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EXHIBIT
10.4
SIXTH
AMENDMENT TO
LOAN
AND SECURITY AGREEMENT
This
Sixth Amendment to Loan and Security Agreement (this “Amendment”) is dated as of
the 8th day
of February, 2010, and is made by and among EMCORE Corporation, a New Jersey
corporation (“Borrower”), Bank of America, N.A. (“Lender”), and the other
Obligors party to that certain Loan and Security Agreement dated
September 26, 2008 (as amended, modified, supplemented or restated from
time to time, the “Agreement”). Borrower, Lender and such other
Obligors now desire to amend the Agreement as provided herein, subject to the
conditions set forth herein. Capitalized terms used in this Amendment
and not otherwise defined herein have the meanings given to such terms in the
Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals, the mutual covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, Borrower, such other Obligors
and Lender agree as follows:
1. The
proviso following subsection 2(a)(iii) of the Agreement is amended to read in
its entirety as follows:
“provided
that the Revolving Loan Limit shall in no event exceed Fourteen Million and
No/100 Dollars ($14,000,000) minus the available amount under any separate line
of credit provided by Lender to Borrower and/or any of its Subsidiaries for the
purpose of hedging foreign exchange rates (the “Maximum Revolving Loan
Limit”); and provided further that (A) in no event shall advances against
the Eligible Accounts described in clause (x), subclause (B) of the definition
thereof exceed Ten Million and No/100 Dollars ($10,000,000) in the aggregate at
any time, and (B) in no event shall advances against Eligible Accounts described
in clause (viii) of the definition thereof exceed Two Million Five Hundred
Thousand and No/100 Dollars ($2,500,000) in the aggregate at any
time.”
2. Effective
as of December 31, 2009, subsection 14(b) of the Agreement is amended to read in
its entirety as follows:
“No
Obligor shall permit the Consolidated EBITDA of Borrower and its Subsidiaries to
be less than the amount set forth below for the corresponding period set forth
below:
Period Minimum
EBITDA
Three
months ended June 30,
2009 ($8,640,000)
Six
months ended September 30,
2009 ($14,649,000)
Nine
months ended December 31,
2009 ($15,200,000)
Fiscal
quarter ended March 31, 2010,
and each
fiscal quarter end
thereafter $5,000,000”
3. Borrower
shall pay all expenses, including attorney fees, which Lender incurs in
connection with the preparation of this Amendment and any related
documents. All such fees and expenses maybe charged against
Borrower’s loan account
4. To induce
Lender to enter into this Amendment, Obligors make the following representations
and warranties:
(a) Each
recital, representation and warranty contained in this Amendment, in the
Agreement as amended by this Amendment and in the Other Agreements, is true and
correct as of the date of this Amendment and does not omit to state a material
fact required to make such recital, representation or warranty not misleading;
and
(b) No Event
of Default or event which, with the passage of time or the giving of notice or
both, would constitute an Event of Default has occurred and is continuing under
the Agreement or any of the Other Agreements.
5. Each
Obligor waives any and all defenses, claims, counterclaims and offsets against
Lender which may have arisen or accrued through the date of this
Amendment. Each Obligor acknowledges that Lender and its employees,
officers, agents and attorneys have made no representations or promises except
as specifically reflected in this Amendment and in the written agreements which
have been previously executed.
6. Each
Obligor represents and warrants to Lender that this Amendment has been approved
by all necessary corporate action, and the individual signing below represents
and warrants that he or she is fully authorized to do so.
7. This
Amendment shall not become effective until this Amendment and the Guarantors’
Acknowledgement attached hereto have been fully executed by all parties hereto
or thereto and delivered to Lender.
8. Except as
expressly amended hereby and by any other supplemental documents or instruments
executed by either party hereto in order to effectuate the transactions
contemplated by this Amendment, the Agreement and all Exhibits thereto are
ratified and confirmed by Obligors and Lender and remain in full force and
effect in accordance with their terms.
9. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which, taken together, shall constitute one and the same
agreement. This Amendment may be delivered by facsimile, and when so
delivered will have the same force and effect as delivery of an original
signature.
[Signatures
appear on the following page.]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
EMCORE
CORPORATION
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary
EMCORE
IRB COMPANY, LLC
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary
OPTICOMM
CORP.
/s/ Keith
Kosco
By: Keith
Kosco, Esq.
Title: CLO
and Corporate Secretary
EMCORE
SOLAR POWER, INC.
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary
BANK OF
AMERICA, N.A.
/s/ Joe
Fudacz
By: Joe
Fudacz
Title: Senior
Vice President
GUARANTORS’
ACKNOWLEDGMENT
The
undersigned guarantors acknowledge that Bank of America, N.A. (“Lender”) has no
obligation to provide them with notice of, or to obtain their consent to, the
terms of the foregoing Sixth Amendment to Loan and Security Agreement (the
“Amendment”). The undersigned guarantors nevertheless: (i)
acknowledge and agree to the terms and conditions of the Amendment; (ii)
acknowledge that their guaranties remain fully valid, binding, and enforceable;
and (iii) waive any and all defenses, claims, counterclaims, and offsets which
they may have against Lender through the date of the Amendment.
EMCORE
IRB COMPANY, LLC
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary
OPTICOMM
CORP.
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary
EMCORE
SOLAR POWER, INC.
/s/ Keith
Kosco
By: Keith
J. Kosco, Esq.
Title: CLO
and Corporate Secretary