{"id":41147,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-modification-agreement-digital-angel-corp-and-bank-of.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-modification-agreement-digital-angel-corp-and-bank-of","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/loan-modification-agreement-digital-angel-corp-and-bank-of.html","title":{"rendered":"Loan Modification Agreement – Digital Angel Corp. and Bank of America, NA"},"content":{"rendered":"

LOAN MODIFICATION AGREEMENT<\/u><\/strong><\/p>\n

\n<\/p>\n

THIS LOAN MODIFICATION AGREEMENT (“Agreement<\/strong>“) is made to be
\neffective as of November 1, 2010 (“Effective Date<\/strong>“), by and
\nbetween Digital Holdings, LLC, a Minnesota limited liability company (the
\n“Borrower<\/strong>“), whose address is 490 Villaume Avenue, South St.
\nPaul, Minnesota 55075, and Bank of America, N.A., successor by merger to LaSalle
\nBank National Association, as Trustee (“Trustee<\/strong>“) for the
\nCertificateholders of the Morgan Stanely Dean Witter 2001-TOP1 Commercial
\nMortgage Securities Trust, acting by and through its special servicer Berkadia
\nCommercial Mortgage LLC (“Special<\/strong> Servicer<\/strong>“),
\nwhose address is c\/o Berkadia Commercial Mortgage LLC, 700 North Pearl Street,
\nSuite 2200, Dallas, Texas 75201.<\/p>\n<\/p>\n<\/p>\n

Recitals<\/u><\/strong><\/p>\n

\n<\/p>\n

A. Principal Life Insurance Company (“Lender<\/strong>“), made a loan
\n(“Loan<\/strong>“) in the original principal amount of TWO MILLION FIVE
\nHUNDRED THOUSAND AND NO\/100 DOLLARS ($2,500,000.00) to Borrower.<\/p>\n<\/p>\n<\/p>\n

B. To evidence the Loan, Borrower executed and delivered to Lender that
\ncertain Secured Promissory Note dated October 30, 2000
\n(“Note<\/strong>“), payable to the order of Lender in the original
\nprincipal sum of TWO MILLION ONE HUNDRED FIFTY THOUSAND AND NO\/100 DOLLARS
\n($2,150,000.00), bearing interest and being payable as therein provided.<\/p>\n<\/p>\n<\/p>\n

C. Payment of the Note is secured by, among other instruments, that certain
\nMortgage and Security Agreement dated October 30, 2000
\n(“Mortgage<\/strong>“) (the Note, Mortgage and all other instruments
\nevidencing or securing the Loan, as same may have been modified or amended shall
\nbe collectively referred to as the “Loan Documents<\/strong>“), executed
\nby Borrower for the benefit of Lender, encumbering, among other property, that
\ncertain parcel of real property located in Dakota County, Minnesota, which is
\nmore particularly described on Exhibit A<\/u> attached hereto and incorporated
\nherein for all purposes (“Property<\/strong>“).<\/p>\n<\/p>\n<\/p>\n

D. Payment of the Note is further secured by a separate Guaranty agreement
\n(“Guaranty<\/strong>“) dated October 30, 2000, by and between Principal
\nLife Insurance Company (and its successors and assigns) and Applied Digital
\nSolutions, Inc., a Delaware Corporation. Applied Digital Solutions, Inc. changed
\nits legal name to Digital Angel Corporation on June 20, 2008.<\/p>\n<\/p>\n<\/p>\n

E. In connection with the Loan, Borrower also executed an Assignment of
\nLeases and Rents (“ALR<\/strong>“) dated October 30, 2000, in favor of
\nPrincipal Life Insurance Company, and recorded on December 6, 2000 as Document
\nNumber 1736224 in Dakota County, Minnesota.<\/p>\n<\/p>\n<\/p>\n

F. The Mortgage is recorded as Document No. 1736223 of the Office of the
\nCounty Recorder, Dakota County, Minnesota, said Mortgage and the record thereof
\nbeing incorporated herein for all purposes.<\/p>\n<\/p>\n<\/p>\n

\n

G. Pursuant to the transfer of the mortgage loans to the trust fund, Lender
\nassigned the Note, the Mortgage, the ALR and the other Loan Documents
\n(hereinafter defined) to Trustee.<\/p>\n<\/p>\n<\/p>\n

H. Trustee, as successor in interest and assignee of Lender, has succeeded to
\nthe interest of Lender under the Loan Documents.<\/p>\n<\/p>\n<\/p>\n

I. A Default has occurred under the Note and Loan Documents due to the
\nBorrower153s failure to make required principal and interest payments when due
\n(the “Existing Default<\/strong>“);<\/p>\n<\/p>\n<\/p>\n

J. Borrower and Trustee now desire to modify certain terms and provisions of
\nthe Loan Documents as more specifically provided herein.<\/p>\n<\/p>\n

NOW THEREFORE, in consideration of the mutual covenants and agreements set
\nforth herein, and for other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, and upon express condition that
\nthe lien of the Mortgage is and shall remain a valid, first and subsisting lien
\nupon the property described therein (“Collateral<\/strong>“), Borrower
\nand Trustee hereby agree as follows:<\/p>\n<\/p>\n<\/p>\n

1. Incorporation of Recitals and Definitions<\/u><\/strong>. Trustee
\nand Borrower hereby acknowledge the accuracy of the foregoing recitals as a
\nsubstantive part of this Agreement. Except as specifically defined herein, all
\ncapitalized terms used in the recitals and in the body of this Agreement shall
\nhave the definitions ascribed therefore in the Loan Documents.<\/p>\n<\/p>\n<\/p>\n

2. Satisfaction of Conditions Precedent<\/u><\/strong>. Trustee153s
\nobligations under this Agreement and the enforceability of the modifications of
\nthe Loan Documents as set forth herein are specifically conditioned upon and
\nsubject to the occurrence of each of the following conditions (collectively, the
\n“Conditions Precedent<\/strong>“):<\/p>\n<\/p>\n<\/p>\n

a. Closing Date.<\/u> Time is of the essence of each of Borrower153s
\nobligations under this Agreement. This Agreement must be fully executed and all
\nconditions herein satisfied no later than February 28, 2011. The date upon which
\nthis Agreement is fully executed and Borrower satisfies all conditions herein is
\nreferred to as the “Closing Date<\/strong>“.<\/p>\n<\/p>\n<\/p>\n

b. Executed Agreement<\/u>. Trustee shall have received one (1) counterpart
\nof this Agreement duly executed by Borrower and Guarantor.<\/p>\n<\/p>\n<\/p>\n

c. Payment of Principal<\/u>. Borrower shall pay $25,000.00 (Twenty Five
\nThousand Dollars) (“Closing Payment<\/strong>“) on the Closing Date. The
\nClosing Payment shall be applied to outstanding principal under the terms of the
\nLoan Documents.<\/p>\n<\/p>\n<\/p>\n

d. Payment of Principal and Interest<\/u>. On or before the Closing Date,
\nBorrower shall have paid any and all outstanding principal and accrued interest
\npayments due under the terms of the Loan Documents as of the Closing Date based
\non the modified terms of the Loan Documents as set forth in this Agreement
\n(“Principal and Interest<\/strong> Payment<\/strong>“).<\/p>\n<\/p>\n<\/p>\n

2<\/p>\n

\n

\n

e. Payment of Past Due Real Estate Taxes<\/u>. On or before the Closing
\nDate, Borrower shall pay all real estate taxes and assessments assessed or
\nlevied against the Premises (as defined in the Loan Documents) that are past due
\nas of the Closing Date.<\/p>\n<\/p>\n<\/p>\n

f. Payment of Tax and Insurance Escrows<\/u>. On or before the Closing
\nDate, Borrower shall pay all Tax and Insurance Escrows, as defined in Section
\n5.2 of the Loan Agreement as modified by Section 3 below, which became due on or
\nbefore the Closing Date.<\/p>\n<\/p>\n<\/p>\n

g. No Event of Default<\/u>. No event of default, as that term is defined
\nin the Loan Documents, shall have occurred and be continuing under the terms of
\nany of the Loan Documents on the Effective Date;<\/p>\n<\/p>\n<\/p>\n

h. Expenses and Costs<\/u>. In addition to all amounts due to Trustee under
\nSection 15, Borrower shall have also paid all costs and expenses incurred by
\nBorrower, Trustee, Wells Fargo Bank National Association (“Master
\nServicer<\/strong>“), and Special Servicer in connection with the negotiation,
\npreparation, and execution of this Agreement, including but not limited to
\nattorney fees, appraisal fees, environmental fees, title insurance, UCC fees,
\nand recording fees. Borrower shall be obligated to pay these fees if Borrower
\nfails to close on this Agreement for any reason except upon the event that this
\nAgreement does not comply with the Pooling and Servicing Agreement or this
\nAgreement is not accepted by the delegated authorities.<\/p>\n<\/p>\n<\/p>\n

i. Representations and Warranties<\/u>. The representations and warranties
\nof the Borrower as set forth in Section 4 of this Agreement shall be true,
\naccurate and correct as of the Effective Date.<\/p>\n<\/p>\n<\/p>\n

3. Modification of the Loan Documents<\/u><\/strong>. Upon
\nsatisfaction of all the Conditions Precedent outlined herein, the Loan Documents
\nare hereby amended as follows:<\/p>\n<\/p>\n<\/p>\n

a. Extension of Maturity Date<\/u>: The Maturity Date set forth in the Loan
\nDocument is modified and extended to November 1, 2011 (“Modified
\nMaturity Date<\/strong>“).<\/p>\n<\/p>\n<\/p>\n

b. Option to Extend the Maturity Date<\/u>: Borrower is granted the option
\nto extend the Modified Maturity Date for an additional six months to May 1,
\n2012. To exercise this option, Borrower must notify Lender of its intent to
\nexercise the option no later than September 30, 2011. If Borrower elects to
\nexercise this option, Borrower must pay $25,000.00 (Twenty Five Thousand
\nDollars) (“Exercise Option Payment<\/strong>“) at such time the option is
\nexercised. The Exercise Option Payment shall be applied to outstanding principal
\nand accrued interest payments due under the terms of the Loan Documents.<\/p>\n<\/p>\n<\/p>\n

c. Extension Payment.<\/u> Borrower shall pay $24,714.76 to be paid in
\ninstallment payments as follows: $6,178.69 on March 1, 2011; $6,178.69 on April
\n1, 2011; $6,178.69 on May 1, 2011; and $6,178.69 on June 1, 2011
\n(“Extension<\/strong> Payments<\/strong>“). The Extension Payments
\nwill be deemed made as of Closing Date. Borrower153s failure to make any of the
\nExtension Payments when due shall be a default under this Agreement and under
\nthe Loan Documents.<\/p>\n<\/p>\n

3<\/p>\n

\n

\n

d. Monthly Payments<\/u>. This Agreement does not modify the principal or
\ninterest due under the Loan Documents. Borrower shall pay principal and interest
\npayments in accordance with the terms and schedule set forth in the Note and
\nLoan Documents.<\/p>\n<\/p>\n<\/p>\n

e. Continuation of Escrow and Reserve Payments<\/u>. This Agreement also
\ndoes not modify any escrow or reserve payments due under the Loan Documents
\nexcept that Section 5.2(A)(i) of the Loan Agreement is revised to read as
\nfollows: “one-twelfth of the annual estimated taxes and assessments assessed or
\nlevied against the Premises, and”. During all periods Borrower shall continue to
\npay any and all escrow and reserve payment contemplated in the Loan Documents
\nand this Agreement and shall continue to pay any other expenses related to the
\nProperty, including without limitation, real estate taxes, insurance,
\nmaintenance fees, improvements and all other expenses necessary to comply with
\nthe terms of the Mortgage, Loan Documents, and this Agreement.<\/p>\n<\/p>\n<\/p>\n

f. Default Rate Interest and Late Charges.<\/u> Subject to Borrower153s
\nstrict compliance with the terms and conditions set forth in this Agreement and
\nas long as no default under this Agreement or the Loan Documents has occurred,
\nTrustee agrees to refrain from exercising against Borrower any remedies
\navailable under the Loan Documents based on the default rate interest and late
\ncharge fees that are in due on the Closing Date (Default Rate Interest
\nand Late Charge<\/strong>“). Upon payment of the Note in full and Borrower153s
\nsatisfaction of all obligations under this Agreement and the Loan Documents, and
\nsubject to Borrower153s strict compliance with the terms and conditions set forth
\nin this Agreement and as long as no default under this Agreement or the Loan
\nDocuments has occurred, Trustee agrees to waive the Default Rate
\nInterest<\/strong> and Late Charges<\/strong>. If Borrower defaults under
\nthis Agreement or the Loan Documents, the Default Rate Interest and Late Charges
\nshall become immediately due and payable and Borrower153s failure to pay the
\nDefault Rate Interest and Late Charges shall be a default under this Agreement
\nand under the Loan Documents.<\/p>\n<\/p>\n<\/p>\n

4. Representations and Warranties of Borrower<\/u><\/strong>.
\nBorrower hereby represents and warrants, in addition to any other
\nrepresentations and warranties contained herein, in the Loan Documents or any
\nother document, writing or statement delivered or mailed to Trustee by Borrower
\nas follows:<\/p>\n<\/p>\n<\/p>\n

a. Borrower has taken all necessary and appropriate action for the approval
\nof this Agreement and the authorization of the execution, delivery and
\nperformance hereof.<\/p>\n<\/p>\n<\/p>\n

b. The execution, delivery and performance by Borrower of this Agreement and
\nall related Loan Documents are within the power of Borrower and have been duly
\nauthorized by all necessary action on the part of Borrower, do not require any
\napproval or consent, or the filing with any governmental agency or authority, do
\nnot violate any provisions of any law, rule or regulation or any provision of
\nany order, writ, judgment, injunction, decree, determination or award presently
\nin effect in which Borrower is named or any provision of the charter or
\norganizational documents of Borrower, and do not result in a breach of or
\nconstitute a default under any agreements or instruments to which Borrower is a
\nparty or by which it or any of their properties are bound.<\/p>\n<\/p>\n

4<\/p>\n

\n

\n

c. Borrower acknowledges, represents and warrants that it is justly indebted
\nto Trustee in the principal amount of $1,957,994.51, as set forth in the Loan
\nDocuments and this Agreement, as of January 30, 2011 and that the recitals are
\ntrue and correct.<\/p>\n<\/p>\n

d. Borrower acknowledges that Trustee shall have no obligation to make any
\nloans or advances under the Loan Documents unless expressly provided for in this
\nAgreement.<\/p>\n<\/p>\n

e. Borrower represents and warrants that the Collateral of Borrower is free
\nand clear of any and all liens, charges and encumbrances except for the liens
\nand security interests granted to Trustee pursuant to the Loan Documents.<\/p>\n<\/p>\n

f. To its knowledge, as of the Effective Date, the Property is in compliance
\nin all respect with all local, state and federal laws, ordinances, rules and
\nregulations of any governmental authority applicable to Borrower or the
\nProperty.<\/p>\n<\/p>\n

g. As of the Effective Date, Borrower acknowledges that Trustee has duly
\nperformed all of its obligations under the Loan Documents.<\/p>\n<\/p>\n

h. To its knowledge, except as specifically amended herein, all
\nrepresentations, warranties and other assertions of fact contained in the Loan
\nDocuments continue to be true, accurate and complete.<\/p>\n<\/p>\n

5. Continuing Forbearance<\/u><\/strong>. Subject to Section 6
\nbelow, the Trustee shall forbear from exercising its rights and remedies under
\nthe Loan Documents or applicable law until the earlier of: (i) the Modified
\nMaturity Date, (ii) failure by the Borrower to perform its obligations under
\nthis Agreement, or (iii) the occurrence of any default under the Loan Documents,
\nother than those existing and known to the Trustee on the date of this
\nAgreement.<\/p>\n<\/p>\n

6. Default<\/u><\/strong>. Subject to notice and cure rights as set
\nforth in the Loan Documents, in the event of an occurrence of any default under
\nthis Agreement or the Loan Documents, including without limitation, the
\nBorrower153s failure to make any payment to Trustee (i) in accordance with
\nSections 2 or 3 herein or (ii) due and payable on the applicable payment date as
\nset forth in the payment schedule set forth in the Loan Documents, the Trustee
\nshall have the right but not the obligation to foreclose on the Property. Upon
\nnotice by Trustee to Borrower of Trustee153s desire to foreclose on the Property,
\nthe Borrower agrees to execute and enter into voluntary foreclosure agreements,
\nor deeds in lieu of foreclosure and any documents associated with deeds in lieu
\nof foreclosure with Trustee for all mortgages executed by of the Borrower in
\nfavor of Trustee, regardless of whether such mortgages are set forth in the
\nrecitals of this Agreement. The Borrower agrees that the type of agreement,
\nwhether it be a voluntary foreclosure agreement or a deed in lieu of
\nforeclosure, as well as the date such agreement shall be executed, shall be
\ndetermined by Trustee in its sole discretion. The Borrower hereby agrees to
\nfully cooperate with respect to entering into and effectuating the agreements
\nand foreclosures chosen by Trustee and to promptly do all acts and things and
\nexecute all documents, including, but not limited to a power of attorney in
\nfavor of Trustee, that may be required, in Trustee153s sole discretion, to
\nvoluntarily foreclose on the Property in Borrower153s name.<\/p>\n<\/p>\n<\/p>\n

5<\/p>\n

\n

\n

7. Continuing Effect<\/u><\/strong>. The Loan Documents, with the
\nterms of this Agreement, constitute the entire agreement between the parties as
\nto the transaction contemplated by this Agreement and the Loan Documents and
\nshall continue in full force and effect. Trustee and Borrower agree and
\nacknowledge that this Agreement shall comprise a modification of the Loan
\nDocuments executed in compliance with the provisions of the Loan Documents only
\nin the event that the Conditions Precedent set forth in Section 2 of this
\nAgreement are fully satisfied. Borrower hereby renews and extends the lien of
\nthe Mortgage until all obligations evidenced by the Note or secured by the
\nMortgage, have been paid or performed in full. All other terms, conditions,
\nprovisions, representations and warranties set forth in the Loan Documents not
\nspecifically modified hereby shall remain unchanged and the liability thereunder
\nand the continued enforceability of the Loan Documents is hereby acknowledged,
\nconfirmed and ratified by Borrower. This Agreement shall, wherever possible, be
\nconstrued in a manner consistent with the Loan Documents; provided, however, in
\nthe event of any irreconcilable inconsistency between the terms of this
\nAgreement and the terms of the Loan Documents, the terms of this Agreement shall
\ncontrol.<\/p>\n<\/p>\n<\/p>\n

8. Affirmative Covenants<\/u><\/strong>. By entering into this
\nAgreement, Borrower further undertakes to comply with the obligations, terms and
\ncovenants as contained in this Agreement and the Loan Documents. Additionally,
\nBorrower covenants that this Agreement constitutes a legal, valid and binding
\nobligation of Borrower, enforceable against Borrower in accordance with its
\nterms.<\/p>\n<\/p>\n<\/p>\n

9. Waiver<\/u><\/strong>. No provision hereof shall constitute a
\nwaiver by Trustee of any of the terms or conditions of the Loan Documents other
\nthan those terms or conditions expressly modified herein. Borrower hereby
\nrepresents, warrants, covenants and agrees that there exists no offsets,
\ncounterclaims or defenses to payment or performance of the obligations set forth
\nin the Loan Documents and, in consideration hereof, expressly waives any and all
\nsuch offsets, counterclaims and defenses arising out of any alleged acts,
\ntransactions or omissions on the part of Trustee on or prior to the Effective
\nDate hereof.<\/p>\n<\/p>\n<\/p>\n

10. Release of Claims<\/u><\/strong>. Borrower, and any guarantors
\nand other obligors, on behalf of themselves and their respective successors and
\nassigns (collectively and individually, “Borrower Parties<\/strong>“),
\nhereby fully, finally and completely RELEASE AND FOREVER DISCHARGE Lender,
\nTrustee, Master Servicer, Special Servicer and their respective servicers,
\nsuccessors, assigns, affiliates, subsidiaries, parents, officers, shareholders,
\ndirectors, employees, attorneys, agents and properties, past, present and
\nfuture, and their respective heirs, successors and assigns (collectively and
\nindividually, “Trustee Parties<\/strong>“), of and from any and all
\nclaims, controversies, disputes, liabilities, obligations, demands, damages,
\ndebts, liens, actions and causes of action of any and every nature whatsoever,
\nknown or unknown, whether at law, by statute or in equity, in contract or in
\ntort, under state or federal jurisdiction, and whether or not the economic
\neffects of such alleged matters arise or are discovered in the future, which
\nBorrower Parties have as of the Effective Date or may claim to have against
\nTrustee Parties arising out of or with respect to any and all transactions
\nrelating to the Loan or the Loan Documents occurring on or before the Effective
\nDate, including any loss, cost or damage of any kind or character arising out of
\nor in any way connected with or in any way resulting from the acts, actions or
\nomissions of Trustee Parties occurring on or before the Effective Date. The
\nforegoing release is intended to be, and is, a full, complete and general
\nrelease in favor of Trustee Parties with respect to all claims, demands,
\nactions, causes of action and other matters described therein, including
\nspecifically, without limitation, any claims, demands or causes of action based
\nupon allegations of breach of fiduciary duty, breach of any alleged duty of fair
\ndealing in good faith, economic coercion, usury, or any other theory, cause of
\naction, occurrence, matter or thing which might result in liability upon Trustee
\nParties, arising or occurring on or before the Effective Date. Notwithstanding
\nthe generality of the foregoing, the release delivered herein shall exclude any
\nand all claims, controversies, disputes, liabilities, obligations, demands,
\ndamages, debts, liens, actions and causes of action resulting solely from the
\nfraudulent or intentional wrongful acts of the Trustee Parties. Borrower Parties
\nunderstand and agree that the foregoing general release is in consideration for
\nthe agreements of Trustee contained herein and that they will receive no further
\nconsideration for such release.<\/p>\n<\/p>\n<\/p>\n

6<\/p>\n

\n

\n

11. Bankruptcy<\/u><\/strong>. Any other provision of this Agreement
\nnotwithstanding, the terms of the modification herein are expressly conditioned
\nupon Trustee153s never having any payments under the Loan Documents recovered,
\navoided or set aside pursuant to any provision of the United States Bankruptcy
\nCode or any non-bankruptcy preference, fraudulent conveyance or fraudulent
\ntransfer avoidance or recovery statute. In the event that any payments from
\nBorrower are ever recovered, avoided or set aside as aforesaid, the modification
\nunder the Loan Documents provided for herein shall be automatically void and of
\nno further force or effect whatsoever, and Trustee shall, thereupon, be entitled
\nto exercise all of the Trustee153s rights and remedies under the Loan Documents.
\nIn addition, any costs or expenses incurred by Trustee in defending its right to
\nenforce the terms of the Loan Documents in effect without the modification
\nherein, shall automatically be added to the Loan. This Section 11 shall survive
\nthe expiration or termination of this Agreement. Notwithstanding the foregoing,
\nin the event only a portion of the payments made by Borrower is recovered,
\navoided or set aside, then Trustee shall be entitled to retain the remainder of
\nthe payments not so recovered, avoided or set aside, and apply said sum to the
\namount due under the Loan Documents.<\/p>\n<\/p>\n<\/p>\n

12. Usury Savings Clause<\/u><\/strong>. Notwithstanding anything to
\nthe contrary contained elsewhere in this Agreement, Borrower and Trustee hereby
\nagree that all agreements between them under this Agreement and with respect to
\nthe Loan, whether now existing or hereafter arising and whether written or oral,
\nare expressly limited so that in no contingency or event whatsoever shall the
\namount paid, or agreed to be paid, to Trustee for the use, forbearance, or
\ndetention of the money loaned to Borrower, or for the performance or payment of
\nany covenant or obligation contained herein or therein, exceed the maximum rate
\nof interest under applicable law (“Maximum Rate<\/strong>“). If from any
\ncircumstance whatsoever, fulfillment of any provisions of this Agreement at the
\ntime performance of such provisions shall be due shall involve transcending the
\nlimit of validity prescribed by law, then, automatically, the obligation to be
\nfulfilled shall be reduced to the limit of such validity, and if from any such
\ncircumstance Trustee should ever receive anything of value deemed interest by
\napplicable law which would exceed the Maximum Rate, such excessive interest
\nshall be applied to the reduction of the principal amount owing with respect to
\nthe Loan or on account of the other indebtedness secured by the Loan Documents
\nand not to the payment of interest, or if such excessive interest exceeds the
\nunpaid principal balance of the Loan and such other indebtedness, such excess
\nshall be refunded to Borrower. All sums paid or agreed to be paid to Trustee for
\nthe use, forbearance, or detention of the Loan and other indebtedness of
\nBorrower to Trustee shall, to the extent permitted by applicable law, be
\namortized, prorated, allocated and spread throughout the full term of such
\nindebtedness until payment in full so that the actual rate of interest on
\naccount of all such indebtedness is uniform throughout the actual term of the
\nLoan or does not exceed the Maximum Rate throughout the entire term of the Loan,
\nas appropriate. The terms and provisions of this Section 12 shall control every
\nother provision of this Agreement and all other agreements between Borrower and
\nTrustee.<\/p>\n<\/p>\n<\/p>\n

7<\/p>\n

\n

\n

13. Further Assurance<\/u><\/strong>. Borrower agrees to execute
\nfrom time to time such instruments, documents, or agreements as requested by
\nTrustee to create, perfect, or protect Trustee153s liens and security interests
\nreferred to herein and any other liens and security interests of Trustee or in
\norder to carry out the transactions contemplated by this Agreement or any other
\nagreement of Borrower with Trustee.<\/p>\n<\/p>\n<\/p>\n

14. Expenses and Costs<\/u><\/strong>. Borrower shall be responsible
\nfor the payment of all fees and out-of-pocket disbursements incurred by Trustee
\nin any way arising from or in connection with this Agreement, the Loan
\nDocuments, and\/or the obligations, including, without limitation:<\/p>\n<\/p>\n<\/p>\n

a. the fees of legal counsel for Trustee for the preparation, examination and
\napproval of this Agreement and all documents in connection with this Agreement,
\nand such fees and costs shall be paid on or before the Closing Date; and<\/p>\n<\/p>\n<\/p>\n

b. all fees and out-of-pocket disbursements incurred by Trustee, including
\nreasonable attorneys153 fees and appraisal fees, in any way arising from or in
\nconnection with any action taken by Trustee, to monitor, advise, enforce or
\ncollect the payments under the Loan Documents or enforce any other obligations
\nof Borrower under this Agreement, the Loan Documents, or any other document or
\nagreement arising from or relating to the business relationship between Trustee
\nand Borrower or otherwise securing any obligations to Trustee, including,
\nwithout limitations, any actions to lift the automatic stay or to otherwise in
\nany way participate in any bankruptcy, reorganization or insolvency proceeding
\nof Borrower any actions in relation to or in defense of any litigation
\ninstituted by Borrower, or any third-party against Trustee arising from or
\nrelating to this Agreement, the Loan Documents, or the business relationship
\nbetween Borrower and Trustee, including any so-called “lender liability”
\nactions.<\/p>\n<\/p>\n

8<\/p>\n

\n

\n

15. Miscellaneous Terms<\/u><\/strong>.<\/p>\n<\/p>\n<\/p>\n

a. Amendment<\/u>. This Agreement may not be modified in any manner, except
\nby written agreement signed by all parties hereto. This Agreement shall bind all
\nof the parties hereto and their respective heirs, personal representatives,
\nsuccessors, and assigns.<\/p>\n<\/p>\n<\/p>\n

b. Interpretation<\/u>. Wherever possible, each provision of this Agreement
\nshall be interpreted in such a manner as to be effective and valid under
\napplicable law, but if any provision of this Agreement shall be prohibited by or
\ninvalid under applicable law, such provision shall be ineffective to the extent
\nof such prohibition or invalidity, without invalidating the remainder of such
\nprovisions of this Agreement.<\/p>\n<\/p>\n<\/p>\n

c. Entire Agreement<\/u>. This Agreement constitutes the entire agreement
\nand understanding between the parties with respect to the subject matter hereof.
\nThis Agreement supersedes all previous and contemporaneous negotiations,
\ncommitments, understandings and agreements between the parties which shall
\nsurvive the execution and delivery of this Agreement. No parole evidence shall
\nbe permitted to contradict or vary the terms hereof.<\/p>\n<\/p>\n<\/p>\n

d. Counterparts<\/u>. This Agreement may be executed in any number of
\ncounterparts, each of which shall be an original and all of which taken together
\nshall constitute the same agreement. Any counterpart may be delivered as a
\nfacsimile transmission which shall be considered an original signature.<\/p>\n<\/p>\n<\/p>\n

e. Headings<\/u>. The headings of the various paragraphs and sections in
\nthis Agreement are for convenience of reference only and shall not be deemed to
\nmodify or restrict the terms or provisions hereof. This Agreement shall not be
\nconstrued more strictly against Trustee merely by virtue of the fact that the
\nsame has been prepared by Trustee or its counsel, it being recognized that
\nBorrower and Trustee have contributed substantially and materially to the
\npreparation of this Agreement, and each of Borrower and Trustee waives any claim
\ncontesting the existence and the adequacy of the consideration given by any of
\nthe other parties hereto in entering into this Agreement.<\/p>\n<\/p>\n<\/p>\n

f. Right to Counsel<\/u>. Borrower acknowledges that it has had full
\nbenefit and advice of counsel of its own selection, or the opportunity to obtain
\nthe benefit and advice of counsel of its own selection, in regard to
\nunderstanding the terms, meaning and effect of this Agreement, and that this
\nAgreement has been entered into by Borrower freely, voluntarily, with full
\nknowledge, and without duress, and that in executing this Agreement, Borrower is
\nrelying on no other representations, either written or oral, express or implied,
\nmade to it by any other party hereto, and that the consideration hereunder
\nreceived has been actual and adequate.<\/p>\n<\/p>\n<\/p>\n

g. Governing Law<\/u>. The terms and conditions of this Agreement shall be
\ngoverned by and construed in accordance with the laws of the State of Minnesota
\nand the applicable laws of the United States.<\/p>\n<\/p>\n

9<\/p>\n

\n

\n

h. Waiver of Jury Trial<\/u><\/strong>. Borrower hereby
\nagrees not to elect a trial by jury of any issue triable of right by jury, and
\nwaives any right to trail by jury fully to the extent that any such right shall
\nnow or hereafter exist with regard to this Agreement or the Loan Documents, or
\nany claim, counterclaim or other action arising in connection therewith. This
\nwaiver of right to trial by jury is given knowingly and voluntarily by Borrower,
\nand is intended to encompass individually each instance and each issue as to
\nwhich right to trail by jury would otherwise accrue. Trustee is hereby
\nauthorized to file a copy of this Section in any proceeding as conclusive
\nevidence of this waiver by Borrower<\/strong>.<\/p>\n<\/p>\n<\/p>\n<\/p>\n<\/p>\n

[Signature Pages Follow]<\/p>\n

\n<\/p>\n

10<\/p>\n

\n

\n

IN WITNESS WHEREOF<\/strong>, the parties hereto have executed and
\ndelivered this Loan Modification Agreement to be effective as of the day and
\nyear first above written.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

TRUSTEE<\/u><\/strong>:<\/strong><\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL
\nASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF MORGAN STANLEY DEAN WITTER
\nCAPITAL I, INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001 TOP1\n<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

By:<\/p>\n<\/td>\n

\n

Berkadia Commercial Mortgage LLC<\/p>\n

a Delaware corporation<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Its:<\/p>\n<\/td>\n

\n

Special Servicer<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

By: ___________________________________________<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Name: _________________________________________<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Its: ___________________________________________<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

STATE OF TEXAS )<\/p>\n<\/p>\n

) ss.<\/p>\n<\/p>\n

COUNTY OF DALLAS )<\/p>\n<\/p>\n<\/p>\n

The foregoing instrument was acknowledged before me this ______ day of
\n_______, 2011, by _________________, as ___________________ of Berkadia
\nCommercial Mortgage LLC, a limited liability company duly organized and existing
\nunder the laws of the State of Delaware, on behalf of said limited liability
\ncompany<\/p>\n<\/p>\n<\/p>\n

____________________________<\/p>\n<\/p>\n

Notary Public<\/p>\n<\/p>\n

Printed Name: _________________<\/p>\n<\/p>\n

My Commission Expires:<\/p>\n<\/p>\n

_____________________<\/p>\n<\/p>\n<\/p>\n

11<\/p>\n

\n

\n

IN WITNESS WHEREOF<\/strong>, the parties hereto have executed and
\ndelivered this Loan Modification Agreement to be effective as of the day and
\nyear first above written.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

BORROWER<\/u><\/strong>:<\/strong><\/p>\n

DIGITAL ANGEL HOLDINGS, LLC<\/p>\n

a Minnesota limited liability company<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

STATE OF ___________________<\/p>\n<\/td>\n

\n

)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n\n

)<\/p>\n<\/td>\n

\n

ss.<\/p>\n<\/td>\n<\/tr>\n

\n

COUNTY OF __________________<\/p>\n<\/td>\n

\n

)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

The foregoing instrument was acknowledged before me this ________ day of
\n______, 2011, by ___________________, _______________ of DIGITAL ANGEL HOLDINGS,
\nLLC, a Minnesota limited liability company, on behalf of said limited liability
\ncompany.<\/p>\n<\/p>\n

_____________________________<\/p>\n<\/p>\n

Notary Public<\/p>\n<\/p>\n

Printed Name: _________________<\/p>\n<\/p>\n

My Commission Expires:<\/p>\n<\/p>\n

_____________________<\/p>\n<\/p>\n<\/p>\n

12<\/p>\n

\n

\n

The undersigned Guarantor DIGITAL ANGEL CORPORATION f\/k\/a APPLIED DIGITAL
\nSOLUTIONS, INC. (“Guarantor<\/strong>“) under a Guaranty dated October
\n30, 2000, by and between Principal Life Insurance Company (and its successors
\nand assigns) and Applied Digital Solutions, Inc., a Delaware Corporation, joins
\nin the execution of this Loan Modification Agreement for the purposes of
\nacknowledging his agreement and consent to the terms and conditions hereof and
\nagreeing and confirming that the execution and delivery hereof shall in no way
\nextinguish release, modify, reduce, impair, terminate or adversely affect any of
\nthe obligations or liabilities of the undersigned under the terms of its
\nGuaranty except to the extent provided for in this Loan Modification Agreement.
\nGuarantor further acknowledges that it changed its legal name from Applied
\nDigital Solutions, Inc. to Digital Angel Corporation on June 20, 2008 by filing
\na Certificate of Amendment of Certificate of Incorporation of Applied Digital
\nSolutions, Inc. with the Delaware Secretary of State.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

GUARANTOR<\/u><\/strong>:<\/strong><\/p>\n

DIGITAL ANGEL CORPORATION,<\/p>\n

a Delaware Corporation<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

STATE OF ___________________<\/p>\n<\/td>\n

\n

)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n\n

)<\/p>\n<\/td>\n

\n

ss.<\/p>\n<\/td>\n<\/tr>\n

\n

COUNTY OF __________________<\/p>\n<\/td>\n

\n

)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

The foregoing instrument was acknowledged before me this _____ day of
\n___________, 2011, by _____________________.<\/p>\n<\/p>\n

_____________________________<\/p>\n<\/p>\n

Notary Public<\/p>\n<\/p>\n

Printed Name: _________________<\/p>\n<\/p>\n

My Commission Expires: _____________________<\/p>\n<\/p>\n

TRUSTEE IS NOT REQUIRED TO HAVE GUARANTOR JOIN IN THE EXECUTION OF
\nTHIS AGREEMENT. PURSUANT TO THE TERMS OF THE GUARANTY, GUARANTOR EXPRESSLY
\nCONSENTED AND AGREED TO ANY ALTERATION OF THE LOAN DOCUMENTS. GUARANTOR ALSO
\nEXPRESSLY WAIVED HIS RIGHT TO NOTICE OF THIS AGREEMENT UNDER THE GUARANTY.
\nTRUSTEE IS IN NO WAY WAIVING ANY RIGHT PROVIDED FOR UNDER THE GUARANTY OR
\nASSUMING ANY RESPONSIBILITY TO PROVIDE NOTICE IN THE FUTURE BEYOND WHAT IS
\nPROVIDED FOR IN THE GUARANTY. THIS CONSENT DOES NOT IN ANY WAY RELEASE OR
\nCONSTITUTE AN ACCORD AND SATISFACTION OR NOVATION OF THE GUARANTY.<\/strong><\/p>\n<\/p>\n

13<\/p>\n

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