Second Amendment to Convertible Promissory Note between Nightfood Holdings, Inc. and Labrys Fund, LP (July 31, 2017)

Exhibit 10.4

AMENDMENT #2 TO THE CONVERTIBLE PROMISSORY NOTE
ISSUED ON JULY 31, 2017

THIS AMENDMENT #2 TO THE CONVERTIBLE PROMISSORY NOTE ISSUED ON July 31, 2017 (the “Amendment”) is entered into as of December B4, 2017, by and between Nightfood Holdings, Inc., a Nevada corporation (the “Company”), and Labrys Fund, LP, a Delaware limited partnership (the “Holder”) (collectively the “Parties”).

BACKGROUND

A. The Company and Holder are the parties to that certain convertible promissory note originally issued by the Company to the Holder on July 31, 2017, in the original principal amount of $100,000.00 (the “Note”); and

B. The Company issued 400,650 shares of the Company’s common stock (the “Commitment Shares”) issued to Holder, in connection with the issuance of the Note.

C. The Parties desire to amend the Note as set forth expressly below.

NOW THEREFORE, the Parties agree as follows:

1. The Holder waives its right to utilize its most favored nation provision in the Note with respect to the ability to effectuate a conversion under the Note prior to the 180th calendar day after the Issue Date (as defined in the Note).

2. The Parties hereby agree that the Holder shall no longer be required, under any circumstances, to return 100,000 of the Commitment Shares (the “Second Shares”) back to the Company’s treasury (in addition to 100,000 of the Commitment Shares covered by the first amendment to the Note (the “First Shares”)).

3. If the Note is not repaid in full by January 10, 2018, then the Holder shall no longer be required, under any circumstances, to return 100,000 of the Commitment Shares back to the Company’s treasury (in addition to the First Shares and Second Shares).

4. The written consent of the Company shall be required for the Holder to effectuate any assignment of the Note to an unrelated third party.

5. If the Holder notifies the Company that its most favored nation provision has been triggered prior to the 180th calendar day after the Issue Date, then the Company shall have seven (7) business days to cure such triggering event by repaying the Note in full pursuant to the terms of the Note.

6. If an event of default is perceived by the Holder, Holder must notify the Company of such default or perceived default, and allow the Company five (5) business days to cure such default by repaying the Note in full pursuant to the standard terms of the note. The default provisions shall not apply during this period of five (5) business days, but rather the standard prepayment provisions shall apply. This cure period shall apply for all default provisions except Sections 3.1 and 3.2 of the Note.

7. This Amendment shall be deemed part of, but shall take precedence over and supersede any provisions to the contrary contained in the Note. Except as specifically modified hereby, all of the provisions of the Note, which are not in conflict with the terms of this Amendment, shall remain in full force and effect.

[Signature page to follow]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.