f10k2011ex10xxxxiv_attitude.htm


Exhibit 10.44 Second Amendment and Consent Agreement







SECOND AMENDMENT AND CONSENT AGREEMENT












This Second Amendment and Consent Agreement is made as of the 21st day of January , 2011 (“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, January 8, 2008, September 29, 2008, January 27, 2009, March 30, 2009, and July 15, 2010, respectively (collectively “Subscription Agreements”).







WHEREAS, the Company is in need of additional funding for its business operations; and







WHEREAS, the Company is contemplating an additional investment of an aggregate of up to $400,000 Purchase Price (“New Financing”) in secured promissory notes (“Notes”) and common stock purchase warrants (“Warrants”) of the Company; and







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 Company completing the New Financing and to the amendment of the Security Agreement, and Guaranty to include the New Financing as part of the Obligations and are secured by the Collateral pursuant to the security interest granted pari passu among Subscribers and the investors in the New Financing and in connection therewith authorize the Collateral Agent to make such additional filings at the discretion of the Collateral Agent to memorialize such agreement.







3.           Annexed hereto is the proposed Amended Schedule A to the Security Agreement, Guaranty and Collateral Agent Agreement which includes the New Financing.







4.           The undersigned Subscribers to the Subscription Agreements waive the rights granted to them pursuant to Section 12(b), Right of First Refusal, of the Subscription Agreements, only to the extent such rights relate to the New Financing.







5.           The undersigned acknowledge that Events of Default have occurred in notes currently issued and outstanding by the Company pursuant to the Subscription Agreements, but waive the defaults, solely in connection with the New Financing.







6.           All other terms of the Transaction Documents shall remain unamended and in full force and effect.







7.           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.


 




  





  











  






 


8.           Except as expressly modified pursuant to this Agreement, the terms of each Note remains unchanged and in full force and effect.


 


9.           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.

















[Signatures to Follow]


 




  





  











  






 


 


IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first written above.


 


 



	 "COMPANY"	 	 	"THE COLLATERAL AGENT"	 
	 ATTITUDE DRINKS INC.	 	 	BARBARA R. MITTMAN	 
	 a Delaware corporation	 	 	 	 
	 	 	 	 	 	 
	By:	
/s/ Roy Warren

	 	 	
/s/ 

	 
	Its:	
CEO

	 	 	
Name 

	 
	 	 	 	 	
Title

	 
	 	 	 	 	 	 
	 /s/Joseph Smith	 	 	/s/	 
	SMIVEL, LLC	 	 	MONARCH CAPITAL FUND LTD.	 
	By: Joseph Smith, Partner	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	/s/	 
	ALPHA CAPITAL ANSTALT 	 	 	CMS CAPITAL	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	/s/	 	 	 	 	 
	 	WHALEHAVEN CAPITAL FUND LIMITED   	 	 	MOMONA CAPITAL LLC	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	/s/	 	 	/s/	 	 
	 	CENTAURIAN FUND	 	 	NAOMI KLISSMAN	 
	 	 	 	 	 	 
	 	 	 	 	ESCROW AGENT	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	GRUSHKO & MITTMAN, P.C	 
	 	 	 	 	 	 





 




  





  











  






 


AMENDED SCHEDULE A TO SECURITY AGREEMENT










	
LENDERS AND ADDRESSES

	  
	
SMIVEL, LLC


12642 SW 103 Court


Miami, FL 33176


Attn: Joseph Smith, Partner


Tel: (305) 233-3353

	  
	
ALPHA CAPITAL ANSTALT


Pradafant 7


9490 Furstentums


Vaduz, Lichtenstein


Fax: 011-42-32323196

	  
	
WHALEHAVEN CAPITAL FUND LIMITED


3rd Fl., 14 Par-La-Ville Rd.


Hamilton, Bermuda HM08


Fax: (201) 782-9327

	  
	
MONARCH CAPITAL FUND LTD.


Harbour House, 2nd Floor


Waterfront Drive, Road Town


Tortola, BVI


Fax (284) 494-4771

	  
	
CMS CAPITAL


9612 Van Nuys Blvd. #108


Panorama City, CA 91402


Fax: (818) 907-3372

	  
	
MOMONA CAPITAL LLC


150 Central Park South, 2nd Floor


New York, NY 10019


Fax: (212) 586-8244

	  
	
CENTAURIAN FUND


739 Palmer Avenue


Teaneck, NJ 07666


Fax:

	  
	
NAOMI KLISSMAN


5/16 Katzenlson Street


Jerusalem, Israel 92621


Fax: