Exhibit 10(2)
COUNTERPART AGREEMENT
This COUNTERPART AGREEMENT, dated July 16, 2004 (this "COUNTERPART
AGREEMENT") is delivered pursuant to that certain Credit and Guaranty Agreement,
dated as of April 30, 2004 (as it may be amended, supplemented or otherwise
modified, the "CREDIT AGREEMENT"; the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among AMSCAN
HOLDINGS, INC., ("COMPANY"), AAH HOLDINGS CORPORATION, certain Subsidiaries of
Company, as Guarantors, the Lenders party thereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P., as Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent, X.X. XXXXXX SECURITIES INC., as Joint Lead Arranger, Joint
Bookrunner and Co-Syndication Agent, and GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and Collateral Agent.
SECTION 1. Pursuant to Section 5.10 of the Credit Agreement, the
undersigned hereby:
(a) agrees that this Counterpart Agreement may be attached to the
Credit Agreement and that by the execution and delivery hereof, the
undersigned becomes a Guarantor under the Credit Agreement and agrees to
be bound by all of the terms thereof;
(b) represents and warrants that each of the representations and
warranties set forth in the Credit Agreement and each other Credit
Document and applicable to the undersigned is true and correct both before
and after giving effect to this Counterpart Agreement, except to the
extent that any such representation and warranty relates solely to any
earlier date, in which case such representation and warranty is true and
correct as of such earlier date;
(c) represents and warrants that no event has occurred or is
continuing as of the date hereof, or will result from the transactions
contemplated hereby on the date hereof, that would constitute an Event of
Default or a Default;
(d) agrees to irrevocably and unconditionally guaranty the due and
punctual payment in full of all Obligations when the same shall become
due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due
but for the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. Section 362(a)) and in accordance with Section
7 of the Credit Agreement; and
(e) (i) agrees that this counterpart may be attached to the Pledge
and Security Agreement, (ii) agrees that the undersigned will comply with
all the terms and conditions of the Security Agreement as if it were an
original signatory
thereto, (iii) grants to Secured Party (as such term is defined in the
Pledge and Security Agreement) a security interest in all of the
undersigned's right, title and interest in and to all "Collateral" (as
such term is defined in the Pledge and Security Agreement) of the
undersigned, in each case whether now or hereafter existing or in which
the undersigned now has or hereafter acquires an interest and wherever the
same may be located and (iv) delivers to Collateral Agent supplements to
all schedules attached to the Pledge and Security Agreement. All such
Collateral shall be deemed to be part of the "Collateral" and hereafter
subject to each of the terms and conditions of the Pledge and Security
Agreement.
SECTION 2. The undersigned agrees from time to time, upon request of
Administrative Agent, to take such additional actions and to execute and deliver
such additional documents and instruments as Administrative Agent may request to
effect the transactions contemplated by, and to carry out the intent of, this
Agreement. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
(including, if applicable, any party required to evidence its consent to or
acceptance of this Agreement) against whom enforcement of such change, waiver,
discharge or termination is sought. Any notice or other communication herein
required or permitted to be given shall be given pursuant to Section 10.1 of the
Credit Agreement, and all for purposes thereof, the notice address of the
undersigned shall be the address as set forth on the signature page hereof. In
case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement
to be duly executed and delivered by its duly authorized officer as of the date
above first written.
ANAGRAM INTERNATIONAL, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
Address for Notices:
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Telecopier: 000-000-0000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopier: 000-000-0000
ACKNOWLEDGED AND ACCEPTED,
as of the date above first written:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and Collateral Agent
By: /s/ Xxxx Xxxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
Duly Authorized Signatory
