MODIFICATION, WAIVER AND CONSENT AGREEMENT
This
Modification, Waiver and Consent Agreement is made this ____ day of September,
2008 (“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 (“Initial
Closing”), January 8, 2008 (“Bridge Funding”), and February 15, 2008 (“Second
Closing”) (collectively “Subscription Agreements”).
WHEREAS,
the Company is contemplating an additional investment of an aggregate of up
to
$300,000 Purchase Price (“New Financing”) in promissory Notes and Warrants of
the Company; and
WHEREAS,
the Company is in default of material terms of the Transaction Documents and
the
Subscribers may elect to exercise their rights to accelerate the Maturity Date
of the Notes and foreclose on the Collateral under the Security
Agreement.
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 New Financing and to the amendment of all Schedules,
Exhibits and documents including but not limited to the Security Agreement,
and
Guaranty to include 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, pari pasu among Subscribers and the investors
in the New Financing.
3. Annexed
hereto is an Amended Schedule A to the Security Agreement, Guaranty and
Collateral Agent Agreement which includes the New Financing.
4. The
undersigned Subscribers to the October 23, 2007 and February 15, 2008
Subscription Agreement waive the rights granted to them pursuant to Section
12(a), Right of First Refusal, of the Subscription Agreement, only to the extent
such rights relate to the New Financing.
5. The
Maturity Date of the Bridge Funding Notes is extended to the sooner of January
31, 2009 or the closing of another funding.
6. Subscribers
do not waive any of the Company’s defaults under the Transaction Documents.
However, Subscribers agree as follows: Accrued interest calculated at the
default interest rate of 15% for the period May 7, 2008 through September 8,
2008 in the pro-rata aggregate amount equal to 5% will be added pro-rata to
the
Principal Amount of each of the Bridge Funding Notes. Additionally, in
consideration of Subscribers not exercising their rights to accelerate the
Maturity Date of the Bridge Funding Notes and to foreclose on the Collateral,
the Company has agreed to increase the outstanding principal amounts of the
Bridge Funding Notes by an additional 15%. The new outstanding Principal Amounts
of the Bridge Funding Notes are described on Schedule A hereto.
7. All
other
terms of the Transaction Documents shall remain unamended and in full force
and
effect.
8. 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.
9. Except
as
expressly modified pursuant to this Agreement, the terms of each Note remains
unchanged and in full force and effect.
10. 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.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Agreement
as
of the date first written above.
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"COMPANY"
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"THE
COLLATERAL AGENT"
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XXXXXXX
X. XXXXXXX
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a
Delaware corporation
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By:
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Its:
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OCTOBER
23, 2007 AND FEBRUARY
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JANUARY
8, 2008
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15,
2008 - “SUBSCRIBERS”
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“SUBSCRIBERS”
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XXX
XXXXXX
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XXXXXXX
ASSOCIATES
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ALPHA
CAPITAL ANSTALT
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CMS
CAPITAL
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WHALEHAVEN
CAPITAL FUND LIMITED
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MOMONA
CAPITAL LLC
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MONARCH
CAPITAL FUND LTD.
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ESCROW
AGENT
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GRUSHKO
& XXXXXXX, P.C.
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AMENDED
SCHEDULE A TO SECURITY AGREEMENT
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LENDER
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NOTE
PRINCIPAL - OCTOBER 23, 2007 and FEBRUARY 15, 2008 (Initial and Second
Closings)
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NEW
OUTSTANDING NOTE PRINCIPAL AMOUNTS ISSUED ON JANUARY 8,
2008
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NEW
FINANCING NOTE PRINCIPAL
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XXX
XXXXXX
00000
X.X. Xxxxxxx
0, Xxxxx 000
Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Fax:
(000) 000-0000
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$100,000.00
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N/A
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N/A
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ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
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$600,000.00
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N/A
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$243,334.00
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WHALEHAVEN
CAPITAL FUND LIMITED
3rd
Fl., 00 Xxx-Xx-Xxxxx Xx.
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
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$300,000.00
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N/A
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N/A
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MONARCH
CAPITAL FUND LTD.
Xxxxxxx
Xxxxx, 0xx
Xxxxx
Xxxxxxxxxx
Xxxxx, Xxxx Xxxx
Xxxxxxx,
BVI
Fax
(000) 000-0000
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$200,000
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N/A
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N/A
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XXXXXXX
ASSOCIATES
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N/A
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$217,674.00
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N/A
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CMS
CAPITAL
0000
Xxx Xxxx Xxxx. #000
Xxxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
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N/A
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$72,558.00
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N/A
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MOMONA
CAPITAL LLC
000
Xxxxxxx Xxxx Xxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
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N/A
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$21,768.00
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N/A
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[INVESTOR
- TO BE DETERMINED]
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N/A
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N/A
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$121,666.00
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TOTALS
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$1,200,000.00
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$312,000.00
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$365,000.00
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