CONSENT
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This Consent (this "Consent") is made as of November 24, 1999, by and among
PNC Bank, National Association ("PNC"), The Chase Manhattan Bank ("Chase"),
National City Bank of Pennsylvania ("National City"), Fleet Bank, N.A. ("Fleet")
and LaSalle Bank ("LaSalle"; and collectively with PNC, Chase, National City and
Fleet, the "Banks"), PNC Bank, National Association, in its capacity as agent
for the Banks under the Intercreditor Agreement (as defined below) (the "Bank
Agent"), the Seasonal Trade Creditors (as defined below), Xxxx Associates, Inc.,
in its capacity as agent for the Seasonal Trade Creditors under the
Intercreditor Agreement (the "Vendor Agent"), Special Value Bond Fund, LLC
("SVBF"), TCO/Party City, LLC ("TCO/PC"), Enhanced Retail Funding, LLC ("ERF"),
Xxxxxxx, Sachs & Co. ("Goldman"), Xxxxxxx Xxxxx Credit Partners, L.P.
("Partners"), and Richmond Associates, L.P. ("Richmond"; and collectively with
SVBF, TCO/PC, ERF, Goldman and Partners, the "Investors") and Enhanced Retail
Funding, LLC, in its capacity as agent for the Investors under the Intercreditor
Agreement (the "Investor Agent").
WITNESSETH:
WHEREAS, the Banks, the Bank Agent, those certain vendors that executed
signature pages thereto (the "Seasonal Vendors"), the Vendor Agent, the
Investors and the Investor Agent are parties to that certain Intercreditor
Agreement, dated July 1, 1999 (the "Intercreditor Agreement") (undefined
capitalized terms used herein shall have the definitions given to them in the
Intercreditor Agreement); and
WHEREAS, the Company has defaulted under the Trade Agreement by failing to
pay certain amounts due and owing thereunder as of November 15, 1999 (the
"Defaults"); and
WHEREAS, the Defaults are also events of default under the Seasonal Vendor
Security Agreement; and
WHEREAS, the Company and certain of its vendors, including the Seasonal
Vendors, are prepared to enter into that certain First Amendment to Vendor
Forbearance and Standstill Agreement (the "First Amendment") pursuant to which
such vendors will agree to waive the Defaults on the terms and conditions set
forth therein; and
WHEREAS, it is a condition precedent to the effectiveness of the First
Amendment that the parties hereto enter into this Consent; and
WHEREAS, in addition to the foregoing, the Company has requested that
certain of the Seasonal Trade Creditors (the "Deferring Seasonal Trade
Creditors") permit the Company to defer certain payments owed to the Deferring
Seasonal Trade Creditors pursuant to the Seasonal Vendor Security Agreement and
the Trade Agreement on account of New Trade Credit (the "Deferral
Arrangements"); and
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WHEREAS, the Deferring Seasonal Trade Creditors are willing to enter into
the Deferral Arrangements provided that the parties hereto enter into this
Consent; and
WHEREAS, on or about November 18, 1999, the Vendor Agent, on behalf of the
Seasonal Vendors, gave notice (the "Default Notice") to the Company, the Bank
Agent, the Investor Agent and their respective counsel that the Defaults had
occurred under the Trade Agreement and the Seasonal Vendor Security Agreement;
and
WHEREAS, the Vendor Agent and the Seasonal Vendors are prepared to withdraw
the Default Notice provided that (i) the parties hereto enter into this Consent,
(ii) the First Amendment is executed and delivered by each of the parties
thereto, and (iii) all conditions precedent to the Amendment Effective Date (as
defined in the First Amendment) has occurred,
AGREEMENT
NOW THEREFORE, for and in consideration of the foregoing recitals, the
mutual covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed as follows:
1. The parties hereto consent to the First Amendment and acknowledge the
terms thereof. The parties hereto agree that, notwithstanding anything in the
Intercreditor Agreement to the contrary, upon the effectiveness of the First
Amendment, the Defaults shall not trigger a Termination Event and the rights of
the Seasonal Trade Creditors under the Intercreditor Agreement (including,
without limitation, their rights under the Shared Liens as they existed prior to
November 15, 1999) shall not be terminated, modified, abridged, limited or
otherwise altered on account of the Defaults or the execution of the First
Amendment (except as set forth in the First Amendment).
2. The parties hereto further consent to the Deferral Arrangements. The
parties hereto further agree that, notwithstanding anything in the Intercreditor
Agreement to the contrary, the rights of the Deferring Seasonal Trade Creditors
under the Intercreditor Agreement (including, without limitation, their rights
under the Shared Liens as they existed prior to November 15, 1999) shall not be
terminated, modified, abridged, limited or otherwise altered on account of the
Deferral Arrangements. The Deferral Arrangements shall not terminate, modify
abridge, limit or otherwise alter the rights under the Intercreditor Agreement
of any Seasonal Trade Creditors which are not Deferring Seasonal Trade
Creditors.
3. Upon execution of this Agreement by all or the parties hereto and the
Amendment Effective Date (as defined in the Amendment), the Vendor Agent and the
Vendors shall be deemed to have withdrawn the Default Notice.
4. The parties hereto waive any rights they had, have, or may have had, to
further notice of the Defaults or the entry into the First Amendment or the
Deferral Arrangements under the Intercreditor Agreement.
5. Except as expressly set forth herein, this Consent shall not be deemed a
waiver under the Intercreditor Agreement or any other agreement of any rights or
remedies of any
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of the parties thereto arising from, or on account of, any defaults, including
future defaults, under the Trade Agreement (as amended by the First Amendment),
the Seasonal Vendor Security Agreement, the Standstill and Forbearance Agreement
with the Banks, dated as of July 1, 1999, the Securities Purchase Agreement,
dated as of August 16, 1999, or any other document or agreement.
6. The Intercreditor Agreement, as modified and amended herein, is hereby
ratified and reaffirmed.
7. This Consent shall be deemed to be effective as of November 24, 1999.
8. This Consent may be executed in any number of counterparts each of
which, when so executed and delivered, shall be an original, and all such
counterparts shall together constitute one and the same instrument. This Consent
may be executed and transmitted by facsimile signature and shall be effective
and binding upon execution and transmission of same.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor
Agreement on the date first indicated above.
PNC BANK, NATIONAL ASSOCIATION,
for itself and as Bank Agent
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
FLEET BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Banking Officer
LASALLE BANK
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Group Senior Vice President
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ENHANCED RETAIL FUNDING, LLC,
for itself and as Investor Agent
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: CFO & VP
SPECIAL VALUE BOND FUND, LLC
By: SVIM/MSM, LLC, as Manager
By: Xxxxxxxxxx & Co., LLC, as
Managing Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Member
TCO/PARTY CITY, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Member
XXXXXXX SACHS & CO.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Authorized Signer
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Authorized Signer
RICHMOND & ASSOCIATES, L.P.
By: MHM Management, Inc.
By: /s/ MHM Management, Inc.
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Name: Xxxxxxx X. Xxxxx for Marc Beige
Title:
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XXXXX XXXXXX INVESTMENTS, LLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Manager
XXXX ASSOCIATES, INC., in its capacity
as Vendor Agent
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx, its President
Title: President
AMSCAN HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
CREATIVE EXPRESSIONS
By: /s/ Xxx X. XxXxxx
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Name: Xxx X. XxXxxx
Title: VP & GM
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DISGUISE INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President
EASTER UNLIMITED, INC. AND FUND
WORLD DIVISION OF EASTER
UNLIMITED, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: President
MARYLAND PLASTICS INC.
By: /s/ Xxx X. Xxxxx, Xx.
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Name: Xxx X. Xxxxx, Xx.
Title: Controller
PLASTICS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President & General Manager
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RUBIE'S COSTUME CO. INC.
By: /s/ Xxxx X. Beige
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Name: Xxxx X. Beige
Title: President
THE BEISTLE COMPANY
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President
TURN UP THE MUSIC, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Exec. VP--COO
U.S. BALLOON MFG. CO., INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Pres.
UNIQUE INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: X. Xxxxx
Title: Chief Executive Officer
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The undersigned hereby acknowledges
and consents to the foregoing Consent
as of the date first indicated above.
PARTY CITY CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: CFO
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