ex10-21.htm


     

    
 

    
      

      

    

    Exhibit
10.21

    


    FIRST
AMENDMENT TO

     

    LOAN
AND SECURITY AGREEMENT

     

    This
First Amendment to Loan and Security Agreement (this “Amendment”) is dated as of
the 16th day of
February, 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 an Event of Default has occurred under the Agreement by reason
of Obligors’ failure, as of December 31, 2008, to cause Borrower and its
Subsidiaries to maintain the minimum EBITDA required by Section 14(b) of the
Agreement (the “Specific Event of Default”).  Obligors further
acknowledge that as a result of such Specific Event 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 Event of Default is 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. Subsection
2(a)(ii) of the Agreement is amended to read in its entirety as
follows:

     

    “(ii)           Four
Million and No/100 Dollars ($4,000,000.00); minus

     

    4. The
paragraph immediately 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 Nineteen Million Five
Hundred Thousand Dollars ($19,500,000) (the ‘Maximum Revolving Loan
Limit’).”

     

    5. The first
clause of subsection 4(a)(i) of the Agreement is amended to read in its entirety
as follows:

     

    “With
respect to Prime Rate Loans, a rate per annum equal to two hundred (200) basis
points plus the Prime Rate in effect from time to time, payable on the first
Business Day of each month in arrears.”

     

    6. The first
clause of subsection 4(a)(ii) of the Agreement is amended to read in its
entirety as follows:

     

    “With
respect to LIBOR Rate Loans, a rate per annum equal to four hundred (400) basis
points plus the LIBOR Rate for the applicable Interest Period, such rate to
remain fixed for such Interest Period.”

     

    7. Notwithstanding
anything to the contrary set forth in the Agreement, Borrower shall not be
entitled to request, and Lender shall not be required to make, LIBOR Rate Loans
until a date that is five (5) days after Lender’s receipt of Borrower’s
quarterly financial statements demonstrating that the EBITDA of Borrower and its
Subsidiaries has exceeded $5,000,000 for two (2) consecutive fiscal quarters,
together with evidence satisfactory to Lender in its sole and absolute
discretion demonstrating that Borrower has had Excess Availability of at least
$5,000,000 every day for the ninety (90) day period preceding Lender’s receipt
of such financial statements; and until such date all Loans made under the
Agreement shall be Prime Rate Loans.  Any LIBOR Rate Loans outstanding
on the date of this Amendment shall convert to Prime Rate Loans at the end of
the Interest Period(s) applicable thereto.

     

    8. The last
sentence of subsection 9(a) of the Agreement is deleted from the
Agreement.

     

    9. A new
subsection (m) is added to Section 12 of the Agreement, to read in its entirety
as follows:

     

    “(m)           On
or before April 10, 2009, Borrower shall consummate an equity or debt financing
or an asset disposition in an amount and on terms and conditions satisfactory in
all respects to Lender in its sole, absolute and unfettered discretion, or shall
provide Lender with evidence satisfactory in all respects to it (in its sole,
absolute and unfettered discretion) that the consummation of such a financing or
asset disposition is imminent.”

     

    For the
avoidance of doubt, Obligors acknowledge that any failure of Borrower to
consummate the financing or disposition referred to in the new subsection 12(m)
of the Agreement in an amount and on terms and conditions satisfactory to Lender
in its sole, absolute and unfettered discretion on or before such date, or to
provide Lender with the evidence described in the new subsection 12(m) of the
Agreement shall be an Event of Default under the Agreement.

     

    10. A new
subsection (n) is added to Section 12 of the Agreement, to read in its entirety
as follows:

     

    “(n)           Borrower
shall (i) not later than February 23, 2009, provide Lender with copies of
preliminary title commitments (with copies of exception documents) relating to
its corporate headquarters located at 10420 Research Road SE and 1500 Eubank
Road SE, Albuquerque, New Mexico (the “Real Property”), and such other documents
and information as shall demonstrate to Lender in Lender’s sole, absolute and
unfettered discretion that mortgages and/or deeds of trust to be granted by
Borrower or another Obligor on such Real Property pursuant to this subsection
will provide Lender with sufficient additional security for the repayment of the
Liabilities; (ii) not later than March 19, 2009, cause to be executed,
acknowledged and delivered to Lender a leasehold mortgage or deed of trust (the
“Parcel 1 Mortgage”) in form and substance satisfactory to Lender in its sole,
absolute and unfettered discretion granting to Lender a second priority lien and
security interest in Borrower’s or another Obligor’s leasehold interest in the
real property described on Exhibit 12(n)(1) and
all buildings and improvements thereon, subject only to that certain Indenture
executed by Emcore IRB Company, Inc., and Norwest Bank New Mexico, dated
June 1, 1998, recorded August 12, 1998, in Book 9813, Page 9622, as
Doc. No. 98-101371, records of Bernalillo County, New Mexico securing the amount
of $55,000,000 (the “Indenture”), and in the buildings and improvements located
on the real property described on Exhibit 12(n)(2);
(iii) contemporaneously with satisfying the condition in clause
(ii) immediately above, but in no event later than March 19, 2009,
cause to be executed, acknowledged and delivered to Lender an assignment or
security interest in form and substance satisfactory to Lender in its sole,
absolute and unfettered discretion granting to Lender a first priority lien and
security interest in Borrower’s or another Obligor’s interest in the Indenture;
(iv) use its reasonable best efforts to obtain the consent of the State of
New Mexico to the grant of lien and security interest in Borrower’s or another
Obligor’s leasehold interest in the real property described on Exhibit 12(n)(2)
(which, along with the real property described in Exhibit 12(n)(1),
Borrower represents is all of the real property comprising the Real Property),
and if such consent is granted, cause to be executed, acknowledged and delivered
to Lender a leasehold mortgage or deed of trust (the “Parcel 2 Mortgage”) in
form and substance satisfactory to Lender in its sole, absolute and unfettered
discretion granting to Lender a first priority lien and security interest in
Borrower’s leasehold interest in such real property; (v) not later than
February 19, 2009, give notice to the City of Albuquerque of its intent to grant
the Parcel 1 Mortgage and the Parcel 2 Mortgage and request the consent of the
State of New Mexico to grant the Parcel 2 Mortgage, in each case providing
Lender with a copy of such notice or request; (vi) contemporaneously with the
execution, acknowledgement and delivery of the mortgages and/or deeds of trust
and assignment and/or security interest referred to in this subparagraph, cause
to be delivered to Lender extended coverage ALTA Loan Policies of title
insurance in amounts satisfactory to Lender insuring the lien of such mortgages
and/or deeds of trust and assignment and/or security interest, subject only to
the Indenture and to any other exceptions acceptable to Lender in its sole,
absolute and unfettered discretion, and (vii) execute and deliver such other
documents and instruments as may be requested by Lender in connection with the
foregoing.”

     

    11. Borrower
acknowledges and agrees that in connection with the Agreement Lender may, at its
option, retain a management consultant (“Management Consultant”) to provide a
comprehensive review and analysis of Borrower’s business.  Borrower
authorizes Lender, in its sole discretion, to charge any of Borrower’s accounts
or advance Revolving Loans to make any payments of fees, costs or expenses in
connection with the retainer and use of such Management Consultant.

     

    12. Borrower
agrees to pay an amendment fee to Lender associated with this Amendment in the
amount of $15,000.  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

     

    13. 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) Except
for the Specific Event of Default, 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.

     

    14. 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.

     

    15. 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.

     

    16. 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.

     

    17. 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.

     

    18. 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

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    


    EMCORE
IRB COMPANY, LLC

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    


    OPTICOMM
CORP.

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    


    EMCORE
SOLAR POWER, INC.

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    


    BANK OF
AMERICA, N.A.

    By:           /s/
John W.
Mundstock

    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 First 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

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    OPTICOMM
CORP.

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    EMCORE
SOLAR POWER, INC.

    By:           /s/ Keith J.
Kosco

    Title:           Corporate
Secretary

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
12(n)(1)

    


    


    LEGAL
DESCRIPTION

    


    


    


    Lot
numbered Two-A (2-A) in Block numbered Four (4) of Sandia Research Park,
Albuquerque, New Mexico, as the same is shown and designated on said Plat
thereof, filed in the Office of the County Clerk of Bernalillo County, New
Mexico, on July 28, 2000, in Plat Book 2000C, Page 196.

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
12(n)(2)

    


    


    LEGAL
DESCRIPTION TO LONG TERM LEASE #BL-1520

    EMCORE
CORPORATION

    


    A LEASE
TRACT OF LAND LYING AND SITUATE WITHIN SECTION 33, TOWNSHIP 10 NORTH, RANGE 4
EAST, NEW MEXICO PRINCIPAL MERIDIAN CITY OF ALBUQUERQUE, BERNALILLO COUNTY, NEW
MEXICO, LYING WITHIN THE APPROXIMATE NORTH ONE-HALF (N 1⁄2) OF THE SOUTHWEST ONE
QUARTER (SW 1⁄4) OF THE NORTHWEST ONE QUARTER (NW 1⁄4) OF SAID SECTION 33 AS THE
SAME IS SHOWN AND DESIGNATED ON THE “SUMMARY PLAT FOR ANNEXATION” FILED IN THE
OFFICE OF THE COUNTY CLERK OF BERNALILLO COUNTY, NEW MEXICO ON AUGUST 24, 1982,
IN VOLUME C20, FOLIO 24, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:

    


    BEGINNING
AT THE NORTHWEST CORNER OF SAID LEASE TRACT, COMMON TO THE SOUTHWEST CORNER OF
SANDIA RESEARCH PARK SUBDIVISION, AS THE SAME IS SHOWN AND DESIGNATED ON THE
PLAT THEREOF, FILED IN THE OFFICE OF THE COUNTY CLERK OF BERNALILLO COUNTY, NEW
MEXICO ON MAY 6, 1988, IN VOLUME C36, FOLIO 115, LYING ON THE PURPORTED WEST
SECTION LINE OF SAID SECTION 33, MARKED BY A SET PK NAIL WITH TAG “PS 11993”,
FROM WHENCE A TIE TO ALBUQUERQUE CONTROL SURVEY MONUMENT “L-21S” BEARS N 00° 15’
49” W, A DISTANCE OF 1,356.15 FEET;

    


    THENCE
FROM SAID BEGINNING POINT, LEAVING SAID WEST LINE, ALONG THE SOUTH LINE OF SAID
SANDIA RESEARCH PARK, S 89° 16’ 08” E, A DISTANCE OF 653.13 FEET TO THE
NORTHEAST CORNER OF SAID LEASE TRACT, MARKED BY A FOUND REBAR WITH CAP “PS
11993”;

    


    THENCE
LEAVING SAID SOUTH LINE, S 00° 54’ 15” W, A DISTANCE OF 676.30 FEET TO THE
SOUTHEAST CORNER OF SAID LEASE TRACT, ALSO BEING THE NORTHEAST CORNER OF AMN
EXISTING PNM SWITCHING STATION AS THE SAME IS DESIGNATED IN THAT NEW MEXICO
STATE LAND OFFICE PATENT DATED DECEMBER 5, 1975, FILED IN THE STATE RECORD OF
PATENTS IN VOLUME 10, PAGE 1804;

    


    THENCE
ALONG THE NORTH LINE OF SAID PNM SWITCHING STATION, N 89° 30’ 31” W, A DISTANCE
OF 654.01 FEET TO THE SOUTHWEST CORNER OF SAID LEASE TRACT LYING ON SAID
PURPORTED WEST SECTION LINE OF SECTION 33, MARKED BY A SET PK NAIL WITH TAG “PS
11993”;

    


    THENCE N
00° 58’ 36” E ALONG SAID WEST LINE, A DISTANCE OF 679.04 FEET TO THE POINT OF
BEGINNING CONTAINING 10.1676 ACRES MORE OR LESS.