LightPath Technologies, Inc. 8-K 


Exhibit 10.1


FIRST AMENDMENT 

TO

SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 


This First Amendment
to Second Amended and Restated Loan and Security Agreement is entered into as of December 20, 2017 (the “Amendment”),
by and between AVIDBANK (“Bank”), and LIGHTPATH TECHNOLOGIES, INC. (“Borrower”).


RECITALS


Borrower and Bank
are parties to that certain Second Amended and Restated Loan and Security Agreement dated as of December 21, 2016 and as amended
from time to time (the “Agreement”). The parties desire to amend the Agreement in accordance with the terms of this
Amendment.


NOW, THEREFORE, the
parties agree as follows:


1.       


Borrower acknowledges
that there is an existing and uncured Event of Default arising from Borrower’s failure to comply with Section 6.8(b) of the
Agreement with respect to the aggregate amount maintained in accounts outside of Bank with foreign financial institutions in Latvia
exceeding $500,000 (the “Covenant Default”). Subject to the conditions contained herein and performance by Borrower
of all of the terms of the Agreement after the date hereof, Bank waives the Covenant Default. Bank does not waive Borrower’s
obligations under such section after the date hereof and as amended hereby, and Bank does not waive any other failure by Borrower
to perform its Obligations under the Loan Documents.


2.       


The following definition
in Section 1.1 of the Agreement is amended in its entirety to read as follows:


“Revolving
Maturity Date” means March 21, 2018.


3.       


Clause (c) of the definition
of Permitted Indebtedness in Section 1.1 of the Agreement is amended and restated in its entirety to read as follows:


(c)       


Indebtedness
secured by a lien described in clause (c) of the defined term “Permitted Liens,” provided (i) such Indebtedness
does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness and (ii) such Indebtedness
(excluding such Indebtedness in favor of Bank) does not exceed $800,000 in the aggregate at any given time;


4.       


Section 6.8(b) of the
Agreement is amended and restated in its entirety to read as follows:


(b)       


Foreign.
Borrowers and its Subsidiaries (including Target’s and Parent’s foreign Subsidiaries) may maintain accounts outside
of Bank with foreign financial institutions without being subject to any account control agreement as long as the aggregate amount
maintained in all such accounts does not exceed $1,000,000 at any time on and after March 31, 2018, provided however that the Chinese
Subsidiary may maintain accounts with foreign financial institutions that are not subject to an account control agreement or the
dollar limitation set forth in the foregoing clause as long as such accounts (and the balances in such accounts) are consistent
with past practices and in the ordinary course of business.




    	 



    	 



    

 


5.       


Unless otherwise defined,
all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall
be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects.
Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver
of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower
ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement.


6.       


Borrower represents
and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment,
and that no Event of Default has occurred and is continuing.


7.       


This Amendment may
be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute
one instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original hereof.
Notwithstanding the foregoing, Borrower shall deliver all original signed documents no later than ten (10) Business Days following
the date of execution.


8.       


As a condition to the
effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:


(a)       


this Amendment, duly
executed by Borrower;


(b)       


payment of a pro-rated
facility fee in the amount of $1,251 plus an amount equal to all Bank Expenses incurred through the date of this Amendment; and


(c)       


such other documents,
and completion of such other matters, as Bank may reasonably deem necessary or appropriate.


[signature
page follows]




    	 



    	 



    

IN WITNESS WHEREOF,
the undersigned have executed this Amendment as of the first date above written.


	 	LIGHTPATH TECHNOLOGIES, INC.
	 	 	 
	 	By:  	/s/ J. James Gaynor
	 	 	 
	 	Name:	J. James Gaynor
	 	 	 
	 	Title:	President & Chief Executive Officer


 


	 	AVIDBANK
	 	 	 
	 	By:  	/s/ Stephen Chen
	 	 	 
	 	Name:	Stephen Chen
	 	 	 
	 	Title:	Assistant Vice President