{"id":43770,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/tlc-sale-and-purchase-agreement-mattel-inc-gtg-wizard-llc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"tlc-sale-and-purchase-agreement-mattel-inc-gtg-wizard-llc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/tlc-sale-and-purchase-agreement-mattel-inc-gtg-wizard-llc-and.html","title":{"rendered":"TLC Sale and Purchase Agreement &#8211; Mattel Inc., GTG\/Wizard LLC and Alec E. Gores"},"content":{"rendered":"<pre>                                  MATTEL, INC\n\n\n                          SALE AND PURCHASE AGREEMENT\n                                AMENDMENT NO. 1\n\n                                    October 12, 2000\n\nGTG\/Wizard, LLC\nc\/o Gores Technology Group\n10877 Wilshire Boulevard, Suite 1805\nLos Angeles, CA  90024\n\nAlec E. Gores, trustee of the\nRevocable Living Trust Agreement of Alec E. Gores\nc\/o Gores Technology Group\n10877 Wilshire Boulevard, Suite 1805\nLos Angeles, CA  90024\n\nAlec E. Gores\nc\/o Gores Technology Group\n10877 Wilshire Boulevard, Suite 1805\nLos Angeles, CA  90024\n\nLadies and Gentlemen:\n\n          We refer to the Sale and Purchase Agreement (the \"Sale and Purchase\n                                                            -----------------\nAgreement\") dated as of September 28, 2000 by and among  Alec E. Gores, trustee\n---------                                                                      \nof the Revocable Living Trust Agreement of Alec E. Gores, GTG\/Wizard, LLC and\nMattel, Inc.  Capitalized terms used but not otherwise defined herein shall have\nthe respective meanings given such terms in the Sale and Purchase Agreement.\n\n          1.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, 2000, the Sale and Purchase Agreement is amended\nto add Alec E. Gores as a signatory thereto, by adding Alec E. Gores to the\ncover page, preamble and signature page thereto.\n\n          2.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, the Sale and Purchase Agreement is amended by\ndeleting the title of Article IV of the Sale and Purchase Agreement and\nreplacing it with the following: \"REPRESENTATIONS AND WARRANTIES OF THE COMPANY,\nAEG AND ALEC E. GORES\"\n\n          3.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, the Sale and Purchase Agreement is amended by\ndeleting the lead-in \n\n \nlanguage to Article IV of the Sale and Purchase Agreement and replacing it with\nthe following: \"Each of the Company, AEG and Alec E. Gores represents and\nwarrants to Mattel that the statements contained in this Article IV are true and\ncorrect as to such party.\"\n\n          4.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.1 of the Sale and Purchase Agreement is\namended by adding the following after the second sentence thereof: \"Alec E.\nGores represents that he is the sole trustee of AEG and has sole power to act on\nits behalf.\"\n\n          5.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 3.6 (b) of the Sale and Purchase Agreement\nis amended by adding the words \"and a similar filing in Ireland\" immediately\nafter the parenthetical defining HSR Act in the first sentence thereof.\n\n          6.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.2 of the Sale and Purchase Agreement is\namended and restated as follows:\n\n          \"4.2  Authorization; Validity and Effect of Agreement.  Each of the\n                -----------------------------------------------                \nCompany and AEG has the requisite corporate or trust power and authority, and\nAlec E. Gores has all requisite power and authority, to execute, deliver and\nperform such party's obligations under this Agreement and to consummate the\ntransactions contemplated hereby.  The execution and delivery of this Agreement\nby each of the Company and AEG of its obligations hereunder and the consummation\nof the transactions contemplated hereby have been duly authorized by its Board\nof Directors or its trustees, as applicable, and all other necessary corporate\nor trust action on the part of each of them and no other corporate or trust\nproceedings on the part of each of them are necessary to authorize this\nAgreement and the transactions contemplated hereby.  This Agreement has been\nduly and validly executed and delivered by each of the Company, AEG and Alec E.\nGores and, assuming that it has been duly authorized, executed and delivered by\nMattel, constitutes a legal, valid and binding obligation of each of them,\nenforceable against it in accordance with its terms, subject to the effects of\nbankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and\nother similar laws relating to or affecting creditors' rights generally, general\nequitable principles (whether considered in a proceeding in equity or at law)\nand an implied covenant of good faith and fair dealing.\"\n\n          7.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.3 of the Sale and Purchase Agreement is\namended and restated as follows:\n\n          \"4.3 No Conflict; Required Filings and Consents.\n               ------------------------------------------   \n\n     (a)  Neither the execution and delivery of this Agreement nor the\nperformance by each of the Company, AEG and Alec E. Gores of its obligations\nhereunder, nor the consummation of the transactions contemplated hereby, will:\n(i) conflict with the provisions of the trust instrument or limited liability\ncompany agreement or other organizational document; (ii) assuming satisfaction\nof the requirements set forth in Section 4.3(b) below, violate any statute, law,\nordinance, rule or regulation, applicable to it or any of its properties or\nassets; or (iii) violate, breach, be in conflict \n\n                                      -2-\n\n \nwith or constitute a default (or an event which, with notice or lapse of time or\nboth, would constitute a default) under, or permit the termination of any\nprovision of, or result in the termination of, the acceleration of the maturity\nof, or the acceleration of the performance of any of any obligation under, or\nresult in the creation or imposition of any Lien upon any properties, assets or\nbusiness of the Company, AEG or Alec E. Gores, as applicable, under, any note,\nbond, indenture, mortgage, deed of trust, lease, franchise, permit,\nauthorization, license, contract, instrument or other agreement or commitment or\nany order, judgment or decree to which any of them is a party or by which any of\nthem or any of their respective assets or properties is bound or encumbered\nexcept, in the case of clauses (ii) and (iii), for such violations, breaches,\nconflicts, defaults or other occurrences which, individually or in the\naggregate, would not have a material adverse effect on its obligation to perform\nits covenants under this Agreement.\n\n          (b) Except for the pre-merger notification requirements of the HSR Act\nand a similar filing in Ireland, no consent, approval or authorization of,\npermit from, or declaration, filing or registration with, any Governmental\nEntity or any other Person is required to be made or obtained by the Company,\nAEG or Alec E. Gores in connection with the execution, delivery and performance\nof this Agreement and the consummation of the transactions contemplated hereby,\nexcept where the failure to obtain such consent, approval, authorization, permit\nor declaration or to make such filing or registration would not, individually or\nin the aggregate, have a material adverse effect on any such party's obligation\nto perform such party's covenants under this Agreement.\"\n\n          8.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.4 of the Sale and Purchase Agreement is\namended and restated as follows:\n\n          \"4.4  Broker's Fee.  Except as set forth in Section 8.1(a), no broker,\n                ------------                                                    \nfinder or investment banker is entitled to any brokerage, finder's or other fee\nor commission in connection with the transactions contemplated hereby based upon\narrangements made by or on behalf of the Company, AEG or Alec E. Gores.\"\n\n          9.  Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.5 of the Sale and Purchase Agreement is\namended and restated as follows:\n\n          \"4.5  Acquisition of TLC Shares and LLC Interests for Investment;\n                -----------------------------------------------------------\nAbility to Evaluate and Bear Risk  .  Each of the Company, AEG and Alec E. Gores\n---------------------------------                                               \nagrees that the TLC Shares and LLC Interests may not be, directly or indirectly,\nsold, transferred, offered for sale, pledged, hypothecated or otherwise disposed\nof without registration under the Securities Act of 1933, except pursuant to an\nexemption from such registration available under such Act, and without\ncompliance with foreign securities laws, in each case, to the extent\napplicable.\"\n\n          10. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 4.6 (a) of the Sale and Purchase Agreement\nis amended and restated as follows:\n\n                                      -3-\n\n \n          \"(a) Each of the Company, Alec E. Gores and AEG is an informed and\nsophisticated participant in the transactions contemplated hereby and has\nundertaken such investigation, and has been provided with and has evaluated such\ndocuments and information, as it has deemed necessary in connection with the\nexecution, delivery and performance of this Agreement.\"\n\n          11. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 5.11of the Sale and Purchase Agreement is\namended by adding the following to the end thereof:\n\n          \"The Capital Contributions Cap shall, in the event of a business\ndisposition of Company assets that constitutes a Liquidity Event (whether by\nstock transfer, asset sale, merger, or other transfer), be reduced by an amount\nobtained by multiplying the then-current Capital Contributions Cap by a\nfraction, the numerator of which is the amount of revenue earned by the business\nso disposed of in the four fiscal quarters ending on the Quarter End Date and\nthe denominator of which is the amount of revenue earned by the Company in the\nfour fiscal quarters ending on the Quarter End Date (adjusted to account for any\nprevious business dispositions during such four fiscal quarters that required an\nadjustment of the Capital Contributions Cap).  The intention of this adjustment\nis to fairly reduce the Capital Contributions Cap and if revenue is not a fair\nproxy for determining the amount by which the Company's capital needs have been\nreduced as a result of such Liquidity Event, the parties will negotiate in good\nfaith an amendment to this provision; provided that nothing in this sentence\n                                      --------                              \nshall effect the obligation set forth in clause (i) of this Section 5.11(a).\"\n\n          12. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 8.2 (a) of the Sale and Purchase Agreement\nis amended and restated as follows:\n\n          \"(a) Neither AEG nor Alec E. Gores shall transfer (directly or\nindirectly) any portion of the membership interest in the Company held by it\n(whether directly or indirectly), other than, in the case of AEG, to a wholly-\nowned Subsidiary of AEG, but only if such Subsidiary agrees with Mattel to be\nbound by each commitment and obligation of AEG contained in this Agreement.\"\n\n          13. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 8.2 (b) of the Sale and Purchase Agreement\nis amended by deleting the words \"Neither the Company nor AEG\" in the first line\nthereof and replacing them with the words \"None of the Company, AEG or Alec E.\nGores\"\n\n          14. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 8.3 of the Sale and Purchase Agreement is\namended by deleting the word \"AEG\" from the title thereof and by adding the\nfollowing to the end thereof: \"Alec E. Gores hereby agrees to cause AEG to\nperform and fulfill, all of AEG's obligations and commitments set forth in this\nAgreement (and to be responsible for such obligations and commitments as if\nevery reference to AEG in this Agreement were also a reference to Alec E. Gores)\nand Alec E. Gores shall not take any actions, including, without limitation, (i)\ndirectly or indirectly authorizing or permitting the amendment or revocation of\nAEG's trust documents or \n\n                                      -4-\n\n \ntrust and (ii) withdrawing assets or property from AEG as to make the\nrepresentation contained in Section 4.8 hereof untrue as of immediately after\nsuch withdrawal as if made as and of such time, or permit AEG to take any\nactions, that are inconsistent with such obligation.\n\n          15. Each of the parties to this Letter Amendment hereby agrees that,\neffective as of September 28, Section 12.6 of the Sale and Purchase Agreement is\namended by adding the following to the end thereof:\n\n          \"(d)  If to Alec E. Gores:\n\n                Alec E. Gores\n                c\/o Gores Technology Group\n                10877 Wilshire boulevard, Suite 1805\n                Los Angeles, CA  90024\n                Fax No.:  (310) 209-3310\n\n                With a copy to:\n\n                Riordan &amp; McKinzie\n                600 Anton Boulevard\n                Costa Mesa, CA  92626\n                Attention:  James W. Loss, Esq.\n                Fax No.:  (714) 549-3244\"\n\n          Each of the parties to this Letter Amendment (other than Mattel)\nhereto represents and warrants to Mattel and Mattel hereby represents and\nwarrants to the other parties to this Letter Amendment that (i) each has the\nrequisite power and authority to execute and deliver this Letter Amendment, (ii)\nthe execution and delivery of this Letter Amendment by it has been duly\nauthorized (if needed), (iii) this Letter Amendment has been duly and validly\nexecuted and delivered by each of them and, (iv) assuming that this Amendment\nhas been duly authorized, executed and delivered by the other parties to this\nLetter Amendment, this Letter Amendment constitutes a legal, valid and binding\nobligation of each of them, enforceable against each of them in accordance with\nits terms, subject to the effects of bankruptcy, insolvency, fraudulent\nconveyance, reorganization, moratorium and other similar laws relating to or\naffecting creditors' rights generally, general equitable principles (whether\nconsidered in a proceeding in equity or at law) and an implied covenant of good\nfaith and fair dealing.\n\n          This Letter Amendment may be executed in one or more counterparts, all\nof which shall be considered one and the same agreement, and shall become\neffective when one or more counterparts have been signed by each of the parties\nand delivered to the other parties.\n\n          This Letter Amendment shall be governed by and construed in accordance\nwith the laws of the State of Delaware without reference to the choice of law\nprinciples thereof.\n\n          Except as amended hereby, the Sale and Purchase Agreement shall remain\nin full force and effect as previously executed, and the parties hereto hereby\nratify the Sale and Purchase Agreement as amended hereby. Alec E. Gores agrees\nto be bound by the terms of the Sale and Purchase Agreement as amended hereby as\nif he were an original signatory thereto.\n\n                                      -5-\n\n \n          If you agree with the matters set out above, please execute the\nduplicate copy of this Letter Amendment in the space provided for your signature\nbelow and return it to me.\n\n\n                                               MATTEL, INC.\n\n\n                                               By: \/s\/ Robert A. Eckert\n                                                  -----------------------------\n                                                  Name: Robert A. Eckert\n                                                  Title: Chairman &amp; CEO\n\n \n\n\nAgreed to and acknowledged\nas of the above date:\n\n\nALEC E. GORES, TRUSTEE OF THE  REVOCABLE\nLIVING TRUST AGREEMENT OF ALEC E. GORES\n\n\nBy:  \/s\/ Alec E. Gores\n    ------------------------------\n     Alec E. Gores, Trustee\n\n\n\nGTG\/WIZARD, LLC\n\nBy:  Wizard Holding Company, LLC\n     its Manager\n\n\nBy: \/s\/ Alec E. Gores\n   --------------------------------\n     Alec E. Gores\n     Authorized Signatory\n\n\nALEC E. GORES\n\n\/s\/ Alec E. Gores\n--------------------------------------------- \nBy: Alec E. Gores, in his individual capacity\n\n                                      -6-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8145],"corporate_contracts_industries":[9403],"corporate_contracts_types":[9623,9622],"class_list":["post-43770","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mattel-inc","corporate_contracts_industries-consumer__toys","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43770","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43770"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43770"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43770"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43770"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}