CONSENT AND SIXTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS CONSENT AND SIXTH AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (this "Amendment") is made and dated as
of September 28, 2000, among MATTEL, INC., a Delaware corporation
(the "Company"), THE BANKS (as defined below) and BANK OF AMERICA,
N.A., as the agent for the Banks (the "Agent"), and amends the
Second Amended and Restated Credit Agreement dated as of March 11,
1998 among the Company, the financial institutions party thereto
from time to time as lenders (individually referred to herein as a
"Bank" and collectively as the "Banks"), and the Agent, as amended
by a First Amendment to Second Amended and Restated Credit
Agreement dated as of July 2, 1998, a Second Amendment to Second
Amended and Restated Credit Agreement dated as of December 14,
1998, a Third Amendment to Second Amended and Restated Credit
Agreement dated as of March 26, 1999, a Fourth Amendment to Second
Amended and Restated Credit Agreement dated as of October 20, 1999
and a Fifth Amendment to Second Amended and Restated Credit
Agreement dated as of March 31, 2000 (as so amended, the
"Agreement").
RECITAL
The Company has notified the Banks and the Agent that it
desires to sell or otherwise dispose of the assets and business
that the Company has reported as Discontinued Operations in the
Consolidated Statement of Operations in the Consolidated Financial
Statements filed with the Securities and Exchange Commission in the
Company's Current Report on Form 8-K dated July 6, 2000 (the
"Discontinued Operations") and the Banks and the Agent are willing
to consent thereto and to amend the Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereby agree as follows:
1. Terms. All terms used herein shall have the same
meanings as in the Agreement unless otherwise defined herein. All
references to the Agreement shall mean the Agreement as hereby
amended.
2. Amendments. The Company, the Banks and the Agent hereby
agree to amend the Agreement as follows:
2.1 The chart in the definition of "Applicable Amount" in
Section 1.1 of the Agreement (Certain Defined Terms) is amended and
restated in its entirety as follows:
-1-
Senior Unsecured Long- Commitment Utilization Rate Rate
Term Debt Ratings Fee Fee Loans + Loans +
--------------------------------------------------------------------
A or higher by S&P 9.5 25.0 32.0 00.0
A2 or higher by
Moody's
A or higher by Duff &
Phelps
--------------------------------------------------------------------
A- by S&P 12.0 25.0 40.0 00.0
A3 by Moody's
A- by Duff & Phelps
--------------------------------------------------------------------
BBB+ by S&P 13.0 25.0 62.5 00.0
Baa1 by Moody's
BBB+ by Duff & Phelps
--------------------------------------------------------------------
BBB by S&P 15.0 25.0 75.0 00.0
Baa2 by Moody's
BBB by Duff & Phelps
--------------------------------------------------------------------
BBB- by S&P 20.0 25.0 112.5 25.0
Baa3 by Moody's
BBB- by Duff & Phelps
--------------------------------------------------------------------
None of above criteria 25.0 25.0 125.0 37.5
satisfied
--------------------------------------------------------------------
2.2 Section 7.5 of the Agreement (Consolidated Funded
Indebtedness to Total Capitalization) is amended and restated in
its entirety as follows:
"7.5 Consolidated Funded Indebtedness to Total
Capitalization. The Company shall not permit the ratio of the
sum of (a) Consolidated Funded Indebtedness plus (b) Combined
Purchasers' Investments to the sum of (x) Consolidated Funded
Indebtedness plus (y) Combined Purchasers' Investments plus
(z) the consolidated net worth of the Company and its
Subsidiaries on a consolidated basis determined in conformity
with GAAP to exceed (i) at the end of the fiscal quarter
ending September 30, 2000, 68%, (ii) at the end of the fiscal
year ending December 31, 2000, 58%, (iii) at the end of each
of the first three fiscal quarters in each fiscal year
thereafter, 60%, and (iv) at the end of each fiscal year
thereafter, 50%."
2.3 The chart at the end of the last line of Section I.G of
Attachment 1 to Exhibit D to the Agreement (Officers' Certificate)
is amended and restated in its entirety as follows:
-2-
Maximum
Period Percentage
- --------------------------------------------------------
Fiscal quarter ending September 30, 2000 68%
Fiscal year ending December 31, 2000 58%
- --------------------------------------------------------
First 3 fiscal quarters of each 60%
fiscal year thereafter
End of each fiscal year 50%
thereafter
3. Representations and Warranties. The Company represents
and warrants to the Banks and the Agent:
3.1 Authorization. The execution, delivery and performance
of this Amendment by the Company has been duly authorized by all
necessary corporate action by the Company and has been duly
executed and delivered by the Company.
3.2 Binding Obligation. This Amendment and the Agreement are
legal, valid and binding agreements of the Company, enforceable in
accordance with their respective terms, except to the extent
enforceability thereof may be limited by applicable law relating to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or limiting creditors' rights generally or by the
application of general principles of equity.
3.3 No Legal Obstacle to Agreements. Neither the execution
of this Amendment, the making by the Company of any borrowings
under the Agreement, as amended hereby, nor the performance of the
Agreement by the Company has constituted or resulted in or will
constitute or result in a breach of the provisions of any material
agreement, or the violation of any law, judgment, decree or
governmental order, rule or regulation applicable to the Company,
or result in the creation under any material agreement of any
security interest, lien, charge, or encumbrance upon any of the
assets of the Company. No approval or authorization of any
Governmental Person is required to be obtained by the Company to
permit the execution, delivery or performance by the Company of
this Amendment, the Agreement as amended hereby, or the
transactions (other than the sale or disposition of the
Discontinued Operations) contemplated hereby or thereby, or the
making of any borrowing by the Company under the Agreement, as
amended hereby.
3.4 Incorporation of Certain Representations. The
representations and warranties set forth in Section 5 of the
Agreement are true and correct in all material respects on and as
of the date hereof as though made on and as of the date hereof
except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and as
of such earlier date.
3.5 Default. No Default or Event of Default under the
Agreement has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of this
Amendment shall be subject to the delivery of the following to the
Agent in form and substance satisfactory to the Agent:
-3-
4.1 Corporate Resolutions. A copy of a resolution
or resolutions passed by the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company
as being in full force and effect on the date hereof, authorizing
the amendments to the Agreement herein provided for and the
execution, delivery and performance of this Amendment and any note
or other instrument or agreement required hereunder.
4.2 Authorized Signatories. A certificate, signed by the
Secretary or an Assistant Secretary of the Company dated the date
hereof, as to the incumbency of the person or persons authorized to
execute and deliver this Amendment and any instrument or agreement
required hereunder on behalf of the Company.
5. Miscellaneous.
5.1 Consent to Disposition of Discontinued Operations. The
Banks and the Agent hereby consent, effective as of September 19,
2000, to the Company's sale or other disposition of the
Discontinued Operations, and waive Sections 5.10 and 7.3 and any
other section of the Agreement otherwise prohibiting such sale or
disposition. This Amendment is specific in intent and does not
constitute, nor should it be construed as, a waiver of any other
right, power or privilege under the Agreement, or under any
agreement, contract, indenture, document or instrument mentioned in
the Agreement; nor does it preclude any exercise thereof or the
exercise of any other right, power or privilege, nor shall any
future waiver of any right, power, privilege or default hereunder,
or under any agreement, contract, indenture, document or instrument
mentioned in the Agreement, constitute a waiver of any other
default of the same or of any other term or provision.
5.2 Effectiveness of the Agreements. Except as hereby
amended, the Agreement shall remain in full force and effect.
5.3 Counterparts. This Amendment may be executed in any
number of counterparts and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. This
Amendment shall become effective as of the effective date written
above upon the Company, the Requisite Banks and the Agent signing a
copy hereof, and Fisher-Price and Mattel Sales consenting hereto,
whether the same or counterparts, and the same shall have been
delivered to the Agent.
5.4 Jurisdiction. This Amendment, and any instrument or
agreement required hereunder, shall be governed by and construed
under the laws of the State of California.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this
Consent and Sixth Amendment to Second Amended and Restated
Credit Agreement to be duly executed and delivered as of the
date first written above.
MATTEL, INC.
By: /s/ William Stavro
-------------------------
William Stavro
Senior Vice President and
Treasurer
S-1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Gina Meador
--------------------------
Gina Meador
Vice President
BANK OF AMERICA, N.A., as a Bank
By: /s/ Robert W. Troutman
------------------------------
Robert W. Troutman
Managing Director
S-2
THE CHASE MANHATTAN BANK
By: /s/ William P. Rindfuss
------------------------------
Name: William P. Rindfuss
Title: Vice President
S-3
FLEET NATIONAL BANK
By: /s/ Jorge A. Schwarz
-----------------------------
Name: Jorge A. Schwarz
Title: Director
S-4
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Kathleen I. Flickinger
-----------------------------
Name: Kathleen I. Flickinger
Title: Vice President
S-5
TORONTO DOMINION (TEXAS), INC.
By: /s/ Azar S. Azarpour
----------------------------
Name: Azar S.Azarpour
Title: Vice President
S-6
ABN AMRO BANK N.V.
By: /s/ Ellen M. Coleman
----------------------------
Name: Ellen M. Coleman
Title: Group Vice President
By: /s/ Delia B. Fance
----------------------------
Name: Delia B. Fance
Title: Vice President
S-7
UNION BANK OF CALIFORNIA, N.A.
By: /s/ George Plazula
----------------------------
Name: George Plazula
Title: Credit Officer
S-8
BNP PARIBAS
By: /s/ Clive Bettles
---------------------------
Name: Clive Bettles
Title: Senior Vice President
By: /s/ James Culhane
---------------------------
Name: James Culhane, CFA
Title: Assistant Vice President
S-9
DRESDNER BANK AG, New York and Grand
Cayman Branches
By: /s/ Richard Morris
----------------------------
Name: Richard Morris
Title: Senior Vice President
By: /s/ B. Craig Erickson
----------------------------
Name: B. Craig Erickson
Title: Vice President
S-10
SANPAOLO IMI S.p.A.
By: /s/ Carlo Persico
----------------------------
Name: Carlo Persico
Title: D.G.M.
By: /s/ Robert Wurster
----------------------------
Name: Robert Wurster
Title: 1st V.P.
S-11
MANUFACTURERS & TRADERS TRUST CO.
By: /s/ Christopher Kania
----------------------------
Name: Christopher Kania
Title: Vice President
S-12
CITICORP USA, INC.
By: /s/ Deborah Ironson
----------------------------
Name: Deborah Ironson
Title: Vice President
S-13
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Ambrish D. Thanawala
-----------------------------
Name: Ambrish D. Thanawala
Title: Vice President
S-14
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Vicente L. Timiraos
------------------------------
Name: Vincente L. Timiraos
Title: Joint General Manager
S-15
THE NORTHERN TRUST COMPANY
By: /s/ Jaron Grimm
-----------------------------
Name: Jaron Grimm
Title: Vice President
S-16
CONSENT OF MATTEL SALES CORP. AND FISHER PRICE, INC.
TO AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
The undersigned Mattel Sales Corp. and Fisher-Price, Inc.,
as guarantors under their respective First Amended and Restated
Continuing Guaranties, dated as of March 13, 1997 (the
"Continuing Guaranties") and signatories to any Mattel Sales
Subordination Agreement or Fisher Price Subordination Agreement,
respectively, (the "Subordination Agreements"), hereby
(i) consent to the foregoing Consent and Sixth Amendment to
Second Amended and Restated Credit Agreement dated as of the date
first written above, among Mattel, Inc., the Banks named therein
and Bank of America, N.A., as agent, (ii) represent and warrant
that there is no defense, counterclaim or offset of any type or
nature under such Continuing Guaranties or the Subordination
Agreements before or after giving effect thereto, and (iii)
reaffirm their obligations thereunder.
Dated as of September 28, 2000.
FISHER-PRICE, INC.
MATTEL SALES CORP.
By: /s/ William Stavro
------------------------
William Stavro
Senior Vice President and
Treasurer
-1-