Fifth Modification Agreement
Exhibit 10.1
Fifth Modification Agreement
This
Fifth Modification Agreement (this
“Agreement”) is
entered into as of June 21, 2019 and made effective as of May 31,
2019, among Dynatronics
Corporation, a Utah corporation (“Dynatronics”),
▇▇▇▇▇▇▇▇ Enterprises,
LLC, a Utah limited liability company (“Enterprises”), and
Bird & ▇▇▇▇▇▇,
LLC, a Utah limited liability company (“Bird,” and together with
Dynatronics and Enterprises, individually and collectively, jointly
and severally, “Borrower”), and
Bank of the West, a
California banking corporation (“Lender”).
Whereas, Lender has extended
credit to Borrower pursuant to a Loan and Security Agreement dated
as of March 31, 2017 among Borrower and Lender (as previously
amended, modified or supplemented, including, without limitation,
as modified by the Modification Agreement dated as of September 28,
2017, as further modified by the Modification Agreement dated as of
February 16, 2018, as further modified by the Waiver and
Modification Agreement dated as of July 13, 2018, and as further
modified by the Modification Agreement dated as of November 9,
2018, the “Loan
Agreement”);
Whereas, pursuant to the Loan
Agreement and the other Loan Documents, Borrower granted Lender a
first priority security interest in and lien on the
Collateral;
Whereas, Borrower has requested
Lender to modify the Loan Agreement in certain respects;
and
Whereas, Lender has agreed to
modify the Loan Agreement in certain respects in accordance with
the terms of this Agreement;
Now Therefore, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender and Borrower mutually agree as
follows:
Section 1. Modification Agreement.
Section
1.1. Recitals and
Representations Accurate. The above recitals are hereby made
a part of this Agreement and Borrower acknowledges and agrees that
each of the recitals is true and correct. Terms used but not
defined in this Agreement have the meanings given to them in the
Loan Agreement.
Section
1.2. Ratification. All of the terms,
covenants, provisions, representations, warranties, and conditions
of the Loan Documents, as amended or modified hereby, are ratified,
acknowledged, confirmed, and continued in full force and effect as
if fully restated herein.
Section
1.3. Collateral. Borrower confirms and
ratifies its continuing mortgage, pledge, assignment, and/or grant
of security interest in and lien on the Collateral to and in favor
of Lender as set forth in the Loan Documents.
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Section
1.4. Amendments to
Definitions.
(a) Sections
2.1(c) (“Adjusted EBITDA”), 2.1(i) (“Borrowing Base”), and 2.1(rr) (“Liabilities”) of the Loan Agreement are
hereby amended and restated in their entirety to read as
follows:
(c) “Adjusted
EBITDA” means,
as of any date of calculation and for any period, without
duplication, Net Income for such period plus the sum of all amounts
deducted in arriving in such Net Income in respect of (i) Interest
Expense, (ii) taxes, (iii) depreciation and amortization expenses
(as reported on the applicable Person’s cash flow statement),
(iv) stock-based compensation expenses, (v) transaction costs,
fees, and expenses incurred in connection with a Permitted
Acquisition (not to exceed for any Permitted Acquisition the lesser
of (x) $1,000,000 and (y) five percent (5%) of the cash
consideration paid by Borrower in such Permitted Acquisition), (vi)
one-time severance-related expenses incurred in connection with the
severance of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as an officer of the Borrower (not to
exceed $1,013,000 in the aggregate), (vii) other one-time
severance-related expenses (not to exceed $500,000 in the aggregate
in any twelve (12) month period), (viii) inventory write-offs
incurred in connection with SKU rationalization (not to exceed
$180,000 in the aggregate), (ix) inventory write-offs incurred in
connection with discontinued repair program (not to exceed $265,000
in the aggregate), (x) one-time expenses related to the conversion
of Dynatronics’ preferred stock into common stock (not to
exceed $300,000 in the aggregate), (xi) one-time expenses related to the
transfer of Borrower’s manufacturing product lines to other
locations (not to exceed $200,000 in the aggregate), minus the sum of all non-cash
gains (including, without limitation, deferred gains attributable
to sale/leaseback transactions) added in arriving at such Net
Income. For the first twelve full months after each Permitted
Acquisition, Adjusted EBITDA of the business or assets acquired in
such Permitted Acquisition shall be calculated based on the actual
results of operations attributable to the acquired assets or
business for the most recently completed twelve month period, as
shown in the financial statements reflecting such assets or
business prior to such Permitted Acquisition, including applicable
periods or months, and shall be satisfactory to Lender in its
reasonable discretion.
(i) “Borrowing
Base” means, as determined by Lender from time to
time, the lesser of: (i) the Maximum Amount and (ii) the sum of (A)
80% of the aggregate amount of Eligible Accounts of Borrower minus
Dilution Reserves; plus (B) 15% of the Value of
Eligible Raw Materials and Purchased Components Inventory of
Borrower; plus (C)
48% of the Value of Eligible Finished Goods Inventory of Borrower;
minus (D) amounts
secured by Statutory Liens and Reserves other than Dilution
Reserves; provided
that, the sum of the amounts at any time included in foregoing
clauses (B) and (C) shall not exceed the amount included in
foregoing clause (A) at such time.
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(rr) “Liabilities” means (a) all indebtedness for
borrowed money or for the deferred purchase price of property or
services, and all obligations under leases which are or should be,
under GAAP, recorded as capital leases, in respect of which a
Person is directly or contingently liable as Borrower, Guarantor,
endorser or otherwise, or in respect of which a Person otherwise
assures a creditor against loss, (b) all obligations for borrowed
money or for the deferred purchase price of property or services
secured by (or for which the holder has an existing right,
contingent or otherwise, to be secured by) any lien upon property
(including without limitation accounts receivable and contract
rights) owned by a Person, whether or not such Person has assumed
or become liable for the payment thereof, (c) all other liabilities
and obligations which would be classified in accordance with GAAP
as liabilities on a balance sheet or to which reference should be
made in footnotes thereto, and (d) any
and all obligations, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and
substitutions therefor) in connection with each and any of the
following bank products and services provided by Lender or any of
its affiliates: (i) credit cards for commercial customers
(including, but not limited to, virtual card numbers, commercial
credit cards, purchasing cards, and other similar single credit
devices ), (ii) stored value cards, and (iii) depository, cash
management, and treasury management services (including, but not
limited to, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository
network services).
(b) Subsection
(d) of Section 2.1 (zz) (“Permitted
Acquisition”)
of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
(d)
Borrower has delivered to Lender a Compliance Certificate not less
than sixty (60) days prior to the anticipated closing date of such
Acquisition, which certificate shows that Borrower would have a
Consolidated Fixed Charge Coverage Ratio of not less than 1.10 to
1.00 as of the twelve-month period most recently ended for which
Borrower has delivered financial statements pursuant to Section
5.3(b) but on a Pro Forma Basis after giving effect to such
Acquisition.
Section
1.5. Amendment to
Financial Covenants. Section 5.15 of the Loan Agreement is
hereby amended and restated in its entirety to read as
follows:
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5.15 Financial
Covenants-Minimum Consolidated Fixed Charge Coverage Ratio.
At any time the Excess Availability Amount is, for five (5)
consecutive Business Days, less than the greater of (i) $1,000,000
and (ii) 10% of the Borrowing Base (each, a “FCCR Trigger Event”), not
permit the Consolidated Fixed Charge Coverage Ratio on the last day
of each month thereafter for the twelve-month period then ended to
be less than 1.10 to 1.00; provided that, at such
subsequent time that the Excess Availability Amount is, for thirty
(30) consecutive calendar days, at least the greater of (i)
$1,000,000 and (ii) 10% of the Borrowing Base, the foregoing
requirement for a minimum Consolidated Fixed Charge Coverage Ratio
shall cease to apply until the occurrence of a subsequent FCCR
Trigger Event.
Section
1.6. Amendment to
Limitations on Senior Funded Indebtedness. Section 5.16 of
the Loan Agreement is hereby amended and restated in its entirety
to read as follows:
5.16 Limitations
on Senior Funded Indebtedness. Not, after the date hereof,
create, incur or assume, directly or indirectly, any Senior Funded
Indebtedness other than (i) Senior Funded Indebtedness owed or to
be owed to Lender, (ii) the Manufacturing Facility Mortgage, (iii)
the Headquarters Lease, and (iv) other Senior Funded Indebtedness
of up to $750,000.00 in the aggregate at any time.
Section
1.7. Amendment to
Limits on Capital Expenditures. Section 5.19 of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
5.19 Capital
Expenditures Not, directly or indirectly, make or commit to
make capital expenditures by lease, purchase, or otherwise, except
in the ordinary and usual course of business for the purpose of
replacing machinery, equipment or other personal property which, as
a consequence of wear, duplication or obsolescence, is no longer
used or necessary in Borrower’s or such Subsidiary’s
business, provided, however, that so long has no Event of Default
shall have occurred and be continuing or would occur after giving
effect to the following expenditures, Borrower or such Subsidiary
may make capital expenditures in the ordinary course of business in
an amount not to exceed $1,000,000.00 during any fiscal year,
combined for Borrower and each Subsidiary of Borrower.
Section
1.8. Addition of
Restricted Payments Covenant. Section 5 of the Loan
Agreement is hereby amended by adding to the end thereof the
following Section 5.32:
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5.32 Restricted
Payments. Except as provided below, not (i) make any
dividend or other distribution to any holders of Equity Interests
of Dynatronics, (ii) purchase or redeem any Equity Interests of
Dynatronics, or (iii) make any loans to, or investment in, any
affiliate of a Borrower except for Enterprises and Bird (each a
“Restricted
Payment”); provided,
however, that:
(a)
Borrower may make
dividend payments with respect to Borrower’s Dynatronics
Corporation Series A 8% Convertible Preferred Stock and Dynatronics
Corporation Series B Convertible Preferred Stock outstanding as of
June 30, 2019, in each case in such amounts calculated and payable
pursuant to the terms and conditions contained in Section 3 of the
“Certificate of Designation of the Preferences, Rights and
Limitations of the Series A 8% Convertible Preferred Stock of
Dynatronics Corporation” and in Section 3 of the
“Certificate of Designations, Preferences and Rights of the
Series B Convertible Preferred Stock of Dynatronics
Corporation” (The text of Section 3 of each of these
documents as currently in effect is attached to this Agreement as
Schedule 5.32);
and
(b)
Borrower may make
repurchases or redemptions of its Equity Interests (x) in
connection with the exercise of stock options or restricted stock
awards if such Equity Interests represent all or a portion of the
exercise price thereof or (y) deemed to occur upon the withholding
of a portion of such Equity Interests issued to directors, officers
or employees of the Borrower or any Subsidiary under any stock
option plan or other benefit plan or agreement for directors,
officers and employees of the Borrower and the Subsidiaries to
cover withholding tax obligations of such Persons in respect of
such issuance.
Except
for Restricted Payments under (a) or (b) above, Restricted Payments
shall not be made by Borrower unless (x) not less than sixty (60)
days prior to the anticipated date of such Restricted Payment,
Borrower has delivered to Lender a Compliance Certificate that
shows, on a Pro Forma Basis after giving effect to such Restricted
Payment, (i) Borrower has a Consolidated Fixed Charge Coverage
Ratio of not less than 1.10 to 1.00 as of the twelve month period
most recently ended for which Borrower has delivered financial
statements pursuant to Section 5.3(b) and (ii) Borrower has an
Excess Availability Amount of at least 20% of the Borrowing
Base.
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Section
1.9. Addition of
Change in Lease Accounting Section. Section 7 of the Loan
Agreement is hereby amended by adding to the end thereof the
following Section 7.27:
7.27. Change
in Lease Accounting. Notwithstanding anything to the
contrary contained herein, including, without limitation, the
definition of Liabilities, the definition of Senior Funded
Indebtedness, the terms of Section 5.16, and the terms of Section
7.15, all financial covenants, basket amounts and ratios contained
herein or in any other Loan Document, and all exhibits thereto and
certificates delivered in connection therewith, shall be calculated
without giving effect to any changes in GAAP (or the implementation
thereof) after June 30, 2019, that would require lease obligations
that were treated as operating leases under GAAP as in effect on
June 30, 2019 (including, without limitation, with respect to
leases entered into after such date), to be classified and
accounted for as capital leases or otherwise reflected as
liabilities on the Borrower’s consolidated balance sheet
(including, without limitation, as
result of the issuance on February 25, 2016, by the Financial
Accounting Standards Board of a new Accounting Standards Update
(ASU), Leases (Topic 842) and Accounting Standards Codification
842); provided,
that, in connection with any change in GAAP (or the implementation
thereof) with respect to the classification or accounting of lease
obligations, the Borrower shall provide to the Lender a
balance sheet with separate line entries for its capital leases and
its operating leases to be included in the financial statements
required to be delivered under this Agreement.
Section
1.10. Amendment to Add
New Schedule. The Loan Agreement is hereby amended by adding
to the end thereof the Schedule 5.32 attached hereto.
Section
1.11. Amendment to
Form of Compliance Certificate. Schedule 2 to the form of
Compliance Certificate is hereby amended and replaced in its
entirety by the form of Schedule 2 of Compliance Certificate
attached hereto.
Section
1.12. Conditions
Precedent to Effectiveness. This Agreement shall be
effective as of the date first above written upon the date on which
each of the following conditions are satisfied:
(a) Lender
shall have received counterparts executed by each other party
thereto of each of the following, by original or electronic
transmission (promptly followed by originals), each in form and
substance satisfactory to Lender:
(i) this
Agreement;
(ii) a
Consent and Agreement by Guarantor in the form attached to this
Agreement;
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(iii) an
Organization, Authorization and Incumbency Certificate in the form
attached to this Agreement; and
(iv) such
other documents and certificates as Lender or its counsel may
reasonably request relating to Borrower, Guarantor, the
authorization of this Agreement, and any other legal matters
relating to Borrower, Guarantor, the Loan Agreement, or this
Agreement.
(b) All
fees and expenses incurred or payable by Lender (including, without
limitation, reasonable fees and expenses of counsel for Lender),
arising in connection with the negotiation, preparation and
execution of this Agreement.
Section
1.13. Representations
and Warranties. Borrower hereby represents and warrants to
Lender that:
(a) The
person(s) executing this Agreement is(are) duly authorized to do so
and to bind Borrower to the terms hereof;
(b) Each
of the Loan Documents is a valid and legal binding obligation of
Borrower and/or Guarantor, as applicable, enforceable against
Borrower and/or Guarantor, as applicable, in accordance with its
terms, and is not subject to any defenses, counterclaims, or
offsets of any kind;
(c) All
financial statements delivered to Lender were true, accurate and
complete, in all material respects, as of the date of delivery to
Lender;
(d) Since
the date of the Loan Documents there has been no material adverse
change in the condition, financial or otherwise, of Borrower or
Guarantor, except as disclosed to Lender in writing;
(e) There
exists no action, suit, proceeding or investigation, at law or in
equity, before any court, board, administrative body or other
entity, pending or threatened, affecting Borrower, Guarantor or any
of Borrower’s or Guarantor’s property, wherein an
unfavorable decision, ruling or finding would materially adversely
affect the business operations, property or financial condition of
Borrower or Guarantor; and
(f) There
exists no event of default, or other circumstance that with the
passage of time or giving of notice or both will become an event of
default, under any of the Loan Documents.
Section
1.14. Fees, Costs and
Expenses. Borrower shall, simultaneously with the execution
of this Agreement, pay to Lender all fees, costs and expenses due
and owing to Lender by Borrower under the Loan
Documents.
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Section 2. Miscellaneous.
Section
2.1. Release of
Lender. (a) Borrower hereby confirms that as of the
date hereof it has no claim, set-off, counterclaim, defense, or
other cause of action against Lender including, but not limited to,
a defense of usury, any claim or cause of action at common law, in
equity, statutory or otherwise, in contract or in tort, for fraud,
malfeasance, misrepresentation, financial loss, usury, deceptive
trade practice, or any other loss, damage or liability of any kind,
including, without limitation, any claim to exemplary or punitive
damages arising out of any transaction between or among Borrower
and Lender. To the extent that any such set-off, counterclaim,
defense, or other cause of action may exist or might hereafter
arise based on facts known or unknown that exist as of this date
(collectively, the “Released
Claims”), such Released Claims are hereby expressly
and knowingly waived and released by Borrower. Borrower
acknowledges that this release is part of the consideration to
Lender for the financial and other accommodations granted by Lender
in this Agreement.
(b) Borrower
also expressly waives and releases all rights conferred upon it by
the provisions of California Civil Code Section 1542, and expressly
agrees that this Agreement shall be given full force and effect
according to each of its express provisions. California Civil Code
Section 1542 provides:
“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.”
With
regard to Section 1542 of the California Civil Code, Borrower
hereby agrees, represents and warrants that it realizes and
acknowledges that factual matters now unknown to it may have given
or may hereafter give rise to causes of action, claims, demands,
debts, controversies, damages, costs, losses, expenses and
defenses, which are presently unknown, unanticipated, misunderstood
and unsuspected. Borrower further agrees, represents and warrants
that this Agreement has been negotiated and agreed upon in light of
that realization and that it nevertheless hereby waives and
releases all rights and benefits which it may otherwise have
against Lender under Section 1542 of the California Civil Code with
regard to the release of such unknown, unanticipated, misunderstood
and unsuspected causes of action, claims, demands, debts,
controversies, damages, costs, losses, expenses and defenses, and
all Released Claims.
Section
2.2. Costs and
Expenses. Borrower shall pay to Lender on demand any and all
costs and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements, court costs, litigation
and other expenses) incurred or paid by Lender in establishing,
maintaining, protecting or enforcing any of Lender’s rights
or any of the obligations owing by Borrower to Lender, including,
without limitation, any and all such costs and expenses incurred or
paid by Lender in defending Lender’s security interest in,
title or right to, the Collateral or in collecting or attempting to
collect or enforcing or attempting to enforce payment of the
Obligations.
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Section
2.3. Indemnification. Borrower shall
indemnify, defend and hold Lender and its directors, officers,
employees, agents and attorneys (each an “Indemnitee”) harmless
against any claim brought or threatened against any Indemnitee by
Borrower or any guarantor or endorser of the obligations of
Borrower to Lender, or any other person (as well as from
attorneys’ fees and expenses in connection therewith) on
account of Lender’s relationship with Borrower, or any
guarantor or endorser of the obligations of Borrower to Lender
(each of which may be defended, compromised, settled or pursued by
Lender with counsel of Lender’s election, but at the expense
of Borrower), except for any claim arising out of the gross
negligence or willful misconduct of Lender. The within
indemnification shall survive payment of the obligations of
Borrower to Lender, and/or any termination, release or discharge
executed by Lender in favor of Borrower.
Section
2.4. Joint and
Several. Each Borrower shall be jointly and severally liable
for payment and/or performance of all obligations arising under
this Agreement, and the term “Borrower” shall include
each as well as all of them.
Section 2.5. Severability. If any provision of this
Agreement or portion of such provision or the application thereof
to any person or circumstance shall to any extent be held invalid
or unenforceable, the remainder of this Agreement (or the remainder
of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
Section
2.6. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be an
original, but all of which shall constitute but one
agreement.
Section
2.7. Complete
Agreement. This Agreement and the other Loan Documents
constitute the entire agreement and understanding between and among
the parties hereto relating to the subject matter hereof, and
supersedes all prior proposals, negotiations, agreements and
understandings among the parties hereto with respect to such
subject matter.
Section
2.8. Binding Effect of
Agreement. This Agreement shall be binding upon and inure to
the benefit of the respective heirs, executors, administrators,
legal representatives, successors and assigns of the parties
hereto, and shall remain in full force and effect (and Lender shall
be entitled to rely thereon) until released in writing by Lender.
Lender may transfer and assign this Agreement and deliver the
Collateral to the assignee, who shall thereupon have all of the
rights of Lender; and Lender shall then be relieved and discharged
of any responsibility or liability with respect to this Agreement
and the Collateral. Except as expressly provided herein or in the
other Loan Documents, nothing, expressed or implied, is intended to
confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.
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Section
2.9. Further
Assurances. Borrower will from time to time execute and
deliver to Lender such documents, and take or cause to be taken,
all such other further action, as Lender may request in order to
effect and confirm or vest more securely in Lender all rights
contemplated by this Agreement (including, without limitation, to
correct clerical errors) or to vest more fully in or assure to
Lender the security interest in the Collateral or to comply with
applicable statute or law and to facilitate the collection of the
Collateral (including, without limitation, the execution of stock
transfer orders and stock powers, endorsement of promissory notes
and instruments and notifications to obligors on the Collateral).
To the extent permitted by applicable law, Borrower authorizes
Lender to file financing statements, continuation statements or
amendments without Borrower’s signature appearing thereon,
and any such financing statements, continuation statements or
amendments may be signed by Lender on behalf of Borrower, if
necessary, and may be filed at any time in any jurisdiction. Lender
may at any time and from time to time file financing statements,
continuation statements and amendments thereto which contain any
information required by the Uniform Commercial Code of California
as amended from time to time (the “Code”) for the sufficiency
or filing office acceptance of any financing statement,
continuation statement or amendment, including whether Borrower is
an organization, the type of organization and any organization
identification number issued to Borrower. Borrower agrees to
furnish any such information to Lender promptly upon request. In
addition, Borrower shall at any time and from time to time take
such steps as Lender may reasonably request for Lender (i) to
obtain an acknowledgment, in form and substance satisfactory to
Lender, of any bailee having possession of any of the Collateral
that the bailee holds such Collateral for Lender, (ii) to
obtain “control” (as defined in the Code) of any
Collateral comprised of deposit accounts, electronic chattel paper,
letter of credit rights or investment property, with any agreements
establishing control to be in form and substance satisfactory to
Lender, and (iii) otherwise to insure the continued perfection
and priority of Lender’s security interest in any of the
Collateral and the preservation of its rights therein. Borrower
hereby constitutes Lender its attorney-in-fact to execute, if
necessary, and file all filings required or so requested for the
foregoing purposes, all acts of such attorney being hereby ratified
and confirmed; and such power, being coupled with an interest,
shall be irrevocable until this Agreement terminates in accordance
with its terms, all obligations of Borrower to Lender are
irrevocably paid in full and the Collateral is
released.
Section
2.10. Amendments and
Waivers. This Agreement may be amended and Borrower may take
any action herein prohibited, or omit to perform any act herein
required to be performed by it, if Borrower shall obtain
Lender’s prior written consent to each such amendment, action
or omission to act. No delay or omission on the part of Lender in
exercising any right hereunder shall operate as a waiver of such
right or any other right and waiver on any one or more occasions
shall not be construed as a bar to or waiver of any right or remedy
of Lender on any future occasion.
Section
2.11. Terms of
Agreement. This Agreement shall continue in force and effect
so long as any obligation of Borrower to Lender shall be
outstanding and is supplementary to each and every other agreement
between Borrower and Lender and shall not be so construed as to
limit or otherwise derogate from any of the rights or remedies of
Lender or any of the liabilities, obligations or undertakings of
Borrower under any such agreement, nor shall any contemporaneous or
subsequent agreement between Borrower and Lender be construed to
limit or otherwise derogate from any of the rights or remedies of
Lender or any of the liabilities, obligations or undertakings of
Borrower hereunder, unless such other agreement specifically refers
to this Agreement and expressly so provides.
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Section
2.12. Notices.
Any notices under or pursuant to this Agreement shall be deemed
duly received and effective if delivered in hand to any officer or
agent of Borrower or Lender, or if mailed by registered or
certified mail, return receipt requested, addressed to Borrower or
Lender at the address set forth in the Loan Agreement or as any
party may from time to time designate by written notice to the
other party.
Section
2.13. California
Law. This Agreement shall be governed by federal law
applicable to Lender and, to the extent not preempted by federal
law, the laws of the State of California without giving effect to
the conflicts of laws principles thereof.
Section
2.14. Reproductions. This Agreement and all
documents which have been or may be hereinafter furnished by
Borrower to Lender may be reproduced by Lender by any photographic,
photostatic, microfilm, xerographic or similar process, and any
such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction
was made in the regular course of business).
Section
2.15. Venue.
Borrower irrevocably submits to the nonexclusive jurisdiction of
any Federal or state court sitting in California, over any suit,
action or proceeding arising out of or relating to this Agreement.
Borrower irrevocably waives to the fullest extent it may
effectively do so under applicable law, any objection it may now or
hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court and any claim that the same
has been brought in an inconvenient forum. Borrower irrevocably
appoints the Secretary of State of the State of California as its
authorized agent to accept and acknowledge on its behalf any and
all process which may be served in any such suit, action or
proceeding, consents to such process being served (i) by
mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to Borrower’s address
shown above or as notified to Lender and (ii) by serving the
same upon such agent, and agrees that such service shall in every
respect be deemed effective service upon Borrower.
Section
2.16. Waiver of Jury
Trial. Borrower and
Lender acknowledge that the right to trial by jury is a
constitutional right, and that it may be waived under certain
circumstances. To the extent permitted by law each party, after
consulting (or having the opportunity to consult) with counsel of
its choice, waives any right to trial by jury in the event of
litigation related to this Note or any other document, instrument
or transaction between the parties.
Section
2.17. Judicial
Reference Provision. In the event the above Jury Trial
Waiver is unenforceable, the parties elect to proceed under this
Judicial Reference Provision. With the exception of the items
specified below, any controversy, dispute or claim between the
parties relating to this Agreement or any other document,
instrument or transaction between the parties (each, a “Claim”), will be resolved
by a reference proceeding in California pursuant to
Section 638 et
seq. of the California Code of Civil Procedure, or their
successor sections, which shall constitute the exclusive remedy for
the resolution of any Claim, including whether the Claim is subject
to reference. Venue for the reference will be the Superior Court in
the County where real property involved in the action, if any, is
located, or in a County where venue is otherwise appropriate under
law (the “Court”). The following
matters shall not be subject to reference: (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). The
exercise of, or opposition to, any of the above does not waive the
right to a reference hereunder.
-11-
The
referee shall be selected by agreement of the parties. If the
parties do not agree, upon request of any party a referee shall be
selected by the Presiding Judge of the Court. The referee shall
determine all issues in accordance with existing case law and
statutory law of the State of California, including without
limitation the rules of evidence applicable to proceedings at law.
The referee is empowered to enter equitable and legal relief, 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, and
pursuant to CCP §644 the referee’s decision shall be
entered by the Court as a judgment or order in the same manner as
if tried by the Court. The final judgment or order from any
decision or order entered by the referee shall be fully appealable
as provided by law. The parties reserve the right to findings of
fact, conclusions of law, a written statement of decision, and the
right to move for a new trial or a different judgment, which new
trial if granted, will be a reference hereunder. After consulting (or having the
opportunity to consult) with counsel of its choice, each party
agrees that all claims resolved under this reference provision will
be decided by a referee and not a jury.
[Signature
Page Follows]
-12-
Executed as of the
date first written above.
|
|
Borrower:
Bird & ▇▇▇▇▇▇,
LLC
By: Dynatronics
Corporation,
its
Manager
By:
_______________________________
Name:
_____________________________
Title:
______________________________
Dynatronics Corporation
By:
_______________________________
Name:
_____________________________
Title:
______________________________
▇▇▇▇▇▇▇▇ Enterprises, LLC
By: Dynatronics
Corporation,
its
Manager
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
|
Accepted:
Bank of the West
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
|
Schedule 5.32
Restricted
Payments
Excerpt from Certificate of Designation of Preferences, Rights and
Limitations of Series A 8% Convertible Preferred Stock of
Dynatronics Corporation
Section
3.
Dividends.
(a) Dividends in Cash or in Kind.
Holders shall be entitled to receive, and the Corporation shall
pay, cumulative dividends at the rate per share (as a percentage of
the Stated Value per share) of 8% per annum (subject to increase
pursuant to Section
9(b)), payable quarterly on January 1, April 1, July 1 and
October 1, beginning on the first such date after the Original
Issue Date and on each Conversion Date (with respect only to
Preferred Stock being converted) (each such date, a
“Dividend Payment
Date”) (if any Dividend Payment Date is not a Trading
Day, the applicable payment shall be due on the next succeeding
Trading Day) in cash, or at the Corporation’s option, subject
to Shareholder Approval, in duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock as set forth in this
Section 3(a), or a combination thereof (the dollar amount to be
paid in shares of Common Stock, the “Dividend Share Amount”).
The form of dividend payments to each Holder shall be determined in
the following order of priority: (i) if funds are legally available
for the payment of dividends and the Equity Conditions have not
been met during the 20 consecutive Trading Days immediately prior
to the applicable Dividend Payment Date (the “Dividend Notice Period”),
in cash only, (ii) if funds are legally available for the payment
of dividends and the Equity Conditions have been met during the
Dividend Notice Period, at the sole election of the Corporation, in
cash or shares of Common Stock (subject to Shareholder Approval),
which shall be valued at the Dividend Conversion Rate, (iii) if
funds are not legally available for the payment of dividends and
the Equity Conditions have been met during the Dividend Notice
Period, in shares of Common Stock (subject to Shareholder
Approval), which shall be valued at the Dividend Conversion Rate,
(iv) if funds are not legally available for the payment of
dividends and the Equity Condition relating to an effective
Conversion Shares Registration Statement has been waived by such
Holder, as to such Holder only, in unregistered shares of Common
Stock (subject to Shareholder Approval) which shall be valued at
the Dividend Conversion Rate, and (v) if funds are not legally
available for the payment of dividends and the Equity Conditions
have not been met during the Dividend Notice Period, then, at the
election of such Holder, such dividends shall accrue to the next
Dividend Payment Date or shall be accreted to, and increase, the
outstanding Stated Value. In addition, as a condition to paying
dividends in shares of Common Stock, as to such Dividend Payment
Date, prior to such Dividend Notice Period (but not more than five
(5) Trading Days prior to the commencement of such Dividend Notice
Period), the Corporation shall have delivered to each
Holder’s account with The Depository Trust Company a number
of shares of Common Stock to be applied against such Dividend Share
Amount equal to the quotient of (x) the applicable Dividend Share
Amount divided by (y) the Dividend Conversion Rate, assuming for
such purposes that the Dividend Payment Date is the Trading Day
immediately prior to the commencement of the Dividend Notice Period
(the “Dividend
Conversion Shares”). The Holders shall have the same
rights and remedies with respect to the delivery of any such shares
as if such shares were being issued pursuant to Section 6.
-14-
(b) Corporation’s Ability to Pay
Dividends in Cash or Kind. On the Closing Date, the
Corporation shall have notified the Holders whether or not it may
legally pay cash dividends as of the Closing Date. The Corporation
shall promptly notify the Holders at any time the Corporation shall
become able or unable, as the case may be, to legally pay cash
dividends. If at any time the Corporation has the right to pay
dividends in cash or shares of Common Stock, the Corporation must
provide the Holders with at least 20 Trading Days’ notice of
its election to pay a regularly scheduled dividend in shares of
Common Stock (the Corporation may indicate in such notice that the
election contained in such notice shall continue for later periods
until revised by a subsequent notice). If at any time the
Corporation delivers a notice to the Holders of its election to pay
the dividends in shares of Common Stock and such shares are
included on a Registration Statement, the Corporation shall timely
file a prospectus supplement pursuant to Rule 424 disclosing such
election. The aggregate number of shares of Common Stock otherwise
issuable to a Holder on a Dividend Payment Date shall be reduced by
the number of shares of Common Stock previously issued to such
Holder in connection with such Dividend Payment Date. If any
Dividend Conversion Shares are issued to a Holder in connection
with a Dividend Payment Date and are not applied against a Dividend
Share Amount, then such Holder shall promptly return such excess
shares to the Corporation.
(c) Dividend Calculations.
Dividends on the Preferred Stock shall be calculated on the basis
of a 360-day year, consisting of twelve 30-calendar day periods,
and shall accrue daily commencing on the Original Issue Date, and
shall be deemed to accrue from such date whether or not earned or
declared and whether or not there are profits, surplus or other
funds of the Corporation legally available for the payment of
dividends. Payment of dividends in shares of Common Stock shall
otherwise occur pursuant to Section 6(c)(i) herein and,
solely for purposes of the payment of dividends in shares, the
Dividend Payment Date shall be deemed the Conversion Date.
Dividends shall cease to accrue with respect to (i) any Preferred
Stock that would have been converted pursuant to Sections 8(a) or 8(b) but for the ownership
limitations of Section
6(d) and (ii) any Preferred Stock actually converted,
provided that the Corporation actually delivers the Conversion
Shares within the time period required by Section 6(c)(i) herein. Except
as otherwise provided herein, if at any time the Corporation pays
dividends partially in cash and partially in shares, then such
payment shall be distributed ratably among the Holders based upon
the number of shares of Preferred Stock held by each Holder on such
Dividend Payment Date.
(d) Late Fees. Any dividends,
whether paid in cash or shares of Common Stock, that are not paid
within three (3) Trading Days following a Dividend Payment Date
shall continue to accrue and shall entail a late fee, which must be
paid in cash, at the rate of 18% per annum or the lesser rate
permitted by applicable law which shall accrue daily from the
Dividend Payment Date through and including the date of actual
payment in full.
(e) Other Securities. So long as
any Preferred Stock shall remain outstanding, neither the
Corporation nor any Subsidiary thereof shall redeem, purchase or
otherwise acquire directly or indirectly any Junior Securities. So
long as any Preferred Stock shall remain outstanding, neither the
Corporation nor any Subsidiary thereof shall directly or indirectly
pay or declare any dividend or make any distribution upon (other
than a dividend or distribution described in Section 6 or dividends due and
paid in the ordinary course on preferred stock of the Corporation
at such times when the Corporation is in compliance with its
payment and other obligations hereunder), nor shall any
distribution be made in respect of, any Junior Securities as long
as any dividends due on the Preferred Stock remain unpaid, nor
shall any monies be set aside for or applied to the purchase or
redemption (through a sinking fund or otherwise) of any Junior
Securities or shares pari passu with the Preferred
Stock.
-15-
Excerpt from Certificate of Designations, Preferences and Rights of
the Series B Convertible Preferred Stock of Dynatronics
Corporation
Section 3. Dividends.
(a) Dividends in Cash or
in Kind. Holders shall be entitled to receive, and the
Company shall pay, cumulative dividends at the rate per share (as a
percentage of the Stated Value per share) of 8% per annum (subject
to increase pursuant to Section 9(b)),
payable quarterly on January 1, April 1, July 1 and October 1,
beginning on the first such date after the Original Issue Date, on
each Full Forced Conversion Date, on each Limited Forced Conversion
Date, and on each Conversion Date (with respect only to shares of
Series B Preferred Stock being converted) (each such date, a
"Dividend
Payment Date") (if any Dividend Payment Date is not a
Trading Day, the applicable payment shall be due on the next
succeeding Trading Day) in cash, or at the Company's option,
following Shareholder Approval (including, for the avoidance of
doubt, any Shareholder Approval that may be required in connection
with (A) Nasdaq Listing Rule 5635 in connection with issuances of
Common Stock equal to or in excess of 20% of the number of shares
of Common Stock outstanding, or voting power equal to in excess of
20% of the voting power outstanding, or (b) dividend payments to
Nasdaq Insiders to comply with Nasdaq Listing Rule 5635(c)), in
duly authorized, validly issued, fully paid and non-assessable
shares of Common Stock as set forth in this Section 3(a),
or a combination thereof (the dollar amount to be paid in shares of
Common Stock, the "Dividend Share
Amount"). The form of dividend payments to each Holder shall
be determined in the following order of priority: (i) if funds are
legally available for the payment of dividends and the Equity
Conditions have not been met during the 20 consecutive Trading Days
immediately prior to the applicable Dividend Payment Date (the
"Dividend
Notice Period"), in cash only, (ii) if funds are legally
available for the payment of dividends and the Equity Conditions
have been met during the Dividend Notice Period, at the sole
election of the Company, in cash or shares of Common Stock
(following Shareholder Approval), which shall be valued at the
Dividend Conversion Rate, (iii) if funds are not legally available
for the payment of dividends and the Equity Conditions have been
met during the Dividend Notice Period, in shares of Common Stock
(following Shareholder Approval), which shall be valued at the
Dividend Conversion Rate, (iv) if funds are not legally available
for the payment of dividends and the Equity Condition relating to
an effective Conversion Shares Registration Statement has been
waived by such Holder, as to such Holder only, in unregistered
shares of Common Stock (following Shareholder Approval) which shall
be valued at the Dividend Conversion Rate, and (v) if funds are not
legally available for the payment of dividends and the Equity
Conditions have not been met during the Dividend Notice Period,
then, at the election of such Holder, such dividends shall accrue
to the next Dividend Payment Date or shall be accreted to, and
increase, the outstanding Stated Value. In addition, as a condition
to paying dividends in shares of Common Stock, as to such Dividend
Payment Date, prior to such Dividend Notice Period (but not more
than five (5) Trading Days prior to the commencement of such
Dividend Notice Period), the Company shall have delivered to each
Holder's account with The Depository Trust Company a number of
shares of Common Stock to be applied against such Dividend Share
Amount equal to the quotient of (x) the applicable Dividend Share
Amount divided by (y) the Dividend Conversion Rate, assuming for
such purposes that the Dividend Payment Date is the Trading Day
immediately prior to the commencement of the Dividend Notice Period
(the "Dividend Conversion
Shares"). The Holders shall have the same rights and
remedies with respect to the delivery of any such shares as if such
shares were being issued pursuant to Section
6.
-16-
(b) Company's Ability to
Pay Dividends in Cash or Kind. On the Closing Date, the
Company shall have notified the Holders whether or not it may
legally pay cash dividends as of the Closing Date. The Company
shall promptly notify the Holders at any time the Company shall
become able or unable, as the case may be, to legally pay cash
dividends. If at any time the Company has the right to pay
dividends in cash or shares of Common Stock, the Company must
provide the Holders with at least 20 Trading Days' notice of its
election to pay a regularly scheduled dividend in shares of Common
Stock (the Company may indicate in such notice that the election
contained in such notice shall continue for later periods until
revised by a subsequent notice). If at any time the Company
delivers a notice to the Holders of its election to pay the
dividends in shares of Common Stock and such shares are included on
a registration statement, the Company shall timely file a
prospectus supplement pursuant to Rule 424 disclosing such
election. The aggregate number of shares of Common Stock otherwise
issuable to a Holder on a Dividend Payment Date shall be reduced by
the number of shares of Common Stock previously issued to such
Holder in connection with such Dividend Payment Date. If any
Dividend Conversion Shares are issued to a Holder in connection
with a Dividend Payment Date and are not applied against a Dividend
Share Amount, then such Holder shall promptly return such excess
shares to the Company.
(c) Dividend
Calculations. Dividends on the Series B Preferred Stock
shall be calculated on the basis of a 360-day year, consisting of
twelve 30-calendar day periods, and shall accrue daily commencing
on the Original Issue Date, and shall be deemed to accrue from such
date whether or not earned or declared and whether or not there are
profits, surplus or other funds of the Company legally available
for the payment of dividends. Payment of dividends in shares of
Common Stock shall otherwise occur pursuant to Section 6(c)(i)
herein and, solely for purposes of the payment of dividends in
shares, the Dividend Payment Date shall be deemed the Conversion
Date. Dividends shall cease to accrue with respect to (i) any
shares of Series B Preferred Stock that would have been converted
pursuant to Sections 8(a) or
8(b) but for the ownership limitations of Section 6(d), and
(ii) any shares of Series B Preferred Stock actually converted,
provided that the Company actually delivers the Conversion Shares
within the time period required by Section 6(c)(i)
herein. Except as otherwise provided herein, if at any time the
Company pays dividends partially in cash and partially in shares,
then such payment shall be distributed ratably among the Holders
based upon the number of shares of Series B Preferred Stock held by
each Holder on such Dividend Payment Date.
(d) Late Fees. Any
dividends, whether paid in cash or shares of Common Stock, that are
not paid within five (5) Trading Days following a Dividend Payment
Date shall continue to accrue and shall entail a late fee, which
must be paid in cash, at the rate of 18% per annum or the lesser
rate permitted by applicable law which shall accrue daily from the
Dividend Payment Date through and including the date of actual
payment in full.
(e) Other
Securities. So long as any shares of Series B Preferred
Stock shall remain outstanding, neither the Company nor any
Subsidiary thereof shall redeem, purchase or otherwise acquire
directly or indirectly any Junior Securities. So long as any shares
of Series B Preferred Stock shall remain outstanding, neither the
Company nor any Subsidiary thereof shall directly or indirectly pay
or declare any dividend or make any distribution upon (other than a
dividend or distribution described in Section 6 or
dividends due and paid in the ordinary course on any other series
of preferred stock of the Company at such times when the Company is
in compliance with its payment and other obligations hereunder),
nor shall any distribution be made in respect of, any Junior
Securities as long as any dividends due on the Series B Preferred
Stock remain unpaid, nor shall any monies be set aside for or
applied to the purchase or redemption (through a sinking fund or
otherwise) of any Junior Securities or shares pari
passu with the
Series B Preferred Stock.
-17-
Schedule 2 to Compliance Certificate
|
1.
|
Adjusted
EBITDA:
|
|
|
|
Net
Income:
|
$_____________
|
|
|
Plus:
|
|
|
|
(i) Interest
Expense:
|
$_____________
|
|
|
(ii) taxes:
|
$_____________
|
|
|
(iii) depreciation and amortization
expense1:
|
$_____________
|
|
|
(iv) stock-based
compensation expenses:
|
$_____________
|
|
|
(v) transaction
costs, fees and expenses of any Permitted Acquisition (not to
exceed for any Permitted Acquisition the lesser of (x) five
(5)% of cash consideration paid by Borrower in such Permitted
Acquisition and (y) $1,000,000):
|
$_____________
|
|
|
(vi) one-time
severance-related costs related to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (not to exceed
$1,013,000 in the aggregate):
|
$_____________
|
|
|
(vii) one-time
severance-related costs (not to exceed $500,000 in the aggregate in
any twelve month period):
|
$_____________
|
|
|
(viii) inventory
write-offs incurred in connection with SKU rationalization (not to
exceed $180,000 in the aggregate):
|
$_____________
|
|
|
(ix) inventory
write-offs incurred in connection with discontinued repair program
(not to exceed $265,000 in the aggregate):
|
$_____________
|
|
|
(x) one-time
expenses related to the conversion of Dynatronics’ preferred
stock into common stock (not to exceed $300,000 in the
aggregate):
|
$_____________
|
-18-
|
|
(xi) one-time
expenses related to the the transfer of Borrower’s
manufacturing product lines to other locations (not to exceed
$200,000 in the aggregate):
|
$_____________
|
|
|
(xii) for the
first twelve full months after each Permitted Acquisition, Adjusted
EBITDA of the business or assets acquired in such Permitted
Acquisition calculated based on the actual results of operations
attributable to the acquired assets or business including
applicable periods or months for the most recently completed twelve
month period, as shown in the financial statements reflecting such
assets or business prior to such Permitted
Acquisition:
|
$_____________
|
|
|
Minus non-cash
gains (including, without limitation, deferred gains attributable
to sale/leaseback transactions):
|
$_____________
|
|
1.
|
Adjusted
EBITDA
|
$_____________
|
2.
Consolidated Fixed
Charge Coverage Ratio for the applicable trailing twelve month
period (at least 1.10 to 1.00)
|
A.
|
Adjusted
EBITDA (1. above):
|
$_____________
|
|
B.
|
Taxes
paid in cash:
|
$_____________
|
|
C.
|
Unfinanced
Capital Expenditures:
|
$_____________
|
|
D.
|
Dividends
paid in cash:
|
$_____________
|
|
E.
|
Amounts
paid to repurchase Equity Interests:
|
$_____________
|
|
F.
|
2.A
minus 2.B minus 2.C minus 2.D minus 2.E:
|
$_____________
|
|
G.
|
Current
Portion of Long Term Debt:
|
$_____________
|
|
H.
|
Interest
Expense:
|
$_____________
|
|
I.
|
2.G
plus 2.H:
|
$_____________
|
|
J.
|
Ratio
of 2.F to 2.I:
|
___:___
|
-19-
Consent and Agreement by Guarantor
The
undersigned acknowledges receipt of a copy of the Fifth
Modification Agreement dated on or about the date hereof (the
“Modification
Agreement”) among Dynatronics Corporation, a Utah
corporation, ▇▇▇▇▇▇▇▇ Enterprises, LLC, a Utah limited liability
company, and Bird & ▇▇▇▇▇▇, LLC, a Utah limited liability
company (individually and collectively, “Borrower”), and Bank of
the West (“Lender”), reaffirms its
Unlimited Guaranty and its Security Agreement, acknowledges that
the execution, delivery, and performance of the Modification
Agreement shall have no effect on such Unlimited Guaranty, such
Security Agreement or any other Loan Document (as such term is
defined in the Loan and Security Agreement dated as of
March 31, 2017 among Borrower and Lender, as amended,
modified, and supplemented from time to time) to which it is a
party, each of which remains the legal, valid and binding
obligation of the undersigned, enforceable against it in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.
Executed and dated
as of June _, 2019.
|
|
Dynatronics Distribution Company, LLC
By: Dynatronics
Corporation,
its
Manager
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
-20-
Organizational and Authorization Certificate
On
behalf of Dynatronics Corporation, a Utah corporation (“Corporation”), ▇▇▇▇▇▇▇▇
Enterprises, LLC, a Utah limited liability company, Dynatronics
Distribution Company, LLC, a Utah limited liability company, and
Bird & ▇▇▇▇▇▇, LLC, a Utah limited liability company
(individually and collectively, “Borrower”), the
undersigned certifies to Bank of the West (“Lender”)
that:
(a) except
for any amendments attached hereto, the articles of incorporation,
by laws, articles of organization, operating agreement, and other
organizational documents of Borrower previously delivered to Lender
remain in full force and effect without amendment or
modification;
(b) Borrower
remains in good standing in all states where so required by the
Loan and Security Agreement dated as of March 31, 2017 among
Borrower and Lender (as amended, modified, and supplemented, the
“Loan
Agreement”; terms used but not defined herein having
the meanings given therein);
(c) together
with any resolutions delivered to Lender as of the date hereof, the
resolutions and other authorizing documents of Borrower delivered
to Lender and any amendment thereto remain effective to authorize
the amendments of the Loan Agreement as described in the Fifth
Modification Agreement dated on or about the date hereof among
Borrower and Lender (the “Modification Agreement”),
and the related Loan Documents;
(d) none
of such organization documents or other authorizing documents of
Borrower delivered in connection with the Loan Agreement and any
amendment thereto has been repealed, revoked, rescinded or amended
in any respect (except as clearly indicated in the attached
documents), and each remains in full force and effect as of the
date hereof;
(e) he/she
is authorized on behalf of Borrower to deliver this Organizational
and Authorization Certificate on behalf of Borrower;
(f) Lender
may conclusively rely on this Certificate unless and until
superseding documents shall be delivered to Lender;
(g) the
Corporation is the sole manager of ▇▇▇▇▇▇▇▇ Enterprises, LLC, a
Utah limited liability company, Dynatronics Distribution Company,
LLC, a Utah limited liability company, and Bird & ▇▇▇▇▇▇, LLC,
a Utah limited liability company; and
-21-
(h) Any
of the following:
|
|
Name
|
Title
|
Signature
|
|
1.
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Chief Financial Officer and Secretary
|
|
|
2.
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
|
Chief Executive Officer
|
|
acting
individually or in combination as may be set forth above (the
“Authorized
Signer(s)”), have full power and authority to, and are
hereby authorized, on behalf of the Corporation, to execute and
deliver to the Lender, and the Lender is requested to accept, the
Modification in such form as may be agreed upon by the Authorized
Signer(s) and the Lender, and that the signature opposite each
officer’s name is his true signature.
In Witness Whereof, I have signed
this Organizational and Authorization Certificate as of June__,
2019.
|
|
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
The
undersigned Chief Executive Officer of the Corporation hereby
certifies that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ holds the positions of Chief
Financial Officer and Secretary of the Corporation and that his
foregoing signature is true and genuine.
|
|
By:
_______________________________
Name:
_____________________________
Title:
______________________________
|
-22-