EXHIBIT 99.6
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and dated as of March 31, 2000, among MATTEL, INC., a
Delaware corporation (the "Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (individually referred to herein as a "Bank" and
collectively as the "Banks"), 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 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 and a Fourth
Amendment to Second Amended and Restated Credit Agreement dated as of October
20, 1999 (as so amended, the "Agreement").
RECITAL
The Company, the Banks and the Agent desire 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 following definitions in Section 1.1 of the Agreement (Certain
Defined Terms) are amended and restated in their entirety as follows:
"`Applicable Amount' means the commitment fee, utilization fee or the
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margin applicable to Loans (expressed in basis points per annum) set forth
in the chart below opposite the second highest rating issued by S&P,
Moody's or Duff & Phelps on the Company's senior unsecured long-term debt:
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Senior Unsecured Long-Term Debt Ratings Commitment Utilization Eurodollar Rate Base Rate
Fee Fee Loans + Loans +
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A or higher by S&P 9.5 12.5 32.0 00.0
A2 or higher by Moody's
A or higher by Duff & Phelps
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A- by S&P 12.0 12.5 40.0 00.0
A3 by Moody's
A- by Duff & Phelps
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BBB+ by S&P 13.0 12.5 62.5 00.0
Baa1 by Moody's
BBB+ by Duff & Phelps
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BBB by S&P 15.0 12.5 75.0 00.0
Baa2 by Moody's
BBB by Duff & Phelps
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BBB- by S&P 20.0 12.5 112.5 25.0
Baa3 by Moody's
BBB- by Duff & Phelps
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None of above criteria satisfied 25.0 12.5 125.0 37.5
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"Any change in the commitment fee, utilization fee or the margin
applicable to Loans shall become effective upon any public announcement of
any change in the above ratings that requires such a change according to
the above chart."
"`Bank' has the meaning assigned to that term in the introduction to
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this Agreement, together with any other financial institutions that become
a party hereto as a "Bank" pursuant to Section 10.1."
"'Duff & Phelps'" means Duff & Phelps Credit Rating Co. or any
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successor thereto (including Fitch ICBA or any affiliates thereof).
"`Eurodollar Rate' means for any Interest Period with respect to any
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Eurodollar Rate Loan, a rate per annum determined by Agent pursuant to the
following formula:
"Eurodollar Rate = Eurodollar Base Rate
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1.00 - Eurodollar Reserve Percentage
"Where,
"`Eurodollar Base Rate' means, for such Interest Period:
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"(a) the rate per annum equal to the rate determined by Agent
to be the offered rate that appears on the page of the Telerate screen
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
"(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to the
rate determined by Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, or
"(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Agent as the rate of interest (rounded upward to the
next 1/100th of 1%) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted
by Agent (or its Affiliate) in its capacity as a Bank and with a term
equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar market
at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
"`Eurodollar Reserve Percentage' means, for any day during any
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Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Bank, under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Eurodollar Rate for each outstanding
Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"The determination of the Eurodollar Reserve Percentage and the
Eurodollar Base Rate by Agent shall be conclusive in the absence of
manifest error."
"`Governmental Person' means the government of the United States or
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any foreign government or the government of any state or locality therein,
any political subdivision or any governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body or entity,
or other regulatory bureau, authority, body or entity of the United
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States, any foreign government or any state or locality therein, including
the Federal Deposit Insurance Company, the Comptroller of the Currency or
the Federal Reserve Board."
"`Loan Documents' means this Agreement, any Notes, the Mattel Sales
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Guaranty, the Fisher-Price Guaranty, the Mattel Sales Subordination
Agreement, the Fisher-Price Subordination Agreement and all documents and
instruments delivered in connection herewith or therewith; provided,
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however, that for the avoidance of doubt, "Loan Documents" shall not
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include documents included in the definition of "Loan Documents" under that
certain Credit Agreement (364-Day Facility) dated as of March 31, 2000
among the Company, the banks from time to time party thereto and Bank of
America as administrative agent thereunder, except to the extent that any
document or instrument delivered in connection therewith is also delivered
in connection herewith."
"'Moody's' means Moody's Investors Service, Inc. or any successor
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thereto.
"'S&P' means Standard & Poor's Ratings Services, a division of The
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McGraw-Hill Companies, Inc., or any successor thereto.
2.2 The definition of "Interest Payment Date" in Section 1.1 of the
Agreement is amended by deleting "respectively," in the proviso thereto.
2.3 The first paragraph of the definition of "Material Subsidiary" in
Section 1.1 of the Agreement (Certain Defined Terms) is amended and restated in
its entirety as follows:
"`Material Subsidiary" means Mattel Sales, Fisher-Price, or any other
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Subsidiary of the Company which meets any of the following conditions:"
2.4 Section 2.8(a) of the Agreement (Interest on Loans) is amended and
restated in its entirety as follows:
"(a) Subject to Section 2.8(c), the Loans shall bear interest on the
unpaid principal amount thereof from the Funding Date through maturity
(whether by acceleration or otherwise) at a rate per annum equal to (i)
with respect to Eurodollar Rate Loans, the Eurodollar Rate plus the
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Applicable Amount for Eurodollar Rate Loans or (ii) with respect to Base
Rate Loans the Base Rate plus the Applicable Amount for Base Rate Loans."
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2.5 Section 2.9 of the Agreement (Fees) is amended by inserting a new
subsection (d) immediately after subsection (c) as follows:
"(d) The Company agrees to pay a utilization fee equal to the
Applicable Amount therefor on the daily average principal amount of all
outstanding Loans on each day that the aggregate principal amount of
outstanding Loans exceeds 33.00% of the Aggregate Loan Commitment. The
Company shall pay the utilization fee to the Agent for distribution to each
Bank in accordance with its Pro Rata Share. The utilization fee shall be
calculated on the basis of a 360-day year and the actual number of days
elapsed and shall be payable quarterly in arrears on the last Business Day
of each calendar quarter, for all amounts
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accrued to such date, and on the Termination Date; provided that, in
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connection with any reduction or termination of the Loan Commitment
pursuant to Section 2.5, the accrued utilization fee calculated on the
portion so terminated or reduced for the period ending on such date shall
also be paid on the date of such reduction or termination."
2.6 Section 2.10 of the Agreement (Calculation of Fees and Interest) is
amended by deleting "Reserve Percentage," after "Applicable Amount" therein.
2.7 Section 4.2(b) of the Agreement is amended by inserting the following
wording after the words "shall be true, correct and complete in all material
respects on and as of that Funding Date" before the comma:
"(except to the extent that such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date)"
2.8 Section 5.8 (Financial Condition) and Section 5.9 (Changes, Etc.) of
the Agreement are amended by deleting the date "December 31, 1996" wherever it
appears and inserting the date "December 31, 1999" in lieu thereof.
2.9 Section 5.18 of the Agreement (Disclosure) is amended by deleting the
date "December 31, 1997" and inserting the date "January 1, 2000" in lieu
thereof.
2.10 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)
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Consolidated Funded Indebtedness plus (y) Combined Purchasers' Investments
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plus (z) the consolidated net worth of the Company and its Subsidiaries on
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a consolidated basis determined in conformity with GAAP to exceed 60% at
the end of each of the first three fiscal quarters in each fiscal year and
50% at the end of each fiscal year."
2.11 Section 8.1(b) of the Agreement is amended and restated in its
entirety as follows:
"(b) Default in Other Agreements. (i) Failure of the Company,
Fisher-Price, Mattel Sales or any of its Material Subsidiaries to pay
or any default in the payment of any principal or interest on any
Indebtedness in an amount exceeding $15,000,000 or any default in any
other obligation for the payment of money in an amount in excess of
$15,000,000 beyond any period of grace allowed; or (ii) any breach or
default (unless cured or waived) with respect to any other term of any
evidence of such other Indebtedness for borrowed money in an amount
exceeding $15,000,000 or of any loan agreement, mortgage, indenture or
other agreement relating thereto, and such breach or default continues
after the applicable grace or notice period, if any, specified in the
document relating thereto, if the effect of such failure, default or
breach is to cause, or to permit the holder or holders of such
Indebtedness
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(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness for borrowed money to become or be
declared due prior to its stated maturity; or"
2.12 Section 8.1(m) of the Agreement is amended and restated in its
entirety as follows:
"(m) Servicer Default. A Servicer Default (as defined in the
Receivables Purchase Agreement) shall occur and be continuing;"
2.13 Section 10.1 of the Agreement (Assignments; Participations) is amended
by deleting subsections (a), (b) and (c) and inserting the following new
subsections (a) (b) and (c) as follows:
"(a) From time to time following the Effective Date, each Bank may
assign to one or more Eligible Assignees all or any portion of its Loan
Commitment and outstanding Loans; provided that (i) such Bank concurrently
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assigns a ratable portion of its Purchaser Commitment and its Percentage of
the Purchasers' Investment under the Receivables Purchase Agreement, (ii)
such assignment, if not to a Bank or an Affiliate of the assigning Bank,
shall be consented to by the Company at all times other than during the
existence of a Default or Event of Default and by the Agent (which approval
of the Company shall not be unreasonably withheld or delayed), (iii) a copy
of a duly signed and completed Assignment and Acceptance in the form of
Exhibit I (`Assignment and Acceptance') shall be delivered to the Agent and
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the Company, (iv) except in the case of an assignment (A) to an Affiliate
of the assigning Bank or to another Bank or (B) of the entire remaining
Commitment of the assigning Bank, the portion of the Aggregate Facilities
Commitment assigned shall not be less than $10,000,000, (v) the assigning
Bank shall have delivered any Note or Notes subject to the assignment to
the Agent and (vi) the effective date of any such assignment shall be as
specified in the Assignment and Acceptance, but not earlier than the date
which is five Business Days after the date the Agent has received the
Assignment and Acceptance. Upon satisfaction of the conditions set forth
in the prior sentence, any forms required by Section 3.1(f) and payment of
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the requisite fee described below, the assignee named therein shall be a
Bank for all purposes of this Agreement effective as of the specified
effective date to the extent of the Assigned Interest (as defined in such
Assignment and Acceptance), and the assigning Bank shall be released from
any further obligations under this Agreement to the extent of such Assigned
Interest. Until satisfaction of the conditions set forth herein to any
assignment, the Company and Agent may continue to deal solely and directly
with the assigning Bank in connection the Assigned Interest. Upon request
following satisfaction of the conditions set forth herein to any
assignment, the Company shall execute and deliver new or replacement Notes
to the assigning Bank and the assignee Bank to evidence Loans made by them.
The Agent's consent to any assignment shall not be deemed to constitute any
representation or warranty by any Agent-Related Person as to any matter.
"(b) After receipt of a completed Assignment and Acceptance, and
receipt of an assignment fee of $2,500 from such Eligible Assignee or such
assigning Bank (including in the case of assignments to Affiliates of
assigning Banks), the Agent shall, promptly
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following the effective date thereof, provide to Borrower and Banks a
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revised Schedule 10.6 giving effect thereto.
"(c) intentionally left blank"
2.14 Section 10.2(b) of the Agreement is amended and restated in its
entirety as follows:
"(b) Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of the Company set forth in Sections 2.9, 3,
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10.4 and 10.15 and the agreements of the Banks set forth in Sections 2.13,
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9, 10.1(a), 10.1(e) and 10.5 shall survive the payment of the Obligations
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by the Company and the termination of this Agreement."
2.15 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:
Maximum
Period Percentage
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First 3 fiscal quarters of each fiscal year 60%
End of each fiscal year 50%
2.16 Exhibit I to the Agreement is amended and restated in its entirety as
set forth in Exhibit I hereto.
2.17 Schedules 5.3 (Material Subsidiaries of Company), 5.11 (Material
Litigation) and 7.2 (Certain Liens) are amended and restated in their entirety
as set forth in Schedules 5.3, 5.11 and 7.2, respectively, hereto.
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,
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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 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:
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.
4.3 Amendment Fee. Payment of an amendment fee to the Agent for the
account of each Bank approving this Amendment by 12:00 Noon (California time) on
March 15, 2000 equal to 5 basis points of such Bank's Commitment under the
Agreement plus its Purchaser Commitment as a Purchaser under the Receivables
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Purchase Agreement.
5. Miscellaneous.
5.1 Effectiveness of the Agreements. Except as hereby amended, the
Agreement shall remain in full force and effect.
5.2 Waivers. This 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,
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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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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
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William Stavro
Senior Vice President and
Treasurer
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BANK OF AMERICA, N.A., as Agent
By: /s/ Gina Meador
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Gina Meador
Vice President
BANK OF AMERICA, N.A., as a Bank
By: /s/ Robert W. Troutman
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Robert W. Troutman
Managing Director
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THE CHASE MANHATTAN BANK
By: /s/ William P. Rindfuss
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Name: William P. Rindfuss
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Title: Vice President
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FLEET NATIONAL BANK
By: /s/ Jorge A. Schwarz
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Name: Jorge A. Schwarz
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Title: Director
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TORONTO DOMINION (TEXAS), INC.
By: /s/ Debbie A. Greene
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Name: Debbie A. Greene
--------------------------------
Title: Vice President
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ABN AMRO BANK N.V.
By: /s/ Ellen M. Coleman
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Name: Ellen M. Coleman
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Title: Group Vice President
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By: /s/ Mitsoo Iravani
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Name: Mitsoo Iravani
--------------------------------
Title: Assistant Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Ronald L. Watterworth
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Name: Ronald L. Watterworth
--------------------------------
Title: Vice President
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BANQUE NATIONALE DE PARIS
By: /s/ Clive Bettles
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Name: Clive Bettles
--------------------------------
Title: Senior Vice President & Manager
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By: /s/ Mitchell M. Ozawa
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Name: Mitchell M. Ozawa
--------------------------------
Title: Vice President
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DRESDNER BANK AG, New York and Grand Cayman
Branches
By: /s/ A. Richard Morris
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Name: A. Richard Morris
--------------------------------
Title: First Vice President
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By: /s/ Xinyue Jasmine Geffner
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Name: Xinyue Jasmine Geffner
--------------------------------
Title: Assistant Vice President
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MANUFACTURERS & TRADERS TRUST CO.
By: /s/ Christopher Kania
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Name: Christopher Kania
--------------------------------
Title: Vice President
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CITICORP USA, INC.
By: /s/ William Royer
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Title: Attorney-in-Fact
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SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Robert Petersen
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Name: Robert Petersen
--------------------------------
Title: Director
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ V. Timiraos
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Name: Vicente L. Timiraos
--------------------------------
Title: Joint General Manager
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THE NORTHERN TRUST COMPANY
By: /s/ Jaron Grimm
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Name: Jaron Grimm
--------------------------------
Title: Vice President
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CONSENT OF MATTEL SALES CORP. AND FISHER PRICE, INC.
TO FIFTH 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 the Mattel
Sales Subordination Agreement and Fisher Price Subordination Agreement,
respectively, (the "Subordination Agreements"), hereby consent to the Fifth
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, 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 reaffirm
their obligations thereunder.
Dated as March 31, 2000.
FISHER-PRICE, INC.
MATTEL SALES CORP.
By: /s/ William Stavro
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William Stavro
Senior Vice President and
Treasurer
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