Attached files
Exhibit 10.7
THIRD AMENDMENT
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This
Third Amendment to Second Amended and Restated Loan and Security
Agreement is entered into as of May 11, 2018 (the
“Amendment”), by and between AVIDBANK
(“Bank”), and LIGHTPATH TECHNOLOGIES, INC.
(“Borrower”).
RECITALS
Borrower 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 and that certain Second
Amendment to Second Amended and Restated Loan and Security
Agreement dated as of January 16, 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. Borrower
acknowledges that there is an existing and uncured Event of Default
arising from Borrower’s failure to comply with Section 6.9(a)
of the Agreement with respect to the Fixed Charge Coverage Ratio
measured on March 31, 2018 (the “Covenant Default”).
Subject to the conditions contained herein and performance by
Borrower of all of the terms of the Agreement after the date
hereof, Bank waives the Covenant Default. Bank does not waive
Borrower’s obligations under such section after the date
hereof and as amended hereby, and Bank does not waive any other
failure by Borrower to perform its Obligations under the Loan
Documents.
2. Bank acknowledges
that Borrower intends to enter into a sale and leaseback
transaction with Tetra Financial Group LLC, for Taylor Hobson
equipment totaling $470,000 (the “Equipment Sales”).
Bank hereby consents to the Equipment Sales and acknowledges that
such sale and leaseback do not, in and of themselves, constitute an
Event of Default under the Agreement (under Section 7.1 of the
Agreement or otherwise).
3. Clause (c) of the
defined term “Permitted Indebtedness” set forth in
Section 1.1 of the Agreement is amended and restated in its
entirety to read as follows:
(c)
Indebtedness secured by a lien described in clause (c) of the
defined term “Permitted Liens,” provided such
Indebtedness does not exceed the lesser of the cost or fair market
value of the equipment financed with such Indebtedness
;
4. Section 6.8(a) of
the Agreement is amended and restated in its entirety to read as
follows:
(a) Domestic.
Each Borrower shall maintain and shall cause each of its domestic
Subsidiaries to maintain all of its domestic depository and
operating accounts with Bank; provided that Borrowers shall have
until May 31, 2018 to transition and close its existing account
maintained with UBS and the account balance in such account shall
not exceed Ten Thousand Dollars ($10,000) at any given time during
such transition period.
5. 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 1.10 to 1.00, measured on June
30, 2018; and 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.
6. Exhibit D to the
Agreement is replaced in its entirety with the Exhibit D attached
hereto.
7. 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.
8. 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.
9. 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.
10. 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 an
amendment fee in the amount of $800 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.
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LIGHTPATH
TECHNOLOGIES, INC.
By:
/s/ J. James Gaynor
Name: J. James Gaynor
Title:
President and Chief
Executive Officer
ISP
OPTICS CORPORATION
By:
/s/ J. James
Gaynor
Name:
J. James
Gaynor
Title:
President and Chief
Executive Officer
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AVIDBANK
By:
/s/ Stephen
Chen
Name:
Stephen
Chen
Title:
Assistant Vice President
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EXHIBIT D
Compliance
Certificate
TO:
AVIDBANK
(“Bank”)
FROM:
LIGHTPATH
TECHNOLOGIES, INC., ET AL
The
undersigned authorized officer of LightPath Technologies, Inc. on
behalf of Borrowers hereby certifies that in accordance with the
terms and conditions of the Second Amended and Restated Loan and
Security Agreement between Borrowers and Bank (as amended, the
“Agreement”), (i) each Borrower is in complete
compliance for the period ending _______________ with all required
covenants except as noted below and (ii) all representations
and warranties of each Borrower stated in the Agreement are true
and correct as of the date hereof. Attached herewith are the
required documents supporting the above certification. The Officer
further certifies that these are prepared in accordance with
Generally Accepted Accounting Principles (GAAP) and are
consistently applied from one period to the next except as
explained in an accompanying letter or footnotes.
Please indicate compliance status by circling Yes/No under
“Complies” column.
Reporting Covenant
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Required
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Complies
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A/R
& A/P Agings
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Monthly
within 30 days
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Yes
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No
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Deferred
Revenue listing
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Monthly
within 30 days
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Yes
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No
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Borrowing
Base Certificate
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Monthly
within 30 days
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Yes
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No
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Compliance
Certificate
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Monthly
within 30 days
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Yes
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No
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Bank
statements for accounts outside of Bank
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Monthly
within 30 days
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Yes
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No
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Monthly
consolidated financial statements
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Monthly
within 30 days
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Yes
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No
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Monthly
consolidating financial statements
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Monthly
within 30 days
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Yes
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No
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Annual
financial statements (CPA Audited)
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Annually
within 90 days of fiscal year end
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Yes
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No
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Annual
projections (board approved)
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Annually
within 30 days following fiscal year beginning
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Yes
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No
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10K and
10Q
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(as
applicable)
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Yes
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No
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A/R
Audit
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Annually
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Yes
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No
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IP
Notices
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As
required under Section 6.10
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Yes
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No
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Financial Covenant
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Required
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Actual
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Complies
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Fixed
Charge Coverage Ratio (6/30/18)
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1.10 :
1.00
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____:
1.00
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Yes
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No
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Fixed
Charge Coverage Ratio (9/30/18 and thereafter)
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1.15 :
1.00
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____:
1.00
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Yes
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No
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Minimum
Asset coverage ratio (monthly)
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1.50 :
1.00
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____:
1.00
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Yes
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No
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Comments Regarding Exceptions: See Attached.
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BANK USE ONLY
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Received
by: _____________________________________
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Sincerely,
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AUTHORIZED
SIGNER
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Date:
___________________________________________
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___________________________________________
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Verified:
_________________________________________
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SIGNATURE
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AUTHORIZED
SIGNER
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___________________________________________
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Date:
___________________________________________
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TITLE
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Compliance
Status
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Yes
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No
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___________________________________________
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DATE
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