AMENDMENT NO. 8 AND REAFFIRMATION AGREEMENT
Exhibit 10.1
AMENDMENT NO. 8 AND REAFFIRMATION AGREEMENT
AMENDMENT NO. 8 AND REAFFIRMATION AGREEMENT (this “Amendment”) dated as of March 30,
2009 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., MARVEL
CHARACTERS, INC., MARVEL CHARACTERS B.V., MVL INTERNATIONAL C.V. 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
such that the definition set forth below which is also set forth in the Credit Agreement is hereby
amended and restated in its entirety as set forth below.
“Final Maturity Date” means (a) March 31, 2011 or (b) such earlier date on
which the Loans shall become due and payable in accordance with the terms of this Agreement,
whether by acceleration or otherwise.
Section 1.2. Section 2.4(i). Section 2.4(i) is hereby added to the Credit Agreement
to read as follows:
“(i) Unused Fee. The Borrower agrees to pay to the Lender an unused fee of
0.45% per annum on the daily amount by which the Commitment exceeds the outstanding
principal amount of the Loans. Such fee shall begin to accrue on April 1, 2009, and shall
be payable quarterly in arrears on the last day of each calendar quarter and on the Final
Maturity Date, commencing with June 30, 2009.”
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, 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.
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ARTICLE III: CONDITIONS
Section 3.1. Conditions to Amendment. This Amendment shall not become effective
until the Lender shall have received a counterpart of this Amendment executed by each Obligor.
ARTICLE IV: MISCELLANEOUS
Section 4.1. 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 4.2. Amendment. This Amendment, Amendment No. 7 to the Credit Agreement
dated as of March 27, 2009 by and among the Borrower, the Guarantor and the Lender, Amendment No. 6
to the Credit Agreement dated as of March 25, 2008 by and among the Borrower, the Guarantor and the
Lender, Amendment No. 5 to the Credit Agreement dated as of August 21, 2007 by and between the
Borrower and the Lender, 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 4.3. 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 4.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OBLIGOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS AMENDMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS TO THE PLACING OF VENUE IN NEW YORK COUNTY OR OTHER
COUNTY PERMITTED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OBLIGOR HEREBY WAIVES AND
AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION
OR PROCEEDING IS IMPROPER, OR THAT ANY CREDIT DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OBLIGOR AGREES NOT
TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT
AN ENFORCEMENT OF SUCH JUDGMENT. EXCEPT AS PROHIBITED BY LAW, EACH OBLIGOR HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH ANY CREDIT DOCUMENT
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Section 4.5. 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 4.6. 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 4.7. 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.
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[Signature pages follow]
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: MARVEL ENTERTAINMENT, INC. |
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By | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
Notice Address for The Borrower:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Executive Vice President and
Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Executive Vice President and
Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
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ADDITIONAL OBLIGOR(S): MARVEL CHARACTERS, INC. |
||||
By | /s/ Xxxx Xxxx Fine | |||
Name: | Xxxx Xxxx Fine | |||
Title: | Executive Vice President | |||
MARVEL CHARACTERS B.V. |
||||
By | /s/ Xxxxxx Xxx xxx Xxxxx | |||
Name: | Xxxxxx Xxx xxx Xxxxx | |||
Title: | Director, Class A | |||
By | /s/ Xxxx Xxxx Fine | |||
Name: | Xxxx Xxxx Fine | |||
Title: | Director, Class B | |||
MVL INTERNATIONAL C.V. |
||||
By | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director |
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LENDER: HSBC BANK USA, NATIONAL ASSOCIATION |
||||
By | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Vice President | |||
Notice Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Pan, Senior Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxxxxx X. Xxxx, Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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