Exhibit 10.6
WAIVER
THIS
WAIVER (this “ Waiver ”), dated as of
November 8, 2007, is entered into by and between WELLS
FARGO FOOTHILL, INC. , a California corporation, as arranger
and administrative agent (in such capacity, “ Agent
”) for the Lenders (as defined below), the Lenders,
YOUBET.COM, INC. , a Delaware corporation (“
Parent ”), and UNITED TOTE COMPANY , a Montana
corporation (“ United Tote ”, and together with
Parent, each individually a “ Borrower ”, and
individually and collectively, jointly and severally, the “
Borrowers ”).
RECITALS
A. Borrowers, the lenders signatory thereto (the “
Lenders ”) and Agent have previously entered into that
certain Credit Agreement dated as of July 27, 2006 (as the
same has been or may be modified, supplemented, restated or amended
from time to time, the “ Credit Agreement ”),
pursuant to which the Lenders have made certain loans and financial
accommodations available to Borrowers. Terms used herein without
definition shall have the meanings ascribed to them in the Credit
Agreement.
B. An
Event of Default has occurred and is continuing under the Credit
Agreement due to the Borrowers’ having, when measured for the
fiscal quarter ended September 30, 2007, a Leverage Ratio in
excess of the amount permitted under Section 6.16(c) of the
Credit Agreement (the “ Known Existing Default
”).
C. Borrowers have requested that Agent and the Lenders waive
the Known Existing Default which Agent and the Lenders are willing
to do pursuant to the terms and conditions set forth herein.
D. Borrowers are entering into this Waiver with the
understanding and agreement that, except as specifically provided
herein, none of Agent’s or any Lender’s rights or
remedies as set forth in the Credit Agreement are being waived or
modified by the terms of this Waiver.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1.
Waiver of Known Existing Default . Agent and the Lenders
hereby waive enforcement of their rights against Borrowers arising
from the Known Existing Default; provided , however ,
nothing herein shall be deemed a waiver with respect to any other
or future failure of Borrowers to comply fully with
Section 6.16(c) of the Credit Agreement. This waiver shall be
effective only for the specific default comprising the Known
Existing Default, and in no event shall this waiver be deemed to be
a waiver of enforcement of Agent’s or any Lender’s
rights with respect to any other Defaults or Events of Default now
existing or hereafter arising. Nothing contained in this Amendment
nor any communications between any Borrower and Agent or any
Borrower and any Lender shall be a waiver of any rights or remedies
Agent or any Lender has or may have against any Borrower, except as
specifically provided herein. Except as specifically provided
herein, Agent hereby reserves and preserves all of its and the
Lenders’ rights and remedies against each Borrower under the
Credit Agreement and the other Loan Documents.
2.
Conditions Precedent to Effectiveness of this Waiver . This
Waiver shall not become effective until all of the following
conditions precedent shall have been satisfied in the sole
discretion of Agent or waived by Agent:
(a)
Waiver . Agent shall have received this Waiver fully
executed by all parties hereto.
(b)
Representations and Warranties . The representations and
warranties set forth herein shall be true and correct.
3. Release;
Covenant Not to Sue .
(a) Each
Borrower hereby absolutely and unconditionally releases and forever
discharges Agent and each Lender, and any and all participants,
parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns
thereof, together with all of the present and former directors,
officers, agents and employees of any of the foregoing (each a "
Released Party ”), from any and all claims, demands or
causes of action of any kind, nature or description, whether
arising in law or equity or upon contract or tort or under any
state or federal law or otherwise, which such Borrower has had, now
has or has made claim to have against any such person for or by
reason of any act, omission, matter, cause or thing whatsoever
arising from the beginning of time to and including the date of
this Waiver, whether such claims, demands and causes of action are
matured or unmatured or known or unknown. It is the intention of
each Borrowe
