FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.21
FOURTH AMENDMENT
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This
Fourth Amendment to Second Amended and Restated Loan and Security
Agreement is entered into as of September 7, 2018 (the
“Amendment”), by and between AVIDBANK
(“Bank”), LIGHTPATH TECHNOLOGIES, INC.
(“Parent”) and ISP OPTICS CORPORATION
(“ISP”). Parent and ISP are each also referred to as a
“Borrower” and together as the
“Borrowers”.
RECITALS
Borrowers and Bank
are parties to that certain Second Amended and Restated Loan and
Security Agreement dated as of December 21, 2016 and as amended
from time to time, including pursuant to that certain First
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of December 20, 2017, that certain Second
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of January 16, 2018 and that certain Third
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of May 11, 2018 (collectively, the
“Agreement”). The parties desire to amend the Agreement
in accordance with the terms of this Amendment.
NOW,
THEREFORE, the parties agree as follows:
1. Borrowers
acknowledge that there is an existing and uncured Event of Default
arising from Borrowers’ failure to comply with Section 6.9(a)
of the Agreement with respect to the Fixed Charge Coverage Ratio
measured on June 30, 2018 (the “Covenant Default”).
Subject to the conditions contained herein and performance by
Borrowers of all of the terms of the Agreement after the date
hereof, Bank waives the Covenant Default. Except as otherwise
provided in the foregoing sentence, Bank does not waive
Borrowers’ obligations under such section after the date
hereof, and Bank does not waive any other failure by Borrowers to
perform their Obligations under the Loan Documents.
2. The
following is added as a new Section 4.5 to the end of Section 4 of
the Agreement:
4.5
Pledge of Cash
Collateral. For so long as the Term II Loan is outstanding, One
Million Dollars ($1,000,000) of Borrowers’ cash maintained at
Bank (the “Cash Collateral”) is hereby pledged to Bank
as specific Collateral to secure Borrowers’ Obligations.
Borrowers authorize Bank to hold Cash Collateral in pledge and to
decline to honor any withdrawals thereon or any request by
Borrowers or any other Person to pay or otherwise transfer any part
of the Cash Collateral. On the date of Bank’s receipt of
evidence satisfactory to Bank that the Fixed Charge Coverage Ratio
has been least 1.15 : 1.00 for two consecutive calendar quarters,
and as long as no Event of Default has occurred that is continuing
on such date, the Cash Collateral shall be released from the
foregoing restrictions and pledge.
3. Section
6.9(a) of the Agreement is amended and restated in its entirety to
read as follows:
(a)
Fixed Charge Coverage Ratio. Borrowers
shall maintain a Fixed Charge Coverage Ratio of at least 1.15 to
1.00, measured at the end of each calendar quarter beginning with
the quarter ending on September 30, 2018 on a rolling twelve (12)
month basis. For so long as the Cash Collateral is pledged to Bank
pursuant to Section 4.5, solely for purposes of calculating
Borrowers’ compliance with the foregoing sentence, the amount
used to calculate clause (i) of subsection (b) of the definition of
the Fixed Charge Coverage Ratio (with respect to the scheduled
principal and interest payments to be made to Bank with respect to
the Term II Loan) shall be calculated as if the outstanding
principal amount of the Term II Loan is $1,000,000 less than the
actual outstanding principal amount of the Term II
Loan.
4. Unless
otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as
amended hereby, shall be and remain in full force and effect in
accordance with its respective terms and hereby is ratified and
confirmed in all respects. Except as expressly set forth herein,
the execution, delivery, and performance of this Amendment shall
not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Bank under the Agreement, as in effect prior to
the date hereof. Each Borrower ratifies and reaffirms the
continuing effectiveness of all agreements entered into in
connection with the Agreement.
5. Borrowers
represent and warrant that the representations and warranties
contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is
continuing.
6. This
Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one instrument. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an
original hereof. Notwithstanding the foregoing, Borrowers shall
deliver all original signed documents no later than ten (10)
Business Days following the date of execution.
7. As
a condition to the effectiveness of this Amendment, Bank shall have
received, in form and substance satisfactory to Bank, the
following:
(a) this
Amendment, duly executed by Borrowers;
(b) payment
of a waiver fee in the amount of $7,500 plus all Bank Expenses
incurred through the date of this Amendment; and
(c) such
other documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
[signature page follows]
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of
the first date above written.
BORROWERS:
LIGHTPATH
TECHNOLOGIES, INC.
By: /s/ J. Xxxxx
Xxxxxx
Name:
J. Xxxxx
Xxxxxx
Title: President and Chief Executive
Officer
ISP
OPTICS CORPORATION
By: /s/ J. Xxxxx
Xxxxxx
Name: J. Xxxxx Xxxxxx
Title: President and Chief Executive
Officer
BANK:
AVIDBANK
By: /s/ Xxxxxxxx X.
XxXxxxx
Name: Xxxxxxxx X.
XxXxxxx
Title: Executive Vice
President
