Filed by Bowne Pure Compliance



 




Exhibit 10.33




SECURED REVOLVING NOTE




FOR VALUE RECEIVED, each of DIGITAL ANGEL CORPORATION, a Delaware corporation (the “Parent”),
and the other companies listed on Exhibit A attached hereto (such other companies together
with the Parent, each a “Company” and collectively, the “Companies”), jointly and severally,
promises to pay to KALLINA CORPORATION, 874 Walker Road, Suite C, Dover, DE 19904, Fax:
914-949-9618 (the “Holder”) or its registered assigns or successors in interest, the sum of SIX
MILLION DOLLARS ($6,000,000.00), or, if different, the aggregate principal amount of all Loans (as
defined in the Security Agreement referred to below), together with any accrued and unpaid interest
hereon, on August 31, 2010 (the “Maturity Date”) if not sooner indefeasibly paid in full. The
Companies may borrow, prepay without penalty, and reborrow hereunder in accordance with the
provisions of the Security Agreement.



Capitalized terms used herein without definition shall have the meanings ascribed to such
terms in the Security Agreement among the Companies and the Holder dated as of the date hereof (as
amended, modified and/or supplemented from time to time, the “Security Agreement”).




The following terms shall apply to this Secured Revolving Note (this “Note”):



ARTICLE I

CONTRACT RATE




1.1 Contract Rate. Subject to Sections 2.2 and 3.9, interest payable on the
outstanding principal amount of this Note (the “Principal Amount”) shall accrue at a rate per annum
equal to the “prime rate” published in The Wall Street Journal from time to time (the
“Prime Rate”), plus two percent (2.0%) (the “Contract Rate”). The Contract Rate shall be increased
or decreased as the case may be for each increase or decrease in the Prime Rate in an amount equal
to such increase or decrease in the Prime Rate; each change to be effective as of the day of the
change in the Prime Rate. The Contract Rate shall not at any time be less than ten percent
(10.0%). Interest shall be (i) calculated on the basis of a 360 day year, and (ii) payable
monthly, in arrears, commencing on September 1, 2007 on the first business day of each consecutive
calendar month thereafter through and including the Maturity Date, and on the Maturity Date,
whether by acceleration or otherwise.



1.2 Contract Rate Payments. The Contract Rate shall be calculated on the last
business day of each calendar month hereafter (other than for increases or decreases in the Prime
Rate which shall be calculated and become effective in accordance with the terms of Section 1.1)
until the Maturity Date and shall be subject to adjustment as set forth herein.


 


 









 





ARTICLE II

EVENTS OF DEFAULT AND DEFAULT RELATED PROVISIONS




2.1 Events of Default. The occurrence of an Event of Default under the Security
Agreement shall constitute an event of default (“Event of Default”) hereunder.



2.2 Default Interest. Following the occurrence and during the continuance of an Event
of Default, the Companies shall, jointly and severally, pay additional interest on the outstanding
principal balance of this Note in an amount equal to one percent (1%) per month, and all
outstanding Obligations under this Note, including unpaid interest, shall continue to accrue
interest at such additional interest rate from the date of such Event of Default until the date
such Event of Default is cured or waived.



ARTICLE III

MISCELLANEOUS




3.1 Issuance of New Note. Upon any partial redemption of this Note, a new Note
containing the same date and provisions of this Note shall, at the request of the Holder, be issued
by the Companies to the Holder for the principal balance of this Note and interest which shall not
have been paid. Subject to the provisions of Article II of this Note, the Companies shall not pay
any costs, fees or any other consideration to the Holder for the production and issuance of a new
Note.




3.2 Cumulative Remedies. The remedies under this Note shall be cumulative.



3.3 Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder
hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies
otherwise available.



3.4 Notices. Any notice herein required or permitted to be given shall be in writing
and shall be deemed effective given (a) upon personal delivery to the party notified, (b) when sent
by confirmed telex or facsimile if sent during normal business hours of the recipient, if not, then
on the next business day, (c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written verification of receipt.
All communications shall be sent to the respective Company at the address provided for such Company
in the Security Agreement executed in connection herewith, and to the Holder at the address
provided in the Security Agreement for the Holder, with a copy to Laurus Capital Management, LLC,
Attn: Portfolio Services, 335 Madison Avenue, 10th Floor, New York, New York 10017,
facsimile number (212) 581-5037, or at such other address as the respective Company or the Holder
may designate by ten days advance written notice to the other parties hereto.


 


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3.5 Amendment Provision. The term “Note” and all references thereto, as used
throughout this instrument, shall mean this instrument as originally executed, or if later amended
or supplemented, then as so amended or supplemented, and any successor instrument as such successor
instrument may be amended or supplemented.



3.6 Assignability. This Note shall be binding upon each Company and its successors
and assigns, and shall inure to the benefit of the Holder and its successors and assigns, and may
be assigned by the Holder in accordance with the requirements of the Security Agreement. No
Company may assign any of its obligations under this Note without the prior written consent of the
Holder, any such purported assignment without such consent being null and void.



3.7 Cost of Collection. In case of an occurrence of an Event of Default under this
Note, the Companies shall, jointly and severally, pay the Holder the Holder’s reasonable costs of
collection, including reasonable attorneys’ fees.




3.8 Governing Law, Jurisdiction and Waiver of Jury Trial.



(a) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.



(b) EACH COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE
COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND, AND THE HOLDER, ON THE OTHER HAND,
PERTAINING TO THIS NOTE, THE SECURITY AGREEMENT OR ANY OF THE OTHER ANCILLARY AGREEMENTS OR TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS NOTE, THE SECURITY AGREEMENT OR ANY OF THE OTHER ANCILLARY
AGREEMENTS; PROVIDED, THAT, EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW
YORK; AND FURTHER PROVIDED, THAT, NOTHING IN THIS NOTE SHALL BE DEEMED OR
OPERATE TO PRECLUDE THE HOLDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER. EACH COMPANY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH COMPANY HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO SUCH COMPANY AT THE ADDRESS SET FORTH IN THE SECURITY AGREEMENT
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH COMPANY’S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID


 


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(c) EACH COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE
LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH COMPANY HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN
THE HOLDER, AND/OR ANY COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, THE SECURITY AGREEMENT, ANY
OTHER ANCILLARY AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.



3.9 Severability. In the event that any provision of this Note is invalid or
unenforceable under any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any other provision of this Note.



3.10 Maximum Payments. Nothing contained herein shall be deemed to establish or
require the payment of a rate of interest or other charges in excess of the maximum permitted by
applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by such law, any payments in excess of such maximum
rate shall be credited against amounts owed by the Companies to the Holder and thus refunded to the
Companies.



3.11 Security Interest and Guarantee. The Holder has been granted a security interest
(i) in certain assets of the Companies as more fully described in the Security Agreement [and (ii)
pursuant to the Stock Pledge Agreement dated as of the date hereof. The obligations of the
Companies under this Note are guaranteed by Applied Digital Solutions, Inc. pursuant to the
Guaranty dated as of the date hereof.



3.12 Construction; Counterparts. Each party acknowledges that its legal counsel
participated in the preparation of this Note and, therefore, stipulates that the rule of
construction that ambiguities are to be resolved against the drafting party shall not be applied in
the interpretation of this Note to favor any party against the other. This Note may be executed in
one or more counterparts, each of which shall be deemed an original and all of which together shall
be deemed to constitute one agreement. It is understood and agreed that if facsimile copies of
this Note bearing facsimile signatures are exchanged between the parties hereto, such copies shall
in all respects have the same weight, force and legal effect and shall be fully as valid, binding,
and enforceable as if such signed facsimile copies were original documents bearing original
signature.


 


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3.13 Registered Obligation. This Note is intended to be a registered obligation within
the meaning of Treasury Regulation Section 1.871-14(c)(1)(i) and the Parent (or its agents) shall
register this Note (and thereafter shall maintain such registration) as to both principal and any
stated interest. Notwithstanding any document, instrument or agreement relating to this Note to
the contrary, transfer of this Note (or the right to any payments of principal or stated interest
thereunder) may only be effected by (i) surrender of this Note and either the reissuance by the
Companies of this Note to the new holder or the issuance by the Companies of a new instrument to
the new holder, or (ii) transfer through a book entry system maintained by the Parent (or its
agent), within the meaning of Treasury Regulation Section 1.871-14(c)(1)(i)(B).



[Balance of page intentionally left blank; signature page follows]




 


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IN WITNESS WHEREOF, each Company has caused this Secured Revolving Note to be signed in its
name effective as of this 31 day of August 2007.



	 	 	 	 	 
	WITNESS:	 	DIGITAL ANGEL CORPORATION
	 
	 	 	 	 
	/s/ Carol E. Olson

	 	By:
	 	/s/ Lorraine M. Breece
	 

	 	 	 	 
	 

	 	Name:
	 	Lorraine M. Breece
	 

	 	Title:
	 	Vice President, Acting Chief Financial Officer
	 
	 	 	 	 
	WITNESS:	 	DIGITAL ANGEL TECHNOLOGY CORPORATION
	 
	 	 	 	 
	/s/ Carol E. Olson

	 	By:
	 	/s/ Lorraine M. Breece
	 

	 	 	 	 
	 

	 	Name:
	 	Lorraine M. Breece
	 

	 	Title:
	 	Vice President, Acting Chief Financial Officer
	 
	 	 	 	 
	WITNESS:	 	FEARING MANUFACTURING CO., INC.
	 
	 	 	 	 
	/s/ Carol E. Olson

	 	By:
	 	/s/ Lorraine M. Breece
	 

	 	 	 	 
	 

	 	Name:
	 	Lorraine M. Breece
	 

	 	Title:
	 	Vice President, Acting Chief Financial Officer
	 
	 	 	 	 
	WITNESS:	 	DIGITAL ANGEL INTERNATIONAL
	 
	 	 	 	 
	/s/ Carol E. Olson

	 	By:
	 	/s/ Lorraine M. Breece
	 

	 	 	 	 
	 

	 	Name:
	 	Lorraine M. Breece
	 

	 	Title:
	 	Vice President, Acting Chief Financial Officer







 


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EXHIBIT A




OTHER COMPANIES




Digital Angel Technology Corporation, a Minnesota corporation




Fearing Manufacturing Co., Inc., a Minnesota corporation




Digital Angel International, a Minnesota corporation