ex10-1.htm


     

    
 

    
      

      

    

    EXHIBIT
10.1

     

    FIFTH
AMENDMENT TO

     

    LOAN
AND SECURITY AGREEMENT

     

    This
Fifth Amendment to Loan and Security Agreement (this “Amendment”) is dated as of
the 30th day
of November, 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. Subsection
9(d) of the Agreement is amended to read in its entirety as
follows:

     

    “As soon
as practicable and in any event not later than 90 days after the beginning of
the Fiscal Year ending September 30, 2010, and not later than 60 days after the
beginning of each subsequent Fiscal Year, Obligors shall deliver to Lender
projected balance sheets, statements of income and cash flow for Borrower and
its Subsidiaries, for each of the four (4) fiscal quarters during such Fiscal
Year, which shall include the assumptions used therein, together with
appropriate supporting details as reasonably requested by Lender (the
‘Projections’).”

     

    2. 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.

     

    3. 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.

     

    4. Each
Obligor waives any and all defense, 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.

     

    5. 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.

     

    6. 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.

     

    7. 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.

     

    8. 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:        Corporate
Secretary

    


    


    EMCORE
IRB COMPANY, LLC

    


    /s/ Keith
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Secretary

    


    


    OPTICOMM
CORP.

    


    /s/ Keith
Kosco

    


    By:           Keith
Kosco, Esq.

    Title:        Corporate
Secretary

    


    


    EMCORE
SOLAR POWER, INC.

    


    /s/ Keith
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        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 Fifth 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:        Secretary

    


    


    OPTICOMM
CORP.

    


    /s/ Keith
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Corporate
Secretary

    


    


    EMCORE
SOLAR POWER, INC.

    


    /s/ Keith
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Secretary