Exhibit 10.1


 





AMENDMENT
TO AMENDED AND RESTATED PROMISSORY NOTE


 


THIS
AMENDMENT TO AMENDED AND RESTATED PROMISSORY NOTE (this "Amendment")
is dated September 30, 2016, by and between HEALTHWAREHOUSE.COM,
INC., a Delaware corporation, HWAREH.COM, INC.,
a Delaware corporation, and HOCKS.COM, INC., an Ohio
corporation, jointly and severally (collectively, "Borrower"), and MELROSE CAPITAL ADVISORS, LLC, an Ohio
limited liability company (together with its successors and assigns, "Lender").


 


WHEREAS,
Borrower executed an Amended and Restated Promissory Note dated August 15, 2016, payable to the order of Lender in the principal
amount of $1,200,000.00 (together with all previous amendments or modifications thereto, the "Note");


 


WHEREAS,
Borrower and Lender desire to amend the Note as provided for below;


 


NOW,
THEREFORE, in consideration of the mutual covenants herein contained and intending
to be legally bound hereby, the parties hereto agree as follows:


 


1.       The
Note is hereby amended as follows:


 


a.       Section
2 of the Note amended to extend the Maturity Date from September 30, 2016 to October 14, 2016.




 


2.       Capitalized
terms used and not otherwise defined herein will have the meanings set forth in the Note.


 


3.       Borrower
hereby certifies that: (a) all of its representations and warranties in the Note are true and correct as of the date of this Amendment;
(b) no Event of Default or event which, with the passage of time or the giving of notice or both, would constitute an Event of
Default, exists under the Note; and (c) this Amendment has been executed and delivered so that it constitutes the legal, valid
and binding obligation of the Borrower, enforceable in accordance with its terms. Borrower confirms that the obligations under
the Note remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.


 


4.       This
Amendment is a continuation of the Note and shall not be construed as a novation or extinguishment of the obligations arising under
the Note as originally issued, and the issuance of this Amendment shall not affect the priority of any security interest granted
in connection with the Note. The execution of this Amendment shall not be deemed to be a waiver of any default or Event of Default.


 


5.       Borrower
hereby confirms that the collateral for the Note, including but not limited to the following: (i) Security Agreement from HEALTHWAREHOUSE.COM,
INC., HWAREH.COM, INC. and HOCKS.COM, INC. dated March 28, 2013, covering all business assets, including but not limited to accounts,
inventory, equipment, deposit accounts and general intangibles and (ii) Deposit Account Control Agreement dated October 22, 2015
between Borrower, Lender and Cheviot Savings Bank with respect to Borrower's deposit accounts, as restated by a Deposit Account
Control Agreement dated July 8, 2016 between MainSource Bank, successor in interest to Cheviot Savings Bank, Borrower and Lender,
with respect to Borrower's deposit accounts at MainSource Bank ((i) and (ii), collectively, the "Collateral"), shall
continue unimpaired and in full force and effect.


 


6.       Borrower
hereby releases and/or forever discharges Lender, including its members, managers, employees, agents, attorneys, officers, directors,
representatives and affiliates (collectively "Lender Parties"), from any and all claims, demands, actions, causes of
action, liabilities, losses or costs, whether known or unknown, which they have, may have, claim to have or allege to have against
Lender Parties as of the date this Amendment is executed, which relate to the Note, as amended, or the terms of the Note, as amended,
or any instrument related to the Note executed prior to the date this Amendment is executed, including the Loan Documents, and/or
any other actions taken or not taken by the Lender Parties in connection with the obligations under the Loan Documents prior to
the date this Amendment is executed.


 






     


     


    

 


7.       This
Amendment may be signed in any number of counterpart copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument.


 


8.       Each
party to this Amendment agrees that the terms and conditions of this Amendment are the result of arms-length negotiations between
the parties and that this Amendment shall not be construed in favor of or against any party by reason of the extent to which any
party, or its counsel, participated in the drafting of this Amendment.


 


9.       This
Amendment will be binding upon and inure to the benefit of Borrower and Lender and their respective successors and assigns.


 


10.       Except
as expressly modified hereby, the Note remains unaltered and in full force and effect. This Amendment shall be considered an integral
part of the Note, and all references to the Note in the Note itself or any other Loan Documents shall, on and after the date of
this Amendment, be deemed to be references to the Note as amended by this Amendment. Borrower acknowledges that Lender has made
no oral representations to Borrower with respect to the Note and this Amendment thereto and that all prior understandings between
the parties are merged into the Note as amended by this Amendment.


 


11.       WAIVER
OF JURY TRIAL. BORROWER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS
ARISING OUT OF THIS AMENDMENT, THE NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY.


 


12.       CONFESSION
OF JUDGMENT. Borrower authorizes any attorney to appear in any court of record
in or of the State of Ohio, after the Note becomes due and payable, whether by its terms or upon default, to waive service of process
and enter judgment by confession against Borrower in favor of Lender or any holder hereof for the outstanding principal of and
accrued but unpaid interest on the Note, plus all costs of collection, including, without limitation, court costs and reasonable
attorney's fees, and thereby to waive and release all errors in the proceedings and judgment, and all rights of appeal from such
judgment and stay of execution. Stay of execution and all exemptions are hereby waived. Borrower also agrees that the attorney
acting for Borrower as set forth in this paragraph may be compensated by Lender for such services, and Borrower waives any conflict
of interest caused by such representation and compensation arrangement. If an obligation is referred to an attorney for collection,
and the payment is obtained without the entry of a judgment, the obligors will pay to Lender its attorneys' fees.


 


 


 


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WARNING
- BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS
YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT OR
ANY OTHER CAUSE.


 


 


	HEALTHWAREHOUSE.COM, INC.	 
	 	 	 
	By:	/s/ Jeffrey T. Holtmeier	 
	Name:	Jeffrey T. Holtmeier	 
	Title: 	Chairman 	 
	 	 	 
	 	 	 
	HWAREH.COM, INC.	 
	 	 	 
	By: 	/s/ Jeffrey T. Holtmeier	 
	Name:	Jeffrey T. Holtmeier	 
	Title: 	Chairman 	 
	 	 	 
	 	 	 
	HOCKS.COM, INC. 	 
	 	 	 
	By: 	/s/ Jeffrey T. Holtmeier	 
	Name: 	Jeffrey T. Holtmeier	 
	Title: 	Chairman 	 
	 	 	 
	 	 	 
	MELROSE CAPITAL ADVISORS, LLC 	 
	 	 	 
	By: 	/s/ Timothy E. Reilly	 
	Name: 	Timothy E. Reilly 	 
	Title: 	Managing Member