ex10-1.htm


    Exhibit
10.1


     

    AMENDMENT NO. 5 TO
TRANSACTION DOCUMENTS

     

     Dated
as of May 30, 2008

     

    THIS
AMENDMENT NO. 5 TO TRANSACTION DOCUMENTS (this “Amendment No.
5”) 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 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”), and Amendment No. 4 to Transaction Documents dated as of January
15, 2008 (“Amendment No.
4”) each by and among Ambac and the Marvel Parties;

     

    (2)           WHEREAS,
the Marvel Parties have asked Ambac to consent to an amendment to the
Transaction Documents to permit: (i) the Marvel Parties’ parent company, Marvel
Entertainment, Inc. (“MEI”) to,
under certain conditions, purchase the Reserved Foreign Distribution Rights; and
(ii) MVL Rights LLC (“MRI”)
to make capital contributions for the Motion Pictures and to provide that such
amounts may be utilized under the conditions set forth herein and therein to
satisfy the Cumulative Pre-Sales Test;

    


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

     

    


     

    


     

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SECTION
1.

     

    (a)        Section
3(c)(ii) of the Master Agreement is hereby amended to delete the last sentence
and to replace it with the following three sentences:

     

    “In
addition, if the sale of the Reserved Foreign Distribution Rights does not
achieve such target for such Motion Picture or for all Completed Films and all
Motion Pictures then in production, MRI may also make up the shortfall, in whole
or in part, and in its sole discretion, by making cash equity contributions to
the Borrower in accordance with the Borrower’s organizational documents for use
by the Borrower solely for payment of amounts in respect of the Budget of such
Motion Picture (such contributions, the “Equity
Amounts”).  Any Co-Financing Amounts received pursuant to such
Co-Financing Transactions (other than amounts with respect to clause (b) in the
definition of “Co-Financing
Commitment”) or Equity Amounts shall be counted towards such target for
sale of the Reserved Foreign Distribution Rights.

     

    (b)           Section
3(c)(iii) of the Master Agreement is hereby amended to add at the end thereto as
follows:

     

    “Notwithstanding
any provision of the Transaction Documents to the contrary, the Master
Distributor may at its election, but subject to the MEI Pre-Sale Restrictions,
enter into MEI Pre-Sale Agreements in order to satisfy its obligations under
Section 3(c)(ii) above with respect to the Reserved Foreign Distribution Rights;
and MRI may at its election make cash contributions of Equity Amounts to the
Borrower in
accordance with the Borrower’s organizational documents for use by the Borrower
solely for payment of amounts in respect of the Budget of such Motion
Picture.”

     

    (c)      Section
1(a) of the Master Agreement is hereby amended to add the following at the end
of the definition of “Co-Financing
Commitment”:

     

    “; provided, that each
Person providing such a Co-Financing Commitment shall, by the terms of such
Co-Financing Commitment, only be entitled to receive Gross Receipts of such
Motion Picture arising from, and shall only be secured by, such Reserved Foreign
Distribution Rights, such Distribution Rights or such “soft money” benefits, as
the case may be, and proceeds thereof that are the subject of such Co-Financing
Commitment.

     

    (d)      Section
1(a) of the Master Agreement is hereby amended to add the following at the end
of the definition of “Co-Financing Loan
Agreement”:

     

    “; provided, that each
Person lending under such a Co-Financing Loan Agreement or secured by such
Reserved Foreign Distribution Rights shall, by the terms of such Co-Financing
Loan Agreement, only be entitled to receive Gross Receipts of such Motion
Picture arising from such Reserved Foreign Distribution Rights that are the
subject of such Co-Financing Loan Agreement, and shall not be secured by any
other property of the Production Services Company or Master Distributor other
than such Reserved Foreign Distribution Rights and proceeds
thereof.”

     

    (e)           Section
1(a) of the Master Agreement is hereby amended to add the following defined
terms:

     


    
      
         


      

      
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    “Equity
Amounts” has the meaning set forth in Section 3(c)(ii).

     

    “MEI Pre-Sale
Agreement” means a pre-sale agreement under which MEI purchases from the
Master Distributor all or part of the Reserved Foreign Distribution Rights for a
Motion Picture and which complies with the MEI Pre-Sale
Restrictions.

     

    “MEI Pre-Sale Amounts”
means any net amount actually received by MVL with respect to a Motion Picture
on a non-refundable basis, pursuant to a MEI Pre-Sale Agreement.

     

    “MEI Pre-Sale
Restrictions” means that the Master Distributor shall not sell on behalf
of MVL all or part of the Reserved Foreign Distribution Rights for a Motion
Picture to MEI unless: (i) the guaranteed compensation (i.e., the “minimum
guaranty”) offered by MEI for such rights is not less than 110% of the
guaranteed compensation offered by any third party for such rights on such
Motion Picture or any other Motion Picture (e.g., if the highest offer for a
Motion Picture in Japan is $10,000,000 then the MEI pre-sale agreement must
provide for guaranteed compensation of at least $11,000,000); (ii) the purchase
price paid by MEI constitutes reasonably equivalent value; (iii) all other
material terms of the MEI Pre-Sale Agreement are similar or more favorable to
MVL than are available from a third party; (iv) the MEI Pre-Sale Agreement shall
provide that MEI and its affiliates will not self-distribute such Reserved
Foreign Distribution Rights; and (v) the MEI Pre-Sale Agreement shall provide
that MEI will resell to an unaffiliated third party such Reserved Foreign
Distribution Rights and in the event such resale is for more than the amount it
paid to MVL, then MEI shall remit such additional amounts to MVL as additional
compensation under the MEI  Pre-Sale Agreement.

     

    (f)       The
defined term “Cumulative Pre-Sales Percentage” set forth in Schedule I of the
Credit Agreement is hereby amended to add at the end thereto as
follows:

     

    “For the
avoidance of doubt and notwithstanding any provision of the Transaction
Documents to the contrary, the numerator described in (i)(b) above shall include
all MEI Pre-Sale Amounts (but not to exceed the greater of (x)110% of the
guaranteed compensation offered by any third party for such rights on a Motion
Picture or any other Motion Picture and (y), if MEI shall have subsequently sold
such rights in compliance with clause(v) of the definition of MEI Pre-Sale
Restrictions, the actual amount of the guaranteed cash compensation paid by any
third party for such rights and received by the Borrower in accordance with
clause (v) of the definition of “MEI Pre-Sale
Restrictions”) and all Equity Amounts.”  

     

    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. 5 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

     


    
      
         


      

      
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    (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. 5 or any
Transaction Document to which it is or is to be a party.

     

    (d)           This
Amendment No. 5 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. 5 and the
transactions contemplated hereby.

     

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

     

    (a)           This
Amendment No. 5 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, Acknowledgment No. 1 and this Amendment
No. 5 are and shall continue to be in full force and effect and are hereby in
all respects ratified and confirmed.  This Amendment No. 5 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. 5 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. 5.  Delivery of an executed
counterpart of a 

     


    
      
         


      

      
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    signature
page to this Amendment No. 5 by facsimile shall be effective as delivery of a
manually executed counterpart of this Amendment No. 5.

     

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

     

    [Signature
pages follow]

     

    


     

     

     

     

     

     

    
 

    
      
         
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    IN WITNESS WHEREOF, the undersigned
have caused this Amendment No. 5 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,
Legal Affairs

    


    


    MVL
PRODUCTIONS LLC

    


    


    By  
/s/ Ryan
Potter                                                   


    Name:
Ryan Potter

    Title:   Secretary

    


    


    MARVEL
STUDIOS, INC.

    


    


    By  
/s/ Tim
Connors                                                


    Name:  Tim
Connors

    Title:
EVP, Business Affairs and Operations