Exhibit
10.4


 


AMENDMENT
AGREEMENT


 


Date:October
13, 2022


 


Parties:


 


	 	Eastside 	Eastside Distilling, Inc.
	 	 	 
	 	Bigger	Bigger Capital Fund, LP
	 	 	 
	 	District 2	District 2 Capital Fund LP




 


Premises:


 


	A.	Bigger
                                            and District 2 (collectively, the “Bigger Funds”) hold the following
                                            Secured Convertible Promissory Notes issued by Eastside (the “Bigger Notes”),
                                            which Bigger Notes were issued pursuant to that certain Securities Purchase Agreement dated
                                            as of April 19, 2021, by and among Eastside and the Bigger Funds (as amended, restated, amended
                                            and restated, supplemented or otherwise modified from time to time, the “Purchase
                                            Agreement”):



 


		(i)	that
                                            certain Secured Convertible Promissory Note dated as of April 19, 2021 made by Eastside,
                                            as maker, in favor of Bigger, as payee, in the principal amount of $1,500,000;
	 	 	 
		(ii)	that
                                            certain Secured Convertible Promissory Note dated as of May 13, 2021 made by Eastside, as
                                            maker, in favor of Bigger, as payee, in the principal amount of $150,000;
	 	 	 
		(iii)	that
                                            certain Secured Convertible Promissory Note dated as of April 19, 2021 made by Eastside,
                                            as maker, in favor of District 2, as payee, in the principal amount of $1,500,000; and
	 	 	 
		(iv)	that
                                            certain Secured Convertible Promissory Note dated as of May 13, 2021 made by Eastside, as
                                            maker, in favor of District 2, as payee, in the principal amount of $150,000.



 


	B.	The
                                            Bigger Funds hold the following Warrants issued by Eastside (the “Bigger Warrants”):



 


		(i)	that
                                            certain Warrant No. 2021-005 dated as of July 29, 2021 issued by Eastside in favor of Bigger;
                                            and
	 	 	 
		(ii)	that
                                            certain Warrant No. 2021-006 dated as of July 29, 2021 issued by Eastside in favor of District
                                            2.



 


	C.	The
                                            Parties executed the following letter agreements (the “Reload Offer Letters):



 


		(i)	that
                                            certain letter agreement Re: Reload Offer of Common Stock Purchase Warrants, dated as of
                                            July 29, 2021, by and between Bigger and Eastside; and
	 	 	 
		(ii)	that
                                            certain letter agreement Re: Reload Offer of Common Stock Purchase Warrants, dated as of
                                            July 29, 2021, by and between District 2 and Eastside.



 


	D.	The
                                            Parties executed an Accommodation Agreement dated April 1, 2022 (the “Accommodation
                                            Agreement”, and together with the Bigger Notes, the Bigger Warrants, the Purchase
                                            Agreement, the Transaction Documents (as defined in the Purchase Agreement) and the Reload
                                            Offer Letters collectively, the “Documents”)



 




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	E.	The
                                            Parties are engaged in good faith negotiations towards a restructuring of their relationship
                                            and agree that relief from the imminent Maturity Date of the Bigger Notes and certain other
                                            provisions of the Documents would facilitate a mutually favorable resolution of the negotiations.



 


Agreement:


 


	1.	The
                                            Bigger Notes are hereby amended to change the “Maturity Date” of
                                            the Bigger Notes to November 18, 2022 by eliminating the final sentence of the introductory
                                            paragraph in each Bigger Note and replacing that sentence with the following text: The
                                            entire principal amount hereunder shall be due and payable in full on November 18, 2022 (the
                                            “Maturity Date”), or on such earlier date as such principal amount may
                                            earlier become due and payable pursuant to the terms hereof.
	 	 
	2.	The
                                            Bigger Notes are further hereby amended by adding to the definition of “Excluded Securities”
                                            in Section 17 of each Bigger Note the following final clause: and (ix) securities issuable
                                            pursuant to the Amendment Agreement dated October 13, 2022.
	 	 
	3.	The
                                            Bigger Warrants are hereby amended by adding to the definition of “Excluded Securities”
                                            in Section 1 of each Bigger Warrant the following final clause: and (ix) securities issuable
                                            pursuant to the Amendment Agreement dated October 13, 2022.
	 	 
	4.	In
                                            addition, as consideration for the Bigger Funds’ agreement to enter into this Amendment
                                            Agreement, Eastside agrees to issue to each of the Bigger Funds ninety-six thousand, one
                                            hundred fifty-three (96,153) shares of Eastside common stock (the “Shares”).
                                            Certificates for the Shares shall be delivered to the Bigger Funds promptly after execution
                                            of this Amendment Agreement. Each of the Bigger Funds understands and agrees that the issuance
                                            of the Shares has not been registered under the 1933 Act or any applicable state securities
                                            laws, by reason of their issuance in a transaction that does not require registration under
                                            the 1933 Act, and that such Securities must be held indefinitely unless a subsequent disposition
                                            is registered under the 1933 Act or any applicable state securities laws or is exempt from
                                            such registration.
	 	 
	5.	On
                                            any Trading Day in April of 2023, the Bigger Funds, jointly and not separately, may surrender
                                            their certificates for the Shares to counsel for Eastside accompanied by (a) a written representation
                                            that the Bigger Funds collectively are not beneficially the owners of ten percent or more
                                            of Eastside’s outstanding shares and (b) a written demand for reissue of the Shares
                                            to the Bigger Funds by crediting the accounts of the Bigger Funds or their designees’
                                            balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian
                                            system (“DWAC”). The certificates must be endorsed for transfer with medallion
                                            signature guarantees. As used herein, the “FT Share Delivery Date”
                                            shall be the later of (a) April 17, 2023 if the certificates, the representation and the
                                            demand are received by counsel on or prior to Noon on April 13, 2023 or (b) three Trading
                                            Days after the Trading Day (later than Noon on April 13, 2023) on which the certificates
                                            and the demand are received by counsel. The certificates and the demand shall be deemed to
                                            have been “received by counsel” on the date on which they are physically delivered
                                            to Robert Brantl, Esq. at 181 Dante Avenue, Tuckahoe, NY 10707 (or the Trading Day thereafter,
                                            if delivery occurs after Noon), with email notice of the posting have been sent to rbrantl21@gmail.com
                                            at least one day prior to the delivery. On or before the FT Share Delivery Date, Eastside
                                            shall cause the Shares to be delivered via DWAC as demanded. If Eastside fails for any reason
                                            to deliver the Shares via DWAC as demanded on or prior to the FT Share Delivery Date, Eastside
                                            shall pay to the Bigger Funds, in cash, as liquidated damages and not as a penalty, for each
                                            $1,000 of Shares subject to such reissue instructions (based on the VWAP of the Common Stock
                                            on the FT Share Delivery Date), $5 per Trading Day (increasing to $10 per Trading Day on
                                            the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day
                                            after such FT Share Delivery Date until such Shares are delivered. Eastside agrees to maintain
                                            a transfer agent that is a participant in the FAST program through April 30, 2023. Eastside
                                            shall exclusively bear all expenses arising from its compliance with this Section 5.
	 	 
	6.	Except
                                            as expressly modified hereby, the Parties agree that all terms, conditions, covenants, representations
                                            and warranties contained in the Documents and all rights of the Bigger Funds and all of the
                                            obligations of Eastside under the Documents (the “Obligations”),
                                            shall remain in full force and effect. Eastside hereby confirms that the Documents are in
                                            full force and effect and that Eastside has no right of setoff, recoupment or other offset
                                            or any defense, claim or counterclaim with respect to any of the Obligations or any Document.
                                            Except as expressly set forth herein, the execution, delivery and effectiveness of this Amendment
                                            Agreement shall not directly or indirectly (i) constitute a consent or waiver of any past,
                                            present or future violations of any provisions of any Document, (ii) amend, modify or operate
                                            as a waiver of any provision of the Documents or any right, power or remedy of Bigger or
                                            District 2, (iii) constitute a consent to any merger or other transaction or to any sale,
                                            restructuring or refinancing transaction, or (iv) constitute a course of dealing or other
                                            basis for altering any Obligations or any other contract or instrument. Except as expressly
                                            set forth herein, each of Bigger and District 2 reserves all of its rights, powers, and remedies
                                            under the Documents and applicable law. All of the provisions of the Documents are hereby
                                            reiterated, and if ever waived, are hereby reinstated. Eastside hereby agrees that this Amendment
                                            Agreement in no way acts as a release or relinquishment of the liens and rights securing
                                            payments of the Obligations and this Amendment Agreement shall not be deemed or construed
                                            to be a satisfaction, reinstatement, novation or release of any Document.



 


[Signature
Page Follows]


 




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IN
WITNESS WHEREOF, the Parties have executed this Accommodation Agreement as of the date first written above.


 





	EASTSIDE
    DISTILLING, INC.  	 	 	 
	 	 	 	 	 
	By:		 	 	 
	 	Geoffrey
    Gwin, CEO 	 	 	 
	 	 	 	 	 
	 	 	 	BIGGER
    CAPITAL FUND, LP
	 	 	 	 	 
	 	 	 	By:	
	 	 	 	 	Michael
    Bigger, Managing Member of the GP
	 	 	 	 	 
	 	 	DISTRICT
    2 CAPITAL FUND LP  
	 	 	 	 	 
	 	 	 	By:	
	 	 	 	 	Michael
    Bigger, Managing Member of the GP





 




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