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Exhibit 10.1
EXECUTION COPY
CYRK INC.
EXTENSION AGREEMENT
This EXTENSION AGREEMENT (this "Agreement") is dated as of October 25,
2000 and entered into by and among CYRK, INC., a Delaware corporation
("COMPANY"), the financial institutions listed therein, XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Issuing Lender ("ISSUING LENDER," together with Lenders
the "LENDING PARTIES") and XXXXX FARGO HSBC TRADE BANK, N.A., individually and
as Administrative Agent for Lenders ("ADMINISTRATIVE AGENT"), and is made with
reference to that certain Credit Agreement dated as of July 29, 1999 by and
among Company, the Lenders listed therein, Issuing Lender and Administrative
Agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Commitment Termination Date under the Credit Agreement,
as extended by that certain Extension Agreement dated as of July 31, 2000, is
October 31, 2000; and
WHEREAS, Company and Lending Parties desire to enter into this
Agreement in order to provide time to negotiate a new credit agreement;
NOW, THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. EXTENSION
Lending Parties hereby agree to extend the Commitment Termination Date
under the Credit Agreement to and including November 30, 2000 (the period from
October 31, 2000 to November 30, 2000 being referred to herein as the "SECOND
EXTENSION PERIOD"). During the Second Extension Period, the Credit Agreement
shall remain in full force and effect in accordance with its terms.
The agreement of Lending Parties set forth herein shall not in any manner
limit or impair any rights or remedies that Lending Parties may have (i) at the
expiration of the Second Extension Period or (ii) with respect to any defaults
or Events of Default during the Second Extension Period.
The parties acknowledge that Documentary Credits issued under the Credit
Agreement prior to the Commitment Termination Date, as extended hereby, may
remain outstanding after the Commitment Termination Date. In such event, the
obligations of the parties in respect of any such Documentary Credit shall be
governed by the letter of credit application, substantially in the form of
EXHIBIT IV attached to the Credit Agreement, and other letter of credit
documents executed in connection with the issuance thereof.
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SECTION 2. CONDITIONS TO EFFECTIVENESS
This Agreement shall become effective as of the date hereof upon receipt by
Administrative Agent of the following:
(i) Certificate executed by the Company's Secretary stating that
Xxxxxxx X. Xxxxxxx, Chief Financial Officer and Executive Vice President of
the Company is, pursuant to the Company's By-Laws, authorized to enter into
any and all documents required for the Company to enter into this
Agreement;
(ii) Signature and incumbency certificates of the authorized
representatives of Company executing this Agreement dated as of the date
hereof;
(iii) A duly executed Allonge (the "ALLONGE") extending the
maturity date of the Note; and
(iv) Originally executed copies of this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In order to induce Lending Parties to enter into this Agreement,
Company represents and warrants to Lending Parties that the following statements
are true, correct and complete:
A. POWER AND AUTHORITY. Company has all requisite power and authority
under the Delaware General Corporation Law and its Certificate of Incorporation
and Bylaws to enter into this Agreement.
B. AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Agreement have been duly authorized by all necessary action on the part of
Company under the Delaware General Corporation Law and the Certificate of
Incorporation and Bylaws of Company.
C. NO CONFLICT. The execution and delivery by Company of this Agreement
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to Company, the Certificate of Incorporation or
Bylaws of Company or any order, judgment or decree of any court or other agency
of government binding on Company, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of Company (other
than any Liens created under any of the Loan Documents in favor of Lending
Parties), or (iv) require any approval or consent of any Person under any
Contractual Obligation of Company.
D. GOVERNMENT CONSENTS. The execution and delivery by Company of this
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
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E. BINDING OBLIGATION. This Agreement and the Allonge have been duly
executed and delivered by Company and are the legally valid and binding
obligations of Company, enforceable against Company in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Company is a party to certain Collateral Documents, in each case as
amended through the date hereof pursuant to which Company has created Liens in
favor of Administrative Agent on certain Collateral to secure the Obligations.
Company hereby confirms that each Collateral Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
secure to the fullest extent possible the payment and performance of all
"Obligations" and "Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Collateral Document), including,
without limitation, the payment and performance of all such "Obligations" or
"Secured Obligations," as the case may be, in respect of the Obligations of
Company now or hereafter existing under or in respect of the Credit Agreement
and the Note defined therein.
Company acknowledges and agrees that any of the Collateral Documents
to which it is a party or otherwise bound shall continue in full force and
effect and that all of its obligations thereunder shall be valid and
enforceable.
SECTION 5. MISCELLANEOUS
A. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
B. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
C. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
CYRK, INC.
By: /s/ Xxxx Xxxxxxx
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Title: EVP, CFO
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XXXXX FARGO HSBC TRADE BANK, N.A.,
individually and as Administrative Agent
By: ___________________________________
Title: ________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Issuing Lender
By: ___________________________________
Title: ________________________________
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ALLONGE TO PROMISSORY NOTE
THIS ALLONGE is made as of October 25, 2000 by CYRK, INC., a Delaware
corporation ("COMPANY"), as maker, in favor of XXXXX FARGO HSBC TRADE BANK,
N.A., as payee, with respect to that certain Promissory Note dated as of July
29, 1999, as amended by the Allonge to Promissory Note dated as of July 31, 2000
(the "NOTE").
Company hereby agrees that all amounts outstanding under the Credit
Agreement referred to in the Note shall be paid on or before November 30, 2000.
WITNESS the execution of this Allonge by Cyrk, Inc. as of the date first
written above.
CYRK, INC.
By: /s/ Xxxx Xxxxxxx
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Title: EVP, CFO
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ACKNOWLEDGED AND AGREED:
XXXXX FARGO HSBC TRADE BANK, N.A.
Individually and as Administrative Agent
By: _____________________________________
Title: __________________________________
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INCUMBANCY CERTIFICATE
I, Xxxxxxxx X. Xxxxxxxx, do hereby certify as Secretary of Cyrk, Inc. ("Cyrk" or
the "Company"), a Delaware corporation, that as of the 26th day of October 2000,
Xxxxxxx X. Xxxxxxx is the Chief Financial Officer and Executive Vice President
of the Company and is duly authorized to execute on behalf of the Company any
and all documents related to the Second Extension Agreement.
IN WITNESS WHEREOF, I have hereto set my hand and the seal of said Company as of
this 26th day of October 2000.
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Secretary
[Seal]
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SECRETARY'S CERTIFICATE
I, Xxxxxxxx X. Xxxxxxxx, do hereby certify that I am Secretary of Cyrk, Inc.
("Cyrk" or the "Company"), a Delaware corporation, and that Xxxxxxx X. Xxxxxxx
is the Chief Financial Officer and Executive Vice President of the Company. As
Chief Financial Officer and Executive Vice President, Xx. Xxxxxxx is authorized,
pursuant to the Company's By-Laws, to execute as an authorized representative of
the Company any and all documents related to the Second Extension Agreement.
IN WITNESS WHEREOF, I have hereto set my hand and the seal of said Company as of
this 26th day of October 2000.
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Secretary
[Seal]
