FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT
TO
THIS
FIRST AMENDMENT to Loan
and Security Agreement (this “Amendment”) is entered into this 5th day of March,
2010 by and between Silicon Valley Bank (“Bank”) and US DATAWORKS, INC., a
Nevada corporation (“Borrower”) whose address is One Xxxxx Xxxxx Xxxxxx Xxxx.,
0xx Xxxxx, Xxxxxxxxx, XX 00000.
Recitals
1. Bank
and Borrower have entered into that certain Loan and Security Agreement dated as
of February 9, 2010 (as the same may from time to time be further
amended, modified, supplemented or restated, the “Loan Agreement”).
2. Bank
has extended credit to Borrower for the purposes permitted in the Loan
Agreement.
3. Borrower
has requested that Bank amend the Loan Agreement to revise the provisions
regarding maintenance of bank accounts outside Bank.
4. Bank
has agreed to so amend certain provisions of the Loan Agreement, but only to the
extent, in accordance with the terms, subject to the conditions and in reliance
upon the representations and warranties set forth below.
Agreement
Now,
Therefore, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.
2. Amendment
to Loan Agreement.
2.1
Section 6.6 (Operating
Accounts). Section 6.6 is amended in its entirety and replaced
with the following:
“6.6 Operating Accounts. No later
than sixty (60) days after the Effective Date and at all times thereafter,
maintain all of its operating and other deposit accounts and securities accounts
with Bank; provided however that Borrower may maintain account
number _______ at Amegy Bank until the date one hundred twenty (120) days
after the Effective Date so long as such account only has lockbox proceeds and
that any amounts in such account in excess of the amounts needed to cover
outstanding checks/debits shall be immediately transferred to accounts at
Bank.”
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3. Limitation
of Amendment.
3.1 The
amendment set forth in Section
2, above, is effective for the purposes set forth herein and shall be
limited precisely as written and shall not be deemed to (a) be a consent to any
amendment, waiver or modification of any other term or condition of any Loan
Document, or (b) otherwise prejudice any right or remedy which Bank may now have
or may have in the future under or in connection with any Loan
Document.
3.2 This
Amendment shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.
4. Representations and
Warranties. To induce Bank to enter into this Amendment,
Borrower hereby represents and warrants to Bank as follows:
4.1 Immediately
after giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material
respects as of the date hereof (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and correct as
of such date), and (b) no Event of Default has occurred and is
continuing;
4.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
4.3 The
organizational documents of Borrower delivered to Bank on the Effective Date
remain true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
4.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
4.5 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding on
or affecting Borrower, (b) any contractual restriction with a Person binding on
Borrower, (c) any order, judgment or decree of any court or other governmental
or public body or authority, or subdivision thereof, binding on Borrower, or (d)
the organizational documents of Borrower;
4.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
either Borrower, except as already has been obtained or made; and
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4.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
5. Counterparts. This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Effectiveness. This
Amendment shall be deemed effective upon the due execution and delivery to Bank
of this Amendment by each party hereto.
[Signature
page follows.]
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In
Witness Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first written above.
BANK
SILICON
VALLEY BANK
By:
/s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X.
Xxxxxx
Title:
Relationship
Manager
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BORROWER
US
DATAWORKS, INC.
By:
/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title:
Chief Financial
Officer
|
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