THIRD AMENDMENT TO LOAN AGREEMENT Dated February 26, 2019 Between LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation and BANKUNITED, N.A., a national banking association Dated as of May 11, 2022 THIRD AMENDMENT TO LOAN AGREEMENT
EXHIBIT 10.3
THIRD AMENDMENT
TO
Dated February 26, 2019
Between
LIGHTPATH TECHNOLOGIES, INC.,
a Delaware corporation
and
BANKUNITED, N.A.,
a national banking association
Dated as of May 11, 2022
THIRD AMENDMENT TO
THIS THIRD AMENDMENT TO LOAN AGREEMENT (“Third Amendment”) is made as of May, 2022, by and between LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation, (“Borrower”), and BANKUNITED, N.A., a national banking association (“Lender”).
RECITALS
A. Borrower and Lender are parties to a Loan Agreement dated as of February 26, 2019 as amended by First Amendment to Loan Agreement dated as of May 6, 2019, but effective as of February 26, 2019 (the “First Amendment”), and by Second Amendment to Loan Agreement dated as of December 20, 2021 (the “Second Amendment”) (collectively the “Loan Agreement”).
B. Borrower and Lender have elected to further modify the terms and conditions of the Loan Agreement as more particularly set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Recitals; Defined Terms. The Recitals set forth above are true and correct and are incorporated herein by reference. Unless otherwise defined, all initially capitalized terms in this Third Amendment shall be as defined in the Loan Agreement.
2. Extended Maturity Date; Fee. The Maturity Date of Term Loan Facility is extended from April 15, 2023 to April 15, 2024.
3. Extension and Exit Fees. As a condition of such extension Borrower shall pay an extension fee of two percent (2%) of the then existing principal balance if the Term Loan Facility remains outstanding as of September 30, 2022, an extension fee of one percent (1%) if the Term Loan Facility remains outstanding as of December 31, 2022, an extension fee of one percent (1%) if the Term Loan Facility remains outstanding as of March 31, 2023, and an exit fee of four percent (4%) of the Term Loan Facility remains outstanding on April 15, 2024.
4. Financial Covenant Waivers. Lender waives compliance with (but not the reporting of) the Financial Covenants set forth in Section 6.8 of the Loan Agreement until December 31, 2022.
5. Modification Fees and Expenses. Concurrently with the execution of this Third Amendment Borrower shall pay Lender a Twenty Five Thousand Dollar ($25,000.00) modification fee, together with all fees, costs and expenses incurred by Lender in connection herewith, including, but not limited to, Lender’s legal fees and costs, third party appraisals and costs of searches and due diligence expenses. Lender is authorized to debit Borrower’s operating account for such fees and expenses.
6. Ratification of Guaranties. As a material inducement to Lender to enter into this Third Amendment, each Guarantor hereby agrees as follows:
(a) Guarantor acknowledges the continuing validity and effectiveness of the Guaranty Agreement and any other agreements, documents, or instruments securing or otherwise relating to the Guaranties previously executed and delivered by Guarantor (including without limitation any environmental indemnity agreement);
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(b) Guarantor hereby joins in this Third Amendment for the purpose of consenting to: (i) this Third Amendment and all other matters, terms and conditions stated in this Third Amendment, and any other agreement, instrument or document executed simultaneously herewith;
(c) No offsets, defenses or counterclaims exist with respect to Guarantor’s obligations under the Guaranty Agreement;
(d) Guarantor, to the fullest extent permitted by law, hereby waives any claim or other right which Guarantor might now have or hereafter may acquire against Borrower, which arises from the existence or performance of Guarantors’ liability or other obligations under each Guaranty Agreement which Guarantors have executed in favor of Lender, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of Lender against Borrower or any of the Collateral or any other property securing the Loan, whether or not such claim, remedy, or right arises in equity, or under contract, statute, or common law; and
(e) The execution, delivery, and performance by Guarantor of this Third Amendment and all documents and agreements of Guarantor relating hereto (i) are within the duly authorized power of Guarantor, (ii) have been duly authorized by all requisite action, and (iii) will not violate any provision of law, any order of any court or other agency of government, or the terms and provisions of any court or other agency of government, or the terms and provisions of any agreement with any third party or any instrument under which Guarantor is organized and constituted.
7. Affirmation of Loan Documents. Borrower further hereby affirms each of its covenants and obligations under the Loan Documents and acknowledges that Lender has fully complied with each of its covenants and obligations under the Loan Documents. Borrower acknowledges that it has no defenses, set offs or counterclaims to its obligations under any of the Loan Documents.
8. Events of Default. Failure to comply in any respect with any term, condition or undertaking contained in this Third Amendment shall constitute an event of default by Borrower under this Third Amendment and each of the Loan Documents, as applicable.
9. Release.
(a) As a material inducement to Lender to enter into this Third Amendment, each of Borrower and Guarantors (each an “Obligor”) hereby releases and discharges Lender and each of its agents, employees, directors, officers, attorneys, accountants, affiliates, representatives, receivers, trustees, subsidiaries, predecessors, successors and assigns (collectively, the “Released Parties”) from all claims, damages, losses, demands, liabilities, obligations, actions and causes of action whatsoever (whether arising in contract or in tort, and whether at law or in equity), which each Obligor may now have or claim to have against the Released Parties, whether known or unknown, matured or contingent, liquidated or unliquidated, arising from, in connection with, or in any way concerning or relating to (i) the Loan (ii) the Loan Documents (iii) this Third Amendment, or (iv) any action or inaction of any person or entity released hereunder with respect to the Loan, the Loan Documents, and this Third Amendment (collectively “Claims”), except to the extent resulting from acts first arising after the execution and delivery of this Third Amendment and which are caused solely by Lender’s gross negligence or willful misconduct.
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(b) In connection herewith, each Obligor hereby acknowledge that factual matters now unknown to it may have given or may hereafter give rise to Claims which are presently unknown, unanticipated and unsuspected, and it further agrees, represents and warrants that this release has been negotiated and agreed upon in light of that realization and that it nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown Claims.
(c) Each Obligor represents and warrants that it has not heretofore assigned or transferred, or purported to assign or to transfer, to any person any Claim released hereunder or any portion thereof or interest therein, and each Obligor agrees to indemnify, defend and hold the Released Parties harmless from and against any and all claims based on or arising out of any such assignment or transfer or purported assignment or transfer.
10. Waiver of Jury Trial. EACH OBLIGOR AND LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, OR REMEDY UNDER OR IN CONNECTION WITH THIS THIRD AMENDMENT OR ANY LOAN DOCUMENT OR UNDER OR IN CONNECTION WITH ANY AMENDMENT, INSTRUMENT, DOCUMENT, OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH THIS THIRD AMENDMENT OR ANY LOAN DOCUMENT, AND AGREE THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE TERMS AND PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS THIRD AMENDMENT.
Except as amended hereby the Loan Agreement remains in full force and effect.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF the parties have executed this Third Amendment as of the date first written above.
| BORROWER: | |||
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| LIGHTPATH TECHNOLOGIES, INC., a Delaware corporation |
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| By: | /s/ Xxx Xxxxx | ||
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| Xxx Xxxxx, President | |
| LENDER: | |||
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| BANKUNITED, N.A., a national banking association |
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| By: | /s/ Xxxxxx Xxxxxxxxxxx |
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| Xxxxxx Xxxxxxxxxxx, SVP |
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| The following Guarantors acknowledge and consent to this Third Amendment as of the date first written above. |
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| GUARANTORS: |
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| GELTECH INC., a Delaware corporation |
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| By: | /s/ Xxx Xxxxx |
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| Xxx Xxxxx, President |
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| ISP OPTICS CORPORATION, a New York corporation |
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| By: | /s/ Xxx Xxxxx |
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| Xxx Xxxxx, President |
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| LIGHTPATH OPTICAL INSTRUMENTATION (SHANGHAI) CO., LTD., a company formed under the law of the People’s Republic of China |
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| By: | /s/ Xxx Xxxxx |
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| LIGHTPATH OPTICAL INSTRUMENTATION (ZHENJIANG) CO., LTD., a company formed under the law of the People’s Republic of China |
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| By: | /s/ Xxx Xxxxx |
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| ISP OPTICS LATVIA, SIA, a company formed under the law of the Republic of Latvia |
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| By: | /s/ Xxx Xxxxx |
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