EXHIBIT 10.2
AMENDMENT NO. 3 TO
FIRST AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 3 to First
Amended and Restated Receivables Purchase Agreement (this “
Amendment ”) dated as of March 23, 2009 is made
by and among MATTEL FACTORING, INC., a Delaware corporation, as
transferor (the “ Transferor ”), MATTEL, INC., a
Delaware corporation (“ Mattel ”), as servicer
(the “ Servicer ”), THE FINANCIAL INSTITUTIONS
SIGNATORY HERETO as purchasers (together with any successors and
assigns, the “ Purchasers ”), and BANK OF
AMERICA, N.A., a national banking association, as agent for the
Purchasers (in such capacity, together with any successors and
assigns, the “ Administrative Agent ”).
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Receivables Purchase
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS , the Transferor, the Servicer, the Purchasers
and the Administrative Agent entered into that certain First
Amended and Restated Receivables Purchase Agreement dated as of
March 20, 2002, as amended by Amendment No. 1 to First
Amended and Restated Receivables Purchase Agreement dated as of
March 19, 2004 and Amendment No. 2 to First Amended and
Restated Receivables Purchase Agreement dated as of Mach 23, 2005
(as the same has been and may be further amended, restated, amended
and restated, modified or supplemented from time to time, the
“ Receivables Purchase Agreement ”);
and
WHEREAS , the Transferor, the Servicer, the Purchasers
and the Administrative Agent desire to and have agreed to amend the
Receivables Purchase Agreement, in order to, among other things,
extend the Facility Termination Date, and to make certain other
amendments on the terms and conditions set forth herein, and the
Administrative Agent and Purchasers are agreeable to such
amendments, subject to the terms and conditions contained in this
Amendment;
NOW, THEREFORE
, in consideration of the premises
and further valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
Section 1
. Amendments to Receivables
Purchase Agreement . Subject to the terms and conditions set
forth herein, the Receivables Purchase Agreement, including all
exhibits thereto, is hereby amended such that, after giving effect
to all such amendments, it shall read in its entirety as attached
hereto as Exhibit A .
Section 2
. Effectiveness; Conditions
Precedent . The effectiveness of this Amendment and the
amendments to the Receivables Purchase Agreement herein provided
are subject to the satisfaction of the following conditions
precedent:
(a) the Administrative Agent shall
have received each of the following documents, instruments or
deliverables in form and substance reasonably acceptable to the
Administrative Agent:
(i) four (4) original
counterparts of this Amendment, duly executed by each of the
Transferor, the Servicer, the Purchasers and the Administrative
Agent, together with all schedules and exhibits thereto duly
completed;
(ii) resolutions of the Board of
Directors of the Transferor and the Servicer authorizing the
transactions contemplated hereby, certified by the Secretary or
Assistant Secretary of the Transferor and the Servicer,
respectively;
(iii) a favorable opinion of a
Senior Counsel of the Servicer and Latham & Watkins LLP,
as counsel to the Transferor and Servicer, relating to the
Transferor and Servicer and as to such other matters as the
Administrative Agent and the Purchasers may reasonably request;
and
(iv) such other documents,
instruments, opinions, certifications, undertakings, further
assurances and other matters as the Administrative Agent shall
reasonably request; and
(b) all actual and reasonable fees
and expenses payable to the Administrative Agent (including the
actual and reasonable fees and expenses of counsel to the
Administrative Agent) estimated to date shall have been paid in
full (without prejudice to final settling of accounts for such fees
and expenses).
Upon the satisfaction of the
conditions precedent set forth in this Section 2 , the
effectiveness of this Amendment and the effectiveness of the Mattel
Credit Agreement (as defined in Exhibit A ) shall be deemed
to occur simultaneously, such that the Purchasers party hereto
shall be deemed to be “Purchasers” party to the
Receivables Purchase Agreement (as amended hereby).
Section 3
. Representations and
Warranties . In order to induce the Administrative Agent and
the Purchasers to enter into this Amendment, the Transferor and the
Servicer represent and warrant to the Administrative Agent and the
Purchasers as follows:
(a) The representations and
warranties made by each Seller Party in Section 5 of
the Receivables Purchase Agreement and in each of the other
Transaction Documents to which such Seller Party is a party are
true and correct on and as of the date hereof, except to the extent
that such representations and warranties expressly relate to an
earlier date;
(b) This Amendment has been duly
authorized, executed and delivered by the Transferor and the Seller
and constitutes a legal, valid and binding obligation of such
parties, except as may be limited by general principles of equity
or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting
creditors’ rights generally; and
(c) No Termination Event has
occurred and is continuing.
Section 4
. Entire Agreement . This
Amendment, together with all the Transaction Documents
(collectively, the “ Relevant Documents ”), sets
forth the entire understanding and
2
agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relating to such subject matter. No
promise, condition, representation or warranty, express or implied,
not set forth in the Relevant Documents shall bind any party
hereto, and no such party has relied on any such promise,
condition, representation or warranty. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in the
Relevant Documents, no representations, warranties or commitments,
express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment may be changed,
modified, waived or canceled orally or otherwise, except in writing
and in accordance with Section 10.01 of the Receivables
Purchase Agreement.
Section 5
. Full Force and Effect of
Agreement . Except as hereby specifically amended, modified or
supplemented, the Receivables Purchase Agreement and all other
Transaction Documents are hereby confirmed and ratified in all
respects and shall be and remain in full force and effect according
to their respective terms.
Section 6
. Counterparts . This
Amendment may be executed in any number of counterparts, each of
which shall be deemed an original as against any party whose
signature appears thereon, and all of which shall together
constitute one and the same instrument.
Section 7
. Governing Law . THIS
AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
AND SHALL BE FURTHER SUBJECT TO THE PROVISIONS OF SECTION
10.13 OF THE RECEIVABLES PURCHASE AGREEMENT.
Sect
