AMENDMENT, WAIVER AND CONSENT
Exhibit 10.4
AMENDMENT, WAIVER AND
CONSENT
This
Amendment, Waiver and Consent Agreement made effective January 1, 2009
(“Waiver”) among Innovative Food Holdings, Inc., a Florida corporation (the
“Company”), and the signators hereto who are Subscribers (“Subscribers”) under
certain Subscription Agreements with the Company dated February 24, 2005 and
August 25, 2005 (collectively, “Subscription Agreements”) as amended to include
certain Promissory Notes dated February 7, 2006 (Alpha Capital Anstalt -
$120,000, Whalehaven Capital Fund Limited - $30,000) and May 19, 2006 (Alpha
Capital Anstalt - $10,000), respectively, as amended, and related documents
(“Transaction Documents”).
WHEREAS, the Company is currently
contemplating an additional financing of an aggregate $200,000 (“New
financing”).
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. Provided
the New Financing takes place, pursuant to the terms and conditions of the
Transaction Documents, the undersigned waive the rights granted to them pursuant
to Section 12(a) – Right of First Refusal, Section 12(b) – Offering
Restrictions, and Section 12(c) – Favored Nation Provision, of the Subscription
Agreement only to the extent such rights relate to the New Financing, Section
3.4(b)D of the Notes and Section 3.4 of the Warrants.
3. The
undersigned consent to the amendment of the Security and Pledge Agreements and
Guarantys to include the Subscribers to the New Financing as parties thereto to
share in the security interest in the Collateral pari passu with the undersigned
based upon the principal amount of the Notes owed to the undersigned and to the
Subscribers in the New Financing and authorize the Collateral Agent to make
additional filings at the discretion of the Collateral Agent to memorialize the
security interest to be granted to the Subscribers to the New
Financing.
4. Annexed
hereto is Amended Schedule A to the Security and Pledge Agreements and
Collateral Agent Agreement.
5. The
Notes are amended as follows: The Maturity Date shall be January 1,
2010 except that the Maturity Date of the Notes issued to Alpha Capital Anstalt
and Whalehaven Capital Fund Limited on August 25, 2005 in the amounts of
$120,000 and $30,000, respectively, shall be April 16, 2009.
6. Section
1.3 of the Alpha Capital Anstalt and Whalehaven Capital Fund Limited August 25,
2005 Notes described in Section 5 above shall be deleted in its entirety and
replaced with the following:
“1.3. Default Interest
Rate. Following the occurrence and during the
continuance of an Event of Default, which, if susceptible to cure is not cured
within fifteen (15) days, otherwise then from the first date of such occurrence,
the annual interest rate on this Note shall (subject to Section 6.7)
automatically be increased to fifteen percent (15%), and all outstanding
obligations under this Note, including unpaid interest, shall continue to accrue
interest from the date of such Event of Default at such interest rate applicable
to such obligations until such Event of Default is cured or
waived. The foregoing notwithstanding, on the Maturity Date, interest
payable on this Note shall continue to accrue on the outstanding Principal
Amount at the Interest Rate (8%), unless Holder notifies Borrower in writing
that an Event of Default has occurred.”
7. The
Company acknowledges that the Liquidated Damages as described in Section 11.4 of
the Subscription Agreement have accrued and are due and owing to
Subscribers. The Lenders agree to accept as full satisfaction of all
sums due as Liquidated Damages, Convertible Notes convertible into the Company’s
Common Stock at a Conversion Price equal to $.005 in the principal amounts as
more fully described on Schedule A hereto. The Company undertakes to
deliver these Notes to Subscribers within three days of execution of this
Agreement.
8. Upon
delivery of the Notes described in Section 6 above, Subscribers waive all future
Liquidated Damages that may accrue, if any.
9. Although
the parties acknowledge that the Notes are in default, upon full satisfaction of
the Company’s required deliveries herein, the Subscribers consent and agree that
the Notes will no longer be in default.
10. Subscribers
do not waive any interest due and owing on the Notes including but not limited
to the interest due and owing at the Default Interest Rate. The
foregoing notwithstanding, Subscribers agree that commencing on the date of this
Agreement, interest will cease to accrue at the Default Interest Rate unless and
until such time an Event of Default occurs, at which time, interest will again
begin to accrue at the Default Interest Rate.
11. All
other terms of the Transaction Documents shall remain unamended and in full
force and effect.
IN WITNESS WHEREOF, the parties hereby
execute this Amendment as of the date first written above.
By:
_______________________________________
“SUBSCRIBERS”
_________________________________________ ________________________________________
ALPHA
CAPITAL
ANSTALT WHALEHAVEN
CAPITAL FUND LIMITED
_________________________________________ ________________________________________
XXXXX
BRAND
MOMONA CAPITAL
_________________________________________
LANE
VENTURES, INC.
SCHEDULE
A
| SUBSCRIBERS |
CONVERTIBLE
NOTES – LIQUIDATED DAMAGES
|
|||
|
ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
|
$ | 230,000.00 | ||
|
WHALEHAVEN
CAPITAL FUND LIMITED
000
Xxxxxx Xxx
Xxxxxxxxx
Xxxxxx XX 00000
(201)
408-5123
|
$ | 38,000.00 | ||
|
XXXXX
BRAND
00
Xxxxxxx Xxxx
Xxxxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
|
$ | 25,310.00 | ||
|
MOMONA
CAPITAL
0
Xxxxxx Xxxx
Xxxxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
|
$ | 25,310.00 | ||
|
LANE
VENTURES, INC.
000
Xxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
|
$ | 10,124.00 | ||
