GUARANTY AGREEMENT
Exhibit 10.7
FOR VALUE RECEIVED, this 26th day of February,
2019, and to induce BANKUNITED,
N.A., a national banking association (“Lender”),
whose address is 0000 XX 000xx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxx 00000, to make loans or advances or to extend credit
or other financial accommodations or benefits, with or without
security, to or for the account of LIGHTPATH TECHNOLOGIES, INC., a Delaware
corporation (the “Borrower”),
each of the undersigned guarantors (collectively
“Guarantor”),
whose address is 0000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, hereby irrevocably guarantees, to Lender the full
and prompt payment when due, whether by acceleration or otherwise,
of any of the Guaranteed Obligations (as hereinafter
defined).
1. The term
“Indebtedness”
as used herein shall mean all obligations, indebtedness and
liabilities of Borrower to Lender evidenced by (i) that certain
Revolving Credit Note (the “Note”)
of even date herewith executed by Borrower and payable to the order
of Lender in the principal amount of Two Million and No/100 Dollars
($2,000,000.00), and (ii) the other Loan Documents (as defined in
the Note).
2. The term
“Guaranteed
Obligations” shall mean (i) the Indebtedness; (ii) all
direct and actual loss, damage, cost and expense (including
reasonable attorneys’ fees) suffered by Lender as a result of
Borrower's fraud, misrepresentation or gross negligence, or failure
to maintain insurance upon the real property that is collateral for
the Indebtedness (the “Property”),
to the extent of available cash flow from operations after payment
of operating expenses of the Property, provided that Borrower pays
the insurance premiums for the Property prior to the payment of any
other operating expenses; (iii) all income, revenues, rents,
royalties, issues and profits from the Property (A) received during
the period following an uncured Event
of Default under the Loan Documents or after the maturity of
the Note (whether by acceleration or otherwise) which are applied
in contravention of the Loan Documents, and (B) not applied to the
payment of the sums due under the Loan or to the payment of the
operating expenses of the Property (excluding any management fees
or any payments to Borrower or to any affiliate of Borrower); (iv)
all insurance proceeds and condemnation awards with respect to the
Property which are not applied in accordance with the provisions of
the Loan Documents; and (v) the obligations set forth in Section 11
hereof.
3. This instrument is
an absolute, continuing and irrevocable guaranty of payment and
performance, and not a guaranty of collection, and, subject to the
provisions of Section 2 above, Guarantor shall remain liable on its
Guaranteed Obligations hereunder until the payment and performance
in full of the Guaranteed Obligations. No set off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any
defense of any kind or nature which Borrower may have against
Lender or any other party, or which Guarantor may have against
Borrower, Lender, or any other party, shall be available to, or
shall be asserted by, Guarantor against Lender or any subsequent
beneficiary of this Guaranty Agreement or any portion of the
Guaranteed Obligations.
4. Upon an Event of
Default by Borrower in payment or performance of the Guaranteed
Obligations, or any part thereof, when such Guaranteed Obligations
are due to be paid or performed by Borrower, Guarantor shall
promptly pay or perform the Guaranteed Obligations then due in full
without notice or demand, and it shall not be necessary for Lender,
in order to enforce such payment by Guarantor, first to institute
suit or exhaust its remedies against Borrower or others, or to
enforce any rights against any collateral which shall ever have
been given to secure such Indebtedness. Without limiting any other
provisions of this Guaranty, Guarantor acknowledges and agrees
that, to the extent Lender realizes any proceeds under any
documents which secure the Indebtedness (including, without
limitation, voluntary payments, insurance or condemnation proceeds
or proceeds from the sale at foreclosure of any collateral securing
the Indebtedness), such proceeds shall, to the extent permitted by
law, not be applied to or credited against the Guaranteed
Obligations. FURTHER,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS GUARANTY
AGREEMENT, GUARANTOR HEREBY IRREVOCABLY AGREES THAT, UNTIL PAYMENT
IN FULL TO LENDER OF THE INDEBTEDNESS AND THE GUARANTEED
OBLIGATIONS, GUARANTOR SHALL HAVE NO RIGHT TO RECOVER FROM BORROWER
ANY CLAIMS GUARANTOR HAS OR MIGHT HAVE AGAINST BORROWER (AS SUCH
TERM "CLAIM" IS DEFINED IN THE UNITED STATES BANKRUPTCY CODE 11
U.S.C. §101[5] AS AMENDED FROM TIME TO TIME) IN CONNECTION
WITH PAYMENTS MADE BY OR ON BEHALF OF GUARANTOR TO LENDER UNDER
THIS GUARANTY AGREEMENT INCLUDING, WITHOUT IMPLIED LIMITATION, ALL
RIGHTS GUARANTOR MAY NOW OR HEREAFTER HAVE UNDER ANY AGREEMENT OR
AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, ANY LAW
SUBROGATING GUARANTOR TO THE RIGHTS OF LENDER) TO ASSERT ANY CLAIM
AGAINST OR SEEK CONTRIBUTION, INDEMNIFICATION OR ANY OTHER FORM OF
REIMBURSEMENT FROM BORROWER OR ANY OTHER PARTY LIABLE FOR PAYMENT
OF ANY OR ALL OF THE INDEBTEDNESS.
5. If acceleration of
the time for payment by Borrower of all or any portion of the
Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, the Guaranteed Obligations shall
nonetheless be payable by Guarantor hereunder forthwith on demand
by Lender.
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6. Guarantor hereby
agrees that its obligations under this Guaranty shall not be
released, discharged, diminished, impaired, reduced, or affected
for any reason or by the occurrence of any event other than payment
and performance of the Guaranteed Obligations (if required or
applicable hereunder) in full, including, without limitation, one
or more of the following events, whether or not with notice to or
the consent of Guarantor: (a) the taking or accepting of collateral
as security for any or all of the Indebtedness or the release,
surrender, exchange, or subordination of any collateral now or
hereafter securing any or all of the Indebtedness; (b) the full or
partial release of Borrower or any other guarantor from liability
for any or all of the Indebtedness or the Guaranteed Obligations;
(c) the dissolution, insolvency, or bankruptcy of Borrower,
Guarantor, or any other party at any time liable for the payment of
any or all of the Indebtedness; (d) any renewal, extension,
modification, waiver, amendment, or rearrangement of any or all of
the Indebtedness or any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the
Guaranteed Obligations; (e) any adjustment, indulgence,
forbearance, waiver, or compromise that may be granted or given by
Lender to Borrower or any other party ever liable for any or all of
the Indebtedness; (f) any neglect, delay, omission, failure, or
refusal of Lender to take or prosecute any action for the
collection of any of the Guaranteed Obligations from Borrower or
Guarantor or to foreclose or take or prosecute any action in
connection with any instrument, document, or agreement evidencing,
securing, or otherwise relating to any or all of the Indebtedness
or any or all of the Guaranteed Obligations; (g) the
unenforceability or invalidity of any or all of the Indebtedness or
the Guaranteed Obligations or any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all
of the Indebtedness or the Guaranteed Obligations; (h) any payment
by Borrower or any other party to Lender is held to constitute a
preference under applicable bankruptcy or insolvency law or if for
any other reason Lender is required to refund any payment or pay
the amount thereof to someone else; (i) the settlement or
compromise of any of the Indebtedness or the Guaranteed
Obligations; (j) the non-perfection of any security interest or
lien securing any or all of the Indebtedness; (k) any impairment of
any collateral securing any or all of the Indebtedness; (l) the
failure of Lender to sell any collateral securing any or all of the
Indebtedness in a commercially reasonable manner or as otherwise
required by law; (m) any change in the corporate existence,
structure, or ownership of Borrower; (n) the application against
the Indebtedness of the proceeds realized by Lender under any
documents which secure the Indebtedness (including, without
limitation, voluntary payments, insurance or condemnation proceeds
or proceeds from the sale at foreclosure of any collateral securing
the Indebtedness), except as provided in Section 5 of this Guaranty
Agreement.
7. Any and all rights
and claims of Guarantor against Borrower or any of its property,
whether through subrogation to the rights of Lender hereunder or
otherwise, shall be subordinate and subject in right of payment to
the prior payment in full of the Indebtedness. Guarantor shall not
demand or accept any payment from Borrower, shall not claim any
offset against Guarantor’s obligations to Lender under this
Guaranty because of any indebtedness of Borrower to Guarantor, and
shall not take any action to obtain the benefit of any of the
collateral for the Indebtedness; provided, however, that, if Lender
so requests, Guarantor shall collect, enforce, and receive payments
on the Indebtedness to Guarantor as trustee for Lender and pay all
such payments to Lender on account of the indebtedness of Borrower
to Lender, but without reducing or affecting in any manner
Guarantor's liability under this Guaranty.
8. Any
acknowledgement, new promise, payment of principal or interest, or
otherwise, whether by Borrower or others (including Guarantor),
with respect to any of the Guaranteed Obligations shall, if the
statute of limitations in favor of Guarantor against Lender shall
have commenced to run, toll the running of such statute of
limitations and, if the period of such statute of limitations shall
have expired, prevent the operation of such statute of
limitations.
9. Lender shall not be
bound to take any steps necessary to preserve any rights in any of
the property of Guarantor against prior parties who may be liable
in connection therewith, and Guarantor hereby agrees to take any
such steps. Lender may nevertheless at any time (a) take any
action it may deem appropriate for the care or preservation of such
property or of any rights of Guarantor or Lender therein,
(b) demand, xxx for, collect or receive any money or property
at any time due, payable, or receivable on account of or in
exchange for any property of Guarantor, (c) compromise and
settle with any person liable on such property, or (d) extend
the time of payment or otherwise change the terms thereof as to any
party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations of
Guarantor.
10. Notwithstanding
anything contained herein to the contrary, if the payment of any
amount due under this Guaranty will violate any applicable usury
statute or any other applicable law, the amount due shall be
reduced to the maximum amount permitted by law. In no event shall
Guarantor be required to pay an amount in excess of the amount
permitted under applicable law at the time the payment is
due.
11. Upon the
occurrence, and during the continuance, of an Event of Default
under the Loan Documents and the commencement of an enforcement
action by Lender against Borrower, in the event that Borrower or
Guarantor shall not reasonably cooperate with Lender in the
exercise of its remedies, Guarantor shall pay or reimburse Lender
for all of its direct and actual out-of-pocket costs and expenses
incurred in connection with the Loan Documents, collection, or
enforcement of, or the preservation of any rights under, this
Guaranty or any of the Guaranteed Obligations, including without
limitation, the reasonable fees and disbursements of counsel for
Lender, including attorneys' fees out of court, in trial, on
appeal, in bankruptcy proceedings, or otherwise.
12. Unless otherwise
expressly agreed herein, all notices, requests, and demands to or
upon the parties to this Guaranty shall be deemed to have been
given or made upon receipt or refusal of service. Delivery of
notices, requests or demands may be made by hand or by courier
service, nationally recognized overnight delivery service or U.S.
registered or certified mail, postage prepaid, return receipt
requested. All such notices, requests and demands shall be
addressed as shown in the preamble to this Guaranty or such other
address as may be hereafter designated in writing by one party to
the other.
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13. Miscellaneous.
(a) This Guaranty shall
be governed by and construed and interpreted in accordance with,
the laws of Florida, excluding those laws relating to the
resolution of conflicts between laws of different
jurisdictions.
(b) In any litigation
in connection with or to enforce this Guaranty, Guarantor (and
Lender by its acceptance hereof) irrevocably consents to and
confers personal jurisdiction on the courts of the State of Florida
or the United States courts located within the State of Florida,
expressly waives any objections as to venue in any of such
courts.
(c) In the event that
any one or more of the provisions of this Guaranty is determined to
be invalid, illegal, or unenforceable in any respect as to one or
more of the parties, all remaining provisions nevertheless shall
remain effective and binding on the parties thereto and the
validity, legality, and enforceability thereof shall not be
affected or impaired thereby. If any such provision is held to be
illegal, invalid, or unenforceable, there will be deemed added in
lieu thereof a provision as similar in terms to such provision as
is possible, that is legal, valid, and enforceable. To the extent
permitted by applicable law, Guarantor hereby waives any law that
renders any such provision invalid, illegal, or unenforceable in
any respect.
(d) The singular shall
include the plural, the plural shall include the singular, and any
gender shall be applicable to all genders when the context permits
or implies. If more than one party constitutes Guarantor, their
obligations hereunder shall be joint and several and the term
“Guarantor” as used herein shall mean Guarantor or any
one or more of them.
(e) Any party executing
this Guaranty shall be bound by the terms hereof without regard to
execution by any other party and the failure of any party to
execute this Guaranty shall not release or otherwise affect the
obligations of the party or parties who do sign this
Guaranty.
(f) This Guaranty may
be signed in original counterparts and by facsimile or other
electronic transmission of signed counterparts, each of which shall
be deemed an original, in any number, no one of which need contain
all of the signatures of the parties. As many of such counterparts
as shall together contain all of the signatures of the parties
shall be deemed to constitute one and the same
instrument.
(g) No delay or
omission by Lender in exercising any right or remedy under this
Guaranty or otherwise afforded by law or equity shall operate as a
waiver of that right or remedy or of any other right or remedy and
no single or partial exercise of any right or remedy shall preclude
any other or further exercise of that or any other right or
remedy.
(h) All rights and
remedies of Lender hereunder and under any other loan documents are
cumulative and are not exclusive of any rights or remedies provided
by law or in equity, and may be pursued singularly, successively,
or together, and may be exercised as often as the occasion therefor
shall arise. The warranties, representations, covenants, and
agreements made herein and therein shall be cumulative
(i) This Guaranty may
not be modified or amended nor shall any provision of it be waived
except by a written instrument signed by the party against whom
such action is to be enforced.
(j) The headings
preceding the text of sections of this Guaranty have been included
solely for convenience of reference and shall neither constitute a
part of this Guaranty nor affect its meaning, interpretation, or
effect.
(k) This Guaranty shall
be binding upon and inure to the benefit of Lender, its successors
and assigns, and shall be binding upon Guarantor and its respective
heirs, legal representatives, successors, and assigns; provided,
however, that no rights or obligations of Guarantor hereunder shall
be assigned without the prior written consent of
Lender.
(l) Time is of the
essence in the performance of this Guaranty and the
Liabilities.
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(m) WAIVER OF JURY TRIAL. LENDER AND
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS GUARANTY AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS
GUARANTY.
(n) The provisions of
Section 11 of the Loan Agreement are hereby fully incorporated by
reference herein to the same extent and with the same force as is
fully set forth herein. Guarantor’s liability shall be
limited to the Guaranteed Obligations and in no event shall
Guarantor be liable for the full amount of the Indebtedness, upon
the occurrence of an Event of Default and the acceleration of the
Loan by Lender, except to the extent provided in Section 2(b) of
this Guaranty, or for the payment of any deficiency judgment in
connection with an enforcement action by Lender against
Borrower.
IN WITNESS WHEREOF, Guarantor has
executed this Guaranty to be effective as of the date and year
first written above.
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WITNESSES:
/s/ Xxxxx X. XxXxxx
/s/ Xxxxxx Xxxxxx
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GELTECH INC., a Delaware corporation
By: /s/
J. Xxxxx Xxxxxx
J.
Xxxxx Xxxxxx, President
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WITNESSES:
/s/ Xxxxx X. XxXxxx
/s/ Xxxxxx Xxxxxx
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ISP OPTICS CORPORATION, a New York corporation
By: /s/ J. Xxxxx
Xxxxxx
J.
Xxxxx Xxxxxx, President
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WITNESSES:
/s/ Xxxxx X. XxXxxx
/s/ Xxxxxx Xxxxxx
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LIGHTPATH OPTICAL INSTRUMENTATION (SHANGHAI) CO., LTD., a
company formed under the law of the People’s Republic of
China
By: /s/
J. Xxxxx Xxxxxx
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WITNESSES:
/s/ Xxxxx X. XxXxxx
/s/ Xxxxxx Xxxxxx
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LIGHTPATH OPTICAL INSTRUMENTATION (ZHENJIANG) CO., LTD., a
company formed under the law of the People’s Republic of
China
By: /s/
J. Xxxxx Xxxxxx
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WITNESSES:
/s/ Xxxxx X. XxXxxx
/s/ Xxxxxx Xxxxxx
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ISP OPTICS LATVIA, SIA, a company formed under the law of
the Republic of Latvia
By: /s/
J. Xxxxx Xxxxxx
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