Exhibit 10.37
WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT
This Waiver and Third Amendment is dated as of December 31, 1998 (this
"Amendment") and is made by and among Autotote Corporation, a Delaware
corporation ("Autotote"), Xxxxxx Financial, Inc., a Delaware corporation as
agent and as a "Bank" party to the Credit Agreement referred to below, and DLJ
Capital Funding, Inc., a Delaware corporation, as a Bank party to the Credit
Agreement referred to below.
WHEREAS, the parties hereto are parties to that certain Credit Agreement, dated
as of July 28, 1997, as subsequently amended (the "Credit Agreement";
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement);
WHEREAS, Autotote violated the provisions of Section 9.10 of the Credit
Agreement as of the end of the fourth quarter of 1998, and at the request of
Autotote, the Banks are willing to waive all rights and remedies available to
them as a result of such violation;
WHEREAS, the parties hereto desire to amend the Credit Agreement to facilitate
(i) the acquisition by Xxxxxx X. Xxxxxxxx Productions, Inc., a New York
corporation ("Xxxxxx X. Xxxxxxxx"), of all of the stock of SJC Video
Corporation, a Delaware corporation ("SJC"), not previously wholly-owned by
Xxxxxx X. Xxxxxxxx (the "SJC Stock Acquisition"), (ii) the formation by Autotote
of a new Wholly-Owned Subsidiary by the name of Autotote Panama, Inc., which has
been organized under the laws of Panama (the "Autotote Panama Formation"), and
(iii) the acquisition by Autotote of a new Wholly-Owned Subsidiary by the name
of Autotote Nederland B.V., which has been organized under the laws of The
Netherlands (the "Autotote Nederland Acquisition");
WHEREAS, the parties hereto desire to further amend the Credit Agreement to
revise the ratio levels contained in Section 9.10 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Waiver. The Banks hereby waive all rights and remedies available to them as a
result of Autotote's violation of the provisions of Section 9.10 of the Credit
Agreement for the period ending on the last day of the fourth quarter of 1998.
The waiver granted herein shall not obligate the Banks to grant further waivers
of the provision of Section 9.10 or any other provision of the Credit Agreement
hereafter.
2. Absence of Need for Consent. Autotote hereby represents and warrants to Agent
and each Bank that each of the SJC Stock Acquisition, the Autotote Panama
Formation and the Autotote Nederland Acquisition was each consummated in
accordance with the provisions of the Credit Agreement, including without
limitation, the provisions of Sections 9.02 and 9.06, and that consummation of
the SJC Stock Acquisition, the Autotote Panama Formation and the Autotote
Nederland Acquisition did not require the prior written consent of the Agent or
any Bank.
3. Amendments to Credit Agreement.
(A) The Credit Agreement is amended by supplementing each of Schedule VI,
Schedule VIII, Schedule IX, Schedule X, Schedule XI and Schedule XII thereto as
set forth on the corresponding schedules attached to this Amendment.
(B) The table set forth within Section 9.10 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
Period Ratio
------ -----
First Quarter, 1999 5.50:1.00
Second Quarter, 1999 5.50:1.00
Xxxxx Xxxxxxx, 0000 5.10:1.00
Fourth Quarter, 1999 4.90:1.00
First Quarter, 2000 4.80:1.00
Second Quarter, 2000 4.25:1.00
Xxxxx Xxxxxxx, 0000 4.25:1.00
Fourth Quarter, 2000 4.00:1.00
First Quarter, 2001 3.75:1.00
Second Quarter, 2001 3.75:1.00
4. Miscellaneous.
(a) Captions. Section captions used in this Amendment are for convenience only,
and shall not affect the construction of this Amendment.
(b) Governing Law. This Amendment shall be a contract made under and governed by
the laws of the State of Illinois, without regard to conflict of laws
principles. Whenever possible each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
(c) Successors and Assigns. This Amendment shall be binding upon Agent, Autotote
and Banks and their respective permitted successors and assigns, and shall inure
to the sole benefit of Agent, Autotote and Banks and the permitted successors
and assigns of Agent, Autotote and Banks.
(d) Counterparts. This Amendment may be executed in any number of counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Amendment.
(e) References. Any reference to the Credit Agreement contained in any notice,
request, certificate, or other document executed concurrently with or after the
execution and delivery of this Amendment shall be deemed to include this
Amendment unless the context shall otherwise require. (f) Continued
Effectiveness. Notwithstanding anything contained herein, the terms of this
Amendment are not intended to and do not serve to effect a novation as to the
Credit Agreement. The parties hereto expressly do not intend to extinguish the
Credit Agreement. Instead, it is the express intention of the parties hereto to
reaffirm the indebtedness created under the Credit Agreement which is evidenced
by certain promissory notes and secured by the Collateral. The Credit Agreement,
as amended hereby, and other Credit Documents remain in full force and effect.
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IN WITNESS WHEREOF, this Amendment has been executed and delivered by the
parties hereto as of the day and date first written above.
XXXXXX FINANCIAL, INC.
By:____________________________________
Its:___________________________________
DLJ CAPITAL FUNDING, INC.
By:____________________________________
Its:___________________________________
AUTOTOTE CORPORATION
By:____________________________________
Its:___________________________________
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