transfer of such Relevant Receivables, Related Security and
Related Rights to the Bank under that Transfer Document; and
(ii) an indisputable identification of such Relevant Receivables,
in each case in accordance with, and for the purposes of, the governing
law of that Transfer Document and is delivered with a computer disk
containing a full list of the Relevant Receivables concerned, showing,
in relation to each such receivable, the name and address of the
Debtor, the amount due and the currency, the Maturity Date, invoice
number and invoice date.
(b) This Agreement shall apply automatically to all Transfer Documents and
related electronic or magnetic supports delivered by any of the Sellers
to the Bank, on each Transfer Date, provided that the Transfer
Documents and such supports make specific reference to this Agreement.
5.5 Transfer back of Transferred Receivables
(a) At any time a Seller may request the Bank to transfer back to that
Seller all or part of the outstanding Transferred Receivables
transferred by it provided that in the event of a transfer back of
part, the remaining Net Pool Balance (taking into account the
Transferred Receivables to be transferred back) is equal to or greater
than (euro)20,000,000.
(b) A Seller wishing to make a request under paragraph (a) above shall
notify the Bank five Business Days before the date on which the Seller
wishes the transfer back to take place. The Bank shall not be obliged
to accept such request and shall notify the Seller concerned of its
decision no later than three Business Days after receipt by the Bank of
the Seller's notice. The Bank shall be deemed to have accepted the
request if it has not expressly refused it within such period.
(c) If the Bank accepts a request for the transfer back of Transferred
Receivables, the Seller concerned shall, on the date of transfer back,
before 11.00 a.m., pay to the Bank the Euro Amount of the Outstanding
Amount of the relevant Transferred Receivables and the Bank shall
deliver to the Seller such documents or instruments as are necessary to
effect the transfer back to the Seller of such title ownership and
rights in respect of the Transferred Receivables concerned and all
Related Security and Related Rights attached thereto as the Bank has
acquired from the Seller and has at the time of transfer back. The
reasonable costs incurred by the Bank in the preparation, execution and
delivery of such document or instrument shall be borne exclusively by
the Seller concerned.
(d) As from the date of such transfer back, the Bank shall pay back to the
Seller concerned, as soon as practicable, any sum received by the Bank
in respect of any Transferred Receivables (and any Related Security
and/or Related Rights attaching thereto) which have been transferred
back to a Seller under this Clause 5.5.
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5.6 Transfers by the Bank
Other than pursuant to Clause 5.5 or Clause 9.2 (Transfers and Deemed
Collections), the Bank will not enter into any assignment or transfer
or subrogation of any description with any person (or purport or agree
to do so) of any Transferred Receivable or any Related Security or
Related Rights.
6. COLLECTION MANDATES AND NOTICES OF TRANSFER
6.1 Collection Mandates
The Bank appoints each Seller as its agent to:
(a) collect on behalf of the Bank the Transferred Receivables
transferred by it to the Bank; and
(b) take and to conduct on behalf of the Bank (but in the name of the
Seller) all lawful steps and proceedings, other than court or
arbitration proceedings (except as may otherwise be requested by
the Bank pursuant to Clause 14.8(b)(iv) (Collection and
Recovery)), for the recovery of such Transferred Receivables,
provided that no Seller shall have, by reason of this Clause 6.1,
any power to enter into or conclude any agreement on behalf of
the Bank, to cause the Bank to assume any obligation to any
person or otherwise to bind the Bank except as otherwise
contemplated by Clause 14.14(b) (Amendments to Sales Contracts
and Sales Administration Guidelines),
(each such appointment being a "Collection Mandate) and each Seller
accepts its Collection Mandate.
6.2 Remuneration for Collection Mandates
No Seller shall receive any fee, commission or remuneration from the
Bank for, or reimbursement by the Bank of any expense incurred by it
in connection with, its Collection Mandates (other than to the extent
required in relation to a particular Seller by any applicable law or
regulation, in which case the Bank shall be entitled to withhold out
of any amount due from the Bank to such Seller or the Depositor under
the Closing Documents the amount of any such fee or reimbursement). To
that end, each Seller shall bear its own costs and expenses incurred
in the course of performing its Collection Mandate.
6.3 Termination of Collection Mandates and Notices of Transfer
(a) The Bank may at any time following a Termination Event notify any
Seller affected by that Termination Event that it wishes to terminate
that Seller's Collection Mandate in whole or in part and to give a
Notice of Transfer to the Debtors in respect of the Transferred
Receivables transferred by that Seller.
(b) A Seller's Collection Mandate shall automatically terminate on the
date of the Bank's notice under paragraph (a) above and upon, and at
any time after such termination, the Bank may give a Notice of
Transfer to the Debtors concerned.
(c) Upon and following the termination of its Collection Mandate, the
Seller concerned shall promptly transfer to the Bank's Account any
amount received from any Debtor in respect of the Transferred
Receivables to which the termination relates.
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(d) The termination of a Collection Mandate shall not affect the
obligations of any Obligor under the Closing Documents (other than
those of the relevant Seller relating to the collection of Transferred
Receivables affected by the termination).
(e) In this Clause 6.3 "Termination Event" in respect of a Seller means:
(i) the occurrence of an Event of Early Amortisation (which is
still continuing) in relation to that Seller under Clause 15.2
(Non-payment), Clauses 15.5 (Cross default) to 15.10
(Analagous proceedings) (inclusive) and Clause 15.13
(Cessation of business);
(ii) (A) the occurrence of an Event of Early Amortisation under
Clause 15.11 (The Parent) in relation to which the Bank has
given a Termination Notice under Clause 15.17 (Termination) or
(B) the occurrence of an Event of Early Amortisation (which is
still continuing) in relation to the Parent under Clause 15.13
(Cessation of business);
(iii) a material failure by that Seller to perform its Collection
Mandate in accordance with reasonable skill and care, its
customary business practices and its obligations under this
Agreement;
(iv) that Seller becomes unable lawfully to perform its Collection
Mandate or the obligations of that Seller with respect to its
Collection Mandate become invalid, unenforceable or
ineffective for any reason or to any material extent; or
(v) any event occurs in respect of that Seller which, in the
opinion of the Bank (acting in good faith) is reasonably
likely to prejudice that Seller's ability to perform, or the
performance of, its Collection Mandate or that Seller's
ability to make the payment referred to in Clause 8.4(a)(i)
(Payments).
7. COLLECTION
7.1 Collection by the Sellers
(a) For so long as its Collection Mandate has not been terminated in
accordance with Clause 6.3 (Termination of Collection Mandates and
Notices of Transfer), each Seller shall, promptly on receipt of the
same, credit or cause to be credited to any bank account of that
Seller each cash collection received by it which has actually been
paid by a Debtor, or by any other person obliged to make payment, in
respect of the Transferred Receivables to which its Collection Mandate
relates (together the "Cash Collections").
(b) During each Collection Period, each Seller shall be entitled to use
freely the amount of Cash Collections.
(c) Subject to Clause 6.3 (Termination of Collection Mandates and Notices
of Transfer) on each Settlement Date, each Seller shall credit or
cause to be credited to the Bank's Account all Collections denominated
in Euro or Euro-Linked Currencies arising in respect of the Collection
Period ending on the Assessment Date immediately preceding such
Settlement Date.
(d) Subject to paragraph (e) below, any payment received by a Seller from
one of its Debtors shall be applied in priority to the Transferred
Receivables, unless that Debtor has given express instruction to the
contrary.
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(e) If a Debtor is in Insolvency Proceedings and a settlement payment or
distribution is made in those Insolvency Proceedings in respect of
both Transferred Receivables and other receivables owing by that
Debtor to a Seller, the amount received by such Seller shall be
applied pro rata to the nominal amount of each such Transferred
Receivable and such other receivables.
7.2 Advanced Transfers and collection by the Bank
(a) On any Business Day the Bank may require any Seller to transfer all or
part of the Collections standing to the credit of any Seller's account
(the "Advanced Transfer") to the Bank's Account on the following
Business Day (the "Collections Transfer Date").
(b) Following the termination by the Bank of a Seller's Collection Mandate
in accordance with Clause 6.3 (Termination of Collection Mandates and
Notices of Transfer), the Bank shall:
(i) promptly on receipt of the same, credit or cause to be credited
to the Bank's Account the amount of each cash collection received
by it which have actually been paid by Debtors, or by any other
person obliged to make payment, in respect of the Transferred
Receivables to which the terminated Collection Mandate would
otherwise have related (together the "Bank Collections"); and
(ii) draw up an Assessment Report on each Assessment Date and on each
Interim Assessment Date.
(c) If the Bank exercises its rights under paragraph (a) above, or if the
Bank terminates a Seller's Collection Mandate, the Bank shall pay the
Seller concerned a fee calculated on the basis of the amount of the
Advanced Transfer or the aggregate amount of Bank Collections from
time to time (as appropriate), at a rate of EONIA plus zero point two
five per cent. (0.25%) per day elapsed from (and including) the
Collections Transfer Date or the date on which Bank Collections are
received (as appropriate) to either (and excluding):
(i) the Transfer Date on which the Bank applies the Advanced Transfer
or the Bank Collections towards the transfer of new Relevant
Receivables; or
(ii) if the Bank does not so apply the Advanced Transfer or Bank
Collections, (A) the Maturity Dates of the Tranches or Associated
Refinancings on which the Bank applies the Advanced Transfer or
Bank Collections to the amortisation of the Bank's Funding, and
(B) the Settlement Date on which the Bank applies the Advanced
Transfer or Bank Collections to the repayment of the Additional
Deposit or the Subordinated Deposit.
(d) The fee referred to in paragraph (c) above is to compensate the Seller
concerned for the inconveniences it suffers as a consequence of:
(i) its inability to use the Cash Collections subject to the Advanced
Transfer freely in accordance with Clause 7.1(b) (Collection by
Sellers);
(ii) the fact that Collections will not be applied to the repayment of
the Bank's Funding until the Settlement Date falling immediately
after the Assessment Date on which the Collection Period during
which such Collections arose ends; and
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(iii) its obligation to pay the Transfer Fee in respect of the Bank's
Funding up to that Settlement Date.
(e) All expenses incurred by the Bank in collecting Transferred
Receivables shall be borne by it exclusively.
8. SETTLEMENT AND PAYMENTS
8.1 Calculations
(a) On each Information Date, the Bank shall calculate and notify the
Obligors of (in each case providing details of how such calculations
have been made):
(i) the fee due to each Seller in accordance with Clause 7.2(c)
(Advanced Transfers and collection by the Bank);
(ii) the Net Pool Balance as of the Assessment Date immediately
preceding that Information Date;
(iii) the Residual Amount of the Reserve for Transfer Fee;
(iv) the amount of the Bank's Funding;
(v) the amount of the Subordinated Deposit;
(vi) the amount of the Additional Deposit;
(vii) the new Bank's Percentage; and
(viii) the new Sellers' Percentage,
in each case as of the immediately succeeding Settlement Date and
taking into account any transfer of Relevant Receivables to occur on
that Settlement Date.
(b) On each Settlement Date the Bank shall recalculate and notify the
Obligors of (providing details of how such calculations have been
made) the fee referred to in paragraph (a)(i) above where additional
fee has accrued since the calculation made on the immediately
preceding Information Date.
8.2 Allocation of Collections on Settlement Dates which are not Transfer
Dates
If a Settlement Date is not a Transfer Date, the Bank shall allocate
on that Settlement Date the Collections in the order set out below:
(a) the Bank's Share of Collections shall be allocated as follows:
(i) first, towards the repayment of the outstanding amount of
the Bank's Funding (whether or not any Tranche or Associated
Refinancing has a Maturity Date which coincides with that
Settlement Date);
(ii) second, towards the payment of any sum due by any Obligor,
out of its own resources, payable to the Bank under the
Closing Documents and remaining unpaid on such Settlement
Date;
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(iii) third, towards the repayment of the Additional Deposit
(subject to Clause 18 (Deposits));
(iv) fourth, towards the repayment of the Subordinated
Deposit (subject to Clause 18 (Deposits)); and
(v) fifth, the balance, if any, shall be paid to the
Sellers; and
(b) the Sellers' Share of Collections shall be allocated:
(i) first, towards the payment of any sum due by any Seller,
out of its own resources, payable to the Bank under the
Closing Documents and remaining unpaid on such
Settlement Date;
(ii) second, towards the repayment of the Additional Deposit
(subject to Clause 18 (Deposits)); and
(iii) third, the balance, if any, shall be paid to the
Sellers.
8.3 Allocation of Collections on Settlement Dates which are Transfer Dates
If a Settlement Date is also a Transfer Date, the Bank shall allocate
on that Settlement Date the Collections in the order set out below:
(a) the Bank's Share of Collections shall be allocated as follows:
(i) first, if the Bank's Funding is then greater than the
Relevant Percentage multiplied by the Net Pool Balance
(taking into account Eligible Transferred Receivables to
be transferred on such date) less the amount of the
Subordinated Deposit (taking into account Eligible
Transferred Receivables to be transferred on such date),
towards the repayment of the outstanding amount of the
Bank's Funding (whether or not any Tranche or Associated
Refinancing has a Maturity Date which coincides with
that Settlement Date) in an amount equal to such excess;
(ii) second, to the transfer of Relevant Receivables taking
place on that Transfer Date;
(iii) third, to the payment of any sum due by any Obligor, out
of its own resources, payable to the Bank under the
Closing Documents and remaining unpaid on such date;
(iv) fourth, to the repayment of the Additional Deposit
(subject to Clause 18 (Deposits));
(v) fifth, to the repayment of the Subordinated Deposit
(subject to Clause 18 (Deposits)); and
(vi) sixth, the balance, if any, shall be paid to the
Sellers; and
(b) the Sellers' Share of Collections shall be allocated as follows:
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(i) first, to the transfer of Relevant Receivables taking
place on such Transfer Date;
(ii) second, to the payment of any sum due by any Obligor, out
of its own resources, payable to the Bank under the
Closing Documents and remaining unpaid on such date;
(iii) third, to the repayment of the Additional Deposit (subject
to Clause 18 (Deposits)); and
(iv) fourth, the balance, if any, shall be paid to the Sellers.
8.4 Payments
(a) On each Settlement Date and subject to the provisions of this
Agreement the following payments shall be made:
(i) each Seller shall credit the amount of Collections received by
it and the Euro Amount of Deemed Collections occurring, in each
case in respect of, or during, the Collection Period immediately
preceding that Settlement Date to the Bank's Account;
(ii) the Depositor shall pay to the Bank, out of its own resources,
the amount corresponding to the Increase in the Subordinated
Deposit and Increase in the Additional Deposit (in each case if
any);
(iii) the Bank shall make a Payment to the Sellers, in accordance with
Clause 5.3 (Payments and Transfers), to the credit of each of
the relevant Seller's Accounts;
(iv) the Bank shall repay to the Depositor the Additional Deposit and
the Subordinated Deposit;
(v) the Bank shall pay to the Sellers, out of its own resources, the
compensation determined in accordance with Clause 7.2(c)
(Advanced Transfers and Collection by the Bank); and
(vi) the Bank shall credit to the Depositor's Account the aggregate
amount of Collections allocated to the repayment of the Bank's
Funding which the Bank does not actually apply on that
Settlement Date to the repayment of the Bank's Funding
("Unapplied Collections"),
where appropriate, in an amount determined in accordance with Clause
8.2 (Allocation of Collections on Settlement Dates which are not
Transfer Dates) or Clause 8.3 (Allocation of Collections on Settlement
Dates which are Transfer Dates), as the case may be.
(b) The Depositor shall, subject to paragraph (d) below, be entitled to
use freely the amount of Unapplied Collections between the Settlement
Date on which they are paid to the Depositor in accordance with
paragraph (a)(vi) above and the Maturity Date of the Associated
Refinancing on which they are applied to the repayment of the Bank's
Funding in accordance with Clause 16.4 (Repayment of the Bank's
Funding).
(c) The Depositor shall pay to the Bank on the Maturity Date of each
Associated Refinancing an amount equal to (i) the amount of Unapplied
Collections paid to the Depositor in accordance with paragraph (a)(vi)
above multiplied by (ii) the number of days between the Settlement
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Date on which that payment is made and the Maturity Date of that
Associated Refinancing multiplied by (c) the Refinancing Rate of that
Associated Refinancing plus the Margin divided by 360. If the Depositor
fails to pay all or part of such amount, the Bank shall be entitled to
apply the Collections standing to the credit of the Bank's Account and
corresponding to the Sellers' Share of Collections against any amount
so unpaid up to the amount of the Residual Amount of the Reserve for
Transfer Fee for the Tranche resulting from the portion of the Bank's
Funding which is repaid on such Maturity Date.
(d) On any Business Day the Bank may require the Depositor to transfer all
or part of the amount of the Unapplied Collections paid to the
Depositor in accordance with paragraph (a)(vi) above (the "Advanced
Transfer") to the Bank's Account on the following Business Date (the
"Collections Transfer Date").
(e) If the Bank exercises its rights under paragraph (e) above, the Bank
shall pay the Depositor a compensation calculated on the basis of the
amount of the Advanced Transfer, at a rate of EONIA plus 0.25% per
annum per day elapsed from (and including) the Collections Transfer
Date to (and excluding) the Maturity Date of any Associated Refinancing
when such Collections are applied to the repayment of the Bank's
Funding in accordance with Clause 16.4 (Repayment of the Bank's
Funding).
9. DEEMED COLLECTIONS
9.1 Deemed Collections
(a) If:
(i) a Payment and/or a Transfer Document ceases to result in a
perfect transfer of the Relevant Receivables concerned and all
Related Security (in the case of negotiable instruments, to
the extent required by Clause 14.10 (Promissory notes and
negotiable instruments)) and Related Rights attached thereto;
(ii) any representation and warranty in Clause 10 (Representations
relating to Transferred Receivables) relating to any
Transferred Receivable on any day would (if it were made or
repeated on that day) not be true and accurate with respect to
the receivables concerned (whether or not any such
representation and warranty is in fact made or deemed to be
repeated on that day);
(iii) on an Assessment Date or Interim Assessment Date an
outstanding Transferred Receivable, the amount of which was
included within the aggregate amount of Eligible Transferred
Receivables declared in an Assessment Report, then has a
Maturity Date of more than 210 days and the immediately
succeeding Settlement Date is not a Transfer Date;
(iv) in an Assessment Report delivered in relation to a Transfer
Date, the amount declared as being the aggregate amount of
Eligible Transferred Receivables to be transferred on that
Transfer Date is greater than the aggregate amount of Eligible
Transferred Receivables actually transferred on that Transfer
Date (such difference being the "Excess");
(v) any Credit Note or Commercial Discount referred to in Clause
14.14(c) (Amendments to Sales Contracts and Sales
Administration Guidelines) is issued or applies in relation to
any Transferred Receivable or any Debtor makes payment in
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respect of any Transferred Receivable net of the amount of any
anticipated Credit Note;
(vi) any Sales Contract which gives rise to a Transferred
Receivable is cancelled or terminated and the relevant goods
have been billed but remained to be delivered by the Seller
concerned on the termination date of such Sales Contract;
(vii) any set-off is agreed by a Seller or arises by operation of
law (including a Debtor exercising a right of set-off
conferred on it by law) or as a result of a final court
decision between debts owed by any Seller to any Debtor and
the Transferred Receivables against such Debtor;
(viii) any judicial or arbitration proceedings are commenced by a
Debtor against a Seller in connection with the sale of the
goods related to any Transferred Receivable, or the delivery
or failure to deliver such goods, or the performance or the
failure to perform by the Seller of any of its obligations to
that Debtor in relation to the existence and/or the amount of
a Transferred Receivable or a Transferred Receivable becomes
irrecoverable by reason of the breach by a Seller of the
relevant Sales Contract;
(ix) any exchange fees or expenses are charged by a bank in
connection with a payment made in any currency other than Euro
in relation to a Transferred Receivable;
(x) any Transferred Receivable has been cancelled, in whole or in
part; or
(xi) any conflict, claim or dispute arises resulting from the
issue, remittance, delivery or endorsement of a negotiable
instrument or promissory note (excluding, for the avoidance of
doubt, a conflict, claim or dispute in relation to the Sales
Contract to which such instrument or promissory note relates)
and/or the notification by the Bank to a Debtor of a
negotiable instrument or promissory note or the acceptance by
a Debtor of a negotiable instrument or promissory note
presented by the Bank,
the Seller concerned shall be deemed to have received:
(A) the amount of the receivables concerned in the case of
paragraph (ii) above, or the amount of the Transferred
Receivable in the case of paragraph (iii) above or the amount
of the Excess (as appropriate); or
(B) in each other case, the amount it would have collected if such
event had not occurred,
each such amount being a "Deemed Collection".
(b) Subject to Clause 9.2(a) the Seller concerned shall transfer, out of
its own resources, the Euro Amount of Deemed Collections in the
following manner:
(i) in accordance with Clause 8.4(a)(i), if the Seller's
Collection Mandate has not been terminated in relation to the
Transferred Receivable to which the Deemed Collection relates;
and; and
(ii) if the Seller's Collection Mandate has been terminated in
relation to the Transferred Receivable to which the Deemed
Collection relates, the amount of such Deemed Collection shall
be immediately on its occurrence credited to the Bank's
Account.
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9.2 Transfers and Deemed Collections
(a) On each date on which the Euro Amount of a Deemed Collection is due
from a Seller under Clause 9.1 (the "Due Date"), that Seller shall have
the option, if the amount of that Deemed Collection is equal to the
Outstanding Amount of the Transferred Receivable giving rise to the
Deemed Collection, either to transfer the Euro Amount of the Deemed
Collection to the Bank in accordance with Clause 9.1 or to direct the
Bank to transfer the Transferred Receivable in relation to which the
Deemed Collection has occurred to the Seller on the Due Date. If the
Seller elects a transfer, on the Due Date:
(i) the Seller shall notify the Bank of such election and
simultaneously deliver to the Bank such documents or
instruments (together the "Documents") for execution by the
Bank as are necessary to effect the transfer to the Seller of
such title ownership and rights in respect of the Transferred
Receivable concerned and all Related Security and Related
Rights attached thereto as the Bank originally acquired from
the Seller pursuant to the Closing Documents;
(ii) the Bank shall (subject to paragraph (b) below) execute the
Documents; and
(iii) the Seller shall pay out of its own resources and to the
credit of the Bank's Account the Euro Amount of the
Transferred Receivable concerned,
following which, for the avoidance of doubt, the Seller shall have no
liability to transfer the Euro Amount of the Deemed Collection to the
Bank (unless for any reason the payment referred to in paragraph (iii)
above is for any reason set aside or has to be returned by the Bank to
the Seller or a liquidator of the Seller).
(b) The Documents shall contain only such provisions as are necessary to
effect the transfer referred to in paragraph (a)(i) above (and not, for
the avoidance of doubt, any representations, warranties, undertakings
or indemnities on the part of the Bank). The Bank shall not be obliged
to execute any Document that does not comply with this paragraph (b)
and may make such amendments to the Documents as the Bank deems
appropriate in order that the Documents do so comply. Further the Bank
may (acting in good faith), before executing the Documents, require the
Seller to deliver a certificate (substantially in the form of an
Officer's Certificate, mutatis mutandis) signed by two of its officers.
(c) The reasonable cost incurred by the Bank in the execution and delivery
of the Documents shall be borne exclusively by the Seller concerned.
9.3 Miscellaneous
(a) Should the Seller concerned fail to pay the Deemed Collections out of
its own resources or fail to make any payment referred to in Clause
9.2(a)(iii), the Bank may automatically set-off (i) the amount due to
the Depositor under the Subordinated Deposit and the Additional Deposit
against (ii) the amount due to the Bank by reason of the Deemed
Collections or the amount of such payment (as appropriate). As soon as
practicable, the Bank shall notify the Seller concerned after exercise
of its right of set-off.
(b) Any Deemed Collection shall remain outstanding until it has been paid
in full by the Seller concerned either out of its own resources or by
virtue of the operation of paragraph (a) above or by the Depositor.
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(c) Where any event is a Deemed Collection under more than one paragraph of
this Clause 9, the amount of that Deemed Collection shall only be
counted once for the purposes of paragraphs this Clause and for the
purpose of calculating the amount of Collections.
10. REPRESENTATIONS RELATING TO TRANSFERRED RECEIVABLES
10.1 Introduction
Each Seller makes the following representations and warranties to the
Bank with respect to each receivable referred to in a Transfer Document
delivered by such Seller to the Bank:
10.2 Relevant Receivables
Each such receivable:
(a) exists and is a Relevant Receivable and the information
provided in respect of each such receivable in such Transfer
Document and any related magnetic or electronic support is
complete and accurate in all material respects; and
(b) comprises, in the case of Transferred Receivables transferred
by (i) Mattel France S.A., a claim against the relevant Debtor
which is a creance certaine and (ii) Mattel GmbH, a claim
against the relevant Debtor which is ascertained (bestimmter
Geldbetrag).
10.3 Third party rights
No such receivable:
(a) is or has been the subject of any prior transfer or
assignment, subrogation, delegation, attachment or seizure
whatsoever (whether in whole or in part), nor of any security
interest, lien or encumbrance whatsoever and there exists no
impediment to its assignment or transfer in accordance with
the Closing Documents;
(b) is subject to any right of set-off, counterclaim, deduction or
withholding whatsoever or subject to any valid Adverse Claims
of any nature.
10.4 Title
Each Seller has, from the time of its origination up to and including
the relevant Transfer Date, full title to and ownership of each such
receivable and any Related Security and Related Rights relating
thereto.
10.5 Compliance with Sales Contracts and applicable laws
(a) Each Sales Contract under which any such receivable arises shall be the
legal, valid binding and enforceable obligations of the Seller and the
Debtor concerned and the relevant Debtor and the Seller are each in
compliance with all of their respective obligations (except to the
extent that any such obligation is of an immaterial and technical or
administrative nature) under those Sale Contracts and all requirements
of such Sales Contracts upon which payment by the Debtor may be
dependent have been fulfilled in all respects.
(b) Each Seller is in compliance in all material respects with the
provisions of all laws and regulations which apply to (i) each such
receivable and any Related Security and Related
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Rights relating thereto and (ii) the relevant Sales Contracts and all
Authorisations necessary for the execution and performance of such Sale
Contracts have been obtained and are in full force and effect.
10.6 Related Security
All Related Security and Related Rights relating to any such receivable
is legally binding and enforceable in accordance with its applicable
terms.
10.7 Times for making representations and warranties
The representations and warranties set out in this Clause 10 are made
with respect to such receivable on the Transfer Date for that
receivable.
11. REPRESENTATIONS RELATING TO ELIGIBLE TRANSFERRED RECEIVABLES
Each Seller represents and warrants to the Bank that all receivables
comprising the aggregate amount of receivables stated by it in an
Assessment Report to be Eligible Transferred Receivables, satisfy the
criteria for Eligible Transferred Receivables set out in Part II of
Schedule 2. The representation and warranty referred to in this Clause
11 shall be made by each Seller on the date of each Assessment Report
delivered by it.
12. GENERAL REPRESENTATIONS
12.1 Introduction
Each Obligor makes the representations and warranties set out in this
Clause 12 to the Bank.
12.2 Status
(a) It is a limited liability company duly incorporated and validly
existing under the laws of its jurisdiction of incorporation; and
(b) it has the power to own the assets recorded on its balance sheet and
carry on its business as it is being conducted.
12.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Closing Documents to which it is or will be a party and the
transactions contemplated by those Closing Documents.
12.4 Legal validity
Each Closing Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation enforceable in accordance with its terms
subject, in the case of enforceability, to the Reservations.
12.5 Authorisations
All Authorisations required in connection with the entry into by it,
its performance, the validity and enforceability against it of, and the
transactions contemplated by, the Closing
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Documents to which it is a party have been obtained or effected (as
appropriate) and are in full force and effect subject, in the case of
enforceability, to the Reservations.
12.6 Pari passu ranking
Its obligations under the Closing Documents to which it is a party rank
and will rank at least pari passu with all its other present and future
unsecured and unsubordinated obligations (except for obligations which
are mandatorily preferred by law applying to companies generally in the
jurisdiction of its incorporation).
12.7 Taxes on payments
All amounts of Transfer Fee, Commitment Fee and Collections payable by
it under the Closing Documents may be made free and clear of and
without deduction for or on account of any Tax (other than any
applicable notarial fees) in France, Germany or the Netherlands.
12.8 Immunity
(a) The execution by it of each of the Closing Documents to which it is
party constitutes, and its exercise of its rights and performance of
its obligations under each such Closing Document will constitute,
private and commercial acts done and performed for private and
commercial purposes; and
(b) it will not be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in the
jurisdiction of its incorporation in relation to any Closing Document.
12.9 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Closing Documents to which it is a party do not
and will not:
(a) conflict in any material respect with any law or regulation or
judicial or official order applicable to it (subject to the
Reservation with respect to French Decree 96-1112 of 18th
December, 1996 relating to out of court recovery); or
(b) conflict with its constitutional documents; or
(c) conflict in any material respect with any document which is
binding upon it or any of its assets.
12.10 No default
(a) No Event of Early Amortisation is outstanding in relation to it or
could be reasonably expected to result from the performance of any
transaction contemplated by this Agreement; and
(b) no other event is outstanding which constitutes (or with the giving of
notice, lapse of time, determination of materiality or the fulfilment
of any other applicable condition or any combination of the foregoing,
would constitute) a default under any document which is binding on it
or any of its assets to an extent or in a manner which could reasonably
be expected to have a Material Adverse Effect.
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12.11 Litigation
(a) No litigation, arbitration or administrative proceedings are currently
being taken against it or, to the best of its knowledge, pending or
threatened, which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(b) No proceedings of any nature are current or, to the best of its
knowledge, pending or threatened, for its winding-up or dissolution of,
or in respect of any insolvency proceeding of any nature relating to
it.
12.12 Accounts
Its accounts (consolidated if delivered and audited in the case of each
Seller) and the audited consolidated accounts of the Parent, most
recently delivered to the Bank (which at the date of this Agreement are
the Original Accounts):
(a) have been prepared in accordance with accounting principles
and practices generally accepted in the jurisdiction of
incorporation of the Obligor to which such accounts relate or
in accordance with U.S. GAAP in the case of the Parent's
accounts and any consolidated accounts relating to an Obligor,
consistently applied; and
(b) fairly represent its financial condition (consolidated if
appropriate) or, as the case may be, the Parent's consolidated
financial condition as at the date to which they were drawn
up,
and there has been no change in its financial condition (consolidated
if appropriate) or, as the case may be, the Parent's consolidated
financial condition since the date to which those accounts were drawn
up which could reasonably be expected to have a Material Adverse
Effect.
12.13 Information
All factual information provided by it in writing to the Bank in
connection with the Closing Documents is true and accurate in all
material respects and not misleading in any material respect.
12.14 Compliance with laws
It carries on its business in all material respects in accordance with
all applicable laws and regulations (including, without limitation,
those relating to the environment) where failure to do so could
reasonably be expected to have a Material Adverse Effect.
12.15 Jurisdiction/governing law
(a) Its:
(i) irrevocable submission under Clause 34.1 (Jurisdiction) to the
jurisdiction of the courts of Amsterdam;
(ii) agreement that this Agreement is governed by the laws of the
Netherlands; and
(iii) agreement not to claim any immunity to which it or its assets
may be entitled,
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are legal, valid and binding under the laws of the jurisdiction of its
incorporation subject to the Reservations.
(b) Any judgement obtained in the Netherlands in legal proceedings based on
or in connection with the Closing Documents will be recognised and
enforced by the courts of the jurisdiction of its incorporation without
re-examination or re-litigation of the matter thereby adjudicated
(subject to the provisions of the Brussels Convention on jurisdiction
and enforcement of judgements in civil and commercial matters, 1968).
12.16 Ownership
(a) The Parent owns and controls (whether directly or indirectly) the
entirety (other than any minority holdings of share capital or voting
rights by directors of any Obligor as required by applicable law) of
the issued and paid up share capital and voting rights of each Obligor.
(b) The Depositor is a Controlling Owner of the Sellers.
12.17 Times for making representations and warranties
The representations and warranties set out in this Clause 12:
(a) are made on the date of this Agreement; and
(b) (with the exception of Clause 12.7 (Taxes on payments)) are
deemed to be repeated by each Obligor on each Transfer Date
with reference to the facts and circumstances then existing.
13. INFORMATION UNDERTAKINGS
13.1 Duration
The undertakings in this Clause 13.1 shall remain in force from the
date of this Agreement until the Agreement Expiry Date.
13.2 Financial information
(a) Each Obligor shall supply to the Bank as soon as the same are available
(and in any event within 120 days (in the case of Mattel France S.A.
and the Depositor) or 180 days (in the case of Mattel GmbH) of the end
of each of its financial years) its accounts (consolidated if prepared
and audited in the case of each Seller) for that financial year
together with the report of its board of directors and auditors (in
each case if any) relating thereto and an extract of the minutes of the
annual general meeting approving the accounts.
(b) The Depositor shall supply to the Bank as soon as the same are
available (and in any event within 120 days of the end of each of the
Parent's financial years) the audited consolidated accounts of the
Parent for that financial year together with the report of its board of
directors and auditors (in each case if any) relating thereto.
(c) Each Obligor shall ensure that each set of accounts delivered by it
pursuant to paragraph (a) above:
(i) is prepared in accordance with accounting principles and
practices generally accepted in the jurisdiction of
incorporation of the Obligor to which such accounts relate or
in
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accordance with U.S. GAAP in the case of any consolidated accounts
relating to an Obligor, and (as appropriate) on the same basis as
was used in the preparation of its Original Accounts;
(ii) shall give a true and fair view of the financial condition of the
Obligor as at the end of the period to which those accounts relate
and of the results of its operations during that period; and
(iii) is (in the case of each Seller's accounts referred to in paragraph
(a)(i) above) audited by an internationally recognised independent
qualified firm of auditors.
(d) Together with each set of accounts referred to in paragraph (a) above, the
Seller shall deliver to the Bank an Auditors' Certificate and the Depositor
shall deliver to the Bank an Officer's Certificate.
13.3 Information - miscellaneous
(a) Each Obligor shall supply to the Bank:
(i) all documents despatched by it to (A) its shareholders (or any class
of them) concerning the convening of, agendas for and resolutions to
be considered at shareholders meetings or involving or containing
reports or information relating to its affairs and activities, or
(B) by it to its creditors generally (or any class of them) at the
same time as they are despatched;
(ii) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending, and which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; and
(iii) within a reasonable period of time following request therefor, any
other information, documents and records in its possession, custody
or control as the Bank may at any time reasonably request regarding
its financial condition, operations or Relevant Receivables or which
in the Bank's opinion (acting in good faith) will enable the Bank to
verify the fulfilment by any Seller of its obligations under this
Agreement with regard to the recovery of sums due under the
Transferred Receivables.
(b) Each Seller shall:
(i) keep the Bank fully informed of the existence and material progress
of any legal or arbitration proceedings relating to Transferred
Receivables (including, without limitation for the purpose of
recovering sums due under that Transferred Receivable), in respect
of an amount of (Euro)1,000,000 or more (or the equivalent in other
currencies);
(ii) promptly upon becoming aware of the same, notify the Bank of any
other event (including the loss or disappearance of any security
interest or claim) which shall prejudice the payment of any sum in
excess of (Euro) 1,000,000 (or the equivalent in other currencies)
in respect of a Transferred Receivable;
(iii) promptly (and to the fullest extent it is aware of the same) inform
the Bank of all Related Security and Related Rights relating to each
Transferred Receivable transferred by it and to co-operate with the
Bank if and when the same are exercised; and
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(iv) without prejudice to Clause 14.14 (Amendments to Sales Contracts and
Sales Administration Guidelines) give prior notification to the Bank
of any proposed change to its Sale Administration Guidelines.
13.4 Notification of Amortisation Events and compliance certificates
(a) Each Obligor shall notify the Bank of any Amortisation Event (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of
the same.
(b) Each Obligor shall supply to the Bank:
(i) together with its accounts under Clause 13.2(a) (Financial
information); and
(ii) promptly at any other time, if the Bank (acting in good faith) so
requests,
a certificate signed by two of its senior officers on its behalf certifying
that no Amortisation Event relating to it is outstanding, or, if an
Amortisation Event relating to it is outstanding, specifying the
Amortisation Event and the steps, if any, being taken to remedy it.
13.5 Information relating to Transferred Receivables
(a) Each Seller shall:
(i) preserve all contractual documentation (including Sales Contracts
and invoices) and the computer information underlying each
Transferred Receivable and any Related Security and Related Rights;
(ii) maintain full and proper accounts and records, showing clearly all
transactions, payments and proceedings relating to each Transferred
Receivable transferred by it since the date of its origination;
(iii) ensure that all such contractual documentation, computer
information, accounts and records referred to in paragraphs (i) and
(ii) above are up-to-date;
(iv) maintain an up to date list of the Transferred Receivables
transferred by it under this Agreement on a form of electronic
support (including material support) detailing the identity of the
relevant Debtors, their addresses, the reference number of the
relevant invoices, their invoice date and the maturity, currency and
the face value of the receivables;
(v) deliver to the Bank promptly on its request (provided such request
is made within normal business hours) copies of (or, if the Bank so
requests, allow the Bank or any person appointed by the Bank, during
normal business hours, to have access to and to take copies of) the
contractual documentation, computer information and supporting
documentation referred to in paragraphs (i) and (ii) above.
(b) Each Seller shall ensure that its accounts and records permit the
identification of which of its receivables are Transferred Receivables.
(c) Any costs incurred by the Sellers in connection with the entry into
Transfer Documents, the preparation and maintenance of the support and the
compliance with paragraph (a) above
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shall be borne exclusively by the Sellers and neither the Bank nor any
person appointed by it shall be under any obligation to reimburse any
Seller in respect of such costs.
13.6 Assessment Reports
(a) So long as its Collection Mandate has not been terminated by the Bank in
accordance with Clause 6.3 (Termination of Collection Mandates and Notices
of Transfer), each Seller shall transmit to the Bank before 11.00 a.m. on
each Information Date (or as soon as practicable in the case of an Interim
Assessment Date) an Assessment Report relating to the month ending on the
immediately preceding Assessment Date or Interim Assessment Date (as
appropriate).
(b) Each Seller shall procure that each Assessment Report delivered by it:
(i) identifies each Debtor which, as at the Assessment Date or Interim
Assessment Date to which the Assessment Report relates, has
outstanding against it:
(A) in the case of Mattel France S.A. (1) Delinquent Receivables
exceeding (Euro)2,000,000 (or the equivalent in other
currencies), or (2) Defaulted Receivables exceeding
(Euro)1,000,000 (or the equivalent in other currencies); and
(B) in the case of Mattel GmbH (1) Delinquent Receivables exceeding
(Euro)1,000,000 (or the equivalent in other currencies), or (2)
Defaulted Receivables exceeding (Euro)500,000 (or the
equivalent in other currencies); and
(ii) does not contain misleading or inaccurate information (excluding any
de-minimis errors).
13.7 Audit
Each Seller shall, upon the Bank's reasonable request, arrange, at the
Seller's cost, for an audit of the Relevant Receivables originated by it
and the collection procedures applying in relation to such Relevant
Receivables (provided that the Bank may not make such a request more than
once in any period of 12 months).
14. GENERAL UNDERTAKINGS
14.1 Duration
The undertakings in this Clause 14.1 shall remain in force from the date of
this Agreement until the Agreement Expiry Date.
14.2 Authorisations
Subject to the Reservation with respect to French Decree 96-1112 of 18th
December, 1996 relating to out of court recovery, each Obligor shall
promptly:
(a) obtain, maintain and comply with the terms of; and
(b) provide certified copies to the Bank of,
any authorisation required under any law or regulation to enable it to
perform any of its obligations under the Closing Documents to which it is a
party, or for the validity or enforceability of, any Closing Document.
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14.3 Pari passu ranking
Each Obligor shall procure that its obligations under the Closing Document
do and will rank at least pari passu with all its other present and future
unsecured and unsubordinated obligations (except for obligations which are
mandatorily preferred by law applying to companies generally in the
jurisdiction of its incorporation).
14.4 Insurance
Each Obligor shall insure its assets with insurance companies to such an
extent and against such risks as companies engaged in a similar business as
that Obligor normally insure and each Seller shall comply with any material
requirements as to insurance in place (if any) arising out of its capacity
as collection agent for the Bank in respect of the Transferred Receivables
(provided that this Clause 14.4 shall not have the effect of obliging any
Obligor to take out and maintain any insurance policy relating to
operational loss).
14.5 Maintenance of status
Each Obligor shall:
(a) do all such things as are necessary to maintain its corporate
existence; and
(b) ensure that it has the right and is duly qualified to conduct its
business as it is conducted in all applicable jurisdictions.
14.6 Compliance with laws
Each Obligor shall comply in all respects with all laws to which it is
subject where failure to do so has, or could reasonably be expected to
have, a Material Adverse Effect.
14.7 Transfer Documents and magnetic or electronic supports
Each Seller shall procure that all information and particulars relating to
Transferred Receivables appearing in each Transfer Document and each
magnetic or electronic support relating to any Transfer Document delivered
by it is accurate and complete in all material respects and does not omit
any information and particulars which would result in any Transfer Document
or supports related thereto being misleading in any material respect (and
shall promptly notify the Bank upon it becoming aware that this is not in
any instance the case).
14.8 Collection and recovery
(a) Each Seller shall act in the recovery of the sums due under the Transferred
Receivables transferred by it as would a prudent and informed businessman,
and be no less diligent than it would have been in recovering sums due
under Transferred Receivables if it had not transferred such receivables to
the Bank.
(b) Without prejudice to paragraph (a) above, each Seller shall:
(i) apply to the recovery of sums due under Transferred Receivables
transferred by it collection and recovery procedures that comply
with all applicable laws and regulations and the relevant Sales
Contracts and the Sales Administration Guidelines (except to the
extent that the relevant provisions or elements of such Sales
Contracts
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or Sales Administration Guidelines are of an immaterial and
technical or administrative nature);
(ii) take all steps as are within its power as may be required to ensure
that all Related Security and Related Rights relating to
Transferred Receivables transferred by it remain in force and are
exercised in a timely fashion;
(iii) take all reasonable steps as are within its power to oppose any
claim challenging the existence, validity, amount or maturity of
any Transferred Receivables transferred by it or any Related
Security or Related Rights;
(iv) take such steps as are within its power (including, without
limitation, legal or arbitration proceedings) as may reasonably be
requested by the Bank or considered necessary or appropriate for
the recovery of sums due under the Transferred Receivables
transferred by it and any Related Security or Related Rights
(including, without limitation, taking action against Credit
Insurers); and
(v) take all reasonable steps promptly to cause any attachment, seizure
or any other enforcement measure levied or applied for against any
Seller's Account or any Transferred Receivable to be released or
withdrawn to the satisfaction of the Bank.
(c) The Depositor shall take all reasonable steps promptly to cause any
attachment, seizure or any other enforcement measure levied or applied for
against the Depositor's Account to be released or withdrawn to the
satisfaction of the Bank.
14.9 Taxes
Each Seller shall collect and pay within any applicable time limit all
applicable Taxes (other than Excluded Tax) in relation to the Transferred
Receivables transferred by it and the Closing Documents as are required to
be collected and paid by each Seller by applicable law.
14.10 Promissory notes and negotiable instruments
Where a Relevant Receivable is evidenced by a negotiable instrument, no
Seller shall endorse, deliver, release or negotiate that instrument to, or
in favour of, any person other than the Bank (and each Seller concerned
shall endorse, deliver, release or negotiate any such negotiable
instrument to or in favour of the Bank promptly upon the Bank's request on
a non recourse basis either (a) if to do so is necessary to confer title
to the Relevant Receivable on the Bank or (b) following the termination of
that Seller's Collection Mandate relating to that Relevant Receivable in
accordance with Clause 6.3 (Termination of Collection Mandates and Notices
of Transfer)).
14.11 Subsequent transfers
No Seller shall enter into any subsequent assignment or transfer or
subrogation of any description (or purport or agree to do so) of any
Transferred Receivable or any Related Security or Related Rights or grant
any security interest over or in relation to any Transferred Receivable or
act in any way that might result in an Adverse Claim being made in respect
of any Transferred Receivable.
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14.12 Rating Agencies
(a) Subject to paragraph (b) below, each Obligor shall promptly comply with
the requirements of the Rating Agencies (as notified by the Bank to the
Obligors) with regard to the Relevant Receivables and the Closing
Documents (including, without limitation, any requirements of the Rating
Agencies relating to amendments to the Closing Documents or the provision
of further information relating to the Obligors or legal opinions).
(b) If any Obligor does not agree to any requirements of the Rating Agencies
referred to in paragraph (a) above, the Sellers may (without premium or
penalty and without obligation to indemnify the Bank for any costs or
losses arising on such cancellation other than in respect of breakage
costs under Clause 23.1 (Breakage costs), if any, but without prejudice to
the Obligors continuing obligations under the Closing Documents with
respect to Transferred Receivables) cancel the Maximum Amount of the
Bank's Funding forthwith by notice to the Bank (and such cancellation
shall take effect on the first Information Date after such notice is
given). Any notice of cancellation under this Clause 14.12 shall be
irrevocable and no amount of the Maximum Amount of the Bank's Funding
cancelled under this Clause 14.12 shall be reinstated.
14.13 Further assurances
Each Obligor shall, at its own expense, take whatever action the Bank may
reasonably require to facilitate or effect the transfer of Relevant
Receivables and Related Security and Related Rights pursuant to this
Agreement and any Transfer Document, including the execution of any
transfer, conveyance, assignment or assurance and the giving of any
notice, order or direction and the making of any registration, which the
Bank may, in its reasonable opinion, think necessary (including, without
limitation, the endorsement of any negotiable instruments relating to
Relevant Receivables to or in favour of the Bank or the delivery of any
such negotiable instruments to the Bank, in each case to the fullest
extent practicable and permitted by applicable law).
14.14 Amendments to Sales Contracts and Sales Administration Guidelines
(a) No Seller shall:
(i) subject to paragraphs (b) and (c), below make, or agree to make, any
amendment or waiver to any Sales Contract which would have the
effect of:
(A) reducing the amount, place of payment or the originally
applicable Maturity Date of any Transferred Receivable (other
than to remedy a technical error so as to ensure compliance
with the Sales Administration Guidelines);
(B) waiving, impairing, invalidating or reducing the Related
Security or Related Rights attached to any Transferred
Receivable;
(C) changing the governing law of the Sales Contract or introducing
a restriction or prohibition on the transfers of Relevant
Receivables contemplated by the Closing Documents; or
(D) adversely affecting the collectability of any Transferred
Receivable or the ability of the Seller concerned to perform
any of its obligations, or the rights of the Bank, under the
Closing Documents; or
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(ii) make any material change to the Sale Administration Guidelines
(including, without limitation, the collection procedures in
operation thereunder at the date of this Agreement).
(b) A Seller may in the context of Insolvency Proceedings relating to a
Debtor, participate in, make proposals for, or agree to the terms of, a
voluntary rescheduling of that Debtor's indebtedness (and may make
proposals for that purpose) provided that:
(i) its Collection Mandate with respect to Transferred Receivables
owing by that Debtor has not been terminated by the Bank;
(ii) the Seller at all times complies with its obligations under Clause
14.8 (Collection and recovery) with respect to its involvement in
such rescheduling;
(iii) the Seller keeps the Bank fully informed of the progress of such
rescheduling; and
(iv) if the aggregate amount of the Transferred Receivables subject to
such rescheduling exceeds (euro) 5,000,000 (or its equivalent in
other currencies), the Seller shall act in accordance with the
Bank's instructions with respect to such rescheduling and shall not
enter into any agreement with in relation thereto without the prior
consent of the Bank, and such consent shall be deemed to have been
given if not expressly refused by the Bank within five Business
Days of the Seller's request.
(c) Each Seller may issue Credit Notes or grant Commercial Discounts in
accordance with its Sales Administration Guidelines in relation to any
Transferred Receivable with respect to which its Collection Mandate has
not been terminated, provided that, for the avoidance of doubt, any such
Credit Note or Commercial Discount shall be a Deemed Collection.
14.15 Performance of Sales Contracts and related matters
(a) Each Seller shall comply with its contractual obligations (except to the
extent that the relevant obligations are of an immaterial and technical or
administrative nature) under:
(i) the Sales Contracts under which any Transferred Receivables is
outstanding and shall in no event act in such a way that any Debtor
is able to raise any valid set-off, counterclaim, deduction or
withholding of any nature whatsoever or any valid defence that it
is not obliged to make payment in full in cash in respect of any
Transferred Receivable to the Bank on the originally applicable
Maturity Date; and
(ii) any applicable Credit Insurance Policy (if any) such that no
insurance company is able to raise any claim or defence, set-off,
counterclaim, deduction or withholding of any nature whatsoever
that it is not obliged to make payment in full in cash under any
such insurance policy.
(b) No Seller shall use any Seller's Account for any purpose other than those
provided for in the Closing Documents.
(c) No Seller shall use software for the management of Transferred Receivables
unless the software user license allows it to be used for the management
of assets which are no longer owned by that Seller.
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14.16 Conduct of business
No Seller shall conduct its business in a way that could reasonably be
expected to materially adversely affect the collectability of the
Transferred Receivables or otherwise have a Material Adverse Effect.
14.17 Accounts
(a) No Obligor shall create or allow to subsist any security interest or
encumbrance on or over its Seller's Account (in the case of the
Sellers) or the Depositor's Account (in the case of the Depositor).
(b) Each Obligor shall operate its Seller's Account (in the case of the
Sellers) or the Depositor's Account (in the case of the Depositor)
exclusively for the purpose of the Closing Documents or any agreement
relating thereto.
14.18 Change of business
Except with the prior written consent of the Bank (which consent shall
not be unreasonably withheld or delayed) neither of the Sellers shall
engage in any material line of business which is substantially
different from the lines of business carried on by such Seller at the
date of this Agreement.
14.19 Mergers and disposals
(a) Except with the prior written consent of the Bank:
(i) no Seller shall enter into any merger or demerger; provided,
however, that without the Bank's consent a Seller may enter
into any of the following transactions on a solvent basis with
a Mattel Wholly-Owned Subsidiary:
(A) a merger in which the Seller is the surviving entity;
or
(B) a partial contribution to the Seller of assets from
another Mattel Wholly-Owned Subsidiary, whereby
assets and liabilities comprising part of the
business of such Mattel Wholly-Owned Subsidiary are
transferred to the Seller in exchange for shares of
the Seller, provided further, in this case, that the
Depositor remains the Controlling Owner of the
Seller,
and provided further that:
(1) the Bank is given prior notice of the transaction;
(2) the Rating Agencies have confirmed that they have no
objection to the transaction or any requirement of
any Rating Agency with respect to such transaction
has been fulfilled; and
(3) the transaction does not have, and could not
reasonably be expected to have, a Material Adverse
Effect;
(ii) no Seller shall, either in a single transaction or in a series
of transactions, whether related or not and whether
voluntarily or involuntarily, sell, transfer, grant, lease or
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otherwise dispose of a material portion of its assets, if to
do so has, or could reasonably be expected to have, a Material
Adverse Effect;
(iii) the Depositor shall not enter into any merger or demerger;
provided, however, that without the Bank's consent the
Depositor shall be permitted to enter into any of the
following transactions on a solvent basis with a Mattel
Wholly-Owned Subsidiary:
(A) a merger in which the surviving entity is the
Depositor;
(B) a partial contribution to the Depositor of assets
from another Mattel Wholly-Owned Subsidiary, whereby
assets and liabilities comprising part of the
business of such Mattel Wholly-Owned Subsidiary are
transferred to the Depositor in exchange for shares
of the Depositor; or
(C) a merger in which the Depositor merges with and into
another Mattel Wholly-Owned Subsidiary (other than
the Sellers), with such Mattel Wholly-Owned
Subsidiary as the surviving entity, provided that all
of the following conditions are met:
(1) the Depositor will cease to exist; and
(2) the surviving entity will, by operation of
law, acquire all rights and assume all
obligations of the Depositor under the
Closing Documents; and
(3) the surviving entity will be a company duly
incorporated and validly existing under the
laws of the Netherlands; and
(4) the surviving entity will be the Controlling
Owner of the Sellers; and
(5) the Bank first receives legal opinions in
form reasonably satisfactory to the Bank and
the Rating Agencies (if necessary) as to
conditions (1) to (3) (inclusive) above, and
a certificate from an authorised signatory
of the Parent and/or the surviving entity
reasonably satisfactory to the Bank as to
condition (4) above,
and provided further that (in the case of (A), (B) and (C)
above):
(I) the Bank is given prior notice of the transaction;
(II) the Rating Agencies have confirmed that they have no
objection to the transaction or any requirement of
any Rating Agency with respect to such transaction
has been fulfilled; and
(III) the transaction does not have, and could not
reasonably be expected to have, a Material Adverse
Effect; and
(iv) the Depositor shall not, in a single transaction or in a
series of transactions, whether related or not and whether
voluntary or involuntary, sell, transfer, grant, lease or
otherwise dispose of a material portion of its assets;
provided, however, that without the Bank's consent the
Depositor may, on a solvent basis, (A) transfer its legal
relationship (rechtsverhouding) with the Sellers and the Bank
under the Closing Documents, being all of the rights and
obligations of the Depositor, to a Mattel
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Wholly-Owned Subsidiary or (B) transfer all of its assets and
liabilities to a Mattel Wholly-Owned Subsidiary (an
activa/passiva transactie), if in the case of either (A) or
(B) all of the following conditions are met:
(1) the transferee will, as a result of the transfer,
acquire all rights and assume all obligations of the
Depositor under the Closing Documents (upon which
references in the Closing Documents to the Depositor
shall refer to the transferee); and
(2) the transferee will be a company duly incorporated
and validly existing under the laws of the
Netherlands; and
(3) the transferee will, upon completion of the transfer
and any related transactions, be the Controlling
Owner of the Sellers; and
(4) the Bank first receives legal opinions in form
reasonably satisfactory to the Bank and the Rating
Agencies (if necessary) as to conditions (1) and (2)
above, and a certificate of the Parent and/or the
surviving entity reasonably satisfactory to the Bank
as to condition (3) above,
and provided further that
(I) the Bank is given prior notice of the transaction;
(II) the Rating Agencies have confirmed that they have no
objection to the transaction or any requirement of
any Rating Agency with respect to such transaction
has been fulfilled; and
(III) the transaction does not have, and could not
reasonably be expected to have, a Material Adverse
Effect.
(b) The Bank agrees:
(i) to consider in good faith any request by an Obligor to enter
into a transaction which is prohibited by this clause; and
(ii) in accordance with Article 6:159 of the Netherlands Civil
Code, to cooperate in advance with the Depositor and the
Sellers with regard to any transaction referred to in this
Clause 14.19 for which the Bank's consent is not required.
(c) In this Clause 14.19, the expression "on a solvent basis" in relation
to a transaction means that no company involved in that transaction is
in Insolvency Proceedings at the time that transaction is to take
place.
(d) The Depositor (or its permitted successor or transferee) shall pay the
reasonable costs and expenses of the Bank, including but not limited to
the Bank's reasonable attorneys' fees, in connection with any of the
following:
(i) review by the Bank of any transaction pursuant to this Clause
14.19 as to which the Bank's consent is sought;
(ii) review by the Bank of the opinion and the certificate
mentioned in Clause 14.19(a)(iii)(C)(5) and Clause
14.19(a)(iv)(4) above;
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(iii) the cooperation of the Bank pursuant to Clause 14.19(b); or
(iv) any re-evaluation by the Rating Agencies due to any
transaction pursuant to this Clause 14.19.
15. Events of Early Amortisation
15.1 Events of Early Amortisation
Each of the events set out in this Clause 15 is an Event of Early
Amortisation (whether or not caused by any reason whatsoever outside
the control of any Obligor or any other person).
15.2 Non-payment
An Obligor does not pay on the due date (or within two Business Days of
the due date where the failure to pay is for administrative or
technical reasons) any amount payable by it under the Closing Documents
at the place at, and in the currency in, which it is expressed to be
payable.
15.3 Breach of other obligations
An Obligor does not comply with any provision of the Closing Documents
(other than those referred to in Clause 15.2 (Non-payment) and the
failure to comply, if it is (in the reasonable opinion of the Bank)
capable of remedy, continues for seven Business Days after the date of
its occurrence.
15.4 Misrepresentation
(a) A representation, warranty or statement made or repeated in or in
connection with any Closing Document or in any document delivered by or
on behalf of any Obligor under or in connection with any Closing
Document is incorrect in any material respect when made or deemed to be
made or repeated and, if the facts or circumstances giving rise to the
representation, warranty or statement being made or repeated
incorrectly are (in the reasonable opinion of the Bank) capable of
remedy or negation, such facts or circumstances are not remedied or
negated within seven Business Days of the making or repetition of the
representation, warranty or statement concerned.
(b) Without prejudice to paragraph (a) above), any Obligor delivers to the
Bank any document containing information concerning the Transferred
Receivables which is inaccurate, misleading or incomplete in any
material respect and, if the inaccuracy, misleading nature or
incompleteness of the information concerned is (in the reasonable
opinion of the Bank) capable of being remedied, it is not remedied
within seven Business Days of the earlier of the date on which the
Obligor concerned becomes aware of such matter and the date on which
the Bank gives notice thereof to the Obligor concerned.
15.5 Cross-default
(a) Any Financial Indebtedness of the Depositor at any time exceeding in
aggregate U.S.$15,000,000 (or the equivalent in other currencies) in
outstanding principal amount (i) is declared currently due and payable
as a result of the occurrence and continuance of an event of default
(howsoever described) with respect to that Financial Indebtedness, or
(ii) is not paid
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when due under the terms of the credit documentation relating to such
Financial Indebtedness; or
(b) any Financial Indebtedness of the Sellers (or either of them) at any
time exceeding in aggregate U.S.$5,000,000 (or the equivalent in other
currencies) in outstanding principal amount (i) is declared currently
due and payable as a result of the occurrence and continuance of an
event of default (howsoever described) with respect to that Financial
Indebtedness, or (ii) is not paid when due under the terms of the
credit documentation relating to such Financial Indebtedness.
15.6 Insolvency
(a) Any member of the Relevant Group is, or is deemed for the purposes of
any law to be, unable to pay its debts as they fall due or to be
insolvent, or admits inability to pay its debts as they fall due; or
(b) any member of the Relevant Group suspends making payments on all or any
class of its debts or announces an intention to do so, or a moratorium
is declared in respect of any of its indebtedness; or
(c) any member of the Relevant Group, by reason of financial difficulties,
begins negotiations with one or more of its creditors with a view to
the readjustment or rescheduling of any of its indebtedness.
15.7 Insolvency proceedings
(a) Any step (including petition, proposal or convening a meeting) is taken
with a view to a composition, assignment or arrangement with any
creditors of any member of the Relevant Group; or
(b) a meeting of any member of the Relevant Group is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or for its administration or any such resolution is passed;
or
(c) any person presents a petition for the winding-up or for the
administration of any member of the Relevant Group; or
(d) an order for the winding-up or administration of any member of the
Relevant Group is made; or
(e) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of any member of the Relevant
Group or any other insolvency proceedings involving any member of the
Relevant Group.
15.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of any member of the Relevant Group or any part
of its assets; or
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(b) the directors of any member of the Relevant Group requests the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or
the like; or
(c) any other steps are taken to enforce any security interest or
encumbrance over any part of the assets of any member of the Relevant
Group.
15.9 Creditors' process / final judgement
(a) Any attachment, sequestration, distress or execution affects:
(i) any Seller's Account or the Depositor's Account; or
(ii) any other material asset of a member of the Relevant Group and
is not discharged within 14 days;
(b) a final, non appealable judgment or court order for the payment of
(euro)5,000,000 or more (or the equivalent in other currencies) is made
against any member of the Relevant Group and continues unsatisfied for
a period of 45 days after the date for payment set forth in the
judgment or order.
15.10 Analogous proceedings
There occurs, in relation to a member of the Relevant Group, any event
anywhere which, in the reasonable opinion of the Bank, appears to be
analogous to any of those mentioned in Clauses 15.6 (Insolvency) to
15.9 (Creditors' process) (inclusive).
15.11 The Parent
(a) (i) A court having jurisdiction in respect of the Parent shall enter a
decree or order for relief in respect of the Parent 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, (ii)
any other similar relief shall be granted in respect of the Parent
under any applicable federal or state or applicable foreign law, (iii)
a petition for an involuntary case is filed against the Parent under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (iv) a decree or order is made by a court having
jurisdiction in respect of the Parent for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers in respect of the Parent, or in respect of all or
substantially all of its property, or (v) an interim receiver, trustee
or other custodian is appointed in respect of the Parent for all or
substantially all of the property of the Parent shall be appointed
involuntarily, and any such events referred to in (ii) to (v) continue
for 45 days unless dismissed, bonded or discharged.
(b) (i) An order for relief is entered with respect to the Parent or the
Parent commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (ii) the
Parent consents to (A) the entry of an order for relief in respect of
the Parent in any involuntary case, or (B) the conversion of an
involuntary case in respect of the Parent to a voluntary case, under
any such law, or (C) the appointment of a receiver, liquidator,
sequestrator, trustee or other custodian for all or substantially all
of its property or the taking of possession by any such officer of all
or substantially all of its property, (iii) the Parent makes any
assignment for the benefit of its creditors, (iv) the Parent fails or
is unable, or admits in writing that it is unable, generally to pay its
debts as such debts become due, or
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(v) the Board of Directors of the Parent adopts any resolution or
otherwise takes action to approve any of the foregoing.
(c) Any Financial Indebtedness of the Parent in excess of U.S.$25,000,000
(or the equivalent in other currencies) in outstanding principal amount
(i) is declared currently due and payable as a result of the occurrence
and continuance of an event of default under or in respect of such
Financial Indebtedness, or (ii) is not paid when due under the terms of
the credit documentation relating to such Financial Indebtedness.
15.12 Unlawfulness and invalidity
(a) It is or becomes unlawful for any Obligor to perform any of its
material obligations under the Closing Documents (other than the
Transfer Documents) or any of its obligations under the Transfer
Documents, in each case to which it is party.
(b) Any Closing Document (other than a Transfer Document) is not valid,
enforceable or effective or is alleged by any Obligor to be invalid,
unenforceable or ineffective for any reason or to any material extent
or any Transfer Document is not valid, enforceable or effective or is
alleged by any Obligor to be invalid, unenforceable or ineffective for
any reason or to any extent.
15.13 Cessation of business
Any Obligor or the Parent ceases, or states in writing its intention to
cease, to carry on all or a substantial part of its business.
15.14 Transfer Documents
Any Transfer Document does not operate so as to transfer to and vest in
the Bank (without notice of the transfer being given to the relevant
Debtor) full title and ownership to and of the receivables referred to
therein together all Related Security and Related Rights relating
thereto (including, without limitation, the right to receive any
default interest for late payment) free and clear of any security
interest, third party or other Adverse Claim whatsoever and, to the
extent that such breach is capable of remedy, such breach is not
remedied within a period of five Business Days following the date of
the Transfer Document.
15.15 Program parameters
(a) On any Assessment Date the three-month rolling average of the
Delinquency Rate exceeds (i) from 1st August to 31st December in any
year (both dates inclusive), 3 per cent., and (ii) at any other time, 5
per cent., or the three month rolling average of the Default Rate
exceeds 8.25 per cent., or the three month rolling average of the
Dilution Rate exceeds (i) from 1st July to 31st December in any year
(both dates inclusive) 4.5 per cent., and (ii) at any other time, 7 per
cent.
(b) On any Settlement Date which is not a Transfer Date, the amount of the
Bank's Funding plus the amount of the Subordinated Deposit is greater
than the Relevant Percentage multiplied by the Net Pool Balance.
(c) On any Settlement Date which is not a Transfer Date the ratio expressed
as a percentage between (i) the Subordinated Deposit and (ii) the sum
of the Bank's Funding and the Subordinated Deposit is less than the
Rate of Overcollateralisation.
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15.16 Material adverse change
Any event or series of events occurs which, in the reasonable opinion
of the Bank (acting in good faith), has or could reasonably be expected
to have a Material Adverse Effect.
15.17 Termination
(a) Subject to paragraph (c) below, following the occurrence of an Event of
Early Amortisation (with regard to any Obligor) and whilst the same is
continuing, the Bank may send a termination notice to the Obligors
(through the Depositor) (the "Termination Notice").
(b) On the date of the Termination Notice the Commitment of the Bank will
be terminated (and the Bank may otherwise exercise all its rights under
the Closing Documents or under applicable law). Following the giving of
a Termination Notice, any Transfer Fee and principal amount in respect
of any Tranche will be repaid respectively on the applicable Transfer
Fee Payment Date and the Maturity Date of the Associated Refinancing
related to such Tranche, in accordance with Clause 16.4 (Repayment of
the Bank's Funding) and Clause 8 (Settlement and Payments) and provided
that in the event that a Shortfall (as defined in Clause16.4) exists,
the amount of such Shortfall shall only be refinanced by an Associated
Refinancing based on the EURIBOR Plus Rate for one month EURIBOR or
Interim EONIA Rate.
(c) Where any event referred to in Clause 15.3 (Breach of other
obligations), Clause 15.4 (Misrepresentation) or Clause 15.14 (Transfer
Documents) also constitutes a Deemed Collection, such event shall not
constitute an Event of Early Amortisation (provided that this paragraph
shall cease to apply in relation to any Deemed Collection of the type
referred to in this paragraph occurring during any Collection Period if
the aggregate Euro Amount of all Deemed Collections of such type
occurring in that Collection Period exceeds (Euro)3,000,000 (or the
equivalent in other currencies)).
16. THE BANK'S FUNDING
16.1 Funding Payments
Subject to the provisions of this Agreement, the Bank agrees to make
Payments funded:
(a) by the Deposits; and
(b) out of the Bank's own resources (provided that the amount of the
Bank's Funding shall at no time exceed the then applicable
Maximum Amount of the Bank's Funding).
16.2 Amount of the Bank's Funding on each Initial Transfer Date
(a) Subject to Clause 16.1, on each Initial Transfer Date, the amount
of the Bank's Funding shall be equal to the lower of:
(i) the Relevant Percentage multiplied by the Net Pool Balance
taking into account Relevant Receivables to be transferred
to the Bank on that Transfer Date, less the amount of the
Subordinated Deposit calculated on such date; and
(ii) the then applicable Maximum Amount of the Bank's Funding.
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(b) Following the making of a Payment on an Initial Transfer Date, the then
amount of the Bank's Funding shall constitute a new and separate Tranche.
16.3 Increase in the Bank's Funding
(a) Subject to Clause 16.1, on each Transfer Date which is not an Initial
Transfer Date, the Bank's Funding shall be increased (the "Increase") by an
amount equal to:
(i) the Relevant Percentage multiplied by the Net Pool Balance,
calculated taking into account the Relevant Receivables to be
transferred on that Transfer Date, less the amount of the
Subordinated Deposit calculated on such date; minus
(ii) the amount of the Bank's Funding outstanding on such date prior to
any Payment being made.
(b) Following the making of a Payment on that Transfer Date, the amount of the
Increase shall constitute a new and separate Tranche.
16.4 Repayment of the Bank's Funding
(a) The Bank's Funding and the Tranches shall be reduced at the Maturity Date
of each Associated Refinancing, by a sum equal to the principal amount of
the Associated Refinancing actually repaid out of the Bank's Share of
Collections, in accordance with this Clause 16.4.
(b) The amount of Collections allocated to the repayment of the Bank's Funding
in accordance with Clauses 8.2(a)(i) and 8.3(a)(i) shall be allocated by
the Bank to the Tranches. The amount allocated to each Tranche shall be the
proportion of those Collections which the amount of the Tranche bears to
the aggregate amount of all outstanding Tranches.
(c) Each Associated Refinancing shall be repaid on its Maturity Date in an
amount equal to the amount of Collections allocated under paragraph (b)
above to the Tranche to which such Associated Refinancing relates and such
repayment shall be made:
(i) first, out of the Amount Withheld by the Bank; and
(ii) second, out of the Amount Held by the Depositor,
and where the amount applied under this paragraph to the repayment of an
Associated Refinancing is less than that Associated Refinancing, the amount
of the shortfall (the "Shortfall") shall constitute a new and separate
Tranche and be refinanced on the relevant Maturity Date by one or more new
Associated Refinancings.
(d) To facilitate the repayment of principal on the Maturity Date of an
Associated Refinancing:
(i) three Business Days before that Maturity Date, the Bank shall give a
notice to the Depositor stating the principal amount due on such
Maturity Date and the amount which shall be paid out of the Amount
Withheld by the Bank in accordance with paragraph (c)(i) above;
(ii) two Business Days before that Maturity Date, the Depositor shall:
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(A) calculate the amount to be paid out of the Amount Held
by the Depositor in accordance with paragraph (c)(ii)
above; and
(B) issue to the Bank, before 3.00 p.m., a payment notice
specifying (1) the amount determined under (A) above,
and (2) the amount of the Shortfall, if any; and
(iii) the Depositor shall pay, on that Maturity Date, and before
10.00 a.m., to the credit of the Bank's Account, the amount to
be paid out of the Amount Held by the Depositor, as specified
in the payment notice.
16.5 Division and consolidation of Tranches
(a) Notwithstanding the other provisions of this Clause 16, the Bank may,
at any time and without first obtaining the consent of the Obligors,
but subject to paragraphs (b) and (c) below:
(i) divide a Tranche into two or more Tranches (each a "Divided
Tranche"); or
(ii) consolidate two or more Tranches into one Tranche (each a
"Consolidated Tranche"),
and on the date of the division or consolidation each Divided Tranche
or Consolidated Tranche shall constitute a new and separate Tranche.
(b) The Bank may not divide Tranches unless each of the following
conditions is fulfilled:
(i) the aggregate amount of the Divided Tranches is equal to the
amount of the Tranche divided and such division of Tranches does
not result in the total number of Tranches exceeding five;
(ii) each Associated Refinancing applicable to the divided Tranche
applies to no more than one Divided Tranche, with the same
amount, refinancing rate and Maturity Date, so that the Divided
Tranches have the same refinancing terms as the Tranche; and
(iii) the Residual Amount of the Reserve for Transfer Fee of the
Tranche is divided and applied first to the Divided Tranches
refinanced by Associated Refinancings based on the BT Rate or CP
Rate up to the amount of Transfer Fee which shall fall due on
the Transfer Fee Payment Dates related to such Associated
Refinancings, and thereafter pari passu to each Divided Tranche
in an amount so that the ratios which (x) the Residual Amount of
the Reserve for Transfer Fee for each Divided Tranche bears to
(y) the Reserve for Transfer Fee, on the date of division, for
such Divided Tranche, are the same for all the Divided Tranches.
(c) The Bank may not consolidate Tranches unless each of the following
conditions is fulfilled:
(i) the amount of the Consolidated Tranche is equal to the aggregate
amount of the Tranches consolidated;
(ii) each Associated Refinancing applicable to each Tranche
consolidated applies to the Consolidated Tranche, with the same
amount, refinancing rate and Maturity Date, so that the
Consolidated Tranche has the same refinancing terms as the
Tranches; and
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(iii) the Residual Amount of the Reserve for Transfer Fee of the
Consolidated Tranche is equal to the sum of the Residual
Amount of the Reserve for Transfer Fee of each Tranche
consolidated.
(d) By no later than three Business Days after any division or
consolidation of Tranches, the Bank shall notify the Obligors of (i)
the amount of the Tranche that has been divided and of each Divided
Tranche or the amount of each Tranche that has been consolidated and
of the Consolidated Tranche, (ii) the amount, refinancing rate and
Maturity Date of each Associated Refinancing applicable to each
Divided Tranche or the Consolidated Tranche (as appropriate) and (iii)
the Residual Amount of the Reserve for Transfer Fee of each Tranche
and of each Divided Tranche or Consolidated Tranche (as appropriate).
17. CANCELLATION OF THE MAXIMUM AMOUNT OF THE BANK'S FUNDING
(a) The Sellers may (in addition to their rights under Clause 14.12(b)
(Rating Agencies) and Clause 22.1(e) (Increased costs)), by giving not
less than 15 Business Day's prior notice to the Bank, reduce the
Maximum Amount of the Bank's Funding in whole or in part (but if in
part, in a minimum amount, and an integral multiple, of
(Euro)10,000,000 and provided that the Maximum Amount of the Bank's
Funding may not be reduced to below (Euro)20,000,000 (and if it is,
the Commitment Termination Date shall be deemed to have occurred on
the date the Maximum Amount of the Bank's Funding is so reduced)).
(b) Any notice of reduction under paragraph (a) above shall be irrevocable
and the reduction shall take effect on the date which is 15 days after
the date of receipt by the Bank of such notice. No reduction in the
Maximum Amount of the Bank's Funding shall be reinstated.
18. DEPOSITS
Pursuant to the terms of the Master Additional Deposit Agreement and
the Master Subordinated Deposit Agreement, the Depositor shall make
the Additional Deposit and the Subordinated Deposit with the Bank.
18.1 Subordinated Deposit
On each Transfer Date, the amount of the Subordinated Deposit shall be
equal to the amount of the Bank's Funding (taking into account any
Payment to be made on that date) multiplied by the Rate of
Overcollateralisation, divided by one less the Rate of
Overcollateralisation.
18.2 Additional Deposit
(a) On each Initial Transfer Date, the amount of the Additional Deposit
shall be equal to the positive difference between:
(i) the nominal Euro Amount of Relevant Receivables to be
transferred to the Bank on such Initial Transfer Date; and
(ii) the amount of the Bank's Funding and Subordinated Deposit on
such date.
(b) On each Transfer Date other than an Initial Transfer Date, the
variation in the Additional Deposit shall be equal to the positive or,
if any, negative difference between the two following amounts:
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(i) the difference between (A) the nominal Euro Amount of Relevant
Receivables to be transferred to the Bank on that date, and (B)
the Euro Amount of Collections related to the latest Collection
Period; and
(ii) the sum of the Variation in the Bank's Funding and the
Variation in the Subordinated Deposit.
18.3 Pledge of Deposits
The Additional Deposit and the Subordinated Deposit shall be pledged
(eerste recht van pand) and applied as cash collateral by the Depositor
in favour of the Bank in accordance with the terms of this Agreement,
the Master Subordinated Deposit Agreement and the Master Additional
Deposit Agreement and the law of the Netherlands, to secure the payment
to the Bank of any sum due under the Closing Documents in respect of
the Transferred Receivables and in respect of Collections.
18.4 Repayment of Deposits
The repayment of the Additional Deposit and the Subordinated Deposit
shall occur in the circumstances set forth in Clause 8 (Settlements and
Payments) and in accordance with the terms of the Master Additional
Deposit Agreement and of the Master Subordinated Deposit Agreement.
19. TRANSFER FEE
19.1 Transfer fee
(a) In relation to each Tranche the Sellers shall pay to the Bank a
Transfer Fee (determined in accordance with Clause 19.5(c)), which
shall be the aggregate of:
(i) the Margin applied to the amount of such Tranche; and
(ii) the Refinancing Rate applicable to the Associated Refinancings
or the rate determined in accordance with Clause 19.5 in the
case of several Associated Refinancings applying in relation
to a Tranche.
(b) In no case shall any Tranche bear Transfer Fee after the Agreement
Expiry Date.
19.2 Associated Refinancings
(a) At any time each Tranche may be refinanced by one or more simultaneous
or successive Associated Refinancings until the earlier of (i) the date
on which such Tranche is fully repaid and (ii) the Agreement Expiry
Date. In no case shall the Maturity Date of an Associated Refinancing
extend beyond the Agreement Expiry Date.
(b) The aggregate amount of the Associated Refinancings relating to a
Tranche shall be equal to the amount of that Tranche (as that amount
may be increased from time to time by the amount of accrued Transfer
Fee in accordance with Clause 19.6 (Payment of Transfer Fee).
(c) The Bank may elect to refinance a Tranche by more than one Associated
Refinancing if the conditions prevailing in the interbank market or the
conditions applicable to the provision of the BT Rate or the CP Rate
are such that the Bank would be prevented from offering the Sellers a
single Associated Refinancing in relation to that Tranche. The Transfer
Fee
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applicable to such Tranche shall be based on the weighted average of
the Refinancing Rate applicable to each Associated Refinancing, plus
the Margin.
19.3 Refinancing Rates
(a) The Refinancing Rate for an Associated Refinancing shall be equal to
one of the following rates:
(i) the rate offered by Antalis to the Bank and declared by
Antalis to be the same as it has accepted itself, whilst
issuing on billets de tresorerie, one Business Day (the "BT
Rate"), or euro-commercial paper, two Business Days (the "CP
Rate"), before the Effective Date of the relevant Associated
Refinancing, for a period of between 10 and 125 days, and for
a minimum of (Euro)1,000,000 provided that such rate shall
never exceed the Relevant EURIBOR Plus Rate;
(ii) the Interim EONIA Rate; or
(iii) the Relevant EURIBOR Plus Rate,
as determined in accordance with Clause 19.4 (Determination of
applicable Refinancing Rate).
(b) If a billet de tresorerie or an euro-commercial paper is issued in a
currency other than Euro, the BT Rate or the CP Rate offered to the
Bank shall include the cost of the currency hedge agreement that shall
be entered into by Antalis to convert the proceeds of such issuance
into Euro.
(c) In relation to the BT Rate and the CP Rate:
(i) each Obligor acknowledges that the nature of the billets de
tresorerie or the euro-commercial paper market is such that it
does not allow the Bank to guarantee to the Obligors that:
(A) there will always be sufficient funds available on
such a market;
(B) Antalis will always be able to obtain such funds even
when other issuers have managed to do so; and
(C) such funds will be effectively received by Antalis in
case of euro-commercial paper;
(ii) the Bank confirms to the Obligors that Antalis will issue an
undertaking for the benefit of the Bank to the effect that
Antalis will use its best endeavours to obtain funds on the
market, on the best terms available to it, until the Agreement
Expiry Date. To the best of the information available to the
Bank at the date of this Agreement, the Bank is not aware of
any reason to believe that Antalis will not be capable of
fulfilling such undertaking and in the event the Bank becomes
aware of any such reason, it shall promptly notify the
Obligors.
19.4 Determination of applicable Refinancing Rate
(a) If, before 12.00 on the Effective Date of the Associated Refinancing,
the Bank has received from Antalis a BT Rate or a CP Rate which is less
than or equal to the arithmetic average of
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the Relevant EURIBOR Plus Rate offered one Business Day before that
Effective Date, the Bank shall offer to the Sellers that BT Rate or CP
Rate by sending a notice to the Obligors by no later than 12.00 noon on
that Effective Date setting out the following:
(i) the BT Rate or CP Rate received from Antalis;
(ii) the period during which such BT Rate or CP Rate applies, which
shall be between 10 and 125 days; and
(iii) the Tranche or the Portion of Tranche refinanced at such BT
Rate or CP Rate which shall be for a minimum of
(Euro)1,000,000.
(b) Following a notice under paragraph (a) above, the applicable
Refinancing Rate shall be the BT Rate or CP Rate unless:
(i) the Depositor notifies the Bank by no later than 1.00 p.m. on
the Effective Date that it does not accept the BT Rate or CP
rate; or
(ii) the BT Rate or CP Rate is higher than the Relevant EURIBOR
Plus Rate,
in which case the Refinancing Rate for the Associated Refinancing for
the relevant Tranche or the Portion of Tranche for the period referred
to in paragraph (a)(ii) above shall be the Relevant EURIBOR Plus Rate.
(c) If Antalis has not offered the Bank a BT Rate or a CP Rate under
paragraph (a) above by 12.00 noon on the Effective Date of the
Associated Refinancing, then the Refinancing Rate for that Associated
Refinancing shall either be the Interim EONIA Rate or the EURIBOR Plus
Rate for one month EURIBOR, as determined in accordance with paragraph
(d) or (e) below.
(d) (i) The Interim EONIA Rate shall apply to an Associated
Refinancing if:
(A) by 11.00 a.m. two Business Days before the Effective
Date for that Associated Refinancing the Bank has not
received any notification from Antalis that Antalis will
not be able to offer to the Bank a BT Rate, a CP Rate or
a EURIBOR Plus Rate;
(B) the Sellers have, on their own initiative, requested the
reorganisation of the payment schedule for the
Associated Refinancings based on the BT Rate or a CP
Rate; or
(C) the conditions prevailing in Paris for the issue and
placement of billets de tresorerie, and the conditions
prevailing on the euro-commercial paper market for the
issue and placement of euro-commercial paper, are
temporarily disrupted.
(ii) At no time shall an Associated Refinancing be based on the
Interim EONIA Rate for more than five consecutive Business
Days.
(e) The EURIBOR Plus Rate for one month EURIBOR shall apply to an
Associated Refinancing in any other case or where the Interim EONIA
Rate has applied to an Associated Refinancing for five consecutive
Business Days and the Bank has not at the end of that period obtained
from Antalis a BT Rate or a CP Rate.
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(f) If either the Interim EONIA Rate or EURIBOR Plus Rate for one month
EURIBOR applies the Bank shall send a notice to the Obligors by no
later than 12.00 noon on the Business Day before the Effective Date of
the relevant Associated Refinancing setting out the following:
(i) the Tranche or the Portion of Tranche to be refinanced at the
Interim EONIA Rate or the EURIBOR Plus Rate for one month
EURIBOR (as appropriate); and
(ii) the reason why the Tranche or the Portion of Tranche is to be
refinanced at the Interim EONIA Rate or the EURIBOR Plus Rate
for one month EURIBOR (as appropriate).
(g) If, at any time, EURIBOR or EONIA cannot be determined, then the Bank
shall request each of the Reference Banks to quote an interest rate for
an amount and period equivalent to those of the relevant Associated
Refinancing. The Bank shall substitute the arithmetic average of the
rates so obtained for EURIBOR or for EONIA (as applicable). In the
event that any of the Reference Banks does not quote such a refinancing
rate, then (i) the Bank's Funding shall remain available and (ii) the
Refinancing Rate for such Associated Refinancing shall be equal to the
refinancing costs, per annum, of the Bank at that time, as duly
documented and evidenced.
19.5 Transfer Fee Period and amounts
(a) Each Transfer Fee Period with respect to a Tranche shall extend from
(and including) a Settlement Date to (but excluding) the next
Settlement Date or from (and including) the Transfer Date when such
Tranche was initially created to (but excluding) the next Settlement
Date.
(b) During any Transfer Fee Period, a Tranche shall bear a Transfer Fee at
a rate equal to the aggregate of (i) the weighted average of the
Refinancing Rates of the Associated Refinancings associated to such
Tranche during such Transfer Fee Period and (ii) the Margin (the
"Transfer Fee Rate").
(c) The Transfer Fee amount in relation to any Transfer Fee Period shall be
equal to:
(i) the amount of the Tranche on the first day of the Transfer Fee
Period minus the amount of any Collection allocated to the
repayment of such Tranche in accordance with Clauses
8.2(a)(i), 8.3(a)(i) and 16.4 (Repayment of the Bank's
Funding);
(ii) multiplied by the Transfer Fee Rate for such Transfer Fee
Period;
(iii) multiplied by the number of days of such Transfer Fee Period;
and
(iv) divided by 360.
19.6 Payment of Transfer Fee
(a) Without prejudice to Clause 3 (Nature of Obligations), each Seller
shall pay to the Bank on each Transfer Fee Payment Date, out of its own
resources, its Pro Rata Share of the Transfer Fee for the Transfer Fee
Period ending on that Transfer Fee Payment Date.
(b) To facilitate payment of Transfer Fee on any Transfer Fee Payment Date:
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(i) three Business Days before such Transfer Fee Payment Date, the
Bank shall give a notice to the Obligors stating the Transfer
Fee amount due on such Transfer Fee Payment Date from each
Seller and the Residual Amount of the Reserve for Transfer
Fee;
(ii) two Business Days before such Transfer Fee Payment Date, each
Seller shall issue to the Bank, before 3.00 p.m., a payment
notice confirming the Transfer Fee amount due from it and
which will be paid on such Transfer Fee Payment Date; and
(iii) each Seller shall pay, on such Transfer Fee Payment Date, and
before 10.00 a.m., to the credit of the Bank's Account the
Transfer Fee amount due from it on such Transfer Fee Payment
Date.
(c) Should any Seller fail to pay all or part of the Transfer Fee due on a
Tranche on any Transfer Fee Payment Date, the Bank shall be entitled to
apply the Collections standing to the credit of the Bank's Account and
corresponding to the Sellers' Share of Collections against the unpaid
Transfer Fee, up to the amount of the Residual Amount of the Reserve
for Transfer Fee for such Tranche.
(d) Any Transfer Fee amount due and remaining unpaid on any Transfer Fee
Payment Date (the "Shortfall") shall be capitalised on such Transfer
Fee Payment Date. The amount of the Shortfall shall constitute a new
and separate Tranche and shall be refinanced by one or more new
Associated Refinancing(s) which shall bear Transfer Fee at the rate
applicable to Tranches plus 2 per cent. per annum (and for the
avoidance of doubt shall be payable on the Transfer Fee Payment Date
relating to such new Associated Refinancings).
19.7 Taux Effectif Global
(a) In order to fulfil the obligations imposed by Articles L 313-1 to L
313-6 of the French Consumer Code (Code de la Consommation), the Bank
represents to Mattel France S.A., who accepts such representation, that
the effective global rate (taux effectif global) calculated in
accordance with the Clauses referred to above, on the basis of a 365
days year, is 4.0343 per cent. per annum.
(b) The effective global rate referred to in this Clause 19.7 was
calculated on the basis of utilisation of the Bank's Funding by Mattel
France S.A. in the amount of (euro)100,000,000 for five years and
EURIBOR for one month at 29th November, 2001 of 3.4490 per cent. Such
rate is given on an indicative basis and shall not be binding on the
Bank in the future.
20. COMMITMENT FEE
Until the Commitment Termination Date, the Sellers shall pay to the
Bank, a Commitment Fee at the rate of zero point three five per cent.
(0.35%) per annum, applied to the then applicable Maximum Amount of the
Bank's Funding. The Commitment Fee shall be calculated on each
Assessment Date, on the number of days elapsed during the Collection
Period ending on that Assessment Date and on the basis of a year of 360
days. Without prejudice to Clause 3 (Nature of Obligations), each
Seller shall pay to the Bank on each Settlement Date, out of its own
resources, its Pro Rata Share of the Commitment Fee for the Collection
Period ending on the Assessment Date immediately preceding that
Settlement Date.
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21. TAXES
21.1 Gross up
(a) All payments to be made by any Obligor to the Bank under the Closing
Documents shall be made without any deduction and free and clear of,
and without deduction for or on account of Tax, unless an Obligor is
required by applicable law to make such a payment subject to deduction
or withholding of Tax. If any Tax, other than Excluded Tax, or amounts
in respect of Tax must be deducted, or any other deductions must be
made, from any amounts payable or paid by an Obligor under the Closing
Documents, that Obligor shall pay such additional amounts as may be
necessary to ensure that the Bank receives a net amount equal to the
full amount which it would have received had payment not been made
subject to such Tax or any other deduction.
(b) If the payment of additional amounts under paragraph (a) above is
contrary to any applicable law, the Bank and the Obligors shall
negotiate in good faith for a period of 30 days from the date on which
the such additional amounts fell due (the "Relevant Date") with a view
to agreeing a compromise acceptable to all the Parties. From the
Relevant Date until an agreement is reached, the Refinancing Rate for
any new Associated Refinancing shall be based only on the Interim EONIA
Rate or the EURIBOR Plus Rate for one month EURIBOR.
(c) If no agreement is reached under paragraph (b) above, the Commitment
shall be terminated on the date which is thirty days after the Relevant
Date. Any Transfer Fee and principal amount in respect of any Tranche
will be repaid respectively on the applicable Transfer Fee Payment Date
and the Maturity Date of the Associated Refinancing related to such
Tranche, in accordance with Clauses 8 (Settlement and Payments) and
16.4 (Repayment of the Bank's Funding), provided that in the event that
a Shortfall (as defined in Clause 16.4(c)) exists, the amount of such
Shortfall shall only be refinanced by an Associated Refinancing based
on the EURIBOR Plus Rate for one month EURIBOR or Interim EONIA Rate.
(d) In the event that any Obligor is required by applicable law to make any
deduction or withholding from any payment under the Closing Documents
in respect of Tax, other than Excluded Tax, then the Bank shall
(without in any way limiting or reducing or otherwise qualifying that
Obligor's obligations under paragraph (a) above) provide to that
Obligor such documentation within the Bank's custody or control or
which the Bank can in its opinion (acting reasonably) cause to be in
its custody or control which is requested by the Obligor (acting
reasonably) in order to enable it to make payments under the Closing
Documents without (or with a reduced amount of) such deduction and free
and clear of such Tax under the terms of any relevant double taxation
treaty or other applicable tax credit provision unless to do so might
(in the Bank's sole discretion, acting in good faith) prejudice the
Bank and provided that nothing in this paragraph (d) shall interfere
with the right of the Bank to arrange its affairs (Tax or otherwise) in
whatever manner it thinks fit, oblige the Bank to investigate or claim
any credit, relief, remission or repayment available to it in respect
of Tax or oblige the Bank to disclose any information relating to its
affairs (Tax or otherwise) or any computation in respect of any Tax
where such information is, in the Bank's opinion confidential to the
Bank or commercially sensitive.
(e) Without prejudice to paragraph (d) above, if the Bank determines in its
sole discretion that it has obtained a credit, relief, remission or
repayment in respect of any Tax, other than Excluded Tax, that has
given rise to an additional amount payable under paragraph (a) above,
then to the extent that it can, without losing the benefit of such
credit, relief, remission or repayment, promptly repay the relevant
Obligor such part of that additional amount as the Bank considers in
its sole discretion will leave it (after such reimbursement) in the
same net
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after tax position that it would have been in had no such Tax been
required to be withheld. The Bank shall not be obliged to disclose to
any Obligor, nor shall any Obligor be entitled to inspect, any of the
books or records of the Bank nor shall anything contained in this
paragraph (e) interfere with the right of the Bank to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit, and in
particular the Bank shall not be under any obligation to claim credit,
relief or remission from or against its profits or similar tax
liability in respect of the amount of such deduction as aforesaid in
priority to any other claims, reliefs or deductions available to it.
(f) If any Obligor is required to indemnify the Bank pursuant to Clause
21.2 (Sales taxes and duties) or (to the extent the indemnity relates
to Tax) Clause 22 (Increased costs) or Clause 23.2 (Other indemnities)
and the Bank determines (in its sole discretion, acting in good faith)
that the Tax in respect of which the indemnity payment is to be made
would reduce an amount of Excluded Tax payable by the Bank, the Bank
shall notify that Obligor thereof and the indemnity payment shall be
reduced by the amount so notified, provided that nothing in this
paragraph (f) shall interfere with the right of the Bank to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit, oblige the
Bank to disclose to any Obligor, nor shall any Obligor be entitled to
inspect, any of the books or records of the Bank or oblige the Bank to
disclose any information relating to its affairs (Tax or otherwise) or
any computation in respect of any Tax where such information is, in the
Bank's opinion confidential to the Bank or commercially sensitive and
in particular the Bank shall not be under any obligation to claim
credit, relief or remission from or against its profits or similar tax
liability in respect of the amount of any Tax in respect of which an
indemnity payment is to be made pursuant to Clause 21.2 (Sales taxes
and duties) in priority to any other claims, reliefs or deductions
available to it.
21.2 Sales taxes and duties
(a) The Obligors will pay on demand by the Bank any sales, excise,
registration and other Taxes, duties and fees payable in connection
with the execution, delivery, filing or recording of the Closing
Documents, any Transfer Document or other documents to be delivered in
connection with the Closing Documents or in connection with any
transaction contemplated by this Agreement (excluding Excluded Tax).
The Obligors will indemnify the Bank on demand against liabilities with
respect to or resulting from any delay in paying or omission to pay
such taxes, duties or fees.
(b) The Obligors will, within three Business Days of demand by the Bank,
indemnify the Bank against all liability which the Bank incurs for
German trade or sales tax by reason of the Bank entering into the
Closing Documents and performing the transactions contemplated thereby.
22. INCREASED COSTS
22.1 Increased Costs
(a) Subject to paragraph (d) below and Clause 22.2 (Exceptions), the
Obligors shall forthwith on demand by the Bank pay to the Bank the
amount of any increased cost incurred by it or any of its Affiliates as
a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation
applicable generally to banks or financial institutions; or
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(ii) compliance by the Bank or any person which has agreed to make
funds available to the Bank in connection with the Closing
Documents with any regulation made after the date of this
Agreement,
(including any law or regulation relating to taxation, change in
currency of a country or reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of banking
or monetary control).
(b) In this Agreement "increased cost" means:
(i) an additional cost incurred by the Bank or any of its
Affiliates as a result of it having entered into, or
performing, maintaining or funding its obligations under, any
Closing Document;
(ii) an additional cost to the Bank in making, funding or
maintaining any Payment and/or assuming, maintaining or
funding the Commitment or otherwise giving effect to this
Agreement;
(iii) a reduction in any amount payable to the Bank or any of its
Affiliates or in the effective return to the Bank or any of
its Affiliates under this Agreement or (to the extent that it
is attributable to this Agreement) on its capital;
(iv) the amount of any payment made by the Bank or any of its
Affiliates, or the amount of any interest or other return
foregone by the Bank or any of its Affiliates, calculated by
reference to any amount received or receivable by the Bank or
any of its Affiliates from any other Party under this
Agreement; or
(v) the Bank becomes liable to make any payment on account of tax
(except on account of tax imposed on its general income) or is
obliged to forego any interest or other return, on or
calculated by reference to the amount of this Agreement or any
Payment or all or part of the Bank's Funding.
(c) If the Bank wishes to make a claim under this Clause 22.1 it shall
provide to the Obligors written details of the circumstances by reason
of which it is entitled to do so and calculations evidencing in
reasonable detail the increased cost claimed.
(d) Without prejudice to Clause 3(b) (Nature of Obligations), each Seller
shall liable for 50% of the amount of any increased cost due to the
Bank unless the occurrence of such increased cost is referable to one
Seller only, in which case that Seller shall be liable in full for that
increased cost and the other Seller shall have no liability in relation
thereto.
(e) In the event of an increased cost arising, the Obligors may (without
premium or penalty and without obligation to indemnify the Bank for any
costs or losses arising on such cancellation other than in respect of
breakage costs under Clause 23.1 (Breakage costs), if any, but without
prejudice to the relevant Seller's obligation to pay any increased cost
already incurred by the Bank and the Obligors continuing obligations
under the Closing Documents with respect to Transferred Receivables)
cancel the Maximum Amount of the Bank's Funding forthwith by notice to
the Bank (and such cancellation shall take effect on the first
Information Date after such notice is given). Any notice of
cancellation under this Clause 22.1 shall be irrevocable and no amount
of the Maximum Amount of the Bank's Funding cancelled under this Clause
22.1 shall be reinstated.
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22.2 Exceptions
Clause 22.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 14.9 (Taxes) or
Clause 21 (Taxes); or
(b) attributable to any Excluded Tax; or
(c) attributable to any change in the rate of, or change in the
basis of calculating, Tax on the overall net income of the
Bank (or the overall net income of a division or branch of the
Bank) imposed in the jurisdiction in which its principal
office is for the time being situated.
23. INDEMNITIES
23.1 Breakage costs
Without prejudice to Clause 3(b) (Nature of Obligations), each Seller
shall indemnify the Bank within five Business Days of demand by the
Bank against any loss suffered or expense incurred by the Bank as a
result of:
(a) that Seller not transferring Relevant Receivables following a
Transfer Request. In this case, the indemnity amount shall be
equal to the positive difference between (a) the Transfer Fee
the Seller concerned would have paid under the transfer of
Relevant Receivables (excluding any amount of the Margin which
is retained for the Bank's own account and not passed or paid
on to those persons providing funding, or financial support to
the Bank in connection with the Closing Documents) and (b) the
return generated by the reinvestment of the monies raised by
the Bank under the Bank's Funding at EONIA minus 0.125 per
cent. for a period equal to the duration of the Associated
Refinancing made in relation to the Relevant Receivables
referred to in that Transfer Request; and
(b) a partial or total principal payment being made by that Seller
or by the Depositor in respect of any Tranche before the
Maturity Date of any Associated Refinancing. In this case, the
indemnity amount shall be equal to the positive difference
between (a) the Transfer Fee the Seller concerned would have
paid under the Tranche up to that Maturity Date (excluding any
amount of the Margin which is retained for the Bank's own
account and not passed or paid on to those persons providing
funding or financial support to the Bank in connection with
the Closing Documents) and (b) the return generated by the
reinvestment of the monies raised by the Bank under the Bank's
Funding at EONIA minus 0.125 per cent. for the period
beginning on the second Business Day after the payment is
received by the Bank and ending on that Maturity Date.
23.2 Other indemnities
(a) Subject to paragraph (c) below, the Obligors shall indemnify the Bank
within five Business Days of demand by the Bank against any loss,
liability, damages, claims and related reasonable costs and expenses,
including reasonable legal fees and disbursements (and, in each case,
any value added tax thereon) that the Bank incurs (and which are not
effectively compensated (i) by the payment of a Deemed Collection or
(ii) by another Clause of this Agreement) as a consequence of:
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(i) the occurrence of any Event of Early Amortisation or any
payment by an Obligor under the Closing Documents or in
respect of any Transferred Receivable being made in a currency
other than Euro;
(ii) the performance of the transactions contemplated by the
Closing Documents and the ownership of the Transferred
Receivables;
(iii) the failure of a Transferred Receivable and Related Security
to vest and remain in the Bank's ownership, free and clear of
any Adverse Claim and/or (b) the endorsement or delivery of
any negotiable instrument relating to Relevant Receivables to
or in favour of any person other than the Bank;
(iv) any dispute, claim, set-off, counterclaim, deduction or
withholding of any nature whatsoever or defence raised by a
Debtor in relation to the payment of any amount due under any
receivable which is or purports to be a Transferred Receivable
(including, without limitation, a defence based on a
Transferred Receivable or the related Sales Contract not being
a legal, valid, binding enforceable obligation of the Debtor)
or any other claim resulting from the sale of the goods or
services related to such Transferred Receivable or the
delivery or failure to deliver such goods and services;
(v) any products liability or environmental claim, or personal
injury or property damage claim, or other similar or related
claim or action of any sort whatsoever arising out of or in
connection with goods, merchandise or services which are the
subject of any Transferred Receivable or Sales Contract;
(vi) the transfer of an ownership interest in any receivable which
is not a Relevant Receivable.
(b) The amount of any indemnity under this Clause 23.2 shall be determined
by the Bank which shall notify the Obligors by delivering to the
Depositor a certificate specifying such indemnity amount (and setting
out calculations, in reasonable detail, evidencing such amount). The
indemnity amount shall be paid by the Obligors out of their own
respective resources, on the Settlement Date following the receipt of
such certificate by the Depositor.
(c) Without prejudice to Clause 3(a) (Nature of Obligations):
(i) each Seller shall be liable for 50% of the amount of any
amount due to the Bank under this Clause 23.2, unless the
occurrence giving rise to the Bank's claim is referable to one
Seller only, in which case that Seller shall be liable in full
for that amount and the other Seller shall have no liability
in relation thereto; and
(ii) no Obligor shall be liable for any amount which would
otherwise be due to the Bank under this Clause 23.2 to the
extent that the occurrence giving rise to the Bank's claim has
resulted from the negligence, act or omission or wilful
default of the Bank.
23.3 Exceptions
Clause 23.2 (Other indemnities) does not apply to any loss, liability,
damage, claim or related cost and expense to the extent that it:
(a) is effectively compensated for by the operation of Clause 14.9
(Taxes), Clause 21 (Taxes) or Clause 22 (Increased costs; or
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(b) results from any Excluded Tax; or
(c) results from any change in the rate of, or voluntary change in the
basis of calculating, Tax on the overall net income of the Bank
(or the overall net income of a division or branch of the Bank)
imposed in the jurisdiction in which its principal office is for
the time being situated.
24. INTEREST ON LATE PAYMENTS
Any default by an Obligor in its payment obligations under this
Agreement shall automatically entitle the Bank without prior notice, to
receive interest on the amounts payable and unpaid, calculated from the
date when such payment was due until the date of actual payment, at
EONIA plus 2 per cent. per annum. Such interest shall be paid by the
Obligor out of its own resources, on the Settlement Date following the
date of actual payment.
25. FEES AND EXPENSES
(a) The Depositor shall, out of its own resources, pay to the Bank the Up
Front Fee as defined in the mandate letter signed between the Depositor
and the Bank in relation to this Agreement dated 22nd June, 2001 on the
date referred to therein.
(b) The Depositor shall reimburse the Bank, out of its own respective
resources, for all reasonable and duly documented costs and expenses
(including legal fees and value added tax thereon) (i) arising out of
any modification, waiver or amendment of any Closing Document requested
by an Obligor, or (ii) incurred in connection with the preservation
and/or enforcement of the rights of the Bank under any Closing
Document.
26. PAYMENTS
(a) The Seller's Accounts, the Depositor's Account and the Bank's Account
shall be used exclusively for the purpose of the payment of any sum due
under this Agreement. Such accounts will be used exclusively for the
purpose of the Closing Documents or any agreement relating thereto.
(b) At any time, the Bank shall be entitled to set-off any amount due and
payable by the Bank to any Obligor under any Closing Document against
any amount due and payable by any Obligor to the Bank under any Closing
Document.
(c) All payments from any Obligor shall be made without set-off or
counterclaim.
(d) The Transfer Fee, Commitment Fee and any other amounts, as are payable
in accordance with this Agreement, shall be calculated on the exact
number of days elapsed during the period where such Transfer Fee,
Commitment Fee and other amounts have accrued and on the basis of a
year of 360 days.
(e) All payments falling due on a day which is not a Business Day shall
instead fall due on the following Business Day.
(f) All payments to be made under the Closing Documents shall be made in
Euro (provided that amounts payable in respect of costs, expenses and
taxes and the like are payable in the currency in which they are
incurred).
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27. SUBSTITUTION AND AGENCY
In addition to the matters set out in Clause 14.19 (Mergers and
disposals), each Party shall have the right to be assisted by, to
appoint or to substitute for itself one or more third parties in the
performance of certain tasks provided that:
(a) such Party has given written notice of the exercise of that right
to the other Parties and the Rating Agencies (other than in the
case of an appointment by a Seller of a bailiff or other similar
collection agent for the recovery of payment in respect of a
Transferred Receivable falling with that Seller's Collection
Mandate);
(b) such Party remains liable to the other Parties for the proper
performance of those tasks and the relevant third party has
expressly renounced any right to any contractual claim against
the other Party; and
(c) the relevant third party undertake to comply with all obligations
binding upon such Party under this Agreement.
28. CONFIDENTIALITY
(a) Each Party agrees to keep the Closing Documents and all information of
any kind transmitted by any other Party (whether directly or through an
Affiliate) as confidential. The Parties agree not to disclose such
information to any other person and to ensure that their respective
personnel similarly respect the confidential nature of such information
provided that a Party may make any such disclosure:
(i) to its auditors, accountants, legal counsel and tax advisers and
to any other professional advisers (together "Advisers") under a
professional or duty of confidentiality to it in respect of the
relevant information;
(ii) to any other third party where the Parties have previously agreed
in writing that disclosure may be made to that third party;
(iii) (in the case of the Bank) to any banking or other regulatory or
examining authorities (whether governmental or otherwise) or
fiscal administration authorities, in each case where such
disclosure is requested by them and with whose requests the Bank
has to comply under applicable law or regulation (or with whose
requests banks in the relevant jurisdiction are accustomed to
complying);
(iv) pursuant to subpoena or other legal process, or in connection
with any action, suit or proceeding relating to any of the
Closing Documents, Transferred Receivables or Sales Contracts,
notice of which is given to the other Parties;
(v) pursuant to any law or regulation whether or not having the force
of law, but, if not having the force of law, is a regulation in
accordance with which a party is accustomed to act;
(vi) (in the case of the Bank) in connection with the preservation of
any rights under or with respect to any of the Closing Documents,
Transferred Receivables or Sales Contracts;
(vii) in the case of the Bank, to Societe Generale, Antalis or any
other person which has agreed to make funds available to the Bank
in connection with this Agreement if, in
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each case, such disclosure is necessary for the purposes of
the Bank performing its obligations under the Closing
Documents, any Associated Refinancing or for such funds to be
made available to the Bank by that person provided that any
such person undertakes to keep such information confidential
on terms no less stringent than those set out in this Clause
28;
(viii) in the case of an Obligor, to any fiscal administration
authorities where such disclosure is requested by them and
with whose requests the Obligor has to comply under applicable
law or regulation (or with whose requests companies in the
relevant jurisdiction are accustomed to complying); or
(ix) to a Rating Agency.
(b) This Clause 28 shall not apply in relation to information:
(i) which was lawfully known by a Party without any breach of any
obligation of confidentiality of any person and where, at the
time it become so known, such Party was not under any
obligation of confidentiality in relation thereto; or
(ii) which is or becomes publicly available without any breach of
any obligation of confidentiality.
(c) The obligation to preserve confidentiality set out in this Clause 28
shall remain valid for ten years from the Agreement Expiry Date.
29. Transferability
Subject to the provisions of Clause 27 (Substitution and Agency), and
except as provided in Clause 14.19 (Mergers and disposals), none of the
Parties may transfer any of its respective rights, interests and/or
obligations hereunder to any third party whatsoever, without the prior
written consent of the other Parties.
30. NOTICES
30.1 Giving of notices
(a) All notices or other communications under or in connection with the
Closing Documents shall be given in writing and, unless otherwise
stated, may be made by letter or facsimile. Any such notice will be
deemed to be given as follows:
(i) if by letter, when delivered personally or on actual receipt;
and
(ii) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place. All
Parties may rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority of, the
proper person.
(b) Each Seller irrevocably authorises the Depositor to receive and make
all notices and communications from the Bank to the Seller or the
Seller to the Bank under the Closing Documents on its behalf and agrees
that any such notice or communication received by the Depositor or
received by the Bank from the Depositor shall be binding upon, and
shall be
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effective as if it had been delivered by the Bank directly to the
Seller or by the Seller directly to the Bank.
30.2 Addresses for notices
(a) The address and facsimile number of the Bank are:
Societe Generale Bank Nederland N.V.
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: 00 31 20 463 5358
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇,
or such other as the Bank may notify to the Obligors by not less than
five Business Days' notice.
(b) The address and facsimile number of the Depositor are:
Mattel International Holdings B.V.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
For the attention of: Joop van der Haar
Fax: 00 31 20 50 30 415
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇,
or such other as the Depositor may notify to the Bank by not less than
five Business Days' notice.
31. WAIVERS AND REMEDIES CUMULATIVE
The rights of Parties under the Closing Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
32. AUTHENTICATION
The Parties agree that the execution of this Agreement by the Bank and
the Obligors shall be legalised by a Notary Public in The Netherlands
at the sole cost of the Obligors.
33. SEVERABILITY
If a provision of any Closing Document is or becomes illegal, invalid
or unenforceable in any
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jurisdiction, the Parties agree that such event shall not affect (to
the fullest extent possible under applicable law):
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Closing Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Closing
Documents.
34. JURISDICTION AND WAIVER OF IMMUNITY
34.1 Jurisdiction
(a) Any dispute as to the validity, interpretation, performance or any
other matter arising out of any Closing Document shall be subject to
the jurisdiction of the competent courts of Amsterdam.
(b) The designation of jurisdiction in this Clause 34 is entirely for the
benefit of the Bank and the Bank shall have the right to elect to
proceed against any Obligor before the courts of any other competent
jurisdiction.
34.2 Waiver of immunity
Each Obligor irrevocably and unconditionally:
(a) agrees that if the Bank brings proceedings against it or its
assets in relation to a Closing Document, no immunity from
those proceedings (including, without limitation, suit,
attachment prior to judgement, other attachment, the obtaining
of judgement, execution or other enforcement) will be claimed
by or on behalf of itself or with respect to its assets;
(b) waives any such right of immunity which it or its assets now
has or may subsequently acquire; and
(c) consents generally in respect of any such proceedings to the
giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of its use or intended use) of any order or
judgement which may be made or given in those proceedings.
35. GOVERNING LAW
(a) This Agreement shall be governed by the laws of the Netherlands.
(b) Without prejudice to paragraph (a) above this Agreement is not intended
to govern the actual transfer of title to Relevant Receivables by means
of the execution of a Transfer Document and the proprietary effects of
any such transfer (which in each case shall be governed by the law of
the Transfer Document to the extent possible under the governing law of
the Sales Contracts under which the Relevant Receivables to which the
Transfer Document relates arise).
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(c) The Bank accepts the law of the Netherlands as the law governing the
powers of attorney issued by the Depositor and Mattel GmbH in favour of
the person executing this Agreement on behalf of the Depositor and
Mattel GmbH.
THIS AGREEMENT has been entered into in Amsterdam, on 30th November, 2001 in
four originals.
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[Schedules omitted.]
SIGNATORIES
Depositor
MATTEL INTERNATIONAL HOLDINGS B.V.
By: /s/ JOOP VAN DER HAAR
Sellers
MATTEL FRANCE S.A.
By: /s/ JOOP VAN DER HAAR
Power of Attorney
MATTEL GmbH
By: /s/ JOOP VAN DER HAAR
Power of Attorney
The Bank
SOCIETE GENERALE BANK NEDERLAND N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇