FORM OF FOURTH AMENDMENT AND CONSENT AGREEMENT
EX-10.4 5 f8k071511ex10iv_attitude.htm FORM OF FOURTH AMENDMENT AND CONSENT AGREEMENT f8k071511ex10iv_attitude.htm
Exhibit 10.4
FORM OF FOURTH AMENDMENT AND CONSENT AGREEMENT
This Fourth Amendment and Consent Agreement is made as of the 15th day of July, 2011 (“Agreement”) among Attitude Drinks Inc., a Delaware corporation (the “Company”), and the signators hereto who are “Subscribers” under certain Subscription Agreements with the Company dated October 23, 2007, January 8, 2008, September 29, 2008, January 27, 2009, March 30, 2009, July 15, 2010, January 21, 2011, and March 17, 2011, respectively (collectively “Subscription Agreements”).
WHEREAS, the Company is in need of additional funding for its business operations; and
WHEREAS, the Company is contemplating an additional investment of an aggregate of no minimum and up to a maximum of $1,000,000 Purchase Price (“New Financing”) in secured promissory notes (“Notes”) and common stock purchase warrants (“Warrants”) of the Company; and
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:
1. All capitalized terms herein shall have the meanings ascribed to them in the Transaction Documents (as defined in the Subscription Agreements).
2. The undersigned consent to the Company completing the New Financing and to the amendment of the Security Agreement, and Guaranty to include the New Financing as part of the Obligations and are secured by the Collateral pursuant to the security interest granted pari passu among Subscribers and the investors in the New Financing and in connection therewith authorize the Collateral Agent to make such additional filings at the discretion of the Collateral Agent to memorialize such agreement.
3. Annexed hereto is the proposed Amended Schedule A to the Security Agreement, Guaranty and Collateral Agent Agreement which includes the New Financing.
4. The undersigned acknowledge that Events of Default may have occurred in notes currently issued and outstanding by the Company pursuant to the Subscription Agreements, but waive the Events of Default until the Maturity Date (as extended).
5. The undersigned Subscribers to the Subscription Agreements waive the rights granted to them pursuant to Section 12(b), Right of First Refusal and the restrictions contained in Sections 9(p) Negative Covenants and 9(q) Seniority of the Subscription Agreements, all of the aforementioned only to the extent such rights relate to the New Financing.
6. All other terms of the Transaction Documents shall remain unamended and in full force and effect.
7. This Agreement constitutes the entire agreement among the parties, and supersedes all prior and contemporaneous agreements and understandings of the parties in connection herewith. No changes, modifications, terminations or waivers of any of the provisions hereof shall be binding unless in writing and signed by all of the parties thereto.
8. Except as expressly modified pursuant to this Agreement, the terms of each Note remains unchanged and in full force and effect.
9. This Agreement may be executed in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement may also be executed by either party hereto by facsimile signature, which shall be deemed to be an original signature of such party hereon.
[Signatures to Follow]
IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first written above.
"COMPANY" ATTITUDE DRINKS INC. a Delaware corporation | "THE COLLATERAL AGENT" BARBARA R. MITTMAN | |
By: | |||
Its: |
SMIVEL, LLC By: Joseph Smith, Partner | MONARCH CAPITAL FUND LTD. | |
ALPHA CAPITAL ANSTALT | CMS CAPITAL | |
WHALEHAVEN CAPITAL FUND LIMITED | MOMONA CAPITAL LLC | |
CENTAURIAN FUND | NAOMI KLISSMAN | |
SCHLOMO & ROCHEL RIFKIND | DAVID M. LAMPLOUGH | |
PSM HOLDINGS | J. MAYA IRA | |
EMMY CUTLER IRA | SAM BERKOWITZ | |
J & N INVEST LLC | JOE & SUE MAYA | |
LINDA R. IENNACO | SETH FARBMAN | |
RAMSHEAD HOLDING LTD. | ||
ESCROW AGENT | ||
GRUSHKO & MITTMAN, P.C. |
AMENDED SCHEDULE A TO SECURITY AGREEMENT
LENDERS AND ADDRESSES |
SMIVEL, LLC 12642 SW 103 Court Miami, FL 33176 Attn: Joseph Smith, Partner Tel: (305) 233-3353 |
ALPHA CAPITAL ANSTALT Pradafant 7 9490 Furstentums Vaduz, Lichtenstein Fax: 011-42-32323196 |
WHALEHAVEN CAPITAL FUND LIMITED 3rd Fl., 14 Par-La-Ville Rd. Hamilton, Bermuda HM08 Fax: (201) 782-9327 |
MONARCH CAPITAL FUND LTD. Harbour House, 2nd Floor Waterfront Drive, Road Town Tortola, BVI Fax ###-###-#### |
CMS CAPITAL 9612 Van Nuys Blvd. #108 Panorama City, CA 91402 Fax: (818) 907-3372 |
MOMONA CAPITAL LLC 150 Central Park South, 2nd Floor New York, NY 10019 Fax: (212) 586-8244 |
CENTAURIAN FUND 739 Palmer Avenue Teaneck, NJ 07666 Fax: |
NAOMI KLISSMAN 5/16 Katzenlson Street Jerusalem, Israel 92621 Fax: |
SAM BERKOWITZ |
Schlomo & Rochel Rifkind Givat Shoshanna 12/3 Tzfut Israel Fax: 972 4 ###-###-#### |
David M. Lamplough c/o NASA Services Limited 2 Poynings Road Crawley RH11 0TW United Kingdom |
PSM Holdings c/o PHD Capital 5 Hanover Square #500 New York, NY 10004 Stephen J. Payne Fax: (212) 269-3087 |
J. Maya IRA c/o PHD Capital 5 Hanover Square #500 New York, NY 10004 Joseph Maya Fax: (212) 269-3087 |
Emmy Cutler IRA c/o PHD Capital 5 Hanover Square #500 New York, NY 10004 Emmy Cutler Fax: (212) 269-3087 |
J & N INVEST LLC 124 East 8th Street Lakewood, NJ 09701 Attn: Jeffrey Rubin Fax: (732) 905-9049 |
JOE & SUE MAYA 8 Salem Lane Westport, CT ###-###-#### |
LINDA R. IENNACO 57 West 75th Street, 4C New York, NY 10023 Fax: (212) 873-9042 |
SETH FARBMAN 354 Eastwood Road Woodmere, NY 11598 Fax: (212) 730-4306 |
RAMSHEAD HOLDING LTD. 57 / 63 Line Wall Road Gibraltar Attn: Lawrence Abrams |