Second Amendment To Loan Documents
Exhibit
10.1
Second
Amendment To Loan Documents
THIS
SECOND AMENDMENT TO LOAN DOCUMENTS (the “Amendment”) is dated as of June 28,
2005 by and between APPLIED DIGITAL SOLUTIONS, INC., a Missouri corporation
having an address of 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxx 00000 (the “Borrower”), and INFOTECH USA, INC., a Delaware corporation
having an address of 0 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the
“Lender”).
A. On
or
about June 27, 2003, the Lender made a loan to the Borrower in the original
principal amount of $1,000,000 (the “Loan”).
B. The
Loan
is evidenced and secured by, among other things, the following loan documents,
all of which are dated June 27, 2003 and all of which were amended by that
certain First Amendment to Loan Documents, dated June 29, 2004, between the
Borrower and the Lender (collectively, the “Loan Documents”):
(i) Commercial
Loan Agreement between the Borrower and the Lender.
(ii) Term
Note
from the Borrower to the Lender (the “Note”).
(iii) Stock
Pledge Agreement from the Borrower to the Lender.
C. The
Borrower and the Lender have agreed to amend the Loan and the Loan Documents,
all on the terms and conditions set forth in this Amendment.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Agreement
1. Defined
Terms.
Capitalized terms used in this Amendment and not otherwise defined shall have
the meanings given to such terms in the Loan Documents.
2. Extension
of Maturity Date.
The
Loan Documents are hereby amended to provide that the Maturity Date of the
Loan
is extended for one (1) year from June 30, 2005 to June 30, 2006. Without
limiting the generality of the foregoing, the definition of the term “Maturity
Date” set forth in the Note is hereby changed from “June 30, 2005” to “June 30,
2006.”
3. No
Defenses.
The
Borrower acknowledges that, as of the date hereof, the outstanding principal
balance of the Loan is $1,000,000. The Borrower acknowledges and agrees that,
as
of the date hereof, it has no offsets, counterclaims or defenses of any nature
whatsoever to its obligations to the Lender under the Loan Documents.
4. Representations
and Warranties.
In
order to induce the Lender to enter into this Amendment and to amend the Loan
Documents as provided herein, the Borrower hereby represents and warrants to
the
Lender that:
(a) All
of
the representations and warranties of the Borrower set forth in the Loan
Documents are true, complete and correct in all material respects on and as
of
the date hereof with the same force and effect as if made on and as of the
date
hereof and as if set forth at length herein.
(b) No
Event
of Default presently exists and is continuing on and as of the date
hereof.
(c) The
Borrower has full power and authority to execute, deliver and perform any action
or step which may be necessary to carry out the terms of this Amendment, and
this Amendment has been duly executed and delivered by the Borrower and is
the
legal, valid and binding obligation of the Borrower enforceable in accordance
with its terms, subject to any applicable bankruptcy, insolvency, general equity
principles or other similar laws affecting the enforcement of creditors’ rights
generally.
(d) The
execution, delivery and performance of this Amendment will not (i) violate
any
provision of any existing law, statute, rule, regulation or ordinance, (ii)
conflict with, result in a breach of, or constitute a default under (A) the
certificate of incorporation or by-laws of the Borrower, (B) any order,
judgment, award or decree of any court, governmental authority, bureau or
agency, or (C) any mortgage, indenture, lease, contract or other material
agreement or undertaking to which the Borrower is a party or by which the
Borrower or any of its properties or assets may be bound, or (iii) result in
the
creation or imposition of any lien or other encumbrance upon or with respect
to
any property or asset now owned or hereafter acquired by the Borrower, other
than liens in favor of the Lender.
(e) No
consent, license, permit, approval or authorization of, exemption by, notice
to,
report to, or registration, filing or declaration with any person is required
in
connection with the execution, delivery and performance by the Borrower of
this
Amendment or the validity thereof or the transactions contemplated
thereby.
5. Counterparts.
This
Amendment may be signed in several counterparts, each of which shall be an
original and all of which shall constitute one and the same instrument.
6. No
Change.
Except
as expressly amended by this Amendment, all of the terms and provisions of
the
Loan Documents shall continue unmodified in full force and effect, and the
same
are hereby ratified and reaffirmed in their entirety.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New Jersey.
8. Xxxxx
Fargo Contingency.
Notwithstanding anything to the contrary contained in this Amendment, it is
understood and agreed that this Amendment and the amendments to the Loan and
the
Loan Documents effected hereby are expressly conditioned and contingent upon
the
prior written consent of Xxxxx Fargo Business Credit, Inc.
IN
WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute and deliver this Amendment as of the date set forth
on the first page hereof.
Applied
Digital Solutions, Inc.
By:
/s/ Xxxx
X. XxXxxxx
Name:
Xxxx X. XxXxxxx
Title:
Senior V.P., Chief Financial Officer
InfoTech
USA, Inc.
By:
/s/ J.
Xxxxxx Xxxxxxxxx
Name:
J.
Xxxxxx Xxxxxxxxx
Title:
Vice President, Chief Financial Officer
