EXHIBIT 10.1
FIRST AMENDMENT TO
------------------
CREDIT AGREEMENT
----------------
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment")
is dated as of March 11, 1996 and is entered into by and among MATTEL,
INC., a Delaware corporation (the "Company"), THE FINANCIAL INSTITUTIONS
LISTED ON THE SIGNATURE PAGES HEREOF (the "Banks"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for the Banks (the
"Agent") and amends the Credit Agreement dated as of March 10, 1995 among
the Company, certain of the Banks and the Agent (the "Agreement").
RECITAL
-------
The Company has requested that the Banks and the Agent amend the
Agreement, and the Banks and Agent are willing to amend the Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Terms. All capitalized terms used herein 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 parties hereto agree that the Agreement is
amended as follows:
2.1 The definitions of "Applicable Amount" and "Termination
Date" in Section 1.1 of the Agreement are amended and restated in their
entirety as follows:
"'Applicable Amount' means, for each type of Loan and the
commitment fee, the amount (expressed in basis points per annum)
set forth in the chart below opposite the Applicable Level then
in effect:
-1-
(Basis Points Per Annum)
- ----------------------------------------------------------
Applicable Commitment Eurodollar CD Rate Loans
Level Fee Rate
Loans
1 9.00 25.00 37.50
2 10.00 30.00 42.50
3 12.50 37.50 50.00
4 17.50 45.00 57.50
5 35.00 75.00 87.50
"'Termination Date' means March 9, 2001."
2.2 The following new definitions are inserted in Section 1.1 of
the Agreement in proper alphabetical order:
"'Combined Total Outstanding Investment' means an amount
equal to the sum of (a) the Total Outstanding Investment under
the Transfer and Administration Agreement plus (b) the analogous
amount under Other Permitted Accounts Receivable Financing
Facilities."
"'Other Permitted Accounts Receivable Financing Facility'
means a financing arrangement other than the Transfer and
Administration Agreement under which accounts receivable of the
Company, Mattel Sales or Fisher-Price are periodically sold, and
the Company, Mattel Sales or Fisher-Price collects the accounts
receivable so sold on behalf of the transferee."
2.3 Clause (iii) of the proviso to Section 2.1 of the Agreement
is amended by deleting "$650,000,000" and inserting "$800,000,000" in lieu
thereof.
2.4 Section 2.5(b)(y) of the Agreement is amended by deleting
"$250,000,000" and inserting "$400,000,000" in lieu thereof.
2.5 The proviso to Section 2.8(a)(iii) of the Agreement is
deleted in its entirety.
2.6 Section 2.9(b) of the Agreement is deleted in its entirety,
and subsections (c) and (d) of Section 2.9 are relettered (b) and (c),
respectively.
2.7 Section 7.4 of the Agreement is amended by deleting "and" at
the end of subsection (a), deleting the period
-2-
at the end of subsection (b) and inserting "; and" in lieu thereof, and
inserting a new subsection (c) as follows:
"(c) If the Company believes in good faith that the
collectability of certain accounts receivable is or may be
jeopardized by the distressed financial condition of the obligor
under such accounts receivable, the Company, Mattel Sales and
Fisher-Price may sell such accounts receivable, including,
without limitation, by means of entering into and performing
under Other Permitted Accounts Receivable Financing Facilities."
2.8 Section 7.5 of the Agreement 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
Total Outstanding Investment to the sum of (x) Consolidated
Funded Indebtedness plus (y) Combined Total Outstanding
Investment plus (z) Consolidated Tangible Net Worth to exceed 65%
at the end of each of the first three fiscal quarters in each
fiscal year and 55% at the end of each fiscal year."
2.9 Section I of Attachment I to Exhibit D to the Agreement
(Officer's Certificate) is amended and restated in its entirety as set
forth on Exhibit A to this First Amendment.
2.10 Section II.B. of Attachment I to Exhibit D to the Agreement
(Officer's Certificate) is amended by deleting "Line I.B4" and inserting
"Line I.D.4" in lieu thereof.
2.11 Schedule 1.1 to the Agreement (Loan Commitments) is amended
and restated in its entirety as set forth on Schedule 2.1 to this First
Amendment.
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 First 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 First 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,
-3-
moratorium or other similar laws relating to or limiting creditors' rights
generally or by the application of general principles of equity.
3.3 No Conflict. The execution, delivery and performance by the
Company of this First Amendment and the issuance, delivery and payment of
the replacement Notes do not and will not (a) violate the Restated
Certificate of Incorporation or Bylaws of the Company, (b) violate any
provision of law applicable to the Company, or any material order, judgment
or decree of any court or other agency of government binding on the
Company, the violation of which would result in a Material Adverse Effect,
(c) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of the
Company, (d) result in or require the creation or imposition of any
material lien, security interest, charge or encumbrance of any nature
whatsoever upon any of its material properties or assets, or (e) require
any approval of stockholders or any approval or consent of any Person under
any Contractual Obligation of the Company.
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 First
Amendment shall be subject to the compliance by the Company with its
agreements herein contained, and to the delivery of the following to Agent
in form and substance satisfactory to Agent:
4.1 Corporate Resolution. 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 effective date of this First Amendment, authorizing the amendments
to the Agreement herein provided for and the execution, delivery and
performance of this First 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 and dated the date of
this First Amendment, as to the incumbency of the
-4-
person or persons authorized to execute and deliver this First Amendment and
any instrument or agreement required hereunder on behalf of the Company.
4.3 Replacement Notes. Notes, duly executed and delivered by
the Company, evidencing each Bank's new Loan Commitment for each Bank
previously having a Note, which Note shall replace the existing Note of
each such Bank.
4.4 Accrued Fees and Interest. The Company agrees to pay to the
Agent on the date hereof, for distribution to the Banks (including the
Selling bank as defined in Section 5.5 of this First Amendment) all accrued
and unpaid interest and fees due to the Banks to the date hereof.
4.5 Other Evidence. Such other evidence with respect to the
Company or any other person as the Agent or any Bank may reasonably request
to establish the consummation of the transactions contemplated hereby, the
taking of all corporate action in connection with this First Amendment and
the Agreement and the compliance with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Agreement. Except as hereby amended,
the Agreement shall remain in full force and effect.
5.2 Waivers. This First Amendment is specific in time and 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.
5.3 Counterparts. This First 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 First Amendment
shall not become effective until the Company, the Banks and the Agent shall
have signed a copy hereof, whether the same or counterparts, and the same
shall have been delivered to the Agent.
5.4 Jurisdiction. This First Amendment, and any instrument or
agreement required hereunder, shall be governed by and construed under the
laws of the State of California.
-5-
5.5 Assignment of Marine Midland's Loan Commitment to Societe
Generale. Effective as of the date of this First Amendment, after all
Loans have been prepaid pursuant to Section 5.6 of this First Amendment,
but before the reborrowing of such Loans pursuant to Section 5.6 of this
First Amendment, Marine Midland Bank (the "Selling Bank") agrees to sell
and assign to Societe Generale (the "Buying Bank"), and the Buying Bank
hereby agrees to purchase and assume, without recourse, from the Selling
Bank, all of the Selling Bank's Loan Commitment and any outstanding Loans.
Such assignment shall be automatic, without any further action required by
any party pursuant to Section 10.1 of the Agreement. From and after the
effectiveness of such assignment, the Buying Bank shall be a "Bank" for all
purposes of the Agreement having the Loan Commitment specified next to the
Buying Bank's name on Schedule 1.1 to this First Amendment. The Selling
Bank and the Buying Bank authorize the Agent to distribute to the Selling
Bank its Pro Rate Share of all accrued fees and interest it receives from
the Company that are due to the Selling Bank for the period preceding this
assignment. The Selling Bank represents and warrants to the Buying Bank
that it is the legal and beneficial owner of the Obligations it is
assigning hereunder and that such Obligations are free and clear of any
adverse claim. Other than as provided above, the Selling Bank makes no
representation or warranty nor assumes any responsibility with respect to
such Obligations, this Agreement or any other instrument or document
furnished pursuant hereto, the financial condition of the Company, or the
performance or observance by the Company thereunder. The Company agrees to
pay on demand directly to the Selling Bank any costs incurred by it
pursuant to Section 3.5 of the Agreement in connection with the assignment
of its Loans hereunder. The Company, the Guarantors, the Banks and the
Agent hereby consent to such assignment.
5.6 Adjustments to Aggregate Loan Commitment. Effective as of
the date of this First Amendment, the Aggregate Loan Commitment and each
Bank's respective Loan Commitments shall be as set forth on Schedule 1.1 to
this First Amendment. In order to accomplish such adjustment, the Company
confirms its request under Section 2.6(a) of the Agreement that all
outstanding Loans be prepaid as of the date hereof and, pursuant to a
Notice of Borrowing timely delivered pursuant to Section 2.2 of the
Agreement, that such Loans be immediately, but after giving effect to the
assignment set forth in Section 5.5 above, reborrowed from each Bank in
accordance with its Pro Rata Share of the revised Aggregate Loan
Commitment. The Company agrees to pay on demand directly to each Bank any
costs incurred by such Bank pursuant to Section 3.5 of the Agreement by
reason of such prepayment of its outstanding Loans.
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
MATTEL, INC.
By /s/ William Stavro
------------------
William Stavro
Senior Vice President and
Treasurer
S-1
AGENT: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By /s/ Kay Warren
--------------
Kay Warren
Vice President
S-2
BANKS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Robert W. Troutman
----------------------
Robert W. Troutman
Managing Director
S-3
NATIONSBANK OF TEXAS, N.A.
By /s/ Tom F. Scharfenberg
-----------------------
Title Vice President
--------------
S-4
CHEMICAL BANK
By /s/ Mary Cameron
----------------
Title: Vice President
--------------
S-5
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Debra Zurka
---------------
Title Vice President
--------------
S-6
PNC BANK, N.A.
By /s/ Ted A. Dunn
---------------
Title Assistant Vice President
------------------------
S-7
THE TORONTO-DOMINION (TEXAS), INC.
By /s/ Diane Bailey
----------------
Title Vice President
--------------
S-8
ABN AMRO BANK N.V.
By /s/ Matthew S. Thomson
----------------------
Title Group Vice President/Director
-----------------------------
By /s/ Patrick A. Russo
--------------------
Title Assistant Vice President
------------------------
S-9
THE BANK OF CALIFORNIA, N.A.
By /s/ Lynn E. Vine
----------------
Title Vice President
--------------
S-10
BANQUE NATIONALE DE PARIS
By /s/ Clive Bettles
-----------------
Title Senior Vice President & Manager
-------------------------------
By /s/ Mitchell M. Ozawa
---------------------
Title Vice President
--------------
S-11
DRESDNER BANK AG, Los Angeles
Agency
By /s/ Sidney S. Jordan
--------------------
Title Vice President
--------------
By /s/ Jon M. Bland
----------------
Title Senior Vice President
---------------------
S-12
ISTITUTO BANCARIO SAN PAOLO di TORINO SpA
By /s/ Donald W. Brown
-------------------
Title Branch Manager
--------------
By /s/ Glen Binder
---------------
Title Vice President
--------------
S-13
MANUFACTURERS & TRADERS TRUST CO.
By /s/ Geoffery R. Fenn
--------------------
Title Vice President
--------------
S-14
CITICORP USA, INC.
By /s/ Majorie Futornick
---------------------
Title Vice President
--------------
S-15
SOCIETE GENERALE
By /s/ J. Staley Stewart
---------------------
Title Vice President
--------------
S-16
MARINE MIDLAND BANK
(for purposes of Section 5.5 only)
By /s/ Mary Ann Tappero
--------------------
Title Vice President
--------------
S-17
CONSENT OF GUARANTORS
---------------------
The undersigned Fisher-Price, Inc., and Mattel Sales Corp. hereby
consent to the foregoing First Amendment to Credit Agreement dated as of
March 11, 1996, and reaffirms their respective Continuing Guaranty each
dated as of March 10, 1995.
Dated: March 11, 1996
MATTEL SALES CORP.
By: /s/ William Stavro
------------------
William Stavro
Vice President and
Treasurer
FISHER-PRICE, INC.
By: /s/ William Stavro
------------------
William Stavro
Treasurer
EXHIBIT A TO FIRST AMENDMENT
----------------------------
Amendment and Restatement of
Section I of Attachment I to Exhibit D
to the Agreement (Officer's Certificate)
I. CONSOLIDATED FUNDED INDEBTEDNESS TO TOTAL CAPITALIZATION AS OF ABOVE
DATE. (Section 7.5)
A. Consolidated Funded Indebtedness:
1. Total liabilities for borrowed money:
- Notes Payable: $
---------
- Current Portion of Long-Term Debt: $
---------
- Term Loans: $
---------
- Subordinated Debt: $
---------
- Senior Long-Term Debt: $
---------
- Mortgages: $
---------
Total liabilities for borrowed money: $
---------
2. Capital Leases: $
---------
3. Guaranties of unconsolidated funded
obligations for borrowed money: $
---------
4. Total Consolidated Funded
Indebtedness (Lines A1+A2+A3): $
=========
B. Combined Total Outstanding Investment:
1. Total Outstanding Investment under
Transfer and Administration Agreement: $
---------
2. Amount analogous to "Total Outstanding
Investment" under Other Permitted
Accounts Receivable Financing
Facilities (describe): $
---------
3. Combined Total Outstanding Investment
(Lines B1+B2): $
=========
C. Consolidated Funded Indebtedness plus
Combined Total Outstanding Investment
(Lines A4+B3): $
=========
D. Consolidated Tangible Net Worth:
1. Net Worth: $
---------
2. Foreign exchange currency
translation adjustments: $
---------
3. Intangible assets: $
---------
4. Consolidated Tangible Net Worth
(Line D1 - (D2+D3)): $
=========
E. Consolidated Funded Indebtedness plus
Combined Total Outstanding Investment plus
Consolidated Tangible Net Worth (Lines C+D4): $
=========
F. Actual percentage of Consolidated Adjusted
Debt plus Combined Total Outstanding Investment
of Consolidated Funded Indebtedness plus
Combined Total Outstanding Investment plus
Consolidated Tangible Net Worth (Line C,E): %
-------
G. Permitted maximum percentage of Consolidated
Funded Indebtedness plus Combined Total
Outstanding Investment to Consolidated Funded
Indebtedness plus Combined Total Outstanding
Investment plus Consolidated Tangible
Net Worth: (55%) (65%)