AMENDMENT NO. 1 TO ABL CREDIT AGREEMENT
EXECUTION
AMENDMENT NO. 1 TO ABL CREDIT AGREEMENT
AMENDMENT NO. 1 TO ABL CREDIT AGREEMENT, dated as of December 2, 2010 (this “Amendment No.1”),
is by and among Xxxxx Fargo Bank, National Association successor by merger to Xxxxx Fargo Retail
Finance, LLC, in its capacity as administrative and collateral agent for the Lenders (as
hereinafter defined) pursuant to the Credit Agreement defined below (in such capacity,
“Administrative Agent”), the parties to the Credit Agreement as lenders (individually, each a
“Lender” and collectively, “Lenders”), Amscan Inc., a New York corporation (“Amscan Inc.”), Anagram
International, Inc., a Minnesota corporation (“International”), Am-Source, LLC, a Rhode Island
limited liability company (“Am-Source”), Factory Card Outlet of America Ltd., an Illinois
corporation (“Factory”), Gags and Games, Inc., a Michigan corporation (“Gags and Games”), PA
Acquisition Corp., a Delaware corporation (“PA Acquisition”), Party City Corporation, a Delaware
corporation (“Party City”), Party City Franchise Group, LLC, a Delaware limited liability company
(“PCFG” and together with Amscan Inc., International, Am-Source, Factory, Gags and Games, PA
Acquisition and Party City, each individually a “Borrower” and collectively, “Borrowers”), AAH
Holdings Corporation, a Delaware corporation (“Holdings”), Amscan Holdings, Inc., a Delaware
corporation (“Amscan”), JCS Packaging, Inc., a New York corporation (“JCS”), M&D Industries, Inc.,
a Delaware corporation (“M&D”), SSY Realty Corp., a New York corporation (“SSY”), Trisar, Inc., a
California corporation (“Trisar”), Anagram Eden Prairie Property Holdings LLC, a Delaware limited
liability company (“Eden Prairie”), Anagram International, LLC, a Nevada limited liability company
(“AIL”), Anagram International Holdings, Inc., a Minnesota corporation (“AIHI”), Factory Card &
Party Outlet Corp., a Delaware corporation (“Outlet”), Party America Franchising, Inc., a Minnesota
corporation (“Franchising”), Party City Franchise Group Holdings, LLC, a Delaware limited liability
company (“PCFG Holdings” and, together with Holdings, Amscan, JCS, M&D, SSY, Trisar, Eden Prairie,
AIL, AIHI, Outlet and Franchising, each individually a “Guarantor” and collectively, “Guarantors”).
W I T N E S S E T H :
WHEREAS, Administrative Agent, Lenders, Borrowers and Guarantors have entered into financing
arrangements pursuant to which Lenders (or Administrative Agent on behalf of Lenders) have made and
may make loans and advances and provide other financial accommodations to Borrowers as set forth in
the ABL Credit Agreement dated August 13, 2010, by and among Administrative Agent, Lenders,
Borrowers and Guarantors (as from time to time amended, modified, supplemented, extended, renewed,
restated or replaced, the “Credit Agreement”, and together with all agreements, documents and
instruments at any time executed and/or delivered in connection therewith or related thereto, as
from time to time amended, modified, supplemented, extended, renewed, restated, or replaced,
collectively, the “Loan Documents”);
WHEREAS, Borrowers and Guarantors desire to amend certain provisions of the Credit Agreement
as set forth herein, and Administrative Agent and Lenders are willing to agree to such
amendments
on the terms and subject to the conditions set forth herein;
WHEREAS, by this Amendment No. 1, Administrative Agent, Lenders, Borrowers and Guarantors
desire and intend to evidence such amendments;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definitions. As used herein or in the Credit Agreement or any of the
other Loan Documents, the following terms shall have the meanings given to them below and the
Credit Agreement and the other Loan Documents shall be deemed and are hereby amended to include, in
addition and not in limitation, the following definitions:
(i) “Amendment No. 1” shall mean Amendment No.1 to ABL Credit Agreement, dated as of December
2, 2010 by and among Administrative Agent, Lenders, Borrowers and Guarantors, as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(ii) “Parent Company” means (a) Holdings and (b) any other Person (i) of which Amscan is an
indirect wholly-owned Subsidiary and (ii) substantially all of the assets of which consist of its
indirect investment in Amscan.
(iii) “Refinancing Transactions” shall mean, collectively, (A) the execution, delivery and
performance by the Loan Parties of the Senior Secured Term Facility Credit Agreement and all other
related instruments, agreements and other documents and the making of the loans thereunder, (B) the
execution, delivery and performance by Borrowers and Guarantors of Amendment No. 1, (C) the
execution, delivery and performance by all parties thereto of the Intercreditor Agreement, (D) the
payment of the Special Dividend and (E) the payment by Borrowers and Guarantors of the Refinancing
Transaction Costs.
(iv) “Refinancing Transaction Costs” shall mean fees and expenses payable or otherwise borne
by Borrowers and Guarantors in connection with the Refinancing Transactions and the transactions
contemplated thereby and including, for the avoidance of doubt, any portion of the Special Dividend
to the extent any such amount reduces Consolidated Net Income.
(v) “Special Dividend” has the meaning assigned to such term in Section 6.05(a)(v).
(vi) “WFB” shall mean Xxxxx Fargo Bank, National Association, successor by merger to Xxxxx
Fargo Retail Finance, LLC, in its individual capacity, or any successor entity thereto.
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(b) Amendments to Definitions.
(i) The definition of “Change of Control” set forth in Section 1.01 of the Credit Agreement is
hereby amended by deleting such definition in its entirety and replacing it with the following:
“Change of Control” means, at any time, (a) if Sponsors shall cease
to beneficially own and control 50% or more of the combined voting
power of all of the Capital Stock of Holdings, (b) any Person (other
than one or more Sponsors) or Persons (other than one or more
Sponsors) that are together a “group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) shall have after the Closing
Date obtained the power (whether or not exercised) to elect a
majority of the members of the board of directors (or similar
governing body) of Holdings, (c) the majority of the seats (other
than vacant seats) on the board of directors (or similar governing
body) of Holdings cease to be occupied by Persons who either (i)
were members of the board of directors of Holdings on the Closing
Date or (ii) were nominated for election by a majority of the board
of directors of Holdings, who were either (A) directors on the
Closing Date or (B) whose election or nomination for election was
previously approved by a majority of such directors or by any
Sponsor, (d) Holdings shall cease to own 100% of the Capital Stock
of Amscan, (e) any “change of control” or similar event under the
Senior Subordinated Note Indenture (or any agreement or instrument
evidencing or related to any Refinancing Indebtedness with respect
thereto with an aggregate outstanding principal amount in excess of
the Threshold Amount) shall occur.
(ii) Clause (b)(v) of the definition of “Consolidated Adjusted EBITDA” set forth in Section
1.01 of the Credit Agreement is hereby amended by deleting such Clause in its entirety and
replacing it with the following:
“(v) other non-cash items reducing Consolidated Net Income including
without limitation provisions for minority interests and items
resulting from marking hedging obligations to market, purchase
accounting, deferred rent and from compensation charges due to
Capital Stock, and in the case of any such Capital Stock, any
charges or expenses arising out of the repricing or revlauation
thereof (including, without limitation, any repricing or revlauation
of Capital Stock arising out of the Refinancing Transactions)
(excluding any such non-cash item to the extent that it represents
(A) an accrual or reserve for potential cash items in any future
period, (B) amortization of a prepaid Cash item that was paid in a
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prior period or (C) a reserve against or write down or write-off of
inventory in accordance with GAAP);”.
(iii) Clause (b)(vi) of the definition of “Consolidated Adjusted EBITDA” set forth in Section
1.01 of the Credit Agreement is hereby amended by adding “and Refinancing Transaction Costs”
immediately following “Transaction Costs”.
(iv) The last sentence of the definition of “Consolidated Adjusted EBITDA” set forth in
Section 1.01 of the Credit Agreement is hereby amended by deleting such sentence in its entirety
and replacing it with the following:
“Notwithstanding anything to the contrary, it is agreed, that for
the purpose of calculating the Interest Coverage Ratio and the Fixed
Charge Coverage Ratio, for any period that includes the Fiscal
Quarter ended on March 31, 2010, the Fiscal Quarter ended June 30,
2010 or the Fiscal Quarter ended on September 30, 2010, Consolidated
Adjusted EBITDA for the Fiscal Quarter ended on March 31, 2010 shall
be deemed to be $22,757,086 and Consolidated Adjusted EBITDA for the
Fiscal Quarter ended on June 30, 2010 shall be deemed to be
$49,171,500 and Consolidated Adjusted EBITDA for the Fiscal Quarter
ended on September 30, 2010 shall be deemed to be $32,061,862.”
(v) Clause (c) of the definition of “Consolidated Cash Interest Expense” set forth in Section
1.01 of the Credit Agreement is hereby amended by adding “and Refinancing Transaction Costs”
immediately following “Transaction Costs”.
(vi) Clause (d) of the definition of “Fixed Charges” set forth in Section 1.01 of the Credit
Agreement is hereby amended by deleting the clause (i) from the parenthetical contained therein in
its entirety and replacing it with the following:
“(i) those described in clause (e) of the definition thereof and the
Special Dividend and”.
(vii) The definition of “Intercreditor Agreement” set forth in Section 1.01 of the Credit
Agreement is hereby amended by deleting such definition in its entirety and replacing it with the
following:
“Intercreditor Agreement” means the Lien Subordination and
Intercreditor Agreement, dated as of December 2, 2010, among
Administrative Agent, as agent for the Revolving Facility Secured
Parties referred to therein, Credit Suisse AG, as agent for the Term
Loan Secured Parties referred to therein, Amscan, Holdings and the
Subsidiaries of Holdings from time to time party thereto.
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(viii) The definition of “Maturity Date” set forth in Section 1.01 of the Credit Agreement is
hereby amended by deleting such definition in its entirety and replacing it with the following:
“Maturity Date” means August 13, 2015 or any earlier date on
which the Aggregate Commitments are reduced to zero or otherwise
terminated pursuant to the terms hereof; provided,
that, in the event that there are any obligations
outstanding under the Senior Subordinated Note Documents (as each
may be amended, modified, replaced or refinanced from time to time)
on the date (such date, the “Springing Maturity Date”) that is one
hundred twenty (120) days prior to any then scheduled maturity date
thereunder, the “Maturity Date” shall mean the Springing Maturity
Date.
(ix) The definition of “Senior Secured Term Facility Credit Agreement” set forth in Section
1.01 of the Credit Agreement is hereby amended by deleting such definition in its entirety and
replacing it with the following:
“Senior Secured Term Facility Credit Agreement” means the Term Loan
Credit Agreement, dated as of December 2, 2010, among Holdings,
Amscan, the subsidiaries of Amscan from time to time party thereto,
Credit Suisse AG, as administrative agent and collateral agent and
the lenders from time to time party thereto, as the same may be
amended, restated, modified, refinanced, replaced, extended, renewed
or supplemented from time to time.
(x) Each reference to “Xxxxx Fargo Retail Finance, LLC” contained in the Credit Agreement and
each of the other Loan Documents is hereby amended to mean “Xxxxx Fargo Bank, National Association,
successor by merger to Xxxxx Fargo Retail Finance, LLC”
(xi) Each reference to “WFRF” contained in the Credit Agreement and each of the other Loan
Documents is hereby deleted and replaced with “WFB”
(c) Interpretation. For purposes of this Amendment No. 1, all terms used herein which
are not otherwise defined herein, including but not limited to, those terms used in the recitals
hereto, shall have the respective meanings assigned thereto in the Credit Agreement as amended by
this Amendment No. 1.
2. Accounting Terms; GAAP. Section 1.04(a) of the Credit Agreement is hereby amended
by deleting such Section in its entirety and replacing it with the following:
“(a) Except as otherwise expressly provided herein, all financial
statements to be delivered pursuant to this Agreement shall be
prepared in accordance with GAAP as in effect from time to time and
all terms of an accounting or financial nature that are used in
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the
computation of any covenant (including the computation of any
financial covenant) set forth in any Loan Document shall be
construed and interpreted in accordance with GAAP, as in effect on
September 30, 2010 unless otherwise agreed to by the Borrower Agent
and the Required Lenders. Amscan shall provide such
information concerning GAAP as so in effect as Administrative Agent
may from time to time reasonably request.”
3. Financial Statements and Other Reports. Section 5.01(q)(ii)(G) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and replacing it with the
following:
“(G) [Reserved]”.
4. Indebtedness.
(a) Section 6.01(p) of the Credit Agreement is hereby amended by deleting clause (iii) of such
Section in its entirety and replacing it with the following:
“(iii) [Reserved]”.
(b) Section 6.01(w) of the Credit Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(w) Indebtedness incurred pursuant to the Senior Secured Term Facility
Credit Agreement by Amscan in an aggregate principal amount that does not
exceed $850,000,000 at any time outstanding; provided,
that, with respect to any additional Indebtedness incurred under
the terms of the Senior Secured Term Facility Credit Agreement after the
effective date of Amendment No. 1, (i) any such Indebtedness shall have a
final maturity no earlier than December 2, 2017, (ii) any such Indebtedness
shall have a weighted average life to maturity equal to or greater than the
weighted average life to maturity of the Indebtedness then outstanding
pursuant to this clause (w), (iii) any such Indebtedness shall be secured
only by Liens permitted under Section 6.02(t); and (iv) as of the date of
incurring such additional Indebtedness and after giving effect thereto, no
Default or Event of Default shall exist or have occurred and be
continuing;”
5. No Further Negative Pledges.
(a) Section 6.04 of the Credit Agreement is hereby amended by deleting the reference to
“Senior Subordinated Note Indenture” contained in Clause (c) of such Section and replacing it with
“Senior Subordinated Note Indenture or in agreements with respect to Indebtedness that refinances
or replaces Indebtedness permitted under Section 6.01(c),”.
(b) Section 6.04 of the Credit Agreement is hereby amended by deleting the
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“and” at the end of
clause (h) of such Section, and adding a new clause (j) immediately following clause (i) of such
Section to read as follows:
“(j) restrictions in any one or more agreements governing Indebtedness
entered into after the effective date of Amendment No. 1 that contain
encumbrances and other restrictions that are, taken as a whole, in the good
faith judgment of Amscan, (i) no more restrictive in any material respect
with respect to any Borrower or Guarantor than those encumbrances and other
restrictions that are in effect on the effective date of Amendment No. 1
pursuant to agreements and instruments in effect on the effective date of
Amendment No. 1 or (ii) no more disadvantageous to the Lenders than the
Senior Subordinated Notes Indenture”.
6. Restricted Junior Payments. Section 6.05(a) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the following:
“No Loan Party shall, nor shall it permit any of its Subsidiaries or
Affiliates through any manner or means or through any other Person to,
directly or indirectly, declare, order, pay, make or set apart, or agree to
declare, order, pay, make or set apart, any sum for any Restricted Junior
Payment, except that (i) Amscan may make regularly scheduled payments of
interest in respect of any Subordinated Indebtedness in accordance with the
terms of, and only to the extent required by, and subject to the
subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued as such
indenture or other agreement may be amended from time to time to the extent
permitted under Section 6.14; (ii) so long as no Default or Event of
Default shall have occurred and be continuing or shall be caused thereby,
Amscan may make Restricted Junior Payments (A) in an aggregate amount not
to exceed $500,000 in any Fiscal Year, to the extent necessary to permit
Holdings (or any Parent Company) to pay general administrative costs and
expenses and (B) to the extent necessary to permit Holdings (or any Parent
Company) to discharge the consolidated tax liabilities of Holdings and its
Subsidiaries, in each case so long as Holdings (or any Parent Company)
applies the amount of any such Restricted Junior Payment for such purpose;
(iii) so long as no Default or Event of Default shall have occurred and be
continuing or be caused thereby, Holdings may pay (or make Restricted
Junior Payments to allow any Parent Company to pay) for the repurchase,
retirement or other acquisition or retirement for value of Capital Stock of
Holdings (or of any such Parent Company) held by any future, present or
former employee, director, officer, manager or consultant (or any
Controlled Investment Affiliate or Immediate Family Member thereof) of
Holdings (or any Parent Company) or any Subsidiary upon the death,
disability, retirement or termination of employment of any such Person or
otherwise pursuant to any employee or director equity
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plan, employee or
director stock option plan or any other employee or director benefit plan
or any agreement (including any stock subscription or shareholder
agreement) with any future, present or former employee, director, officer,
manager or consultant of Holdings (or any Parent Company) or any Subsidiary
(A) in exchange for notes issued pursuant to
Section 6.01(o), (B) in exchange for Capital Stock of Holdings (or any
Parent Company) or (C) in exchange for Cash and Cash Equivalents (and
Amscan may make Restricted Junior Payments to Holdings (and Holdings may
make Restricted Junior Payments to any Parent Company)) in an amount not to
exceed $15,000,000 in any Fiscal Year or $45,000,000 in the aggregate from
the Closing Date to the date of determination; (iv) Amscan may make
payments in respect of Management Fees not to exceed $2,500,000 in any
Fiscal Year; (v) Amscan may make one-time cash dividend in an aggregate
amount not to exceed $311,600,000, from legally available funds therefor,
to Holdings, and Holdings may apply the proceeds of such dividend from
Amscan to make one-time cash Restricted Junior Payments, from funds legally
available therefor, to its shareholders, optionholders and warrantholders
(such Restricted Junior Payments being collectively referred to as, the
“Special Dividend”); provided, that, (A) no portion of such
Special Dividend will be funded with the proceeds of Loans, (B) one hundred
(100%) percent of the Special Dividend will be funded with the proceeds of
loans made to Amscan under the Senior Secured Term Facility Credit
Agreement, (C) promptly upon the receipt by Holdings of the proceeds of
such dividend from Amscan, Holdings shall apply all of such proceeds to
make one-time cash Restricted Junior Payments to its shareholders,
optionholders and warrantholders, (D) at the time of the payment of such
dividend by Amscan or Restricted Junior Payment by Holdings, as applicable,
and immediately after giving effect thereto, no Event of Default shall have
occurred and be continuing, and (E) the payment of each such Restricted
Junior Payments shall have occurred by no later than December 7, 2010; and
(vi) Amscan may make Restricted Junior Payments (and Holdings may itself
make Restricted Junior Payments with any such Restricted Junior Payments
received by it from Amscan); provided, that, at the time it
is paid by Amscan, before and after giving effect to such Restricted Junior
Payments under this clause (vi), the Payment Conditions are satisfied.”
7. Restrictions on Subsidiary Distributions.
(a) Section 6.06 of the Credit Agreement is hereby amended by deleting the reference to “in
the Senior Subordinated Note Indenture” and replacing it with “in the Senior Subordinated Note
Indenture or in agreements with respect to Indebtedness that refinances or replaces Indebtedness
permitted under Section 6.01(c)”.
(b) Section 6.06 of the Credit Agreement is hereby amended by deleting the
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reference to
“Section 6.01(q)” and replacing it with “Section 6.01(q) or except for restrictions in any one or
more agreements governing Indebtedness entered into after the effective date of Amendment No. 1
that contain encumbrances and other restrictions that are, taken as a whole, in the good faith
judgment of Amscan, (x) no more restrictive in any material respect with respect to any Borrower or
Guarantor than those encumbrances and other restrictions that are in effect on
the effective date of Amendment No. 1 pursuant to agreements and instruments in effect on the
effective date of Amendment No. 1 or (y) no more disadvantageous to the Lenders than the Senior
Subordinated Notes Indenture”.
8. Transactions with Shareholders and Affiliates.
(a) Section 6.11(d) of the Credit Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(d) transactions permitted in Sections 6.01(o) and 6.05(a)(ii), (iii),
(iv) and (v),”.
(b) Section 6.11(g) of the Credit Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
“(g) the Transactions and the Refinancing Transactions and the payment of
fees and expenses relating to the Transactions and the Refinancing
Transactions, including Transaction Costs and Refinancing Transaction
Costs,”.
9. Borrowing Base Certificate. Exhibit C to the Credit Agreement is hereby deleted in
its entirety and replaced with Exhibit C in the form attached hereto as Exhibit 1.
10. Representations and Warranties. Borrowers and Guarantors, jointly and severally,
represent and warrant with and to Administrative Agent and Lenders as follows, which
representations and warranties shall survive the execution and delivery hereof:
(a) no Default or Event of Default has occurred and is continuing as of the date of this
Amendment No. 1;
(b) this Amendment No. 1 and each other agreement to be executed and delivered by Borrowers
and Guarantors in connection herewith (collectively, together with this Amendment No. 1, the
“Amendment Documents”) has been duly authorized, executed and delivered by all necessary action on
the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective
equity holders and is in full force and effect as of the date hereof, as the case may be, and the
agreements and obligations of each of the Borrowers and Guarantors, as the case may be, contained
herein and therein constitute legal, valid and binding obligations of each of the Borrowers and
Guarantors, enforceable against them in accordance with their terms, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors’ rights and except to the extent that availability
of the remedy of specific performance or injunctive
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relief is subject to the discretion of the
court before which any proceeding therefor may be brought;
(c) the execution, delivery and performance of each Amendment Document (i) are all within each
Borrower’s and Guarantor’s corporate or limited liability company powers
and (ii) are not in contravention of law or the terms of any Borrower’s or Guarantor’s
certificate or articles of incorporation, by laws, or other organizational documentation, or any
indenture, agreement or undertaking to which any Borrower or Guarantor is a party or by which any
Borrower or Guarantor or its property are bound; and
(d) the resolutions of the Board of Directors or Managers of each Borrower and Guarantor
delivered to Administrative Agent by such Borrower or Guarantor on the date of the effectiveness of
the Credit Agreement have not been revoked and are in full force and effect;
(e) all of the representations and warranties set forth in the Credit Agreement and the other
Loan Documents, each as amended hereby, are true and correct in all material respects on and as of
the date hereof, as if made on the date hereof; provided, that, (i) to the extent
that a representation and warranty specifically refers to an earlier date, it shall be true and
correct in all material respects as of such earlier date and (ii) any representation and warranty
that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true
and correct (after giving effect to any qualification therein) in all respects on such respective
dates with such effect.
11. Conditions Precedent. The amendments contained herein shall only be effective upon
the satisfaction of each of the following conditions precedent in a manner satisfactory to
Administrative Agent:
(a) Administrative Agent shall have received counterparts of this Amendment No. 1, duly
authorized, executed and delivered by Borrowers, Guarantors and the Required Lenders;
(b) Administrative Agent shall have received a true and correct copy of each consent, waiver
or approval (if any) to or of this Amendment No. 1, which Borrowers and Guarantors are required to
obtain from any other Person, and such consent, approval or waiver (if any) shall be in form and
substance reasonably satisfactory to Administrative Agent;
(c) Administrative Agent shall have received (i) true, correct and complete copies of the
Senior Secured Term Facility Credit Agreement and all other material agreements, documents and
instruments executed and/or delivered by any Borrower or Guarantor in connection therewith or
related thereto, duly authorized, executed and delivered by the parties thereto, which shall each
be on terms and conditions acceptable to Administrative Agent and (ii) evidence that the
transactions contemplated by the Senior Secured Term Facility Credit Agreement have been
consummated prior to or contemporaneously with the execution of this Amendment No. 1;
(d) Administrative Agent shall have received, in form and substance
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satisfactory to
Administrative Agent, the Intercreditor Agreement, duly authorized, executed and delivered by
Credit Suisse AG, as agent for the Term Loan Secured Parties referred to therein, Borrowers and
Guarantors; and
(e) No Default or Event of Default shall have occurred and be continuing.
12. Effect of Amendment No. 1. Except as expressly set forth herein, no other
amendments, changes or modifications to the Loan Documents are intended or implied, and in all
other respects the Loan Documents are hereby specifically ratified, restated and confirmed by all
parties hereto as of the effective date hereof and Borrowers and Guarantors shall not be entitled
to any other or further amendment by virtue of the provisions of this Amendment No. 1 or with
respect to the subject matter of this Amendment No. 1. To the extent of conflict between the terms
of this Amendment No. 1 and the other Loan Documents, the terms of this Amendment No. 1 shall
control. The Credit Agreement and this Amendment No. 1 shall be read and construed as one
agreement.
13. Governing Law. The validity, interpretation and enforcement of this Amendment No.
1 and any dispute arising out of the relationship between the parties hereto whether in contract,
tort, equity or otherwise, shall be governed by the internal laws of the State of New York.
14. Jury Trial Waiver. BORROWERS, GUARANTORS, ADMINISTRATIVE AGENT AND LENDERS EACH
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER THIS AMENDMENT NO. 1 OR ANY OF THE OTHER LOAN DOCUMENTS OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 1 OR
ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWERS,
GUARANTORS, ADMINISTRATIVE AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT
BORROWERS, GUARANTORS, ADMINISTRATIVE AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF A
COPY OF THIS AMENDMENT NO. 1 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
15. Binding Effect. This Amendment No.1 shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
16. Waiver, Modification, Etc. No provision or term of this Amendment No. 1 may be
modified, altered, waived, discharged or terminated orally, but only by an instrument in writing
executed by the party against whom such modification, alteration, waiver, discharge or termination
is sought to be enforced.
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17. Further Assurances. Borrowers and Guarantors shall execute and deliver such
additional documents and take such additional action as may be reasonably requested by
Administrative Agent to effectuate the provisions and purposes of this Amendment No. 1.
18. Entire Agreement. This Amendment No. 1 represents the entire agreement and
understanding concerning the subject matter hereof among the parties hereto, and supersedes
all other prior agreements, understandings, negotiations and discussions, representations,
warranties, commitments, proposals, offers and contracts concerning the subject matter hereof,
whether oral or written.
19. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment No. 1.
20. Counterparts. This Amendment No. 1 may be executed in any number of counterparts,
each of which shall be an original, but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of this Amendment No. 1 by telefacsimile or
other electronic method of transmission shall have the same force and effect as delivery of an
original executed counterpart of this Amendment No. 1. Any party delivering an executed
counterpart of this Amendment No. 1 by telefacsimile or other electronic method of transmission
shall also deliver an original executed counterpart of this Amendment No. 1, but the failure to do
so shall not affect the validity, enforceability, and binding effect of this Amendment No. 1.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly
executed and delivered by their authorized officers as of the day and year first above written.
| AMSCAN HOLDINGS, INC. |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| AAH HOLDINGS CORPORATION FACTORY CARD & PARTY OUTLET CORP. |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| AMSCAN INC. GAGS AND GAMES, INC. PA ACQUISITION CORP. PARTY AMERICA FRANCHISING, INC. PARTY CITY CORPORATION |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ANAGRAM INTERNATIONAL HOLDINGS, INC. ANAGRAM INTERNATIONAL, INC. JCS PACKAGING, INC. M&D INDUSTRIES, INC. SSY REALTY CORP. TRISAR, INC. |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Assistant Treasurer | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
[Amendment No. 1 to ABL Credit Agreement]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| AM-SOURCE, LLC ANAGRAM EDEN PRAIRIE PROPERTY HOLDINGS LLC By: Amscan Holdings, Inc., sole Member |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| ANAGRAM INTERNATIONAL, LLC |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
| FACTORY CARD OUTLET OF AMERICA LTD. |
||||
| By: | ||||
| Name: | Xxxx X. Xxxx | |||
| Title: | President | |||
| PARTY CITY FRANCHISE GROUP
HOLDINGS, LLC PARTY CITY FRANCHISE GROUP, LLC |
||||
| By: | ||||
| Name: | Xxxx Xxxxx | |||
| Title: | Treasurer | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
[Amendment No. 1 to ABL Credit Agreement]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, successor by
merger to Xxxxx Fargo Retail Finance, LLC, as
Administrative Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, successor by
merger to Xxxxx Fargo Retail Finance, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| RBS BUSINESS CAPITAL, a division of RBS Asset Finance, Inc., a subsidiary of RBS Citizens, NA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| TD BANK, N.A., individually, as a Co-Documentation Agent and as a Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| SUNTRUST BANK, individually, as a Co-Documentation Agent and as a Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION, individually and as a
Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| CAPITAL ONE LEVERAGE FINANCE CORP., individually and
as a Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, individually
and as a Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
| CIT BANK, individually and as a Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Amendment No. 1 to ABL Credit Agreement]
Exhibit 1 to Amendment No. 1
to ABL Credit Agreement
to ABL Credit Agreement
EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
[SEE ATTACHED]
