Blueprint





  Exhibit 10.5











 



SECURITY AGREEMENT

 


THIS
SECURITY AGREEMENT (this “Agreement”) is made as of the
26th day
of February, 2019, by LIGHTPATH
TECHNOLOGIES, INC., a Delaware corporation (“Debtor”), in favor of BANKUNITED, N.A., a national banking
association (“Bank”), and is joined in by
GELTECH, INC. , a Delaware
corporation and ISP OPTICS
CORPORATION, a New York corporation (collectively
“Guarantor”).

 


W I T N
E S S E T H:

 


WHEREAS, Bank has
agreed to extend to Debtor a revolving line of credit up to a
maximum amount of Two Million and 00/100 Dollars ($2,000,000.00); a
term loan in the amount of up to Five Million Eight Hundred
Thirteen Thousand Five Hundred and 00/100 Dollars ($5,813,500.00),
and a non-revolving guidance line of credit up to a maximum amount
of Ten Million and 00/100 Dollars ($10,000,000.00) (the
“Loans”);
and


 


WHEREAS, the Loan
will be evidenced by a Revolving Credit Note dated of even date
herewith in the stated principal amount of Two Million and 00/100
Dollars ($2,000,000.00) (“Revolving Credit Note”) a Term Loan Note dated of
even date herewith in the stated principal sum of Five Million
Eight Hundred Thirteen Thousand Five Hundred and 00/100 Dollars
($5,813,500.00) (the “Term
Loan Note”), and a Guidance Line
Note of even date
herewith in the stated principal sum of Ten Million and 00/100
Dollars ($10,000,000.00) (the “Guidance Line Note”) from Debtor
in favor of Bank and will be governed by the terms and conditions
of a Loan Agreement dated of even date herewith from Debtor in
favor of Bank (“Loan
Agreement”). Capitalized terms used herein but not
otherwise defined shall have the meaning given to such terms in the
Loan Agreement; and


 


WHEREAS, Bank has
agreed to make the Loans to Debtor on the condition that Debtor and
Guarantor grant to Bank a first priority lien and security interest
in Debtor’s and Guarantor’s right, title and interest
in the Collateral (as defined below) as security for the repayment
of the Obligations of Debtor and execute and deliver this Agreement
effectuating such grant.


 


NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Debtor and Guarantor hereby agree as
follows:

 



ARTICLE I



DEFINITIONS


1.1           Definitions. As
used herein, the following terms shall have the following
meanings:


 

(a) Books and Records. The term “Books and Records” means all of
Debtor's and Guarantor’s books and records, including, but
not limited to, records indicating, summarizing, or evidencing the
Collateral, the Obligations, and Debtor's and Guarantor’s
property, business operations, or financial condition; computer
runs, invoices, tapes, processing software, processing contracts
(such as contracts for computer time and services), and any
computer prepared information, tapes, or data of every kind and
description, whether in the possession of Debtor or in the
possession of third parties.


 

(b) Collateral. The term
“Collateral”
means all personal property of Debtor and Guarantor, whether now
owned or hereafter acquired, whether now existing or hereafter
acquired or arising, and wherever located, including, without
limitation, the personal property described in 
Exhibit “A” attached hereto and made a part
hereof, but specifically excluding any and all Capital Stock in the
Foreign Guarantors held by Borrower or any Domestic Guarantor (the
“Excluded
Collateral”).


 

(c) Environmental Laws. The term
“Environmental
Laws” means, without limitation, all legal
requirements of any governmental authority pertaining to the
environment and all laws, regulations, and executive orders,
federal, state, and local, pertaining to environmental matters, as
the same may be amended, replaced, or supplemented from time to
time.


 

(d) Obligor. The term
“Obligor” means
Debtor, and each and every maker, endorser, guarantor, or surety of
or party obligated for any of the Obligations.


 

(e) Uniform Commercial
Code. The term
“Uniform Commercial
Code” means the Uniform Commercial Code in effect from
time to time in the State of Florida.

 



 

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ARTICLE II



SECURITY INTEREST


 


2.1           Security
Interest.  In
order to secure the due and punctual payment of the Obligations,
each of Debtor and Guarantor hereby grants to Bank a perfected
first priority security interest in and lien on its right, title,
and interest in the Collateral. The interest granted hereby is only
a security interest and shall not subject Bank to, or in any way
affect or modify, any obligation or liability of Debtor or any
other Obligor with respect to any of the Collateral or any
transaction that gave rise thereto. This Security Agreement is and
shall be considered and deemed to be a security agreement as
referred to in the Uniform Commercial Code.


 



ARTICLE III



RIGHTS IN CONNECTION WITH COLLATERAL


 


3.1           Delivery
of Documents. At any time and from time to time, upon the
reasonable request of Bank, Debtor and Guarantor will, at Debtor's
expense:


 

(a) promptly give,
execute, deliver, pledge, endorse, file, and/or record any notice,
statement, financing statement, instrument, document, chattel
paper, agreement, or other papers that may be reasonably necessary
or desirable, or that Bank may reasonably request, in order to
create, preserve, perfect, or validate any security interest
granted pursuant hereto or intended to be granted hereunder or to
enable Bank to exercise or enforce its rights hereunder or with
respect to such security interest; and


 

(b) keep, stamp, or
otherwise mark any and all documents, instruments, chattel paper,
and its/their Books and Records relating to the Collateral in such
manner as Bank may reasonably require.


 


3.2           Power
of Attorney. Each Debtor and Guarantor hereby irrevocably
appoints Bank (and any of its attorneys, officers, employees, or
agents) as its true and lawful attorney-in-fact, said appointment
being coupled with an interest, with full power of substitution, in
the name of Debtor, Guarantor, Bank, or otherwise, for the sole use
and benefit of Bank in its sole discretion, but at Debtor's and
Guarantor’s expense, to exercise, to the extent permitted by
law, in its name or in the name of Debtor or Guarantor or
otherwise, the powers set forth herein, whether or not any of the
Obligations are due (a) upon the occurrence and during the
continuation of an Event of Default (as hereinafter defined), to
endorse the name of Debtor or Guarantor upon any instruments of
payment, freight, or express bill, bill of lading, storage, or
warehouse receipt relating to the Collateral and to demand,
collect, receive payment of, settle, or adjust all or any of the
Collateral; (b) upon the occurrence and during the continuation of
an Event of Default (as hereinafter defined), to correspond and
negotiate directly with insurance carriers; and (c) to sign and
file one or more financing statements and continuation statements
naming Debtor or Guarantor as debtor and Bank as secured creditor
and to execute any notice, statement, instruments, agreement, or
other paper that Bank may reasonably require to create, preserve,
perfect, or validate any security interest granted pursuant hereto
or to enable Bank to exercise or enforce its rights hereunder or
with respect to such security interest. Neither Bank nor its
attorneys, officers, employees, or agents shall be liable for any
act, omissions, any error in judgment, or mistake in fact in
its/their capacity as attorney-in-fact that is done in good faith.
This power, being coupled with an interest, is irrevocable until
the Obligations have been fully satisfied, except for acts, errors,
and mistakes amounting to negligence or misconduct.


 


3.3           Intentionally
Omitted.


 


3.4           Bank's
Rights in Collateral. With respect to the Collateral, or any
part thereof, the right is expressly granted to Bank, at its sole
discretion after an Event of Default has occurred and is
continuing:


 

(a) to transfer or
register in the name of itself or its nominee any of the
Collateral, and whether or not so transferred or registered, to
receive the income or proceeds thereon or derived therefrom, and to
hold the same as a part of the Collateral and/or apply the same to
the Obligations;


 

(b) to exchange any of
the Collateral for other property upon the reorganization,
recapitalization, or other readjustment and in connection
therewith, to deposit the Collateral or any part thereof with any
nominee or depository upon such terms as Bank may determine in its
sole discretion; and


 

(c) extend the time of
payment, arrange for payment in installments, or release its
security interest in any of the Collateral, or refrain from
exercising any right against any Collateral.


 



 

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3.5           Custody
of Collateral. With respect to the Collateral, or any part
thereof, which at any time may come into the possession, custody,
or under the control of Bank or any of its Affiliates, agents or
correspondents, each Debtor and Guarantor hereby acknowledges and
agrees that Bank's sole duty with respect to the custody,
safekeeping and physical preservation of such Collateral, whether
pursuant to Section 9-207 of the Uniform Commercial Code or
otherwise, shall be to treat the Collateral in its possession with
prudent care. Except for the prudent care of any Collateral in its
possession and the accounting for money actually received by it
hereunder, Bank shall have no duty as to any Collateral or as to
the taking of any necessary steps to preserve rights against third
parties and any other rights pertaining to any
Collateral.


 


3.6           Delay
in Realizing Upon Collateral. Neither Bank, nor any of its
directors, officers, employees, Affiliates, agents or
correspondents shall be liable for failure to demand, collect, or
realize upon any of the Collateral or for any delay in doing
so.


 



ARTICLE IV



REPRESENTATIONS, WARRANTIES AND COVENANTS


 


4.1           Representations
and Warranties. Each of Debtor and Guarantor represents and
warrants to Bank, which representations and warranties shall be
continuing representations and warranties until all of the
Obligations are satisfied in full, and covenants with Bank as
follows:


 

(a) Duly Authorized. This Security
Agreement has been duly authorized, executed, and delivered, and
constitutes the legal, valid, and binding obligations of Debtor and
Guarantor, enforceable against Debtor and Guarantor in accordance
with its terms, except as they might be limited by bankruptcy,
reorganization, moratorium, insolvency or other similar laws
relating to or affecting the enforcement of creditors' rights in
general.


 

(b) Not in Violation of Law. This
Security Agreement does not and will not violate any applicable
law, the organizational documents, or bylaws of Debtor or
Guarantor, or any other material agreement or material instrument
to which Debtor or Guarantor or any of its property may be bound or
subject. To the knowledge of Debtor and Guarantor, neither Debtor,
Guarantor nor the Collateral are in violation of or subject to any
existing, pending, or threatened investigation or inquiry
pertaining to an alleged violation of any Environmental
Law.


 

(c) No Consents
Required. No
consent or approval of any person or entity, or of any public
authority, is necessary for the valid execution, delivery, and
performance of this Security Agreement, except where the failure to
obtain such consent or approval could not reasonably be expected to
have a material adverse effect.


 

(d) Title to the Collateral; Good
Repair. Debtor or Guarantor is or, to the extent that any
Collateral will be acquired after the date hereof, will be, the
sole owner of the Collateral, holding good and marketable title
thereto, and covenants to keep the Collateral free from any lien,
security interest, encumbrance, or claim of any person or entity
other than the liens and encumbrances of Bank and Permitted Liens.
Each of Debtor or Guarantor has the right to grant the security
interests created by this Security Agreement. The security
interests granted and reaffirmed by this Security Agreement
constitute first priority security interests in the Collateral,
which will be perfected upon the filing by Bank of the appropriate
financing statements subject only to Permitted Liens. Except as set
forth on Schedule 5.13(c) to the Loan Agreement, the Collateral is
not subject to or restricted by any agreement or license relating
to patents, trademarks, trade secrets or copyrights, except to the
extent that the Collateral encompasses third party software. Debtor
shall keep the Equipment in good order and repair, reasonable wear
and tear excepted, and will not waste or destroy any material
portion of the Equipment.


 

(e) Notice of Interest. If
requested by Bank, Debtor and Guarantor shall give notice of Bank's
security interests in the Collateral to any third person with whom
Debtor has any actual or prospective contractual relationship or
other business dealings.


 


4.2           Covenants. Each
of Debtor and Guarantor hereby covenants and agrees that for as
long as any Obligations are outstanding:


 

(a) Changes in Location of Chief Executive
Office, Books and Records, Collateral.  Debtor shall provide Bank with
prompt written notice of (i) any intended change in the chief
executive office, or state of formation of Debtor or Guarantor,
and/or the office where Debtor or Guarantor maintains its Books and
Records all as set forth in the Borrower’s Information
Certificate; and (ii) the location or movement of any Collateral to
or at an address other than the Collateral Location (other than
shipments of Inventory made by Debtor or Guarantor in the ordinary
course of its business), all such notices to be received by Bank at
least thirty (30) days prior to the effective date of any such
change. If any such new location as set forth in subparagraphs (i)
and (ii) hereof is on leased or mortgaged premises, Debtor or
Guarantor will furnish Bank, prior to the effective date of any
such change, with landlord's or mortgagee's waivers pertaining to
such premises in form and substance reasonably satisfactory to Bank
in its reasonable discretion.


 



 

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(b) Maintenance and Inspection of Books
and Records. Debtor shall maintain materially complete and
accurate Books and Records and, with respect to the Collateral,
shall make all necessary entries therein to reflect the location of
its Accounts, Equipment and Inventory. Debtor shall permit Bank and
its authorized agents and representatives to have full, complete,
and unrestricted access to the Books and Records at all reasonable
times during normal business hours and upon reasonable prior notice
(provided, however, that no such notice shall be required upon the
occurrence and during the continuance of an Event of Default) to
inspect, audit, and make copies of any and all such Books and
Records, provided, however, Debtor shall at all times have the
right to be present at any such inspection or audit. Debtor shall
permit Bank and its authorized agents and representatives to
inspect any or all of the Collateral at all reasonable times,
provided, however, Debtor shall at all times have the right to be
present at any such inspection. Subject to the foregoing
limitations, upon submission to Debtor of an invoice therefor,
Debtor will reimburse Bank for any and all fees and costs related
to any inspection by Bank and its authorized agents and
representatives. Upon the request of Bank, Debtor shall deliver to
Bank all evidence of ownership in the Collateral, including
certificates of title with Bank's interest appropriately noted on
the certificate and if any of the Collateral is located upon land
that is the subject of a lease or mortgage, Debtor shall deliver an
agreement of subordination from the landlord or mortgagee providing
that any lien of such party shall be subordinate to the security
interest of Bank granted herein. Bank's rights hereunder shall be
enforceable at law or in equity, and Debtor consents to the entry
of judicial orders or injunctions enforcing specific performance of
such obligations hereunder; and


 

(c) Assignment of Accounts. With
respect to Accounts, Debtor and Guarantor shall, upon reasonable
request, promptly give to Bank, in a form reasonably acceptable to
Bank, assignments of all Accounts, all original and other documents
evidencing a right to payment of Accounts, aging’s, lists of
account debtors, copies of purchase orders, invoices, shipping and
delivery receipts, and such other data concerning the Accounts as
Bank may reasonably request. If any of the Accounts that are
Collateral arise out of contracts with the United States or any of
its departments, agencies, or instrumentalities, Debtor shall
promptly notify and identify same to Bank, and shall promptly
execute and deliver to Bank an assignment of claims for such
Accounts in a form reasonably acceptable to Bank, and shall take
all steps deemed reasonably necessary or desirable by Bank to
protect Bank’s interest therein under the Federal Assignment
of Claims Act, as amended from time to time, or any similar law or
regulation. After the occurrence and during the continuation of an
Event of Default, Debtor agrees that Bank and its authorized agents
and representatives shall at all times have the right to confirm
orders and to verify any or all of the Accounts in Bank’s
name, or in any fictitious name used by Bank for
verifications.


 



ARTICLE V



DEFAULT; REMEDIES


 


5.1           Events
of Default. The occurrence of any one of the following shall
constitute an event of default (“Event of Default”) under this
Security Agreement:


 

(a) Breach Under this Security
Agreement. A breach by Debtor or Guarantor of any term,
obligation, provision, covenant, representation, or warranty
arising under this Security Agreement (provided that if the default
is curable, Debtor or Guarantor shall have twenty (20) calendar
days to cure any such default so long as neither the value of
Bank’s rights in the Collateral or the value of the
Collateral is materially impaired); or


 

(b) Default under Loan Agreement.
If an “Event of
Default” (as defined in the Loan Agreement) continues
beyond any applicable cure or grace period.


 


5.2           Remedies.


 

(a) Rights in General. In addition
to the remedies of Bank pursuant to the Loan Documents, upon the
occurrence and during the continuation of an Event of Default Bank
may, at its option, exercise any and all rights and remedies it has
under this Security Agreement, any other Loan Document, and/or
applicable law.


 

(b) Right of Set-off. If any one or
more Events of Default shall have occurred and are continuing,
whether or not Bank shall have made any demand under any of the
Loan Documents, and regardless of the adequacy of any Collateral
for the Obligations or other means of obtaining repayment of the
Obligations , Bank shall have the right, and is specifically
authorized hereby to setoff against and apply to the then unpaid
balance of the Obligations any items or funds of Debtor and/or any
Obligor held by Bank or any Affiliate, any and all deposits
(whether general or special, time or demand, matured or unmatured)
or any other property of Debtor and/or any Obligor, including,
without limitation, securities and/or certificates of deposit, now
or hereafter maintained by Debtor and/or any Obligor for its or
their own account with Bank or any Affiliate, and any other
indebtedness at any time held or owing by Bank or any Affiliate to
or for the credit or the account of Debtor and/or any Obligor, even
if effecting such set-off results in a loss or reduction of
interest or the imposition of a penalty applicable to the early
withdrawal of time deposits. For such purpose, Bank shall have, and
Debtor hereby grants to Bank, a first lien on and security interest
in such deposits, property, funds, and accounts, and the proceeds
thereof. Debtor further authorizes any Affiliate, upon and
following the occurrence and during the continuation of an Event of
Default, at the request of Bank, and without notice to Debtor, to
turn over to Bank any property of Debtor, including, without
limitation, funds and securities held by the Affiliate for Debtor's
account, and to debit any deposit account maintained by Debtor with
such Affiliate (even if such deposit account is not then due or
there results a loss or reduction of interest or the imposition of
a penalty in accordance with law applicable to the early withdrawal
of time deposits), in the amount requested by Bank up to the amount
of the Obligations, and to pay or transfer such amount or property
to Bank for application to the Obligations.


 



 

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(c) Additional Rights and Remedies.
In addition to the rights and remedies available to Bank as set
forth above, upon the occurrence and during the continuance of an
Event of Default hereunder , Bank may, at its option, immediately
and without notice, do any or all of the following, which rights
and remedies are cumulative, may be exercised from time to time,
and are in addition to any rights and remedies available to Bank
under any other agreement or instrument by and between any Obligor
and Bank: (i) exercise any and all of the rights and remedies of a
secured party under the Uniform Commercial Code, including, without
limitation, the right to require Debtor to assemble the Collateral
and make it available to Bank at a place reasonably convenient to
the parties; (ii) operate, utilize, recondition and/or refurbish
any of the Collateral by any means deemed appropriate by Bank, in
its sole discretion, including, without limitation, converting raw
materials and work-in-process into finished goods; (iii) notify the
account debtors for any of the Accounts to make payment directly to
Bank, or to such post office box as Bank may direct; (iv) vote the
Collateral and exercise all rights with the same force and effect
as an absolute owner; (v) demand, sue for, collect, or retrieve any
money or property at any time payable, receivable on account of, or
in exchange for, or make any compromise, or settlement deemed
desirable with respect to any of the Collateral; and/or (vi) upon
ten (10) calendar days' prior written notice to Debtor (or one (1)
day notice by telephone with respect to Collateral that is
perishable or threatens to decline rapidly in value), which Debtor
hereby acknowledges to be sufficient, commercially reasonable and
proper, Bank may sell, lease, or otherwise dispose of any or all of
the Collateral at any time and from time to time at public or
private sale, with or without advertisement thereof, and apply the
proceeds of any such sale first to Bank's expenses in preparing the
Collateral for sale (including reasonable attorneys' fees) and
second toward payment of the Obligations in any order deemed
appropriate by Bank in its sole discretion, and third with any
excess being paid by Bank to Debtor; provided, however, that nothing herein
shall be construed to prohibit Bank from seeking a deficiency
judgment if the proceeds do not fully and completely satisfy the
Obligations. Bank shall be under no obligation to make or complete
a sale regardless of whether notice of sale had been given.
Moreover, Bank may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor and any
such sale may, without further notice, be made at the time and
place to which it was so adjourned. Debtor grants a royalty-free
license to Bank for all patents, service marks, trademarks,
tradenames, copyright, computer programs, and other intellectual
property and proprietary rights sufficient to permit Bank to
exercise all rights granted to Bank under this Section. Bank or
anyone else may be the purchaser of any or all of the Collateral so
sold and thereafter hold such Collateral absolutely, free from any
claim or right of whatsoever kind, including any equity of
redemption of Debtor or any other Obligor, any such notice, right,
and/or equity of redemption being hereby expressly waived and
released.


 

(d) Continuing Enforcement of the Loan
Documents. If, after receipt of any payment of all or any
part of the Obligations or the obligations of Debtor to Bank, Bank
is compelled or agrees, for settlement purposes, to surrender such
payment to any person or entity for any reason, then this Security
Agreement and the other Loan Documents shall continue in full force
and effect or be reinstated, as the case may be. The provisions of
this Paragraph shall survive the termination of this Security
Agreement and the other Loan Documents and shall be and remain
effective notwithstanding the payment of the Obligations, the
cancellation of the Security Agreement or any other Loan Document,
the release of any security interest, lien, or
encumbrance securing
the Obligations or any other action that Bank may have taken in
reliance upon its receipt of such payment. Debtor also agrees to
indemnify, defend, and hold harmless Bank with respect to any and
all claims, expenses, demands, losses, costs, fines, or liabilities
of any kind (including, without limitation, those involving death
or personal injury) arising from or in any way related to any
hazardous materials or dangerous environments within, on, from,
related to, or affecting any real property owned or occupied by
Debtor, except to the extent attributable to the negligence or
misconduct of Bank.


 



ARTICLE VI



MISCELLANEOUS


 


6.1           Remedies
Cumulative; No Waiver. The rights, powers, and remedies of
Bank provided in this Security Agreement and any of the Loan
Documents are cumulative and concurrent, and are not exclusive of
any right, power, or remedy available to Bank. No failure or delay
on the part of Bank in the exercise of any right, power, or remedy
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or remedy preclude any other or
further exercise thereof, or the exercise of any other right,
power, or remedy.


 


6.2           Notices.
Notices and communications under this Security Agreement shall be
in writing and shall be given by (i) hand-delivery, (ii) first
class mail (postage prepaid), (iii) reliable overnight commercial
courier (charges prepaid), and (iv) facsimile or electronic mail,
to the following addresses:

 




	
To
Debtor:

	
LightPath
Technologies, Inc.

2603 Challenger
Tech Court, Suite 100

Orlando, Florida
32826

Attention: J. James
Gaynor, CEO

Telecopy
No.


Email
Address:










 


	
To Bank:


	
BankUnited, N.A. 





189
South Orange Avenue, Suite 1250 S.


Orlando, Florida
32801


Attn:
Jackson Young, Senior Vice President


Telecopy
No.:


Email
Address: Jackson.Young@bankunited.com









 


	
with a copy to:


	
GrayRobinson,
P.A.

301
East Pint Street, Suite 1400

Orlando, Florida
32801


Attn:
Phillip R. Finch, Esq.


Telecopy No.:
407-244-5690


Email
Address: Phil.finch@gray-robinson.com

  









 



 

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Notice by overnight courier shall be deemed to have been given and
received on the date scheduled for delivery. Notice by mail shall
be deemed to have been given and received five (5) Business Days
after the date first deposited in the United States Mail. Notice by
hand-delivery shall be deemed to have been given and received upon
delivery. Notice by facsimile or electronic mail shall be deemed to
have been given and received upon delivery to the fax machine or
email server of the recipient. A party may change its facsimile or
street or email address by giving written notice to the other party
as specified herein. 



 


6.3           Governing
Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal Laws and decisions of
the State of Florida, without reference to conflict of laws
principles.


 


6.4           Counterparts;
Termination. This Security Agreement may be executed
simultaneously in several counterparts. Each counterpart shall be
deemed an original. Upon the payment in full of all Obligations,
all obligations owed by Debtor to Bank (including any obligations
that have been revived under preference or other laws) shall be
discharged, and following the reasonable request of Debtor, Bank
shall execute and deliver documentation to discharge the lien of
this Agreement within fifteen (15) Business Days.


 


6.5           Integration;
Amendment. This Security Agreement and the other Loan
Documents constitute the sole agreement of the parties with respect
to the subject matter hereof and thereof and supersede all oral
negotiations and prior writings with respect to the subject matter
hereof and thereof. No amendment of this Security Agreement, and no
waiver of any one or more of the provisions hereof shall be
effective unless set forth in writing and signed by the parties
hereto.


 


6.6           Successors
and Assigns. This Security Agreement (a) shall be binding
upon Debtor and Bank and, when applicable, their respective heirs,
executors, administrators, successors, and permitted assigns, and
(b) shall inure to the benefit of Debtor and Bank and, when
applicable, their respective heirs, executors, administrators,
successors, and permitted assigns; provided, however, that Debtor may not
assign its rights or obligations hereunder or any interest herein
without the prior written consent of Bank, which consent may be
withheld or delayed, and any such assignment or attempted
assignment by Debtor shall be void and of no effect with respect to
Bank. In accordance with the terms of the Loan Agreement, Bank may
from time to time sell or assign, in whole or in part, or grant
participations in part or all of the Loan Documents and/or the
obligations evidenced thereby and, in connection, therewith, Bank
may provide information concerning Debtor to any prospective
purchaser, assignee or participant upon notice to
Debtor.


 


6.7           Severability
and Consistency. The illegality, unenforceability, or
inconsistency of any provision of this Security Agreement or any
instrument or agreement required hereunder shall not in any way
affect or impair the legality, enforceability, or consistency of
the remaining provisions of this Security Agreement or any
instrument or agreement required hereunder. The Loan Documents are
intended to be consistent, however, in the event of any
inconsistencies among any of the Loan Documents, such inconsistency
shall not affect the validity or enforceability of any Loan
Document. Debtor agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents shall
not be construed against any one party.


 


6.8           Consent
to Jurisdiction and Service of Process. Debtor irrevocably
appoints each and every owner, partner, and/or officer of Debtor as
its attorneys upon whom may be served, by regular or certified mail
at the address set forth in this Security Agreement, any notice,
process, or pleading in any action or proceeding against it arising
out of or in connection with this Security Agreement or any of the
other Loan Documents. Debtor hereby consents that (i) any action or
proceeding against it may be commenced and maintained in any court
within Orange County, Florida, or in any United States District
Court in Orange County, Florida, by service of process on any such
owner, partner, and/or officer; and (ii) such courts shall have
jurisdiction with respect to the subject matter hereof and the
person of Debtor and all Collateral for the
Obligations.


 


6.9           Joint
and Several Liability. The obligations of each person or
entity constituting Debtor shall be joint and several, and the word
“Debtor” means
each of them, any of them and/or all of them.


 


6.10           Judicial
Proceedings; Waivers. DEBTOR AND BANK ACKNOWLEDGE AND AGREE
THAT (a) ANY SUIT, ACTION, OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT OR INSTITUTED BY DEBTOR OR BANK OR ANY
SUCCESSOR OR ASSIGN OF DEBTOR OR BANK, ON OR WITH RESPECT TO THIS
SECURITY AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS, THE
COLLATERAL, OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR
THERETO SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY AND EACH
PARTY WAIVES THE RIGHT TO TRIAL BY JURY; (b) EACH WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION, OR
PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES; AND (c) THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF
THIS SECURITY AGREEMENT AND BANK WOULD NOT EXTEND CREDIT IF THE
WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS
SECURITY AGREEMENT.


 

 



[Signature Page to Follow]


 







6








 






IN WITNESS WHEREOF, Debtor and Bank have
executed this Security Agreement on the day and year first above
written.

 


DEBTOR:

 


LIGHTPATH
TECHNOLOGIES, INC.,


a
Delaware corporation


 


By:

/s/ J. James Gaynor


J.
James Gaynor, President


 


BANK:

 


BANKUNITED,
N.A.

 

By: /s/ Jackson
Young                                                              




Jackson
Young, Senior Vice President


 


 


GUARANTOR:


 


	


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


 







 


 


 




 





7








 










 



EXHIBIT A

 



COLLATERAL DESCRIPTION

 


All
“assets” of Debtor, wherever located and whether now
owned or existing or hereafter acquired or arising, other the
Excluded Collateral. Without limiting the generality of the
foregoing, the Collateral also covers the following types and items
of property:

 

 


All
Accounts (as hereinafter defined), as-extracted collateral, cash
proceeds, chattel paper, commercial tort claims, deposit accounts,
documents, equipment, farm products, fixtures, financial assets,
General Intangibles (as hereinafter defined), goods, instruments,
Inventory (as hereinafter defined), investment property, letter of
credit rights, letters of credit, money, non-cash proceeds,
proceeds, software, supporting obligations and other personal
property, both now existing and hereafter existing, acquired and
arising, owned by Debtor and in which Debtor has any property
rights and benefits, of whatsoever kind and description,
wheresoever located and inclusive of property in Debtor’s
constructive possession and control, property in Debtor’s
actual possession and control, and property in the possession and
control of a third person for and on behalf of Debtor; and, without
limiting the foregoing but in furtherance thereof, the following
now existing and hereafter acquired and arising property and
property rights and benefits, together with all replacements,
substitutions, additions, accessions, products and proceeds thereof
and of anything described herein:

 

 


Accounts. All
“accounts” as such term is defined in the Uniform
Commercial Code in effect in the State of Florida, as amended from
time to time, (the “Code”) owned by Debtor and all
accounts in which Debtor has any rights (including, without
limitation, rights to grant a security interest in accounts owned
by other persons), both now existing and hereafter owned, acquired
and arising; and, to the extent not included in the term accounts
as so defined after ascribing a broad meaning thereto, all accounts
receivable, health-care-insurance receivables, credit and charge
card receivables, bills, acceptances, documents, choses in action,
chattel paper (both tangible and electronic), promissory notes and
other instruments, deposit accounts, commercial tort claims, letter
of credit rights and letters of credit, rights to payment for money
or funds advanced or sold other than through use of a credit card,
lottery winnings, rights to payment with respect to investment
property, general intangibles and other forms of obligations and
rights to payment of any nature, now owing to Debtor and hereafter
arising and owing to Debtor, together with (i) the proceeds of all
of the accounts and other property and property rights described
hereinabove, including all of the proceeds of Debtor’s rights
with respect to any of its goods and services represented thereby,
whether delivered or returned by customers, and all rights as an
unpaid vendor and lienor, including rights of stoppage in transit
and of recovering possession by any proceedings, including replevin
and reclamation, and (ii) all customer lists, books and records,
ledgers, account cards, and other records including those stored on
computer or electronic media, whether now in existence or hereafter
created, relating to any of the foregoing.

 

 


Inventory. All
“inventory” (as such term is defined in the Code) owned
by Debtor and all inventory in which Debtor has any rights
(including, without limitation, rights to grant a security interest
in inventory owned by other persons), both now existing and
hereafter owned, acquired and arising, including, without
limitation, inventory in transit, inventory in the constructive
possession and control of Debtor, inventory in the actual
possession and control of Debtor and inventory held by others for
Debtor’s account; and, to the extent not included in the term
inventory as so defined after ascribing a broad meaning thereto,
all now existing and hereafter acquired goods manufactured or
acquired for sale or lease, and any piece goods, raw materials, as
extracted collateral, work in process and finished merchandise,
component materials, and all supplies, goods, incidentals, office
supplies, packaging materials and any and all items used or
consumed in the operation of the business of Debtor or which may
contribute to the finished product or to the sale, promotion and
shipment thereof by Debtor and by others on the account of Debtor,
together with (i) the proceeds and products of all of the inventory
and other property and property rights described hereinabove, (ii)
all additions and accessions thereto and replacements and
substitutions therefor, (iii) all documents related thereto and
(iv) all customer lists, books and records, ledgers, account cards,
and other records including those stored on computer or electronic
media, whether now in existence or hereafter created, relating to
any of the foregoing.


 



 







8






 

 


General Intangibles. All
“general intangibles” (as such term is defined in the
Code) of Debtor, whether now existing or hereafter owned, acquired
or arising, or in which Debtor now has or hereafter acquires any
rights, and, to the extent not included in the term general
intangibles as so defined after ascribing a broad meaning thereto,
all now existing and hereafter acquired things in action, payment
intangibles, rights to payment of loan funds not evidenced by
chattel paper or an instrument, contract rights, causes of action,
business records, inventions, designs, patents, patent
applications, software, trademarks, trademark registrations and
applications therefor, goodwill, trade names, trade secrets, trade
processes, copyrights, copyright registrations and applications
therefor, licenses, permits, franchises, customer lists, computer
programs, all claims under guaranties and other supporting
obligations, tax refund claims, claims under letters-of-credit and
all letter-of-credit rights, rights and claims against carriers and
shippers, leases, claims under insurance policies, condemnation
proceeds, all rights to indemnification and all other intangible
personal property of every kind and nature, together with (i) the
proceeds of all of the general intangibles and other property and
property rights described hereinabove, and (ii) all customer lists,
books and records, ledgers, account cards, and other records
including those stored on computer or electronic media, whether now
in existence or hereafter created, relating to any of the
foregoing.

 


Equipment. All
“equipment” (as such term is defined in the Code) of
Debtor, whether now existing or hereafter owned, acquired or
arising, or in which Debtor now has or hereafter acquires any
rights, including, without limitation, equipment now in
Debtor’s possession and control, equipment in transit,
equipment in storage and equipment hereafter acquired by way of
replacement, substitution, addition or otherwise, and, to the
extent not included in the term equipment as so defined after
ascribing a broad meaning thereto, all now existing and hereafter
acquired fuel and gas tanks, monitoring wells, environmental
remediation equipment, compressors, car wash equipment, convenience
store coolers and lifts, dispensers, register system, furniture,
furnishings, fixtures (including, without limitation, those located
at, upon or about, or attached to, any real estate subject to any
lease), machinery, parts, supplies, apparatus, appliances,
patterns, molds, dies, blueprints, fittings and computer systems
and related hardware and software of every description, together
with (i) the proceeds and products of all of the equipment and
other property and property rights described hereinabove,
including, without limitation, insurance proceeds and condemnation
proceeds, (ii) all books and records, abstracts of title, leases
and all other contracts and agreements relating thereto or used in
connection therewith, and (iii) all customer lists, books and
records, ledgers, account cards, and other records including those
stored on computer or electronic media, whether now in existence or
hereafter created, relating to any of the foregoing.

 

 



Excluded Collateral - Any and all shares, interest,
participations or other equivalents (however designated) of capital
stock of a corporation or membership interest of a limited
liability company, any and all other ownership interests in the
following: LightPath Optical Instrumentation (Shanghai) Co., Ltd.,
a corporation formed under the laws of the People’s Republic
of China, LightPath Optical Instrumentation (Zhenjiang) Co., Ltd.,
a corporation formed under the law of the People’s Republic
of China, and ISP Optics Latvia, SIA, a corporation formed under
the laws of the Republic of Latvia.

 


 


 







9