EXHIBIT 10.1
MODIFICATION AGREEMENT
This MODIFICATION AGREEMENT entered into as of March 28, 1999, between
Big Entertainment, Inc., a Florida corporation, with an address 0000 Xxxxxx
Xxxx, #000X, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company") and BankBoston Retail
Finance Inc., a Delaware corporation with an address of 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxxx 00000 (the "BBRF").
WHEREAS, BBRF established a revolving line of credit pursuant to a
certain Loan and Security Agreement by and between BBRF and Tekno Comix, Inc.
(the "Borrower"), a subsidiary of the Company dated as of December 30, 1997 (the
"Loan Agreement") for Borrower respecting which Lender agreed to lend to
Borrower upon Borrower's request, but subject to the terms and conditions set
forth in the Loan Agreement, up to Five Million Dollars and Zero Cents
($5,000,000). All capitalized terms used herein shall have the same meaning as
set forth in the Loan Agreement, unless otherwise defined herein.
WHEREAS, in consideration thereof, the Company entered into a certain
Purchase Warrant and Agreement with Lender dated as of December 30, 1997 whereby
it granted BBRF the right to purchase 30,000 shares of common stock of the
Company (the "Warrant").
WHEREAS, Borrower has failed to comply with certain terms of the Loan
Agreement and has requested that BBRF to waive the Borrower's non-compliance and
to modify certain aspects of the Loan Agreement.
WHEREAS, subject to the terms, and conditions in this Agreement and a
certain Second Modification Agreement by and between Lender and Borrower, BBRF
is willing to accommodate the Borrower's requests.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledge, BBRF and the Borrower mutually
agree as follows:
1. EFFECTIVE DATE OF AGREEMENT. This Modification Agreement shall become
effective (the "Effective Date") upon receipt by BBRF of the following items, in
form and substance acceptable to BBRF in its sole discretion: (i) an original
copy of the Second Modification Agreement executed by Borrower, BBRF and the
Company; (ii) an original executed copy of this Modification Agreement executed
by the Company; (iii) a paydown of the principal balance of the Loan Account by
$75,000.00.
2. MODIFICATIONS TO WARRANT.
(a) The following definition for the word "indebtedness" shall be
inserted as a new paragraph 1(E) and the existing paragraphs l(E) through l(I)
shall be enumerated as l(F) through l(J) respectively: "INDEBTEDNESS" includes,
without limitation, all Liabilities (as such term is defined in that certain
Loan and Security Agreement by and between BankBoston Retail Finance Inc. and
Tekno Comix, Inc. dated as of December 30, 1997, and any modifications,
amendments, substitutions or restatements thereof).
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(b) The word "INDEBTEDNESS" shall be deleted from the third and
fourth line of Section 2(B) of the Warrant and the word "indebtedness" shall be
substituted therefor.
3. COUNSEL FEES AND EXPENSES. the Company will, upon demand, pay all
counsel fees and expenses reasonably incurred by BBRF in connection with this
Agreement.
4. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one agreement.
5. BINDING EFFECT OF AGREEMENT. All covenants, agreements,
representations and warranties contained herein shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto whether
expressed or not; provided that the Company may not assign or transfer its
rights hereunder.
6. FURTHER ASSURANCES. The Company will from time to time execute and
deliver to BBRF, and take or cause to be taken, all such other further action as
BBRF may request in order to effect and confirm or vest more securely in BBRF
all rights contemplated hereunder.
7. WAIVERS. No delay or omission on the part of BBRF in exercising any
right hereunder shall operate as a waiver of such right or any other right and
waiver on any one or more occasions shall not be construed as a bar to or waiver
of any right or remedy of BBRF on any future occasion.
8. MASSACHUSETTS LAW. This Agreement is intended to take effect as a
sealed instrument and has been executed or completed and is to be performed in
Massachusetts, and it and all transactions thereunder or pursuant thereto shall
be governed as to interpretation, validity, effect, rights, duties and remedies
of the parties thereunder and in all other respects by the domestic laws of
Massachusetts.
9. REPRODUCTIONS. This Agreement and all documents which have been or may
be hereinafter furnished by the Company to BBRF may be reproduced by BBRF by an
photographic, photostatic, microfilm, xerographic or similar process, and any
such reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course of
business).
10. JURY WAIVER. THE COMPANY AND BBRF EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVE
ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION
WITH THIS AGREEMENT. THE COMPANY CETIFIES THAT BBRF NOR ANY OF ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSELY OR OTHERWISE,
THAT BBRF WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO TRIAL BY JURY.
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Executed under seal as of the date written above.
Witness Big Entertainment, Inc. (the "Company")
/s/ XXXXX XXXXXXXXX By: /s/ XXXXX X. XXXXX
-------------------------- -------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Accepted: BankBoston Retail Finance, Inc.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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