f8k071511ex10iv_attitude.htm


Exhibit 10.4







 FORM OF FOURTH AMENDMENT AND CONSENT AGREEMENT












This Fourth Amendment and Consent Agreement is made as of the 15th day of  July, 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, July 15, 2010, January 21, 2011, and March 17, 2011, 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 no minimum  and up to a maximum of $1,000,000 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 acknowledge that Events of Default may have occurred in notes currently issued and outstanding by the Company pursuant to the Subscription Agreements, but waive the Events of Default until the Maturity Date (as extended).







5.           The undersigned Subscribers to the Subscription Agreements waive the rights granted to them pursuant to Section 12(b), Right of First Refusal and the restrictions contained in Sections 9(p) Negative Covenants and 9(q) Seniority of the Subscription Agreements, all of the aforementioned only to the extent such rights relate to 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.


 


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


 


 



	
"COMPANY"


ATTITUDE DRINKS INC.


a Delaware corporation

	 	
"THE COLLATERAL AGENT"


BARBARA R. MITTMAN


	 	 	 





 



	By:	 	 	 
	Its:	 	 	 





 



	 	 	 
	SMIVEL, LLC By: Joseph Smith, Partner	 	MONARCH CAPITAL FUND LTD.
	 	 	 
	 	 	 
	ALPHA CAPITAL ANSTALT 	 	CMS CAPITAL
	 	 	 
	 	 	 
	WHALEHAVEN CAPITAL FUND LIMITED	 	MOMONA CAPITAL LLC
	 	 	 
	 	 	 
	 CENTAURIAN FUND  	 	NAOMI KLISSMAN
	 	 	 
	 	 	 
	SCHLOMO & ROCHEL RIFKIND 	 	DAVID M. LAMPLOUGH
	 	 	 
	 	 	 
	PSM HOLDINGS 	 	J. MAYA IRA
	 	 	 
	 	 	 
	EMMY CUTLER IRA	 	SAM BERKOWITZ
	 	 	 
	 	 	 
	J & N INVEST LLC	 	JOE & SUE MAYA
	 	 	 
	 	 	 
	LINDA R. IENNACO	 	SETH FARBMAN
	 	 	 
	 	 	 
	RAMSHEAD HOLDING LTD.	 	 
	 	 	 
	 	 	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:


	
SAM BERKOWITZ


 


 


 


	
Schlomo & Rochel Rifkind


Givat Shoshanna 12/3


Tzfut Israel


Fax: 972 4 6970443







 


 




  





  











  






 


 



	
David M. Lamplough


c/o NASA Services Limited


2 Poynings Road


Crawley RH11 0TW


United Kingdom


	
PSM Holdings


c/o PHD Capital


5 Hanover Square #500


New York, NY 10004


Stephen J. Payne


Fax: (212) 269-3087


	
J. Maya IRA


c/o PHD Capital


5 Hanover Square #500


New York, NY 10004


Joseph Maya


Fax: (212) 269-3087


	
Emmy Cutler IRA


c/o PHD Capital


5 Hanover Square #500


New York, NY 10004


Emmy Cutler


Fax: (212) 269-3087


	
J & N INVEST LLC


124 East 8th Street


Lakewood, NJ 09701


Attn: Jeffrey Rubin


Fax: (732) 905-9049


	
JOE & SUE MAYA


8 Salem Lane


Westport, CT 06880-3721


	
LINDA R. IENNACO


57 West 75th Street, 4C


New York, NY 10023


Fax: (212) 873-9042


	
SETH FARBMAN


354 Eastwood Road


Woodmere, NY 11598


Fax: (212) 730-4306


	
RAMSHEAD HOLDING LTD.


57 / 63 Line Wall Road


Gibraltar


Attn: Lawrence Abrams