THIRD AMENDMENT TO COMMERCIAL LOAN AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT TO
This
THIRD AMENDMENT TO COMMERCIAL LOAN AGREEMENT, dated as of February 8, 2007
(this “Third Amendment”), is between VERICHIP
CORPORATION,
a
Delaware corporation (the “Borrower”), and APPLIED
DIGITAL SOLUTIONS, INC.,
a
Missouri corporation (the “Lender”).
Recitals:
WHEREAS,
on December 27, 2005, the Borrower and the Lender entered into a Commercial
Loan Agreement (the “Agreement”) pursuant to which Lender made a Loan to
Borrower subject to the terms and conditions contained in the Agreement;
WHEREAS,
on October 6, 2006, the Borrower and the Lender entered into a First
Amendment to Commercial Loan Agreement pursuant to which Lender increased the
principal amount of the Loan by Four Million Five Hundred Thousand Dollars
($4,500,000.00) (including a change in the applicable interest rate) in order
to
meet the Borrower’s working capital needs, IPO costs, and cash needs in
connection with Perceptis’ potential election to take its final (deferred)
payment in cash and to make certain other amendments to the Agreement contained
herein;
WHEREAS,
on January 19, 2007, the Borrower and the Lender entered into a Second
Amendment to Commercial Loan Agreement pursuant to which Lender increased the
principal amount of the Loan by One Million Five Hundred Thousand Dollars
($1,500,000.00) in order to meet the Borrower’s working capital needs and IPO
costs;
WHEREAS,
Borrower has requested and Lender has agreed, subject to the terms and
conditions set forth herein, to amend the payment terms under the Second
Amendment to Commercial Loan Agreement;
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
Agreement.
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1.
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Recitals.
The foregoing recitals are true and correct and are hereby incorporated
by
this reference.
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2.
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Definitions.
All
capitalized terms used herein, except as modified or defined in this
Third
Amendment, shall have the meaning given to such terms in the Agreement.
All references to the Agreement in all documents executed by Borrower,
Guarantor and/or Bank in connection with the Agreement are hereby
deemed
to refer to the Agreement, as hereby amended.
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3.
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Amendments:
The following section of the Agreement is hereby amended as follows:
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a.
Termination
of Revolver.
Upon
the consummation of an IPO, without further need to amend the Agreement, Section
I.C. of the Agreement shall be deleted and replaced with the following: “C.
Termination
of Revolver.
Notwithstanding anything contained in this Section 1 or elsewhere to the
contrary, from and after the initial public offering of the Borrower’s common
stock and the payment by Borrower of the Three Million Five Hundred Thousand
Dollars ($3,500,000.00) as required under the Third Amended and Restated
Revolving Line of Credit Note, Borrower shall not be entitled to reborrow any
amounts hereunder and the Loans shall thereafter be considered a term loan
payable in accordance with the terms of such note.”
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4.
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Conditions
Precedent.
This Third Amendment shall not be effective until Lender has received
the
following duly executed documents:
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a.
This
Third Amendment;
b.
Third
Amended and Restated Revolving Line of Credit Note—Working Capital of even date
herewith in the principal amount of $14,500,000.00; and
c.
Third
Amendment to Security Agreement of even date herewith.
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5.
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Representations
and Warranties.
The terms and conditions, representations and warranties, and covenants
as
set forth in the Agreement and all other loan documents executed
by
Borrower in favor of Lender in connection with the Loan are hereby
ratified and affirmed by Borrower, and Borrower hereby agrees that
the
said terms and conditions, and covenants are valid, true and correct
as if
made on the date hereof.
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6.
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No
Implied Modifications; Inconsistencies.
Except as expressly modified hereby, all terms and provisions of
the
Agreement shall remain unchanged and in full force and effect. In
the
event of an inconsistency between the terms of this Third Amendment
and
the terms of the Agreement, the terms hereof shall control.
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7.
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Counterparts.
This Third Amendment may be executed in any number of counterparts,
and
all such counterparts shall together constitute but one instrument.
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8.
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Governing
Law.
This Third Amendment shall be governed by and construed in accordance
with
the laws of the State of New Hampshire.
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[Signature
Page to Follow]
2
IN
WITNESS WHEREOF, the parties hereto have by their duly authorized
representatives executed this Third Amendment on the date first above written.
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BORROWER:
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VERICHIP
CORPORATION, a Delaware corporation
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Print Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Chief
Financial Officer
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LENDER:
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APPLIED
DIGITAL SOLUTIONS, INC.,
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a
Missouri corporation
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By:
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/s/
Xxxxxxxx Xxxxxx
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Print Name:
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Xxxxxxxx
Xxxxxx
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Title:
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Senior
Vice President and Chief Accounting
Officer
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