ex10-4.htm


     

    
 

    
      

      

    

    Exhibit
10.4

    


    


    FOURTH
AMENDMENT TO

     

    LOAN
AND SECURITY AGREEMENT

     

    This
Fourth Amendment to Loan and Security Agreement (this “Amendment”) is dated as
of the 8th day of
May, 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
14(a) of the Agreement is amended to read in its entirety as
follows:

     

    “Commencing
with the fiscal quarter ended March 31, 2010, as of the last day of each fiscal
quarter for the 6-month period ending on such date, no Obligor shall permit the
Fixed Charge Coverage Ratio to be less than 1.50 to 1.0.”

     

    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 J
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Chief
Legal Officer and Secretary

    


    


    EMCORE
IRB COMPANY, LLC

    


    /s/ Keith J
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Chief
Legal Officer and Secretary

    


    


    OPTICOMM
CORP.

    


    /s/ Keith J
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Chief
Legal Officer and Secretary

    


    


    EMCORE
SOLAR POWER, INC.

    


    /s/ Keith J
Kosco

    


    By:           Keith
J. Kosco, Esq.

    Title:        Chief
Legal Officer and Secretary

    


    


    BANK OF
AMERICA, N.A.

    


    /s/ Barbara
Lamacki

    


    By:           Barbara
Lamacki

    Title:        Assistant
Vice President