AGREEMENT OF WAIVER
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THIS AGREEMENT OF WAIVER (this "Agreement") is entered into as of
February 7, 2000 by and between ALOTTAFUN!, INC., a corporation duly organized
and existing under the laws of the State of Delaware ("Alottafun!") and SWARTZ
PRIVATE EQUITY, LLC ("SPE").
W I T N E S S E T H:
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WHEREAS, SPE and Alottafun! entered into that certain investment
agreement (the "Investment Agreement') dated on or about June 3, 1999 whereby
SPE would provide Alottafun! with an Equity Line financing arrangement (the
"Equity Line");
WHEREAS, the Investment Agreement provides for the Company to "Put"
shares of Common Stock to the Investor, at times and amounts chosen by the
Company, but subject to a "Semi-Annual Non-Usage Fee" for failure to use the
Equity Line and a "Termination Fee" for terminating the Equity Line; and
WHEREAS, the parties desire to enter into this Agreement whereby the
Investor waives the Semi-Annual Non-Usage Fee and/or the Termination Fee under
the conditions described herein.
NOW, THEREFORE, in exchange for the mutual agreements herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned agree as follows:
1. Certain Defined Terms. Unless otherwise noted, capitalized terms
shall have the meanings ascribed to them in the Investment Agreement.
2. Waiver. The Company may suspend and/or terminate the Equity Line
without accruing a Semi-Annual Non-Usage Fee or a Termination Fee, provided
that:
(i) notwithstanding anything in this Agreement, the Investor shall
retain all 450,000 shares of its Commitment Warrants (consisting of a First
commitment Warrant and a Second Commitment Warrant, each representing the
right to purchase 225,000 shares of Alottafun! Common Stock); and
(ii) if the Company does not (a) reinstate the Equity Line; and (b)
file a registration statement covering the shares to be issued under the
Equity Line, both within one (1) year of the date hereof, the Company
agrees to pay to SPE 200,000 shares of Alottafun! Common Stock (which
shares shall have piggyback registration rights), or $200,000 in cash, at
SPE's option.
3. No Effect on Other Terms of the Investment Agreement. Except as
expressly set forth herein, the terms of the Investment Agreement shall remain
unchanged.
4. Additional and Miscellaneous Provisions.
4.1 Governing Law. All questions with respect to the
construction of this Agreement and the rights and liabilities of the parties
hereunder shall be governed by the internal laws of the State of Georgia in
effect as of the date hereof.
4.2 Confidentiality. The parties and their attorneys each
agree to keep confidential the terms of this Agreement except to the extent such
disclosure is otherwise required by Federal or state law, including pursuant to
any discovery procedures authorized by such laws, and then only to such persons
and/or agencies authorized to receive such information.
4.3 Headings. Section and paragraph headings contained in this
Agreement are for convenience and shall not be considered for any purpose in
construing this Agreement.
4.4 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, which together shall constitute one instrument.
4.5 Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, administrators, executors and conservators.
4.6 Amendments. This Agreement may be amended, modified,
canceled, or waived only by written instrument executed by each of the parties.
4.7 Neutral Construction. This Agreement will be construed
neutrally, and will not be applied more strictly against one party than another.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
February 7, 2000.
SWARTZ PRIVATE EQUITY, LLC
By:_____________________________
S/
ALOTTAFUN!, INC., a Delaware
corporation
By:_____________________________
S/
07/11/2000 4:49 PM d-1
37659.95627
#217155 v1 - ALOTTAFUN! Agreement of Waiver