NOTE MODIFICATION AGREEMENT
THIS NOTE MODIFICATION
AGREEMENT (this “Agreement”) is entered into this 26th day of June, 2009
by and between US Dataworks,
Inc., a Nevada corporation (the “Company”), and Xxxxxxx X. Xxxxx, an
individual residing in the State of Texas and the Chairman and Chief Executive
Officer of the Company (the “Holder”). All capitalized terms not
specifically defined herein shall have those meanings set forth in that certain
8.75% Promissory Note dated September 25, 2007 executed by the Company and
payable to the order of the Holder in the original principal amount of Five
Hundred Thousand Dollars ($500,000.00), as amended by that certain Note
Modification Agreement dated May 20, 2009 (as modified, renewed and extended to
date, the “Note”).
W I T N E S S E T H:
WHEREAS,
the Company and the Holder wish to revise certain provisions of the Note;
and
WHEREAS,
concurrent with the execution and delivery of this Agreement, the Company is
entering into Note Modification Agreements (the “Refinance Note Modification
Agreements”) with the holders of those certain US Dataworks, Inc. Refinancing
Secured Notes dated August 13, 2008 executed by the Company and payable to the
order of the holders thereof in the aggregate original principal amount of Three
Million Seven Hundred Three Thousand Five Hundred Dollars ($3,703,500.00), as
amended by those certain Note Modification Agreements dated February 19, 2009
and those certain Note Modification Agreements dated May 20, 2009;
NOW,
THEREFORE, for and in consideration of the premises, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Holder hereby agree as follows:
1. The
following modifications to the Note are made and agreed to effective as of June
26, 2009:
A. The
opening paragraph of the Note shall be deleted in its entirety and replaced
withthe following:
“FOR
VALUE RECEIVED, the undersigned, US Dataworks, Inc., a
Nevadacorporation (“UDW”), hereby promises to pay,
ON DEMAND made any time
on or after July 1,
2010, and if demand is not so made, then on July 1, 2011, to the order of
Xxxxxxx X. Xxxxx (“Xxxxx”), the holder, or his
assigns, in lawful money of the United States of America, and in immediately
payable funds, the principal sum of Five Hundred Thousand Dollars ($500,000)
plus interest thereon to accrue at the rate of eight and three quarters percent
(8.75%) per annum
(“Interest”). Payment of
all amounts due hereunder shall be at the address of UDW provided
herein. For the purposes hereof, the term “Buyer Notes” shall mean
those certain senior secured convertible notes issued by UDW pursuant to that
certain Securities Purchase Agreement, dated as of November 13, 2007, by and
among UDW and the Buyers listed on the Schedule of Buyers, hereto attached as
Exhibit A (the
“Buyer Notes”).”
B. Section
3(a) of the Note shall be deleted in its entirety and replaced with the
following:
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“The
non-payment of any principal or Interest when such payment becomes due and
payable, which payment may be demanded (and thereby become due and payable) at
any time on or after July 1, 2010, and UDW’s failure to make such payment for a
period of ten (10) days thereafter;”
2. In
consideration of the Holder’s agreements to the modifications set forth in
Section 1 of this Agreement, the Company shall pay an amendment fee to the
Holder in the amount of $6.666.67, such amount to be payable on July 1,
2009.
3. The
Note, as modified by this Agreement, and all of the other loan documents and
other agreements and instruments executed and delivered between the Company and
the Holder in connection with the Note shall remain in full force and
effect.
4. The
Company and the Holder represent and warrant to each other that, as of the date
hereof: (a) each such party has full power and authority to execute this
Agreement; (b) this Agreement constitutes the legal, valid and binding
obligation of such party, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement of
creditors' rights generally; and (c) no authorization, approval, consent or
other action by, notice to, or filing with, any governmental authority or other
person is required for the execution, delivery or performance by such party of
this Agreement.
5. The
parties hereto shall from time to time execute and deliver all such other
documents, instruments and assurances with respect to the matters described
herein, and take all such other actions as may be necessary or required to carry
into force and effect the purposes and intent of this Agreement.
6. This
Agreement, when executed by the parties hereto and subject to the execution and
delivery of the Refinance Note Modification Agreements, shall be binding upon
and inure to the benefit of the parties hereto, and their respective heirs,
executors, administrators, personal representatives, successors and
assigns.
7. This
Agreement may be executed simultaneously in a number of identical counterparts,
each of which shall be an original and all of which together shall constitute
but one and the same instrument.
[Signature
Page Follows]
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IN WITNESS WHEREOF, this Agreement has
been executed and delivered by the parties hereto on the date first set forth
above.
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THE
COMPANY:
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US
DATAWORKS, INC.
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By:
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/s/ J. Xxxxxxx
Xxxxxxxx, Xx.
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Name:
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J. Xxxxxxx Xxxxxxxx,
Xx.
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Title:
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Director
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THE
HOLDER:
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/s/ Xxxxxxx X.
Xxxxx
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Xxxxxxx
X. Xxxxx
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