Exhibit
10.4
AMENDMENT, WAIVER AND
CONSENT
This Amendment, Waiver and Consent
Agreement made effective January 1, 2009 (“Waiver”)
among Innovative Food Holdings, Inc., a Florida corporation (the
“Company”), and the signators hereto who are
Subscribers (“Subscribers”) under certain Subscription
Agreements with the Company dated February 24, 2005 and August 25,
2005 (collectively, “Subscription Agreements”) as
amended to include certain Promissory Notes dated February 7, 2006
(Alpha Capital Anstalt - $120,000, Whalehaven Capital Fund Limited
- $30,000) and May 19, 2006 (Alpha Capital Anstalt - $10,000),
respectively, as amended, and related documents (“Transaction
Documents”).
WHEREAS, the Company is currently contemplating
an additional financing of an aggregate $200,000 (“New
financing”).
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. Provided
the New Financing takes place, pursuant to the terms and conditions
of the Transaction Documents, the undersigned waive the rights
granted to them pursuant to Section 12(a) – Right of First
Refusal, Section 12(b) – Offering Restrictions, and Section
12(c) – Favored Nation Provision, of the Subscription
Agreement only to the extent such rights relate to the New
Financing, Section 3.4(b)D of the Notes and Section 3.4 of the
Warrants.
3. The
undersigned consent to the amendment of the Security and Pledge
Agreements and Guarantys to include the Subscribers to the New
Financing as parties thereto to share in the security interest in
the Collateral pari passu with the undersigned based upon the
principal amount of the Notes owed to the undersigned and to the
Subscribers in the New 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 to the
Subscribers to the New Financing.
4. Annexed
hereto is Amended Schedule A to the Security and Pledge Agreements
and Collateral Agent Agreement.
5. The
Notes are amended as follows: The Maturit
