FIRST AMENDMENT TO COMMERCIAL LOAN AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO COMMERCIAL LOAN AGREEMENT, dated as of October 6, 2006 (this
“First 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,
Borrower has requested and Lender has agreed, subject to the terms and
conditions set forth herein, to increase the principal amount of the Loan by
Four Million Five Hundred 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;
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
First
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 sections of the Agreement are hereby amended as
follows:
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a. Revolving
Line of Credit:
The
amount of the Revolving Line of Credit on page 1 of the Agreement shall be
amended by replacing “$8,500,000.00” with “$13,000,000.00”.
b. Review
Date for Revolving Line of Credit:
The
Review Date for Revolving Line of Credit on page 1 of the Agreement shall be
amended by replacing “June 27, 2007” with “July 1, 2008”.
c. Register
to be Maintained:
Section
I, Paragraph B (Advances and Repayments) shall be amended by inserting the
following sentence at the end of the existing language: “Each
advance or readvance made by Lender pursuant to the Loan Documents shall be
evidenced by one or more accounts or records
1
maintained
by such Lender in the ordinary course of business (the “Register”). The
Register
maintained
by the Lender shall include notations of the advances or readvances as well
as
the interest and payments thereon. In the event of any conflict between the
Register
and
the
accounts and records of the Borrower in respect of such matters, the accounts
and records of the Borrower shall control in the absence of manifest
error
or proof
by Lender in contradiction thereof.”
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4.
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Conditions
Precedent.
This First Amendment shall not be effective until Lender has received
the
following duly executed documents:
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a. This
First Amendment;
b. Amended
and Restated Revolving Line of Credit Note - Working Capital of even date
herewith in the principal amount of $13,000,000.00; and
c. First
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 First Amendment
and the terms of the Agreement, the terms hereof shall control.
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7.
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Counterparts.
This First 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 First Amendment shall be governed by and construed in accordance
with
the laws of the State of New
Hampshire.
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IN
WITNESS WHEREOF, the parties hereto have by their duly authorized
representatives executed this First 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:
/s/
Xxxxxxx Xxxxxxx
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Print
Name: Xxxxxxx
Xxxxxxx
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Title:
CFO
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LENDER:
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APPLIED
DIGITAL SOLUTIONS, INC., a Missouri corporation
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By:
/s/
Xxxx X. XxXxxxx
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Print
Name: Xxxx
X. XxXxxxx
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Title:
CFO
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