THIRD AMENDMENT TO
LOAN AND SECURITY
AGREEMENT
This Third Amendment to Loan and Security
Agreement (this “Amendment”) is dated as of the
30 th
day of April, 2009, 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. Obligors
acknowledge that Events of Default have occurred under the
Agreement by reason of Obligors’ failure, as of March 31,
2009, to cause Borrower and its Subsidiaries to (a) maintain the
minimum EBITDA required by Section 14(b) of the Agreement, and (b)
maintain the Fixed Charge Coverage Ratio required by Section 14(a)
of the Agreement (the “Specific Events of
Default”). Obligors further acknowledge that as a
result of such Specific Events of Default, Lender has the right to
immediately exercise all rights and remedies available under the
Agreement, related documents and applicable law, including but not
limited to the right to cease making loans and advances to
Borrower, the right to demand and collect all of Obligors’
outstanding Liabilities, and the right to exercise its remedies
with respect to the Collateral securing such
Liabilities.
2. The Specific
Events of Default are hereby waived by Lender. The
foregoing waiver does not constitute a waiver of any other Event of
Default now existing or hereafter arising, whether known or unknown
by Lender. In addition, Lender’s waiver does not
represent any amendment of any provision of the
Agreement. The Agreement, as modified by this Amendment,
remains in full force and effect, and Lender expects Obligors to
comply with all of its provisions.
3. Clause (x) of the
definition of “Eligible Account” contained in Section 1
of the Agreement is amended to read in its entirety as
follows:
“(x) the
Account Debtor (A) is located within the United States of America,
or (B) is located outside the United States, subject to such
conditions (including conditions requiring that Accounts payable by
any such Account Debtor be supported by insurance or a letter of
credit) and limitations (including limitations relating to the
creditworthiness of any such Account Debtor and the country in
which any such Account Debtor is located) as Lender may apply in
its Permitted Discretion; provided that if the Account is payable
in a foreign currency, then for purposes of computing availability
under this Agreement, the net amount of such Account shall be
converted to U.S. Dollars based on the rate of exchange of said
currency then being quoted by Lender;”
4. Subsection
2(a)(ii) of the Agreement is amended to read in its entirety as
follows:
5. 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) (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
