AMENDMENT NO. 5 AND REAFFIRMATION AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 5 AND REAFFIRMATION AGREEMENT
AMENDMENT
NO. 5 AND REAFFIRMATION AGREEMENT (this “Amendment”) dated as of August
21, 2007 to CREDIT AGREEMENT (as amended, modified or supplemented prior
to the
date hereof, the “Credit Agreement”) dated as of November 9, 2005, among
MARVEL ENTERTAINMENT, INC., a Delaware corporation, and HSBC BANK USA, NATIONAL
ASSOCIATION, as Lender. All capitalized terms used but not defined
herein shall have the same meanings herein as in the Credit
Agreement. The parties hereto hereby agree as follows:
ARTICLE
I: AMENDMENTS
Section
1.1. Defined
Terms. Section 1.1 of the Credit Agreement is hereby amended by
adding a new definition as follows:
“Market
Capitalization” means
the Market Price multiplied by the number of shares of Marvel Stock currently
outstanding. For purposes of this definition, the number of shares of
Marvel Stock currently outstanding shall not include any shares held (a)
as
Collateral, (b) by any subsidiary of the Borrower or (c) by the Borrower
as
treasury stock or otherwise.
Section
1.2. Amendment
to Section 5.2(c). Section 5.2(c) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“(c) Net
Income of the Borrower and its subsidiaries (other than the Excluded
Subsidiaries) shall not be less than $1.00 in any fiscal quarter.”
Section
1.3. Amendment
to Section 6.1. Section 6.1 is hereby amended by adding a new
clause (n) as follows:
“(n) Market
Capitalization shall be less than $1,300,000,000 for (i) any five consecutive
trading days if Marvel Stock is publicly traded or (ii) for any day if Marvel
Stock is not publicly traded;”
ARTICLE
II: REAFFIRMATION;
REPRESENTATIONS AND WARRANTIES
Section
2.1. General. Each
Obligor hereby ratifies, confirms and reaffirms in all respects all of its
Obligations to the Lender as evidenced by the Credit Documents and all of
its
Obligations to the Lender arising under any other instrument or agreement
creating, evidencing, or securing any of its obligations to the
Lender.
Section
2.2. Reaffirmation
of the Security Agreement and the Guaranty. Without limiting any
obligations of any Obligor under the Security Agreements or any other Credit
Documents, each Obligor hereby reaffirms its grant of a security interest
in the
Collateral under the Security Agreements to secure all Obligations (as defined
in the Security Agreements after giving effect to the amendments
herein). Without limiting any obligations of any Guarantor under the
Guaranty or any other Credit Documents, each Guarantor hereby reaffirms its
guaranty of the Obligations.
Section
2.3. Representations
and Warranties. Each Obligor hereby represents and warrants to
the Lender that, after giving effect to this Amendment, (a) the representations
and warranties set forth in the Credit Documents are true and correct in
all
material respects on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, (b) no
Default or Event of Default has occurred and is continuing, (c) this Amendment
has been duly authorized,
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executed
and delivered by the Obligors and constitute a legal, valid and binding
obligation of the Obligors, enforceable against the Obligors in accordance
with
its terms and (d) no litigation has been commenced against any Obligor or
any of
its subsidiaries seeking to restrain or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action by any Obligor
required or contemplated by this Amendment, the Credit Agreement or the Credit
Documents, in each case as amended hereby.
ARTICLE
III: MISCELLANEOUS
Section
3.1. No
Waiver. Except as otherwise provided herein, this Amendment shall
not (a) constitute a modification, acceptance or waiver with respect to any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein or (b) except as contemplated
hereunder, prejudice any right or remedy that the Lender may now have or
may
have in the future under or in connection with the Credit Agreement or any
other
instrument or agreement referred to therein and all obligations of the Obligors
and rights of the Lender thereunder shall remain in full force and
effect.
Section
3.2. Amendment. This
Amendment, Amendment No. 4 to the Credit Agreement dated as of May 7, 2007
by
and between the Borrower and the Lender, Amendment No. 3 to the Credit Agreement
dated as of June 30, 2006 by and between the Borrower and the Lender, Amendment
No. 2 to the Credit Agreement dated as of June 28, 2006 by and between the
Borrower and the Lender, and Amendment No. 1 to the Credit Agreement dated
as of
January 18, 2006 by and between the Borrower and the Lender are Credit
Documents.
Section
3.3. Successors
and Assigns. The provisions of this Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no Obligor may assign or otherwise transfer
any of its rights or Obligations hereunder without the prior written consent
of
Lender (and any attempted assignment or transfer by any Obligor without such
consent shall be null and void).
Section
3.4. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
Section
3.5. Headings. Article
and section headings are for convenience of reference only, are not part
of this
Amendment and shall not affect the construction of, or be taken into
consideration in interpreting, this Amendment.
Section
3.6. Counterparts. This
Amendment may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original, but
all of
which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of
this Amendment or of any other Credit Document by telecopy shall be effective
as
delivery of a manually executed counterpart of this Amendment or of such
other
Credit Document.
Section
3.7. Severability. The
fact that any term or provision of this Amendment is held invalid, illegal
or
unenforceable as to any person in any situation in any jurisdiction shall
not
affect the validity, enforceability or legality of the remaining terms or
provisions hereof or the validity, enforceability or legality of such offending
term or provision in any other situation, or jurisdiction or as applied to
any
person.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
By
/s/▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Executive Vice President
and
Chief
Financial
Officer
Notice
Address for The Borrower:
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇, Executive Vice President and
Chief Financial Officer
Chief Financial Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ADDITIONAL
OBLIGOR(S):
MARVEL
CHARACTERS, INC.
By
/s/
▇▇▇▇
Fine
Name:
▇▇▇▇ Fine
Title:
Chief Marketing Officer
and
Executive Vice President
LENDER:
HSBC
BANK USA, NATIONAL ASSOCIATION
By
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
President
Notice
Address:
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇
▇. Pan, Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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