Ambac Amendment No. 7





Exhibit 10.33




AMENDMENT NO. 7 TO TRANSACTION DOCUMENTS




Dated as of December 5, 2008




THIS AMENDMENT NO. 7 TO TRANSACTION DOCUMENTS (this “Amendment No. 7”) is entered into by and
among MVL Film Finance LLC (the “Borrower”), MVL Productions LLC (“MPROD”), Marvel Studios, Inc.
(“Marvel Studios” and together with the Borrower and MPROD, collectively, the “Marvel Parties” and
each a “Marvel Party”) and Ambac Assurance Corporation, in its capacity as Control Party (as
defined in the Credit Agreement referred to below) (“Ambac”). All capitalized terms used herein
without definition shall have the meanings specified in the Credit Agreement referred to below, or,
if not defined therein, in the Master Agreement referred to below.




PRELIMINARY STATEMENTS:



(1) WHEREAS, reference is made to (i) the Credit and Security Agreement dated as of August 31,
2005 (the “Credit Agreement”) among the Borrower, the financial institutions and commercial paper
conduits from time to time party thereto, General Electric Capital Corporation, as Administrative
Agent, and the Collateral Agent, (ii) the Master Development and Distribution Agreement dated as of
August 31, 2005 (the “Master Agreement”) among the Marvel Parties, (iii) Amendment No. 1 to
Transaction Documents dated as of September 29, 2006 (“Amendment No. 1”), Amendment No. 2 to
Transaction Documents dated as of February 21, 2007 (“Amendment No. 2”), and Amendment No. 3 to
Transaction Documents dated as of April 13, 2007 (“Amendment No. 3”) each by and between the Marvel
Parties, Marvel Characters, Inc., MVL Rights LLC, Ambac and the Collateral Agent, and (iv)
Acknowledgement No. 1 to Transaction Documents dated as of April 6, 2007 (“Acknowledgment No. 1”),
Amendment No. 4 to Transaction Documents dated as of January 15, 2008 (“Amendment No. 4”),
Amendment No. 5 to Transaction Documents dated as of March 7, 2008 (“Amendment No. 5”), Amendment
No. 6 to Transaction Documents dated as of September 17, 2008 (“Amendment No. 6”), each by and
among Ambac, Marvel Studios, MPROD and the Borrower;



(2) WHEREAS, pursuant to Amendment No. 4, the Class A Liquidity Reserve Amount to be funded on
the last Business Day of the Capitalization Period (i.e., December 30, 2008) was increased from
$25,000,000 to $45,000,000; and



(3) WHEREAS, Ambac, in its capacity as the Control Party, has agreed to restore the Class A
Liquidity Reserve Amount to be funded on the last day of the Capitalization Period to the original
$25,000,000 amount as further described herein;



 


 









 





NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned hereby agree as follows:




SECTION 1. Class A Liquidity Reserve



(a) The definition of Class A Liquidity Reserve Amount set forth in Section 1.01(b) is hereby
amended and restated as follows:




“Class A Liquidity Reserve Amount” shall mean $25,000,000 provided,
that in the event that a Release Requirement is not satisfied or Borrower or its
Affiliates know that a Release Requirement will not, with the passage of time, be
satisfied, then the Class A Liquidity Reserve Amount shall immediately thereupon and
at all times thereafter be increased to $45,000,000. For the avoidance of doubt and
notwitstanding any provision of the Transaction Documents to the contrary, the Class
A Liquidity Reserve Amount shall in no event be increased above $45,000,000.”




(b) Section 1.01(b) is hereby amended to add the following definition:




“Release Requirement” shall mean each of: (i) the initial domestic theatrical
wide release of at least one Completed Film by the Studio Distributor occurs in each of
calendar year 2010, 2011 and 2012; and (ii) the initial domestic theatrical wide release of
the sixth (6) Completed Film by the Studio Distributor occurs on or prior to August 26,
2012.




(c) Section 2.02(d)(ii)(C) is hereby amended and restated as follows:




“(C) to fund the Class A Liquidity Reserve Account: (i) on the last Business Day of
the Capitalization Period, the Class A Liquidity Reserve Amount on such date; and
(ii) in the event that a Release Requirement is not satisfied, or Borrower or its
Affiliates know that a Release Requirement will not, with the passage of time, be
satisfied, the additional amount of the Class A Liquidity Reserve Deficit. For the
avoidance of doubt and notwithstanding the forgoing, if multiple Release
Requirements aren’t satisfied the Borrower shall only be required to fund from
proceeds of Borrowings pursuant to this Section 2.02(d)(ii)(C)(ii) the Class
A Liquidity Reserve Deficit once (it being understood that the foregoing shall not
limit the Borrower’s obligations pursuant to Section 3.01(c)(xii) or
otherwise pursuant to the Transaction Documents to apply funds in the Collection
Account to the Class A Liquidity Reserve Account in the amount of the Class A
Liquidity Reserve Deficit). The Borrower hereby represents, warrants and covenants
that in the event that a Release Requirement is not satisfied, or Borrower or its
Affiliates know that a Release Requirement will not, with the passage of time, be
satisfied, Borrower shall provide immediate (i.e., that same day) written notice to
Ambac and the Collateral Agent of such event.”




(d) Section 2.02(e) is hereby amended to add at the end thereof:




“In the event that a Release Requirement is not satisfied, or Borrower or its
Affiliates know that a Release Requirement will not, with the passage of time, be
satisfied, the Borrower shall immediately (i.e., that same day) request a Borrowing
pursuant to Section 2.02(a) to be made as soon as permitted under
Section 2.02(a) in the amount of the Class A Liquidity Reserve Deficit, and
instruct the Administrative Agent, upon receipt of such funds from the Lenders, to
direct such funds to the Class A Liquidity Reserve Account. For the avoidance of
doubt and notwithstanding the forgoing, if multiple Release Requirements aren’t
satisfied the Borrower shall only be required to fund from proceeds of Borrowings
pursuant to this Section 2.02(e) the Class A Liquidity Reserve Deficit once
(it being understood that the foregoing shall not limit the Borrower’s obligations
pursuant to Section 3.01(c)(xii) or otherwise pursuant to the Transaction
Documents to apply funds in the Collection Account to the Class A Liquidity Reserve
Account in the amount of the Class A Liquidity Reserve Deficit).”


 


2









 






(e) Section 5.02(xviii) is hereby amended and restated as follows:




“The sum of (a) the excess of the aggregate Class A Lender Commitments over the
aggregate outstanding Class A Advances, plus (b) the excess of the balance
on deposit in the Borrower Blocked Account over the Minimum Interest Reserve,
exceeds the sum of (x) the aggregate unfunded Direct Negative Cost for all Motion
Pictures in production, plus (y) the Direct Negative Cost for the Motion
Picture related to the proposed Initial Funding plus (z) (i) solely during
the Capitalization Period, $45,000,000; or (ii) after the Capitalization Period has
ended and until (a) all Release Requirements have been satisfied or (b) the Class A
Liquidity Reserve Account has been funded pursuant to Section
2.02(d)(ii)(C)(ii), $20,000,000; or (iii) after the occurrence of an event
specified in (ii)(a) or (b) above, $0.”




SECTION 2. Representations and Warranties of the Marvel Parties.




2.1 The Marvel Parties each hereby represents and warrants to Ambac as follows:



(a) It is a corporation or limited liability company, as applicable, duly organized, validly
existing and in good standing under the laws of the State of Delaware.



(b) The execution, delivery and performance by it of this Amendment No. 7 and each Transaction
Document to which it is a party, and the transactions contemplated hereby and thereby, are within
its limited liability company or corporate powers, have been duly authorized by all necessary
limited liability company or corporate action, and do not (i) contravene, or constitute a default
under, its constitutive documents, (ii) violate any Law or applicable writ, judgment, injunction,
decree, determination or award except where such violations, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with or result
in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on it or any of its properties, in each case which
breach or default has not been permanently waived in accordance therewith or (iv) result in or
require the creation or imposition of any Adverse Claim upon or with respect to any of its
properties, other than Permitted Liens.



(c) No consent of any other Person and no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any other third party
that has not been obtained is required for the due execution, delivery or performance by it of this
Amendment No. 7 or any Transaction Document to which it is or is to be a party.


 


3









 





(d) This Amendment No. 7 has been, and each Transaction Document to which it is a party has
been, duly executed and delivered by it and is its legal, valid and binding obligation, enforceable
against it in accordance with the terms of such document, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles.



2.2 In addition, the Marvel Parties each hereby represents and warrants to Ambac as
follows:



No Event of Default, Potential Event of Default, MSI Default Event, MEI Event of Default or
Acceleration Event has occurred and is continuing or would result from the execution, delivery and
performance by it of this Amendment No. 7 and the transactions contemplated hereby.




SECTION 3. Reference to and Effect on the Transaction Documents, Etc.



(a) This Amendment No. 7 shall pertain only to the matters expressly referred to above and is
effective only for the limited purposes set forth above, and shall not be deemed to authorize any
other action or non-compliance on the Borrower’s, MPROD’s or Marvel Studio’s part.



(b) The Transaction Documents, as specifically modified by Amendment No. 1, Amendment No. 2,
Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6, Acknowledgment No. 1 and this
Amendment No. 7 are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. This Amendment No. 7 constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof, there being no other agreements or
understandings, oral, written or otherwise, respecting such subject matter, any such agreement or
understanding being superseded hereby.



SECTION 4. Execution in Counterparts. This Amendment No. 7 may be executed in any
number of counterparts and by any combination of the parties hereto in separate counterparts, each
of which counterparts shall be an original and all of which taken together shall constitute one and
the same Amendment No. 7. Delivery of an executed counterpart of a signature page to this
Amendment No. 7 by facsimile shall be effective as delivery of a manually executed counterpart of
this Amendment No. 7.



SECTION 5. Governing Law. This Amendment No. 7 shall be governed by, and construed in
accordance with, the internal laws of the State of New York.



SECTION 6. Amendment Fee. Within ten (10) days of execution of this Amendment No. 7,
the Borrower shall pay to Ambac an amendment fee of $35,000 and this Amendment No. 7 shall only be
effective upon such payment to Ambac.



[Signature pages follow]





 


4









 







IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 7 to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	AMBAC ASSURANCE CORPORATION

 	 
	 	By:  	/s/ Matthew Tocks
 	 
	 	 	Name:  	Matthew Tocks 	 
	 	 	Title:  	Vice President 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	MVL FILM FINANCE LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael Ross
 

	 	 
	 

	 	Name: Michael Ross	 	 
	 

	 	Title: SVP	 	 
	 
	 	 	 	 
	MVL PRODUCTIONS LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Ryan Potter
 

	 	 
	 

	 	Name: Ryan Potter	 	 
	 

	 	Title: Secretary	 	 
	 
	 	 	 	 
	MARVEL STUDIOS, INC.

	 	 
	 
	 	 	 	 
	By:

	 	/s/ Tim Connors
 

	 	 
	 

	 	Name: Tim Connors	 	 
	 

	 	Title: COO