THIRD AMENDED AND RESTATED REVOLVING LINE OF CREDIT NOTE WORKING CAPITAL
Exhibit
10.2
THIRD
AMENDED AND RESTATED
WORKING
CAPITAL
|
$14,500,000.00
U.S.
|
February 8, 2007
|
FOR
VALUE
RECEIVED, the undersigned, VeriChip Corporation, a Delaware corporation with
a
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Borrower”), hereby promises to pay to the order of
Applied Digital Solutions, Inc., a Missouri corporation located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Lender”), at such
address, or such other place or places as the holder hereof may designate in
writing from time to time hereafter, the maximum principal sum of Fourteen
Million Five Hundred Thousand Dollars ($14,500,000.00), or, if less, so much
thereof as may be advanced or readvanced by the Lender to the Borrower pursuant
to the terms of the Loan Agreement (as hereinafter defined), together with
interest as provided for herein below, in lawful money of the United States
of
America.
Interest
shall be calculated on the unpaid principal balance outstanding from time to
time at a fixed rate equal to twelve percent (12%) per annum (the “Interest
Rate”). The Interest Rate will apply to the outstanding amount under the Loan
Agreement and this Third Amended and Restated Revolving Line of Credit Note
(the
“Note”) effective from and after October 6, 2006 which is the date of the
Amended and Restated Revolving Line of Credit Note in the principal amount
of
$13,000,000.00 from the Borrower in favor of the Lender (the “Amended and
Restated Note”). For avoidance of doubt, the interest rate described in the
Revolving Line of Credit Note dated December 27, 2005 in the principal
amount of $8,500,000.00 from the Borrower in favor of the Lender (the “Original
Note”) applied to the outstanding amounts under the Original Note prior to the
date of the Amended and Restated Note.
Effective
upon the payment of the Three Million Five Hundred Dollars ($3,500,000) pursuant
to (a) below, interest on this Note shall continue to accrue at the
Interest Rate, and the interest which has accrued on this Note as of the last
day of each month, commencing with the month in which the payment pursuant
to
(a) below is made through the date on which the principal amount of this
Note has been repaid in full, shall be added to the principal amount of this
Note.
The
Borrower shall make the following payments:
(a)
Three
Million Five Hundred Thousand Dollars ($3,500,000) within ten (10) days
after the consummation of an initial public offering of the Borrower’s common
stock pursuant to an effective registration statement filed with the Securities
and Exchange Commission (an “IPO”).
(b)
Assuming the consummation of the IPO described in (a) above occurs, Three
Hundred Thousand Dollars ($300,000) on the first day of each month commencing
in
January 2008 through January 2010; and
(c)
one
final balloon payment on February 1, 2010, equal to the outstanding
principal amount then due under the Loans and the other Obligations, plus all
accrued and unpaid interest and any fees or expenses outstanding.
Notwithstanding
the above payment schedule, in the event an IPO is not consummated on or before
July 1, 2008, the outstanding principal amount then due under the Loans and
the other Obligations, plus all accrued and unpaid interest and any fees or
expenses outstanding, shall be due and payable on July 1, 2008, unless
extended pursuant to the terms of the Loan Agreement.
All
payments made hereunder shall be applied first to any then unpaid, but accrued,
interest and then to principal.
The
Note
is issued under, and is subject to, the Commercial Loan Agreement dated
December 27, 2005, as amended by that First Amendment to Commercial Loan
Agreement dated October 6, 2006, that Second Amendment to Commercial Loan
Agreement dated January 19, 2007, and that Third Amendment to Commercial
Loan Agreement dated February 8, 2007, between the Borrower and the Lender,
as it may be amended from time to time (the “Loan Agreement”). The holder of
this Note is entitled to all of the benefits and rights of the Lender under
the
Loan Agreement. However, neither this reference to the Loan Agreement nor any
provision thereof shall impair the absolute and unconditional obligation of
the
undersigned to pay the principal and interest on this Note as herein provided.
Any capitalized term used in this Note that is not otherwise expressly defined
herein shall have the meaning ascribed thereto in the Loan Agreement.
The
holder may impose upon the undersigned a delinquency charge of $35.00 or five
percent (5.00%) of the amount of the principal and/or interest payment not
paid on or before the thirtieth (30th) day after such installment is due,
whichever is greater. The entire principal balance hereof, together with accrued
interest, shall after maturity, whether by demand, acceleration or otherwise,
bear interest at the contract rate of this Note plus an additional three percent
(3.00%) per annum. Upon default by Borrower under the terms of this Note or
any other Loan Documents, interest shall accrue at a variable rate equal to
the
contract rate of this Note plus three percent (3.00%).
The
undersigned agrees to pay on demand all reasonable out-of-pocket costs of
collection hereof, including court costs, service fees, and reasonable
attorney’s fees, whether or not any foreclosure or other action is instituted by
the holder in its discretion.
The
word
“holder”, as used in this Note, shall mean the payee or endorsee of this Note
who is in possession of it, or the bearer, if this Note is at that time payable
to the bearer.
The
indebtedness evidenced by this Note is secured by the Loan Documents as defined
in the Loan Agreement. Any default by the undersigned under the Loan Documents
shall constitute a default under this Note entitling the holder to declare
the
entire principal amount of the indebtedness evidenced hereby, together with
all
accrued interest thereon, immediately due and payable.
2
No
delay
or omission on the part of the holder in exercising any right, privilege or
remedy shall impair such right, privilege or remedy or be construed as a waiver
thereof or of any other right, privilege or remedy. No waiver of any right,
privilege or remedy or any amendment to this Note shall be effective unless
made
in writing and signed by the holder. Under no circumstances shall an effective
waiver of any right, privilege or remedy on any one occasion constitute or
be
construed as a bar to the exercise of or a waiver of such right, privilege
or
remedy on any future occasion. The acceptance by the holder hereof of any
payment after any default hereunder shall not operate to extend the time of
payment of any amount then remaining unpaid hereunder or constitute a waiver
of
any rights of the holder hereof under this Note.
All
rights and remedies of the holder, whether granted herein or otherwise, shall
be
cumulative and may be exercised singularly or concurrently, and the holder
shall
have, in addition to all other rights and remedies, the rights and remedies
of a
secured party under the Uniform Commercial Code of New Hampshire. The holder
shall have no duty as to the collection or protection of the Collateral or
of
any income thereon, or as to the preservation of any rights pertaining thereto
beyond the safe custody thereof. Surrender of this Note, upon payment or
otherwise, shall not affect the right of the holder to retain the Collateral
as
security for the payment and performance of any other liability of the
undersigned to the holder.
Every
maker, endorser, or guarantor of this Note, or the obligations represented
by
this Note, waives all exemption rights, valuation and appraisement, presentment,
protest and demand, demand for payment, notice of dishonor and protest and
all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of Collateral, and/or to the addition or
release of any other party or person primarily or secondarily liable.
This
Note
may be prepaid in whole or in part without penalty.
This
Note
and the provisions hereof shall be binding upon the undersigned and the
undersigned’s heirs, administrators, executors, successors, legal
representatives and assigns and shall inure to the benefit of the holder, the
holder’s heirs, administrators, executors, successors, legal representatives and
assigns.
This
Note
amends and restates the Second Amended and Restated Revolving Line of Credit
Note. This Note may not be amended, changed or modified in any respect except
by
a written document that has been executed by each party. This Note constitutes
a
New Hampshire sealed instrument and contract to be governed by the laws of
such
state and to be paid and performed therein.
IN
THE
PRESENCE OF:
|
VeriChip
Corporation
|
|||
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
| ▇▇▇▇▇ ▇▇▇▇▇▇ |
Print
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
||
|
Title:
Chief Financial Officer
|
|||