SECOND BUSINESS FINANCING MODIFICATION AGREEMENT
Exhibit 10.62
This
Second Business Financing Modification Agreement (this
“Agreement”) is entered into as of March 12, 2017, by
and among CHROMADEX CORPORATION, a Delaware corporation, CHROMADEX,
INC., a California corporation, CHROMADEX ANALYTICS, INC., a Nevada
corporation, (each, a “Borrower” and collectively,
“Borrowers”) and WESTERN ALLIANCE BANK, an Arizona
corporation (“Lender”).
1. DESCRIPTION OF EXISTING
INDEBTEDNESS: Among other indebtedness which may be owing by
Borrowers to Lender, Borrowers are indebted to Lender pursuant to,
among other documents, a Business Financing Agreement, dated
November 4, 2016, by and among Borrowers and Lender, as may be
amended from time to time, including by that certain First Business
Financing Modification Agreement dated as of February 16, 2017 (the
“Business Financing Agreement”). Capitalized terms used
without definition herein shall have the meanings assigned to them
in the Business Financing Agreement.
Hereinafter, all
indebtedness owing by Borrowers to Lender under the Existing
Documents (defined herein) shall be referred to as the
“Indebtedness” and the Business Financing Agreement and
any and all other documents executed by Borrowers in favor of
Lender in connection therewith shall be referred to as the
“Existing Documents.”
2. ACKNOWLEDGMENT OF DEFAULT.
Borrower hereby acknowledges that it is currently in default under
the Business Financing Agreement due to Borrower’s failure to
maintain the minimum EBDAS as required by Section 4.12(b) of the
Business Financing Agreement for the measuring period ended
December 31, 2016 (the “Existing
Default”).
3. WAIVER OF EXISTING DEFAULT. On
the date of this Agreement, Lender hereby waives the Existing
Default under Section 4.12(b). Nothing contained herein shall
constitute or effect a continuing waiver or a course of conduct
waiving these or any other provision of the Business Financing
Agreement.
4. CONSENT TO ACQUISITION OF
HEALTHSPAN. Notwithstanding anything in the Business
Financing Agreement to the contrary, so long as (i) Healthspan (as
defined below) is added as a Borrower under the Business Financing
Agreement within thirty (30) days of the closing of the Healthspan
Acquisition (as defined below), and (ii) the maximum amount of cash
consideration paid by the Borrowers in connection with the
Healthspan Acquisition does not exceed $135,500, Lender hereby
consents to Borrowers’ acquisition of Healthspan Research,
LLC a Delaware limited liability company (“Healthspan”)
on the terms and subject to the conditions set forth in that
certain Membership Interest Purchase Agreement (the
“Acquisition Agreement”) by and among ChromaDex
Corporation, Xxxxxx X. Xxxxx, Dr. Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxx
in substantially the form attached hereto as Exhibit A
(the “Healthspan Acquisition”). Lender hereby further
acknowledges and agrees that so long as the Acquisition Agreement
is not materially altered between the date of this Agreement and
the closing of the Healthspan Acquisition, no Event of Default
shall occur under the Existing Documents in connection with the
Healthspan Acquisition; provided that it shall be an immediate and
non-curable Event of Default under the Business Financing Agreement
if Healthspan is not joined as a Borrower to the Business Financing
Agreement within thirty (30) days of the closing of the Healthspan
Acquisition.
5. CONSISTENT CHANGES. The
Existing Documents are each hereby amended wherever necessary to
reflect the changes described above.
6. PAYMENT OF DOCUMENTATION FEE.
Borrowers shall pay Lender all out-of-pocket expenses (including
but not limited to legal fees and due diligence fees (if any))
incurred by Lender in connection with the execution of this
Agreement.
7. NO DEFENSES OF BORROWERS/GENERAL
RELEASE. Each Borrower agrees that, as of this date, it has
no defenses against the obligations to pay any amounts under the
Indebtedness. Each Borrower (each, a “Releasing Party”)
acknowledges that Lender would not enter into this Agreement
without Releasing Party’s assurance that it has no claims
against Lender or any of Lender’s officers, directors,
employees or agents. Except for the obligations arising hereafter
under this Agreement, each Releasing Party releases Lender, and
each of Lender’s and entity’s officers, directors and
employees from any known or unknown claims that Releasing Party now
has against Lender of any nature, including any claims that
Releasing Party, its successors, counsel, and advisors may in the
future discover they would have now had if they had known facts not
now known to them, whether founded in contract, in tort or pursuant
to any other theory of liability, including but not limited to any
claims arising out of or related to the Agreement or the
transactions contemplated thereby. Releasing Party waives the
provisions of California Civil Code section 1542, which
states:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
The
provisions, waivers and releases set forth in this section are
binding upon each Releasing Party and its shareholders, agents,
employees, assigns and successors in interest. The provisions,
waivers and releases of this section shall inure to the benefit of
Lender and its agents, employees, officers, directors, assigns and
successors in interest. The provisions of this section shall
survive payment in full of the Obligations, full performance of all
the terms of this Agreement and the Business Financing Agreement,
and/or Lender’s actions to exercise any remedy available
under the Business Financing Agreement or otherwise.
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8. CONTINUING VALIDITY. Borrowers
understand and agree that in modifying the existing Indebtedness,
Lender is relying upon Borrowers’ representations,
warranties, and agreements, as set forth in the Existing Documents.
Except as expressly modified pursuant to this Agreement, the terms
of the Existing Documents remain unchanged and in full force and
effect. Lender’s agreement to modifications to the existing
Indebtedness pursuant to this Agreement in no way shall obligate
Lender to make any future modifications to the Indebtedness.
Nothing in this Agreement shall constitute a satisfaction of the
Indebtedness. It is the intention of Lender and Borrowers to retain
as liable parties all makers and endorsers of Existing Documents,
unless the party is expressly released by Lender in writing. No
maker, endorser, or guarantor will be released by virtue of this
Agreement except in accordance with the terms of this Agreement.
The terms of this paragraph apply not only to this Agreement, but
also to any subsequent Business Financing modification
agreements.
9. REFERENCE
PROVISION.
A. In the event the
Jury Trial waiver is not enforceable, the parties elect to proceed
under this Judicial Reference Provision.
B. With the exception
of the items specified in Section 8(c) below, any controversy,
dispute or claim (each, a “Claim”) between the parties
arising out of or relating to this Agreement or any other document,
instrument or agreement between the undersigned parties
(collectively in this Section, the “Loan Documents”),
will be resolved by a reference proceeding in California in
accordance with the provisions of Sections 638 et seq. of the
California Code of Civil Procedure (“CCP”), or their
successor sections, which shall constitute the exclusive remedy for
the resolution of any Claim, including whether the Claim is subject
to the reference proceeding. Except as otherwise provided in the
Loan Documents, venue for the reference proceeding will be in the
state or federal court in the county or district where the real
property involved in the action, if any, is located or in the state
or federal court in the county or district where venue is otherwise
appropriate under applicable law (the
“Court”).
C. The matters that
shall not be subject to a reference are the following: (i)
nonjudicial foreclosure of any security interests in real or
personal property, (ii) exercise of self-help remedies (including,
without limitation, set-off), (iii) appointment of a receiver and
(iv) temporary, provisional or ancillary remedies (including,
without limitation, writs of attachment, writs of possession,
temporary restraining orders or preliminary injunctions). This
reference provision does not limit the right of any party to
exercise or oppose any of the rights and remedies described in
clauses (i) and (ii) or to seek or oppose from a court of competent
jurisdiction any of the items described in clauses (iii) and (iv).
The exercise of, or opposition to, any of those items does not
waive the right of any party to a reference pursuant to this
reference provision as provided herein.
D. The referee shall
be a retired judge or justice selected by mutual written agreement
of the parties. If the parties do not agree within ten (10) days of
a written request to do so by any party, then, upon request of any
party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of
a referee may be heard on an ex parte or expedited basis, and the
parties agree that irreparable harm would result if ex parte relief
is not granted. Pursuant to CCP § 170.6, each party shall have
one peremptory challenge to the referee selected by the Presiding
Judge of the Court (or his or her representative).
E. The parties agree
that time is of the essence in conducting the reference
proceedings. Accordingly, the referee shall be requested, subject
to change in the time periods specified herein for good cause
shown, to (i) set the matter for a status and trial-setting
conference within fifteen (15) days after the date of selection of
the referee, (ii) if practicable, try all issues of law or fact
within one hundred twenty (120) days after the date of the
conference and (iii) report a statement of decision within twenty
(20) days after the matter has been submitted for
decision.
F. The referee will
have power to expand or limit the amount and duration of discovery.
The referee may set or extend discovery deadlines or cutoffs for
good cause, including a party’s failure to provide requested
discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to
“priority” in conducting discovery, depositions may be
taken by either party upon seven (7) days written notice, and all
other discovery shall be responded to within fifteen (15) days
after service. All disputes relating to discovery which cannot be
resolved by the parties shall be submitted to the referee whose
decision shall be final and binding.
G. Except as expressly
set forth herein, the referee shall determine the manner in which
the reference proceeding is conducted including the time and place
of hearings, the order of presentation of evidence, and all other
questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the
referee, except for trial, shall be conducted without a court
reporter, except that when any party so requests, a court reporter
will be used at any hearing conducted before the referee, and the
referee will be provided a courtesy copy of the transcript. The
party making such a request shall have the obligation to arrange
for and pay the court reporter. Subject to the referee’s
power to award costs to the prevailing party, the parties will
equally share the cost of the referee and the court reporter at
trial.
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H. The referee shall
be required to determine all issues in accordance with existing
case law and the statutory laws of the State of California. The
rules of evidence applicable to proceedings at law in the State of
California will be applicable to the reference proceeding. The
referee shall be empowered to enter equitable as well as legal
relief, enter equitable orders that will be binding on the parties
and rule on any motion which would be authorized in a court
proceeding, including without limitation motions for summary
judgment or summary adjudication. The referee shall issue a
decision at the close of the reference proceeding which disposes of
all claims of the parties that are the subject of the reference.
Pursuant to CCP § 644, such decision shall be entered by the
Court as a judgment or an order in the same manner as if the action
had been tried by the Court and any such decision will be final,
binding and conclusive. The parties reserve the right to appeal
from the final judgment or order or from any appealable decision or
order entered by the referee. The parties reserve the right to
findings of fact, conclusions of laws, a written statement of
decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference
proceeding under this provision.
I. If the enabling
legislation which provides for appointment of a referee is repealed
(and no successor statute is enacted), any dispute between the
parties that would otherwise be determined by reference procedure
will be resolved and determined by arbitration. The arbitration
will be conducted by a retired judge or justice, in accordance with
the California Arbitration Act §1280 through §1294.2 of
the CCP as amended from time to time. The limitations with respect
to discovery set forth above shall apply to any such arbitration
proceeding.
J. THE PARTIES
RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS
RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A
REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE
OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE,
EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF
ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY
CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF
OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
10. CONDITIONS. The effectiveness
of this Agreement is conditioned upon Lender’s receipt of (i)
updated Corporate Resolutions to Borrow from each Borrower and (ii)
payment of all expenses incurred by Lender in connection with the
execution hereof.
11. NOTICE OF FINAL AGREEMENT. BY
SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A)
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES, AND (C) THIS WRITTEN AGREEMENT MAY NOT BE CONTRADICTED BY
EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
12. COUNTERSIGNATURE. This
Agreement shall become effective only when executed by Lender and
Borrowers.
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IN
WITNESS WHEREOF, Borrowers and Lender have executed this Agreement
on the date and year above written.
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BORROWERS:
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CHROMADEX CORPORATION, a Delaware corporation
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By:
/s/ Xxxxxx X.
Xxxxxxx
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Name:
Xxxxxx X.
Xxxxxxx
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Title:
Chief Financial
Officer
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CHROMADEX, INC., a California corporation
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By:
/s/ Xxxxxx X.
Xxxxxxx
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Name:
Xxxxxx X.
Xxxxxxx
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Title:
Chief Financial
Officer
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CHROMADEX ANALYTICS, INC., a Nevada
corporation
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By:
/s/ Xxxxxx X.
Xxxxxxx
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Name:
Xxxxxx X.
Xxxxxxx
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Title:
Chief Financial Officer
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[Signatures continued on the next
page]
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IN
WITNESS WHEREOF, Borrowers and Lender have executed this Agreement
on the date and year above written.
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LENDER:
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WESTERN ALLIANCE BANK, an Arizona
corporation
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By:
/s/ Xxxxxx
Xxxxx
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Name:
Xxxxxx
Xxxxx
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Title:
Vice
President
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Exhibit A
MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit
Omitted
A-1
