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Exhibit 10.13
EXECUTION COPY
CYRK, INC.
FIFTH AMENDMENT
TO REVOLVING CREDIT AGREEMENT
This FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT") is
dated as of February 4, 1999 and entered into by and CYRK, INC., a Delaware
corporation ("BORROWER"), and WELLS FARGO HSBC TRADE BANK, N.A. ("BANK"), as
successor-in-interest to The Hongkong and Shanghai Banking Corporation Limited,
and is made with reference to that certain Revolving Credit Agreement dated as
of December 1, 1993 (the "CREDIT AGREEMENT"), as amended by Amendment One to the
Revolving Credit Agreement dated January 12, 1994, by Amendment Number Two to
the Revolving Credit Agreement dated May 16, 1994, further amended on October 6,
1994, October 11, 1994, November 18, 1994, March 27, 1995, April 12, 1995,
August 1, 1995, November 29, 1995, December 29, 1995, and Amendment Number Three
to the Revolving Credit Agreement dated January 25, 1996 and further amended on
October 16, 1996, November 20, 1996, February 14, 1997, April 4, 1997, April 23,
1997, February 13, 1998, March 20, 1998 and August 10, 1998, and by the Fourth
Amendment to Revolving Credit Agreement dated January 11, 1999, by and between
Borrower and Bank. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrower and Bank desire to amend the Credit Agreement as set forth
below:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 1: CERTAIN DEFINITIONS
A. Section 1.2 of the Credit Agreement is hereby amended by deleting the
date "January 31, 1999" contained in the definition of "Termination Date"
contained therein and substituting the date "March 31, 1999" therefor.
SECTION 2. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into this Amendment and to amend the Credit
Agreement in the manner provided herein, Borrower represents and warrants to
Bank that the following statements are true, correct and complete:
A. POWER AND AUTHORITY. Borrower has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENT. The execution and delivery of this Agreement
and performance of the Amended Agreement have been duly authorized by all
necessary corporate action on the part of Borrower.
C. NO CONFLICT. The execution and delivery by Borrower of this Agreement and
the performance of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule
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or regulation applicable to Borrower, the Certificate or Articles of
Incorporation or Bylaws of Borrower, or any judgment or decree of any court or
other government agency binding on Borrower, (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 Borrower, (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of
Borrower (other than any Liens created under any of the Document in favor of
Bank), or (iv) require any approval of stockholders or any approval or consent
of any Person under any contractual obligation of Borrower.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Borrower of this
Agreement and performance of the Amended 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.
E. BINDING OBLIGATION. This Agreement and the Amended Agreement have been
duly executed and delivered by Borrower and are the legally valid and binding
obligations of Borrower, enforceable against Borrower 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.
F. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or Unmatured Event of Default.
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after date hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import referring to
the Credit Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Documents shall remain in full force and effect and are hereby
ratified and confirmed. (iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of Bank
under the Credit Agreement or any of the other Documents.
B. FEES AND EXPENSES. Borrower acknowledges that all costs, fees and
expenses, as described in subsection 18.2 of the Credit Agreement, incurred by
Bank and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrower.
C. HEADINGS. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS 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.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment 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;
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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. This Amendment shall become effective upon the execution of a
counterpart hereof by Borrower and Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
BORROWER:
CYRK, INC., a Delaware corporation
By: /s/ Dominic F. Mammola
Its: Executive Vice President and Chief Financial Officer
BANK:
WELLS FARGO HSBC TRADE BANK, N.A.
By: /s/ Duncan Sennott
Its: Vice President