AMENDMENT No. 1 To MDWERKS, INC. FIRST AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTE
EXHIBIT
4.12
AMENDMENT
No. 1
To
FIRST
AMENDED AND RESTATED SENIOR SECURED
CONVERTIBLE
NOTE
This
AMENDMENT No. 1 to the MDwerks, Inc. First Amended and Restated Senior Secured
Convertible Note, dated September 28, 2007 (this “Amendment”)
is
dated as of March 1, 2008, by and between MDWERKS, INC., a Delaware corporation
(the “Company”),
and
GOTTBETTER CAPITAL MASTER, LTD. (IN LIQUIDATION), a Cayman Islands company
(the
“Consenting
Holder”).
WITNESSETH
WHEREAS,
pursuant to a Securities Purchase Agreement, dated as of November 9, 2006 (as
amended, the “Securities
Purchase Agreement”),
the
Consenting Holder purchased a Senior Secured Convertible Note in the original
principal amount of $2,500,000 (the “Original Note”);
WHEREAS,
on September 28, 2007 the Company issued to the Consenting Holder the First
Amended and Restated Senior Secured Convertible Note (as amended, or as amended
and restated, from time to time, the “Note”) and the Original Note was
cancelled;
WHEREAS,
the Company and the Consenting Holder wish to extend the maturity date of the
Note from November 9, 2009 to January 1, 2011 and to amend the Installment
Schedule attached to the Note as Schedule I;
WHEREAS,
defined terms used herein but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Note;
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto and
of
the mutual benefits to be gained by the performance thereof, and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledge, the parties hereto hereby agree as follows:
1. Section
1
of the Note is hereby deleted and is replaced in its entirety with the
following:
“
1.
PAYMENTS
OF PRINCIPAL; MATURITY.
On each
Installment Date commencing March 1, 2008, the Company shall pay to the Holder
an amount equal to the Installment Amount due on such Installment Date in cash
by wire transfer of immediately available funds. Installment Dates and
Installment Amounts are as set forth on the Installment Schedule. The
“Maturity
Date”
shall be
January 1, 2011, as may be extended at the option of the Holder (i) in the
event
that, and for so long as, an Event of Default (as defined in Section 4(a))
shall
have occurred and be continuing and (ii) through the date that is ten (10)
days
after the consummation of a Change of Control in the event that a Change of
Control is publicly announced or a Change of Control Notice (as defined in
Section 5(b)) is delivered prior to the Maturity Date.”
2. The
Installment
Schedule attached to the Note as Schedule I is hereby deleted and replaced
in
its entirety with the Installment Schedule dated as of the date hereof and
attached to this Amendment as Exhibit A.
3. Notwithstanding
anything to the contrary contained herein, if the Company does not obtain
additional funding in the amount of at least five million dollars ($5,000,000)
on or before March 31, 2008, this Amendment shall be void and of no force and
effect; provided,
however,
that
the Consenting Party shall be deemed to have granted its consent to extend
the
February 1, 2008 and the March 1, 2008 Installment Dates set forth in the
Original Note, until April 1, 2008.
4. The
Company hereby confirms that upon the closing of a financing to be provided
by
Vicis Capital Master Fund, or one of its affiliates, in the amount of not less
than five million dollars ($5,000,000), the Company shall issue to the
Consenting Party a warrant to purchase two million (2,000,000) shares of common
stock of the Company at an exercise price equal to the lowest exercise or
conversion price of any warrants, options or convertible securities issued
to
Vicis Capital Master fund in connection with such financing.
5. This
Amendment shall be construed and enforced in accordance with the laws of the
State of New York.
6. This
Amendment may be executed in two or more counterparts, all of which shall
together constitute a single agreement. A facsimile of an executed counterpart
signature page shall be deemed to constitute an original executed counterpart
signature page.
[SIGNATURE
PAGE TO IMMEDIATELY FOLLOW THIS PAGE]
IN
WITNESS WHEREOF, the parties hereto have duly executed this
Amendment,
Consent
and Waiver as of the day and year first above written.
| MDWERKS, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Title: Chief Executive Officer | ||
|
GOTTBETTER
CAPITAL MASTER,
LTD.
(IN
LIQUIDATION)
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
| Title: Liquidator | ||
EXHIBIT
A
SCHEDULE
I
INSTALLMENT
SCHEDULE
AS
OF
MARCH 1, 2008
|
Issue
Date
|
11/9/2006
|
|||||
|
Face
Amount
|
$2,500,000
|
|||||
|
Interest
Rate
|
8.0%
|
|||||
|
Term
(months)
|
49
|
|||||
|
Principal
(months)
|
|
35
|
||||
|
|
||||||
|
Period
|
Installment
Date
|
Beginning
Principal |
Accrued
Interest |
Interest
Due |
Installment
Payment |
Ending
Principal |
|
0
|
12/1/2006
|
2,500,000.00
|
11,666.67
|
11,666.67
|
0.00
|
2,500,000.00
|
|
1
|
1/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
2
|
2/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
3
|
3/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
4
|
4/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
5
|
5/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
6
|
6/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
7
|
7/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
8
|
8/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
9
|
9/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
10
|
10/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
11
|
11/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
12
|
12/1/2007
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
13
|
1/1/2008
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
14
|
2/1/2008
|
2,500,000.00
|
16,666.67
|
16,666.67
|
0.00
|
2,500,000.00
|
|
15
|
3/1/2008
|
2,500,000.00
|
16,666.67
|
16,666.67
|
138,888.89
|
2,361,111.11
|
|
16
|
4/1/2008
|
2,361,111.11
|
15,740.74
|
15,740.74
|
69,444.44
|
2,291,666.67
|
|
17
|
5/1/2008
|
2,291,666.67
|
15,277.78
|
15,277.78
|
69,444.44
|
2,222,222.22
|
|
18
|
6/1/2008
|
2,222,222.22
|
14,814.81
|
14,814.81
|
69,444.44
|
2,152,777.78
|
|
19
|
7/1/2008
|
2,152,777.78
|
14,351.85
|
14,351.85
|
69,444.44
|
2,083,333.33
|
|
20
|
8/1/2008
|
2,083,333.33
|
13,888.89
|
13,888.89
|
69,444.44
|
2,013,888.89
|
|
21
|
9/1/2008
|
2,013,888.89
|
13,425.93
|
13,425.93
|
69,444.44
|
1,944,444.44
|
|
22
|
10/1/2008
|
1,944,444.44
|
12,962.96
|
12,962.96
|
69,444.44
|
1,875,000.00
|
|
23
|
11/1/2008
|
1,875,000.00
|
12,500.00
|
12,500.00
|
69,444.44
|
1,805,555.56
|
|
24
|
12/1/2008
|
1,805,555.56
|
12,037.04
|
12,037.04
|
69,444.44
|
1,736,111.11
|
|
25
|
1/1/2009
|
1,736,111.11
|
11,574.07
|
11,574.07
|
69,444.44
|
1,666,666.67
|
|
26
|
2/1/2009
|
1,666,666.67
|
11,111.11
|
11,111.11
|
69,444.44
|
1,597,222.22
|
|
Period
|
Installment
Date
|
Beginning
Principal |
Accrued
Interest |
Interest
Due |
Installment
Payment |
Ending
Principal |
|
27
|
3/1/2009
|
1,597,222.22
|
10,648.15
|
10,648.15
|
69,444.44
|
1,527,777.78
|
|
28
|
4/1/2009
|
1,527,777.78
|
10,185.19
|
10,185.19
|
69,444.44
|
1,458,333.33
|
|
29
|
5/1/2009
|
1,458,333.33
|
9,722.22
|
9,722.22
|
69,444.44
|
1,388,888.89
|
|
30
|
6/1/2009
|
1,388,888.89
|
9,259.26
|
9,259.26
|
69,444.44
|
1,319,444.44
|
|
31
|
7/1/2009
|
1,319,444.44
|
8,796.30
|
8,796.30
|
69,444.44
|
1,250,000.00
|
|
32
|
8/1/2009
|
1,250,000.00
|
8,333.33
|
8,333.33
|
69,444.44
|
1,180,555.56
|
|
33
|
9/1/2009
|
1,180,555.56
|
7,870.37
|
7,870.37
|
69,444.44
|
1,111,111.11
|
|
34
|
10/1/2009
|
1,111,111.11
|
7,407.41
|
7,407.41
|
69,444.44
|
1,041,666.67
|
|
35
|
11/1/2009
|
1,041,666.67
|
6,944.44
|
6,944.44
|
69,444.44
|
972,222.22
|
|
36
|
12/1/2009
|
972,222.22
|
6,481.48
|
6,481.48
|
69,444.44
|
902,777.78
|
|
37
|
1/1/2010
|
902,777.78
|
6,018.52
|
6,018.52
|
69,444.44
|
833,333.33
|
|
38
|
2/1/2010
|
833,333.33
|
5,555.56
|
5,555.56
|
69,444.44
|
763,888.89
|
|
39
|
3/1/2010
|
763,888.89
|
5,092.59
|
5,092.59
|
69,444.44
|
694,444.44
|
|
40
|
4/1/2010
|
694,444.44
|
4,629.63
|
4,629.63
|
69,444.44
|
625,000.00
|
|
41
|
5/1/2010
|
625,000.00
|
4,166.67
|
4,166.67
|
69,444.44
|
555,555.56
|
|
42
|
6/1/2010
|
555,555.56
|
3,703.70
|
3,703.70
|
69,444.44
|
486,111.11
|
|
43
|
7/1/2010
|
486,111.11
|
3,240.74
|
3,240.74
|
69,444.44
|
416,666.67
|
|
44
|
8/1/2010
|
416,666.67
|
2,777.78
|
2,777.78
|
69,444.44
|
347,222.22
|
|
45
|
9/1/2010
|
347,222.22
|
2,314.81
|
2,314.81
|
69,444.44
|
277,777.78
|
|
46
|
10/1/2010
|
277,777.78
|
1,851.85
|
1,851.85
|
69,444.44
|
208,333.33
|
|
47
|
11/1/2010
|
208,333.33
|
1,388.89
|
1,388.89
|
69,444.44
|
138,888.89
|
|
48
|
12/1/2010
|
138,888.89
|
925.93
|
925.93
|
69,444.44
|
69,444.44
|
|
49
|
1/1/2011
|
69,444.44
|
462.96
|
462.96
|
69,444.44
|
0.00
|