WAIVER AND CONSENT
WAIVER
AND CONSENT
Waiver
and Consent Agreement made this 8th day of January, 2008 (“Waiver”) 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 (collectively
“Subscription Agreements”).
WHEREAS,
the Company is contemplating an additional investment of an aggregate of up
to
$430,000 Purchase Price (“Additional Financing”) of promissory Notes of the
Company.
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 Additional Financing and to the amendment of all
Schedules, Exhibits and documents including but not limited to the Security
Agreement, and Guaranty to include the Additional 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 Additional Financing.
3. The
undersigned waive the rights granted to them pursuant to Sections 12(a) and
(b),
Right of First Refusal and Favored Nation Provision, of the Subscription
Agreement, only to the extent such rights relate to the Additional
Financing.
4. Annexed
hereto is Amended Schedule A to the Security Agreement, Guaranty and Collateral
Agent Agreement which includes the Additional Financing.
5. All
other
terms of the Transaction Documents shall remain unamended and in full force
and
effect.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Waiver 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:
/s/ Xxx X. Xxxxxx
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/s/
Xxxxxxx X. Xxxxxxx
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Its:
CEO
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“SUBSCRIBERS”:
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/s/
Xxx X. Xxxxxx
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/s/
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XXX
XXXXXX
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ALPHA
CAPITAL ANSTALT
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/s/
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/s/
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WHALEHAVEN
CAPITAL FUND LIMITED
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MONARCH
CAPITAL FUND LTD.
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ESCROW
AGENT
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/s/
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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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CLOSING
OF 10/23/07
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ADDITIONAL
FINANCING
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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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$50,000.00
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-0-
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ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
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$300,000.00
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-0-
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XXXXXXXXXX
XXXXXXX XXXX XXXXXXX
0xx
Xx., 00 Xxx-Xx-Xxxxx Xx.
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
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$150,000.00
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-0-
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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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$100,000.00
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-0-
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XXXXXXX
ASSOCIATES
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-0-
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$330,000.00
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-0-
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$100,000.00
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TOTALS
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$600,000.00
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$430,000.00
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