Loan Agreement dated February 26, 2019 by and between LightPath Technologies, Inc. and BankUnited, N.A

 

 

 

		PAGE
SECTION I.	DEFINITIONS AND INTERPRETATION	2
1.1.	Terms Defined	8
1.2.	Accounting Principles	8
1.3.	Construction	8
SECTION II.	THE LOANS	8
2.1.	Revolving Credit Facility - Description	8
2.2.	Term Loan Facility – Description	8
2.3	Guidance Line Facility – Description	9
2.4.	Intentionally Deleted:	9
2.5.	Advances and Payments:	9
2.6.	Interest:	10
2.7.	Additional Interest Provisions	10
2.8.	Fees and Charges	10
2.9.	Prepayments	11
2.10.	Use of Proceeds	11
2.11.	Capital Adequacy	11
SECTION III.	COLLATERAL	12
3.1.	Collateral	12
3.2.	Lien Documents	12
3.3.	Other Actions	12
3.4.	Searches, Certificates:	12
3.5.	Landlord's and Warehouseman's Waivers; Access Agreements	12
SECTION IV.	CLOSING AND CONDITIONS PRECEDENT TO ADVANCES	13
4.1.	Resolutions, Opinions, and Other Documents	13
4.2.	Absence of Certain Events	14
4.3.	Warranties and Representations at Closing	14
4.4.	Compliance with this Agreement	14
4.5.	Reserved	14
4.6.	Closing	14
4.7.	Waiver of Rights	14
4.8.	Conditions for Future Advances	14

 

 

SECTION V.	REPRESENTATIONS AND WARRANTIES	15
5.1.	Organization and Validity	15
5.2.	Places of Business	15
5.3.	Pending Litigation	15
5.4.	Title to Properties	16
5.5.	Governmental Consent	16
5.6.	Taxes	16
5.7.	Financial Statements	16
5.8.	Full Disclosure	16
5.9.	Subsidiaries	16
5.10.	Investments, Guarantees, Contracts, etc	17
5.11.	Government Regulations, etc	17
5.12.	Business Interruptions	18
5.13.	Names and Intellectual Property	18
5.14.	Other Associations	18
5.15.	Environmental Matters	18
5.16.	Regulation O	19
5.17.	Capital Stock	19
5.18.	Solvency	19
5.19.	Perfection and Priority	19
5.20.	Commercial Tort Claims	19
5.21.	Anti-Terrorism Laws	19
SECTION VI.	BORROWER'S AFFIRMATIVE COVENANTS	20
6.1.	Payment of Taxes and Claims	20
6.2.	Maintenance of Properties and Corporate Existence	20
6.3.	Business Conducted	21
6.4.	Litigation	21
6.5.	Taxes	21
6.6.	Bank Accounts	21
6.7.	Employee Benefit Plans	21
6.8.	Financial Covenants	21
6.9.	Financial and Business Information	21
6.10.	Compliance Certificates	22
6.11.	Audit and Inspection; Field Exams; Appraisals	22
6.12.	Other Reports	23
6.13.	Information to Participant	23
6.14.	Material Adverse Developments	23
6.15.	Places of Business	23
6.16.	Annual Clean-Up	23

 

 

SECTION VII.	BORROWER'S NEGATIVE COVENANTS:	23
7.1.	Merger, Consolidation, Dissolution or Liquidation	24
7.2.	Acquisitions	24
7.3.	Liens and Encumbrances	24
7.4.	Transactions With Affiliates or Subsidiaries	24
7.5.	Shareholder Debt	24
7.6.	Subordinate Debt	25
7.7.	Guarantees	25
7.8.	Distributions, Bonuses and Other Indebtedness	25
7.9.	Miscellaneous Covenants	25
SECTION VIII.	DEFAULT	26
8.1.	Events of Default	26
8.2.	Cure	27
8.3.	Rights and Remedies on Default	27
8.4.	Nature of Remedies	29
8.5.	Set-Off	29
SECTION IX.	MISCELLANEOUS	30
9.1.	Governing Law	30
9.2.	Integrated Agreement	30
9.3.	Waiver	30
9.4.	Indemnity	30
9.5.	Time	30
9.6.	Expenses of Lender	31
9.7.	Brokerage	31
9.8.	Notices	31
9.9.	Headings	32
9.10.	Survival	32
9.11.	Successors and Assigns	32
9.12.	Duplicate Originals	32
9.13.	Modification	32
9.14.	Signatories	32
9.15.	Third Parties	32
9.16.	Discharge of Taxes, Borrower's Obligations, Etc	32
9.17.	Withholding and Other Tax Liabilities	33
9.18.	Consent to Jurisdiction	33
9.19.	Additional Documentation	33
9.20.	Advertisement	33
9.21.	Waiver of Jury Trial	34
9.22.	Consequential Damages	34
9.23.	Confidentiality	34

 

 

 

 

 

 

 

1.1. Terms Defined

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.2. Accounting Principles

 

 

1.3. Construction

 

 

 

2.1. Revolving Credit Facility - Description

 

a. Subject to the terms and conditions of this Agreement, Lender hereby establishes for the benefit of Borrower a revolving credit facility (collectively, the “Revolving Credit Facility”) which shall include cash Advances extended by Lender to or for the benefit of Borrower from time to time hereunder. The aggregate principal amount of unpaid cash Advances shall not at any time exceed the Maximum Revolving Loan Amount. Subject to such limitation, the outstanding balance of Advances under the Revolving Credit Facility may fluctuate from time to time, to be reduced by repayments made by Borrower, to be increased by future Advances which may be made by Lender, to or for the benefit of Borrower, and, subject to the Event of Default provisions of Section 8 below, shall be due and payable on the Revolving Credit Maturity Date. If the aggregate principal amount of unpaid cash Advances at any time exceeds the Maximum Revolving Loan Amount (such excess referred to as “Overadvance”), Borrower shall, repay the Overadvance in full immediately upon notice of such Overadvance from Lender.

 

b. At Closing, Borrower shall execute and deliver a promissory note to Lender for the Maximum Commitment (“Revolving Credit Note”). The Revolving Credit Note shall evidence Borrower’s unconditional obligation to repay Lender for all Advances made under the Revolving Credit Facility, with interest as herein provided. Each Advance under the Revolving Credit Facility shall be deemed evidenced by the Revolving Credit Note, which is deemed incorporated herein by reference and made part hereof.

 

c. The term of the Revolving Credit Facility shall expire on the Revolving Credit Maturity Date. On such date, unless having been sooner accelerated by Lender pursuant to the terms hereof, and without impairing any rights under Section 3.1 to the Collateral, all sums owing under the Revolving Credit Facility shall be due and payable in full, and as of and after such date Borrower shall not request and Lender shall not make any further Advances under the Revolving Credit Facility.

 

2.2. Term Loan Facility – Description.

 

 

 

 

 

2.3. Guidance Line Facility – Description.

 

 

 

 

 

 

 

 

 

 

 

2.4. Intentionally Deleted.

 

 

2.5. Advances and Payments:

 

a. Except to the extent otherwise set forth in this Agreement, all payments of principal and of interest on the Revolving Credit Facility, the Term Loan Facility and the Guidance Line Facility, and all Expenses, fees, indemnification obligations and all other charges and any other Obligations of Borrower, shall be made to Lender at its banking office at 7815 NW 148th Street, Miami Lakes, Florida 33016, or such other office as Lender may designate in writing, in United States dollars, in immediately available funds.

 

b. Advances which may be made by Lender from time to time under the Revolving Credit Facility shall be made available by crediting such proceeds to Borrower’s Account.

 

c. All Advances requested by Borrower under the Revolving Credit Facility are to be in writing pursuant to a written request (“Advance Request”) executed by an Authorized Officer in the form of Exhibit “B” attached hereto. Requests for Advances must be requested by 12:00 Noon, Eastern time, on the Business Day that is the day before the Business Day such Advance is to be made.

 

d. Upon receiving a request for an Advance in accordance with subparagraph (c) above, and subject to the conditions set forth in this Agreement, Lender shall make the requested Advance available to Borrower on the day the Advance has been requested to be made, or as soon as is reasonably practicable thereafter.

 

 

2.6. Interest:

 

a. The unpaid principal balance of cash Advances under the Notes shall bear interest, subject to the terms hereof at a per annum rate equal to, the Base Rate plus 275 basis points.

 

b. Changes in the interest rate applicable to any Loan shall become effective on the same day there is a change in the Base Rate.

 

c. Interest on any Loan shall be payable monthly, in arrears, on the first day of each month, beginning on the first day of the first full calendar month after the Closing Date, and on the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable.

 

2.7. Additional Interest Provisions

 

a. Interest on the Loans shall be calculated on the basis of a year of three hundred sixty (360) days but charged for the actual number of days elapsed.

 

b. After the occurrence and during the continuance of an Event of Default hereunder and at Lender’s election, the per annum effective rate of interest on all outstanding principal under the Loans shall be increased to five percent (5%) in excess of the Base Rate (the “Default Rate”). All such increases may be applied retroactively to the date of the occurrence of the Event of Default. Borrower agrees that the Default Rate payable to Lender is a reasonable estimate of Lender’s damages and is not a penalty.

 

c. All contractual rates of interest chargeable on outstanding principal under the Loans shall continue to accrue and be paid even after Default, an Event of Default, maturity, acceleration, judgment, bankruptcy, insolvency proceedings of any kind or the happening of any event or occurrence similar or dissimilar.

 

d. In no contingency or event whatsoever shall the aggregate of all amounts deemed interest hereunder and charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such court determines Lender has charged or received interest hereunder in excess of the highest applicable rate, Lender shall apply, in its sole discretion, and set off such excess interest received by Lender against other Obligations due or to become due and such rate shall automatically be reduced to the maximum rate permitted by such law.

 

2.8. Fees and Charges

 

a. At Closing, Lender shall have fully earned and Borrower shall unconditionally pay to Lender a non-refundable fee (“Commitment Fee”) with respect to the Revolving Credit Facility and the Term Loan Facility and, with respect to the Guidance Line Facility, at the time of each advance thereunder, equal to one quarter of one percent (0.25%) of the Loan Amount or advance amount.

 

b. Borrower shall unconditionally pay to Lender a late charge equal to five percent (5%) of any and all payments of principal or interest on the Loans that are not paid within ten (10) days of the due date unless the Default Rate has been applied. Such late charge shall be due and payable regardless of whether Lender has accelerated the Obligations. Borrower agrees that any late fee payable to Lender is a reasonable estimate of Lender’s damages and is not a penalty.

 

 

2.9. Prepayments

 

a. Borrower may prepay the Revolving Credit Facility, the Term Loan Facility and/or the Guidance Line Facility in whole or in part at any time or from time to time, without penalty or premium. Any prepayment shall be accompanied by all accrued and unpaid interest.

 

b. Subject to Section 7.1 hereof, upon any Asset Sale, Borrower shall prepay outstanding amounts under the Revolving Credit Facility in an amount equal to the net proceeds of the Asset Sale (i.e., the gross proceeds less the reasonable and customary costs of such sale or other dispositions) upon Borrower’s receipt thereof.

 

2.10. Use of Proceeds

 

 

2.11. Capital Adequacy

 

 

 

3.1. Collateral

 

 

3.2. Lien Documents

 

 

a. Financing statements pursuant to the UCC, which Lender may file in the jurisdiction where Borrower is organized and in any other jurisdiction that Lender deems appropriate;

 

b. Any other agreements, documents, instruments and writings, including, without limitation, intellectual property security agreements, required by Lender to evidence, perfect or protect the Liens and security interests in the Collateral or as Lender may reasonably request from time to time.

 

3.3. Other Actions

 

a. In addition to the foregoing, Borrower and each Domestic Guarantor shall do anything further that may be reasonably required by Lender to secure Lender and effectuate the intentions and objects of this Agreement, including, without limitation, the execution and delivery of security agreements, contracts and any other documents required hereunder.

 

b. Lender is hereby authorized to file financing statements and amendments to financing statements without Borrower’s or each Domestic Guarantor’s signature, in accordance with the UCC. Borrower and each Domestic Guarantor hereby authorizes Lender to file all such financing statements and amendments to financing statements describing the Collateral in any filing office as Lender, in its sole discretion may determine. Borrower and each Domestic Guarantor agrees to comply with the requests of Lender in order for Lender to have and maintain a valid and perfected first security interest in the Collateral including, without limitation, executing and causing any other Person to execute such documents as Lender may require to obtain Control (as defined in the UCC) over all deposit accounts.

 

3.4. Searches, Certificates:

 

a. Lender shall, prior to or at Closing, and thereafter as Lender may determine from time to time, at Borrower’s expense (provided, however, Borrower shall only be responsible for the expenses of one set of searches per year unless an Event of Default is then continuing, in which case, all searches shall be at Borrower’s expense), obtain the following searches (the results of which are to be consistent with the warranties made by Borrower in this Agreement):

 

i. UCC searches with the Secretary of State and local filing office of each state where Borrower is organized, maintains its executive office, a place of business, or assets; and

 

ii. Judgment, state and federal tax lien and corporate tax lien searches, in all applicable filing offices of each state searched under subparagraph (i) above.

 

b. Borrower shall, prior to or at Closing deliver to Lender good standing certificates showing Borrower to be in good standing in its state of organization and in each other state in which it is doing and presently intends to do business for which qualification is required.

 

3.5. Landlord’s and Warehouseman’s Waivers; Access Agreements

 

 

 

 

4.1. Resolutions, Opinions, and Other Documents

 

 

a. this Agreement, the Notes and each of the other Loan Documents all properly executed;

 

b. financing statements and each of the other documents to be executed and/or delivered by Borrower;`

 

c. certified copies of (i) resolutions of Borrower’s board of directors authorizing the execution, delivery and performance of this Agreement, the Notes to be issued hereunder and each of the other Loan Documents required to be delivered by any Section hereof and (ii) Borrower’s articles or certificate of incorporation and by-laws;

 

d. an incumbency certificate for Borrower identifying all Authorized Officers, with specimen signatures;

 

e. a collateral audit of Borrower’s assets, liabilities, books and records, satisfactory in all respects to Lender;

 

f. such financial statements, reports, certifications and other operational information as Lender may reasonably require, satisfactory in all respects to Lender;

 

g. payment by Borrower of all fees including, without limitation, the Commitment Fee, and all Expenses associated with the Revolving Credit Facility, the Term Loan Facility and the Guidance Line Facility;

 

h. searches and certificates required under Section 3.4;

 

i. insurance certificates and policies as required under Section 6.2;

 

j. all required field exams shall have been completed to Lender’s satisfaction;

 

k. Borrower’s Information Certificate;

 

l. the waivers of landlord’s or warehouse’s liens required under Section 3.5;

 

m. such other documents reasonably required by Lender.

 

 

4.2. Absence of Certain Events

 

 

4.3. Warranties and Representations at Closing

 

 

4.4. Compliance with this Agreement

 

 

4.5. Reserved

 

4.6. Closing

 

 

4.7. Waiver of Rights

 

 

4.8. Conditions for Future Advances

 

 

a. This Agreement and each of the other Loan Documents shall be effective;

 

b. No event or condition shall have occurred or become known to Borrower, or would result from the making of any requested Advance, which could reasonably be expected to have a Material Adverse Effect;

 

c. No Default or Event of Default then exists or after giving effect to the making of the Advance would exist;

 

d. Each Advance is within and complies with the terms and conditions of this Agreement including, without limitation, the notice provisions contained in Section 2.5 hereof;

 

e. No Lien (other than a Permitted Lien) has been imposed on Borrower; and

 

f. Each representation and warranty set forth in Section 5 and any other Loan Document in effect at such time (as amended or modified from time to time) is then true and correct in all material respects as if made on and as of such date except to the extent such representations and warranties are made only as of a specific earlier date.

 

 

 

 

5.1. Organization and Validity

 

a. Borrower (i) is a corporation, duly organized and validly existing under the laws of the State of Delaware, (ii) Borrower is duly authorized and qualified to conduct business in the State of Florida, (iii) has the appropriate power and authority to operate its business and to own its Property and (iv) is duly qualified, is validly existing and in good standing and has lawful power and authority to engage in the business it conducts in each state where the nature and extent of its business requires qualification, except where the failure to so qualify does not and could not reasonably be expected to have a Material Adverse Effect. A list of all states and other jurisdictions where Borrower is qualified to do business is shown on Borrower’s Information Certificate attached hereto and made part hereof.

 

b. The making and performance of this Agreement and the other Loan Documents will not violate any Requirement of Law, or the charter, minutes or bylaw provisions of Borrower, or violate or result in a default (immediately or with the passage of time) under any contract, agreement or instrument to which Borrower is a party, or by which Borrower is bound. Borrower is not in violation of any term of any agreement or instrument to which it is a party or by which it may be bound which violation has or could reasonably be expected to have a Material Adverse Effect, or of its charter, minutes or bylaw provisions.

 

c. Borrower has all requisite power and authority to enter into and perform this Agreement and to incur the obligations herein provided for, and has taken all proper and necessary action to authorize the execution, delivery and performance of this Agreement, and the other Loan Documents as applicable.

 

d. This Agreement, the Notes to be issued hereunder, and all of the other Loan Documents, when delivered, will be valid and binding upon Borrower, and enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.

 

5.2. Places of Business

 

 

5.3. Pending Litigation

 

 

 

5.4. Title to Properties

 

 

5.5. Governmental Consent

 

 

5.6. Taxes

 

 

5.7. Financial Statements

 

 

 

 

 

 

 

5.10. Investments, Guarantees, Contracts, etc.

 

a. Borrower does not own or hold equity or long term debt investments in, or have any outstanding advances to, any other Person, except equity in the Guarantors and as otherwise disclosed in writing to Lender prior to Closing.

 

b. Borrower has not entered into any leases for real or personal Property (whether as landlord or tenant or lessor or lessee), except as (i) shown on Borrower’s Information Certificate, attached hereto and made part hereof and (ii) in the ordinary course of business and as disclosed to Lender in writing.

 

c. Borrower is not a party to any contract or agreement, or subject to any charter or other corporate restriction, which has or could reasonably be expected to have a Material Adverse Effect.

 

d. Except as otherwise specifically provided in this Agreement, Borrower has not agreed or consented to cause or permit any of its Property whether now owned or hereafter acquired to be subject in the future (upon the happening of a contingency or otherwise), to a Lien not permitted by this Agreement.

 

5.11. Government Regulations, etc.

 

a. The use of the proceeds of and Borrower’s issuance of the Notes will not directly or indirectly violate or result in a violation of Section 7 of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including, without limitation, Regulations U, T and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. Borrower does not own or intend to carry or purchase any “margin stock” within the meaning of said Regulation U.

 

b. Borrower has obtained all licenses, permits, franchises or other governmental authorizations necessary for the ownership of its Property and for the conduct of its business, except where the failure to so obtain could not reasonably be expected to result in a Material Adverse Effect.

 

c. As of the date hereof, no employee benefit plan (“Pension Plan”), as defined in Section 3(2) of ERISA, maintained by Borrower or under which Borrower could have any liability under ERISA (i) has failed to meet the minimum funding standards established in Section 302 of ERISA, (ii) has failed to comply in a material respect with all applicable requirements of ERISA and of the Internal Revenue Code, including all applicable rulings and regulations thereunder, (iii) has engaged in or been involved in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Internal Revenue Code which would subject Borrower to any material liability, or (iv) has been terminated if such termination would subject Borrower to any material liability. Borrower has not assumed, or received notice of a claim asserted against Borrower for, withdrawal liability (as defined in Section 4207 of ERISA) with respect to any multi-employer pension plan and is not a member of any Controlled Group (as defined in ERISA). Borrower has timely made all contributions when due with respect to any multi-employer pension plan in which it participates and no event has occurred triggering a claim against Borrower for withdrawal liability with respect to any multi-employer pension plan in which Borrower participates.

 

d. Borrower is not in violation of or receipt of written notice that it is in violation of any Requirement of Law (including, without limitation, Environmental Laws), a violation of which causes or could reasonably be expected to cause a Material Adverse Effect.

 

e. Borrower is current with all reports and documents required to be filed with any state or federal securities commission or similar agency and is in compliance in all material respects with all applicable rules and regulations of such commissions, except where the failure to be current or in compliance could not reasonably be expected to result in a Material Adverse Effect.

 

 

5.12. Business Interruptions

 

 

5.13. Names and Intellectual Property

 

a. Within five (5) years prior to the Closing Date, Borrower has not conducted business under or used any other name (whether corporate or assumed) except for the names shown on Borrower’s Information Certificate attached hereto and made part hereof. Borrower is the sole owner of all names listed on such Borrower’s Information Certificate and any and all business done and all invoices issued in such trade names are Borrower's sales, business and invoices. Each trade name of Borrower represents a division or trading style of Borrower and not a separate Subsidiary or Affiliate or independent entity.

 

b. Borrower is the sole owner or valid licensee of all trademarks, service marks, patents or copyrights which Borrower uses, plans to use or has a right to use with respect to the Collateral.

 

c. Except as set forth on Schedule 5.13(c), Borrower does not require any copyrights, patents, trademarks or other intellectual property, or any license(s) to use any patents, trademarks or other intellectual property in order to provide services to its customers in the ordinary course of business and Lender will not require any copyrights, patents, trademarks or other intellectual property or any licenses to use the same in order to provide such services after the occurrence and during the continuation of an Event of Default.

 

d. Except for such claims and infringements that could not reasonably be expected to have a Material Adverse Effect, to Borrower’s knowledge, no claim has been asserted and is pending challenging or questioning the use of any trademarks or service marks or their validity and effectiveness, and, to Borrower’s knowledge, the use of any intellectual property rights by Borrower or any Subsidiary, the granting of a right or a license in respect of the intellectual property rights from Borrower or any Subsidiary, or any slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by Borrower or any Subsidiary does not infringe on any rights of any other Person.

 

5.14. Other Associations

 

 

5.15. Environmental Matters

 

 

a. To Borrower’s knowledge, no Property presently owned, leased or operated by Borrower contains, or has previously contained, any Hazardous Substances in amounts or concentrations which (i) constitute or constituted a violation of, or (ii) could give rise to liability under, any Environmental Law.

 

b. To Borrower’s knowledge, Borrower is in material compliance, and, for the duration of all applicable statutes of limitations periods, has been in material compliance with all applicable Environmental Laws, and there is no contamination at, under or about any properties presently owned, leased, or operated by Borrower or violation of any Environmental Law with respect to such properties which could reasonably be expected to interfere with any of their continued operations or reasonably be expected to impair the fair saleable value thereof.

 

c. Borrower has not received any written (or to Borrower’s knowledge, oral) notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance assessment with Environmental Laws and Borrower has no knowledge that any such notice will be received or is being threatened.

 

d. To Borrower’s knowledge, Hazardous Substances have not been transported or disposed of in a manner or to a location which are reasonably likely to give rise to liability of Borrower under any Environmental Law.

 

e. No judicial proceeding or governmental or administrative action is pending, or to the knowledge of Borrower, threatened under any Environmental Law to which Borrower is, or to Borrower’s knowledge will be, named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding, the implementation of which is reasonably likely to have a Material Adverse Effect.

 

 

5.16. Regulation O

 

 

5.17. Capital Stock

 

 

5.18. Solvency

 

 

5.19. Perfection and Priority

 

 

5.20. Commercial Tort Claims

 

 

5.21. Anti-Terrorism Laws:

 

a. General. Neither Borrower nor any Affiliate of Borrower is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

b. Executive Order No. 13224. Neither Borrower nor any Affiliate of Borrower, or to Borrower’s knowledge, any of its respective agents acting or benefiting in any capacity in connection with the Loans, Letters of Credit or other transactions hereunder, is any of the following (each a “Blocked Person”):

 

i. a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

 

ii. a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

 

iii. a Person with which Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

 

iv. a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order No. 13224;

 

v. a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or

 

vi. a Person who is affiliated with a Person listed above.

 

 

 

 

6.1. Payment of Taxes and Claims

 

 

6.2. Maintenance of Properties and Corporate Existence

a. Property - Borrower shall maintain its Property in good condition (normal wear and tear excepted) make all necessary renewals, replacements, additions, betterments and improvements thereto in the reasonable business judgment of Borrower and will pay and discharge when due the cost of repairs and maintenance to its Property (unless such costs are being contested in good faith), and will pay all rentals prior to becoming delinquent for all real estate leased by Borrower (unless such rentals are being contested in good faith).

 

b. Property Insurance, Public and Products Liability Insurance - Borrower shall maintain insurance (i) on all insurable tangible Property against fire, flood, casualty and such other hazards (including, without limitation, extended coverage, workmen's compensation, boiler and machinery, with inflation coverage by endorsement) and (ii) against general public liability, product liability, inventory and business interruption, in each case in such amounts, with such deductibles and with such insurers as are customarily used by companies operating in the same industry as Borrower. At or prior to Closing, Borrower shall furnish Lender with duplicate original policies of insurance or such other evidence of insurance as Lender may reasonably require, and any certificates of insurance shall be issued on Acord Form-27. In the event Borrower fails to procure or cause to be procured any such insurance or to timely pay or cause to be paid the premium(s) on any such insurance, Lender may do so for Borrower, but Borrower shall continue to be liable for the same. The policies of all such casualty insurance shall contain standard Lender's Loss Payable Clauses (and, with respect to liability and interruption insurance, additional insured clauses) issued in favor of Lender under which all losses thereunder shall be paid to Lender as Lender's interest may appear. Such policies shall expressly provide that the requisite insurance cannot be altered or canceled without thirty (30) days prior written notice to Lender and shall insure Lender notwithstanding the act or neglect of Borrower. Borrower hereby appoints Lender as Borrower's attorney-in-fact, exercisable at Lender's option to endorse any check which may be payable to Borrower in order to collect the proceeds of such insurance and any amount or amounts collected by Lender pursuant to the provisions of this Section may be applied by Lender, in its sole discretion, to any Obligations or to repair, reconstruct or replace the loss of or damage to Collateral as Lender in its discretion may from time to time determine. Borrower further covenants that all insurance premiums owing under its current policies have been paid. Borrower shall notify Lender, immediately, upon Borrower's receipt of a notice of termination, cancellation, or non-renewal from its insurance company of any such policy.

 

c. Financial Records - Borrower shall keep current and accurate books of records and accounts in which full and correct entries will be made of all of its business transactions, and will reflect in its financial statements adequate accruals and appropriations to reserves, all in accordance with GAAP. Borrower shall not change its fiscal year end date without the prior written consent of Lender (such consent not to be unreasonably withheld or delayed).

 

d. Corporate Existence and Rights - Borrower shall do (or cause to be done) all things reasonably necessary to preserve and keep in full force and effect its existence, good standing, rights and franchises. Borrower shall obtain and maintain any and all licenses, permits, franchises or other governmental authorizations necessary to the ownership of the Property or the conduct of its businesses, except where the failure to obtain or maintain could not reasonably be expected to result in a Material Adverse Effect.

 

e. Compliance with Laws - Borrower shall be in compliance with any and all Requirements of Law to which it is subject, whether federal, state or local, including, without limitation, Environmental Laws, except where the failure to be in compliance could not reasonably be expected to result in a Material Adverse Effect. Borrower shall timely satisfy all assessments, fines, costs and penalties imposed (after exhaustion of all appeals, provided a stay has been put in effect during such appeal) by any Governmental Authority against Borrower or any Property of Borrower.

 

 

6.3. Business Conducted

 

 

6.4. Litigation

 

 

6.5. Taxes

 

 

6.6. Bank Accounts

 

 

6.7. Employee Benefit Plans

 

 

6.8. Financial Covenants

 

 

a. a minimum Fixed Charge Coverage Ratio of 1.25 to 1.00 to be tested quarterly.

 

b. a maximum Total Leverage Ratio of 4.00 to 1.00. to be tested quarterly.

  

ii. within one hundred twenty (120) days after the end of each fiscal year of Borrower, commencing with the fiscal year ending June 30, 2019, the audited consolidated, consolidating (if applicable) and combined income and cash flow statements of Borrower and its Subsidiaries/Affiliates for such year, and the consolidated, consolidating (if applicable) and combined balance sheet of Borrower and its Subsidiaries/Affiliates as at the end of such fiscal year, setting forth in each case in comparative form the corresponding figures as at the end of and for the previous fiscal year, all in reasonable detail, including all supporting schedules, and reviewed by an independent public accounting firm acceptable to Lender, and certified to have been prepared in accordance with GAAP, and such independent public accountants shall also certify that in making the examinations necessary to their certification mentioned above they have reviewed the terms of this Agreement and the accounts and conditions of Borrower during the accounting period covered by the certificate and that such review did not disclose the existence of any condition or event which constitutes a Default or an Event of Default (or if such conditions or events existed, describing them) together with copies of any management letters provided by such accountants to management of Borrower; and

 

b. Notice of Event of Default - promptly (and in no event later than two (2) Business Days thereafter) upon becoming aware of the existence of any condition or event which constitutes a Default or an Event of Default under this Agreement, a written notice specifying the nature and period of existence thereof and what action Borrower is taking (and proposes to take) with respect thereto;

 

c. Notice of Claimed Default - promptly (and in no event later than five (5) Business Days thereafter) upon receipt by Borrower of a written of default given to Borrower by any creditor for Indebtedness; and

 

d. Securities and Other Reports – so long as Borrower shall be required to file reports with the Securities and Exchange Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, promptly upon its becoming available, one copy of each financial statement, report, notice or proxy statement sent by Borrower to stockholders generally, and, a copy of each regular or periodic report, and any registration statement, or prospectus in respect thereof, filed by Borrower with any securities exchange or with federal or state securities and exchange commissions or any successor agency.

 

6.10. Compliance Certificates

 

 

a. Event of Default - that the signer has reviewed the relevant terms of this Agreement, and has made (or caused to be made under his/her supervision) a review of the transactions and conditions of Borrower from the beginning of the accounting period covered by the financial statements being delivered therewith to the date of the certificate, and that such review has not disclosed the existence during such period of any condition or event which constitutes a Default or an Event of Default or, if any such condition or event exists, specifying the nature and period of existence thereof and what action Borrower has taken or proposes to take with respect thereto.

 

b. Covenant Compliance - the information (including detailed calculations) required in order to establish that Borrower is in compliance with the requirements of Section 6.8 of this Agreement, as of the end of the period covered by the financial statements delivered.

 

6.11. Audit and Inspection; Field Exams; Appraisals

 

 

 

6.12. Other Reports

 

 

6.13. Information to Participant

 

 

6.14. Material Adverse Developments

 

 

6.15. Places of Business

 

 

6.16. Annual Clean-Up. On an annual basis (measured on each annual anniversary of the date of this Agreement), the outstanding principal balance under the Revolving Credit Facility shall be reduced to zero for a period of thirty (30) consecutive days.

 

 

 

7.1. Merger, Consolidation, Dissolution or Liquidation

 

a. Borrower shall not engage in any Asset Sale other than equipment that is replaced by other equipment of comparable or superior quality and value within ninety (90) days of such Asset Sale, unless Borrower shall prepay outstanding amounts under the Revolving Credit Facility in an amount equal to the net proceeds of such Asset Sale (i.e., the gross proceeds less the reasonable and customary costs of such sale or other dispositions) upon Borrower’s receipt thereof.

 

b. Borrower shall not merge or consolidate with any other Person or commence a dissolution or liquidation.

 

7.2. Acquisitions

 

 

7.3. Liens and Encumbrances

 

 

7.4. Transactions With Affiliates or Subsidiaries

 

a. Borrower shall not enter into any transaction with any Subsidiary or other Affiliate, including, without limitation, the purchase, sale, or exchange of Property, or the loaning or giving of funds to any Affiliate or any Subsidiary unless: (i) such Subsidiary or Affiliate is engaged in a business substantially related to the business conducted by Borrower, is a “Guarantor” hereunder and the transaction is in the ordinary course of and pursuant to the reasonable requirements of Borrower’s business and upon terms substantially the same and no less favorable to Borrower as it would obtain in a comparable arm’s length transactions with any Person not an Affiliate or a Subsidiary, and so long as such transaction is not prohibited hereunder; or (ii) such transaction is intended for incidental administrative purposes.

 

b. Except in compliance with the requirements in this Agreement, Borrower shall not create or acquire any Subsidiary.

 

7.5. Shareholder Debt. Borrower shall not obtain any additional loans from related parties without Lender’s prior written consent which consent shall not be unreasonably denied or delayed but may be conditioned on the execution by the holder of such debt of a subordination of debt agreement, provided, however, that Lender may prohibit Borrower from making any payments of interest thereunder until the Obligations are paid in full if Lender determines, in its commercially reasonable discretion, that payment of such interest could reasonably be likely to result in a Default or Event of Default and/or if Borrower is unable to demonstrate to Lender’s reasonable satisfaction that after making such interest payment Borrower will comply with the financial covenants in Section 6.8 of this Agreement. Borrower hereby warrants and represents that there is no other Shareholder Debt outstanding as of the Closing Date.

 

 

7.6. Subordinate Debt. Borrower agrees that all present and/or future related party debt shall be subordinate to the lien, interest and rights of Lender under the Loans and in and to the Collateral. At the request of Lender, Borrower shall cause the holder of any related party debt to execute and record or file such documents or instruments as may be requested by Lender to evidence the subordination of such debt to Lender’s rights, title and interest under the Loans and in the Collateral.

 

7.7. Guarantees

 

 

7.8. Distributions, Bonuses and Other Indebtedness

 

 

7.9. Miscellaneous Covenants

a. Borrower shall not become or be a party to any contract or agreement which at the time of becoming a party to such contract or agreement materially impairs Borrower's ability to perform under this Agreement, or under any other instrument, agreement or document to which Borrower is a party or by which it is or may be bound.

 

b. Borrower shall not carry or purchase any “margin stock” within the meaning of Regulations U, T or X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.

 

 

 

8.1. Events of Default

 

 

a. Payments - if Borrower fails (i) to make any payment of principal or (ii) to make any payment of interest or any Overadvance or amounts, or otherwise under the Obligations within three (3) Business Days of the date such payment is due and payable; or

 

b. Other Charges - if Borrower fails to pay any other charges, fees, Expenses or other monetary obligations owing to Lender arising out of or incurred in connection with this Agreement within three (3) Business Days of the date such payment is due and payable; or

 

c. Particular Covenant Defaults - if Borrower fails to perform, comply with or observe any covenant or undertaking contained in this Agreement and (other than with respect to the covenants contained in Sections 6.8, 6.11, 7.1, 7.2, 7.3, 7.5, 7.7, and 7.8 for which no cure period shall exist), such failure continues for twenty (20) days after Borrower receives notice thereof or any Responsible Officer of Borrower becomes aware thereof; provided, however, that if the default cannot by its nature be cured within the twenty (20) day period or cannot after diligent attempts by Borrower be cured within such twenty (20) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional reasonable period (which shall not in any case exceed an additional twenty (20) days) to attempt to cure such default, and within such reasonable time period the failure to have cured such default shall not be deemed an Event of Default; or

 

d. Financial Information - if any statement, report, financial statement, or certificate made or delivered by Borrower or any of its officers, employees or agents, to Lender is not true and correct, in all material respects, when made; or

 

e. Warranties or Representations - if any warranty, representation or other statement by or on behalf of Borrower contained in or pursuant to this Agreement, the other Loan Documents, or in any document, agreement or instrument furnished in compliance with, relating to, or in reference to this Agreement, is false, erroneous, or misleading in any material respect when made; or

 

f. Agreements with Others - (i) if Borrower shall default beyond any grace period in the payment of principal or interest of any Indebtedness of Borrower in excess of $250,000, in the aggregate; or (ii) if Borrower otherwise defaults under the terms of any such Indebtedness if the effect of such default is to enable the holder of such Indebtedness to accelerate the payment of Borrower's obligations, which are the subject thereof, prior to the maturity date or prior to the regularly scheduled date of payment; or

 

g. Other Agreements with Lender and Affiliates - if Borrower breaches or violates the terms of, or if a default (and expiration of any applicable cure period), or an Event of Default, occurs under, any other existing or future agreement (related or unrelated) (including, without limitation, the other Loan Documents) between Borrower and Lender; or

 

h. Judgments - if any final judgment for the payment of money for an aggregate amount in excess of $250,000 (i) which is not fully covered by insurance or (ii) for which Borrower has not established a cash or cash equivalent reserve in the full amount of such judgment, shall be rendered by a court of record against Borrower and such judgment shall continue unsatisfied and in effect for a period of forty-five (45) consecutive days without being vacated, discharged, satisfied or bonded pending appeal; or

 

i. Assignment for Benefit of Creditors, etc. - if Borrower makes or proposes in writing, an assignment for the benefit of creditors generally, offers a composition or extension to creditors, or makes or sends notice of an intended bulk sale of any business or assets now or hereafter owned or conducted by Borrower; or

 

j. Bankruptcy, Dissolution, etc. - upon the commencement of any action for the dissolution or liquidation of Borrower, or the commencement of any proceeding to avoid any transaction entered into by Borrower, or the commencement of any case or proceeding for reorganization or liquidation of Borrower's debts under the Bankruptcy Code or any other state or federal law, now or hereafter enacted for the relief of debtors, whether instituted by or against Borrower; provided however, that Borrower shall have forty-five (45) days to obtain the dismissal or discharge of involuntary proceedings filed against it, it being understood that during such forty-five (45) day period, Lender shall not be obligated to make Advances hereunder and Lender may seek adequate protection in any bankruptcy proceeding; or

 

 

k. Receiver- upon the appointment of a receiver, liquidator, custodian, trustee or similar official or fiduciary for any Borrower or for Borrower’s Property; or

 

l. Execution Process, etc. - the issuance of any execution or distraint process against any material portion of the Property of Borrower; or

 

m. Termination of Business - if Borrower ceases any material portion of its business operations as presently conducted for a period of more than ten (10) consecutive Business Days unless Borrower is entitled to receive proceeds of business interruption insurance in connection therewith; or

 

n. Pension Benefits, etc. - if Borrower fails to comply with ERISA so that proceedings are commenced to appoint a trustee under ERISA to administer Borrower's employee plans or the PBGC institutes proceedings to appoint a trustee to administer such plan(s), or a Lien is entered to secure any deficiency or claim or a "reportable event" as defined under ERISA occurs; or

 

o. Investigations - any indication or evidence received by Lender that reasonably leads it to believe Borrower may have directly or indirectly been engaged in any type of activity which, would be reasonably likely to result in the forfeiture of any property of Borrower to any Governmental Authority, which could reasonably be expected to result in a Materially Adverse Effect; or

 

p. Change of Control - if there shall occur a Change of Control; or

 

q. Liens - if any Lien in favor of Lender shall cease to be valid, enforceable and perfected and prior to all other Liens other than Permitted Liens or if Borrower or any Governmental Authority shall assert any of the foregoing; or

 

r. Material Adverse Effect – if there is any change in the financial condition of Borrower and its Subsidiaries, taken as a whole, which, in Lender’s reasonable opinion, has or would be reasonably likely to have a Material Adverse Effect; or

 

s. Other Loan Documents - if any other Person (other than Lender) party to a Loan Document, breaches or violates any term, provision or condition of such Loan Document.

 

8.2. Cure

 

 

8.3. Rights and Remedies on Default

 

a. In addition to all other rights, options and remedies granted or available to Lender under this Agreement or the Loan Documents (each of which is also then exercisable by Lender), or otherwise available at law or in equity, upon or at any time after the occurrence and during the continuance of a Default or an Event of Default, Lender may, in its discretion, withhold or cease making Advances under the Revolving Credit Facility and the Guidance Line Facility.

 

b. In addition to all other rights, options and remedies granted or available to Lender under this Agreement or the Loan Documents, or otherwise available at law or in equity, upon or at any time after the occurrence and during the continuance of an Event of Default Lender may, in its discretion, terminate the Revolving Credit Facility and the Guidance Line Facility and declare the Obligations, immediately due and payable, all without demand, notice, presentment or protest or further action of any kind (it also being understood that the occurrence of any of the events or conditions set forth in Sections 8.1(j),(k) or (l) shall automatically cause an acceleration of the Obligations.

 

 

c. In addition to all other rights, options and remedies granted or available to Lender under this Agreement or the Loan Documents, or otherwise available at law or in equity, upon or at any time after the acceleration of the Obligations following the occurrence of an Event of Default (other than the rights with respect to clause (iv) below which Lender may exercise at any time after an Event of Default and regardless of whether there is an acceleration), Lender may, in its discretion, exercise all rights under the UCC and any other applicable law or in equity, and under all Loan Documents permitted to be exercised after the occurrence of an Event of Default, including the following rights and remedies (which list is given by way of example and is not intended to be an exhaustive list of all such rights and remedies):

 

 

i. By its own means or with judicial assistance, enter Borrower's premises and take possession of the Collateral, or render it unusable, or dispose of the Collateral on such premises in compliance with subsection (e) below, without any liability for rent, storage, utilities or other sums, and Borrower shall not resist or interfere with such action; or

 

ii. Require Borrower at Borrower's expense to assemble all or any part of the Collateral (other than real estate or fixtures) and make it available to Lender at any place designated by Lender; or

 

iii. The right to enjoin any violation of Section 7.1, it being agreed that Lender's remedies at law are inadequate.

 

d. Borrower hereby agrees that a notice received by it at least seven (7) days before the time of any intended public sale or of the time after which any private sale or other disposition of the Collateral is to be made, shall be deemed to be reasonable notice of such sale or other disposition. If permitted by applicable law, any perishable inventory or Collateral which threatens to speedily decline in value or which is sold on a recognized market may be sold immediately by Lender without prior notice to Borrower. Borrower covenants and agrees not to interfere with or impose any obstacle to Lender's exercise of its rights and remedies with respect to the Collateral, after the occurrence of an Event of Default hereunder. Lender shall have no obligation to clean up or prepare the Collateral for sale. If Lender sells any of the Collateral upon credit, Borrower will only be credited with payments actually made by the purchaser thereof, that are received by Lender. Lender may, in connection with any sale of the Collateral specifically disclaim any warranties of title or the like.

 

e. The purchase money proceeds or avails of any sale made under or by virtue of this Article 8, together with any other sums which then may be held by Lender under this Loan Agreement, whether under the provisions of this Article 8 or otherwise, shall be applied as follows:

 

i. First: To the payment of all Lender Expenses, including without limitation, the costs and expenses of such sale, including, but not limited to, the reasonable compensation to Lender its agents and counsel, and any sums that may be due under and/or pursuant to any statute, rule, regulation and/or law which imposes any tax, charge, fee and/or levy in connection with and/or arising from the exercise of any right and/or remedy under this Loan Agreement or the requirement that any sum be paid in order to record and/or file any deed, instrument of transfer or other such document in connection with any such sale and of any judicial proceedings wherein the same may be made, and of all expenses, liabilities and advances made or incurred by Lender under this Loan Agreement, together with interest at the Default Rate on all advances made by Lender.

 

ii. Second: To the payment of the whole amount then due, owing or unpaid hereunder for interest on the unpaid principal, including, without limitation, interest at the Default Rate from and after the happening of any Event of Default from the due date of any such payment of principal until the same is paid.

 

iii. Third: To the payment of the whole amount then due, owing or unpaid upon the other Obligations and any other sums required to be paid thereunder with interest on such other Obligations and other sums at the Default Rate from and after the happening of any Event of Default from the due date of any such other Obligations and other sums until the same is paid.

 

iv. Fourth: To the payment of any other Obligations and any other sums required to be paid by Borrower pursuant to any provision of this Agreement, the Notes or the other Loan Documents.

 

v. Fifth: To the payment of the surplus, if any, as required by Applicable Law.

 

 

8.4. Nature of Remedies

 

 

8.5. Set-Off

 

 

 

 

9.1. Governing Law

 

 

9.2. Integrated Agreement

 

 

9.3. Waiver

 

 

9.4. Indemnity

 

a. Borrower releases and shall indemnify, defend and hold harmless Lender, and any Bank Affiliates and their respective officers, employees and agents, of and from any claims, demands, liabilities, obligations, judgments, injuries, losses, damages and costs and expenses (including, without limitation, reasonable legal fees) resulting from (i) acts or conduct of Borrower under, pursuant or related to this Agreement and the other Loan Documents, (ii) Borrower's breach or violation of any representation, warranty, covenant or undertaking contained in this Agreement or the other Loan Documents and, (iii) Borrower's failure to comply with any Requirement of Law (including, without limitation, Environmental Laws, etc.), and (iv) any claim by any other creditor of Borrower against Lender or any Bank Affiliates arising out of any transaction whether hereunder or in any way related to the Loan Documents or any and all costs, expenses, fines, penalties or other damages resulting therefrom, unless resulting solely from acts or conduct of Lender or any Bank Affiliates constituting willful misconduct or gross negligence.

 

b. Promptly after receipt by an indemnified party under subsection (a) above of notice of the commencement of any action by a third party, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof. The omission so to notify the indemnifying party shall relieve the indemnifying party from any liability which it may have to any indemnified party under such subsection only if the indemnifying party is unable to defend such actions as a result of such failure to so notify. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnified party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.

 

9.5. Time

 

 

 

9.6. Expenses of Lender

 

 

9.7. Brokerage

 

 

9.8. Notices

 

a. Any notices or consents required or permitted by this Agreement shall be in writing and shall be deemed given if delivered in person to the person listed below or if sent by telecopy or by nationally recognized overnight courier, as follows, unless such address is changed by written notice hereunder:

 

 

 

b. Any notice sent by Lender, or Borrower by any of the above methods shall be deemed to be given when so received.

 

c. Lender shall be fully entitled to rely upon any telecopy transmission or other writing purported to be sent by any Authorized Officer (whether requesting an Advance or otherwise) as being genuine and authorized.

 

 

9.9. Headings

 

 

9.10. Survival

 

 

9.11. Successors and Assigns

 

 

9.12. Duplicate Originals

 

9.13. Modification

 

 

9.14. Signatories

 

 

9.15. Third Parties

 

 

9.16. Discharge of Taxes, Borrower's Obligations, Etc.

 

 

 

9.17. Withholding and Other Tax Liabilities

 

 

9.18. Consent to Jurisdiction

 

 

9.19. Additional Documentation

 

 

9.20. Advertisement

 

a. Lender, with the consent of Borrower (such consent not to be unreasonably withheld or delayed), shall have the right to announce and publicize the financing established hereunder, as it deems appropriate, by means and media selected by Lender. Such publication shall include all pertinent information relating to such financing, including without limitation, the term, purpose, and loan amount and name of Borrower.

 

 

b. The form and content of the sign and/or published information shall be in the sole discretion of Lender and shall be considered the sole and exclusive property of Lender. All expenses related to publicizing the financing shall be the sole responsibility of Lender.

 

 

9.21. Waiver of Jury Trial

 

 

9.22. Consequential Damages

 

 

9.23. Confidentiality

 

 

 

 

GELTECH INC., a Delaware corporation     By: /s/ J.James Gaynor J. James Gaynor, President

ISP OPTICS CORPORATION, a New York corporation     By: /s/ J. James Gaynor J. James Gaynor, President

LIGHTPATH OPTICAL INSTRUMENTATION (SHANGHAI) CO., LTD., a company formed under the law of the People’s Republic of China     By: /s/ J. James Gaynor

LIGHTPATH OPTICAL INSTRUMENTATION (ZHENJIANG) CO., LTD., a company formed under the law of the People’s Republic of China     By: /s/ J. James Gaynor

ISP OPTICS LATVIA, SIA, a company formed under the law of the Republic of Latvia     By: /s/ J. James Gaynor

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mark	Type	Registered	Country	Renewal Date
LightPath®	service mark	Yes	United States	October 22, 2022
GRADIUM™	Trademark	Yes	United States	April 29, 2027
Circulight	Trademark	No	-	-
BLACK DIAMOND	Trademark	No	-	-
GelTech	Trademark	No	-	-
Oasis	Trademark	No	-	-
LightPath®	service mark	Yes	People’s Republic of China	September 13, 2025
ISP Optics®	Trademark	Yes	United States	August 12, 2020