Contract
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#179157722v4<ACTIVE> - Emcore - First Amendment to Credit Agreement FIRST AMENDMENT TO CREDIT AGREEMENT This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of October 25, 2022 (this “Amendment”), is entered into among EMCORE CORPORATION, a New Jersey corporation (the “Company”), the Domestic Subsidiaries of the Company party hereto and listed in the signature pages hereof as “Borrowers” (the Company, together with such Domestic Subsidiaries each, individually, a “Borrower” and jointly, severally, and collectively, the “Borrowers”), the Lenders party hereto and WINGSPIRE CAPITAL LLC, as administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “Administrative Agent”). W I T N E S S E T H: WHEREAS, the Borrowers, the Lenders and the Administrative Agent entered into that certain Credit Agreement, dated as of August 9, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”; capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement); WHEREAS, the Borrowers have requested that the Administrative Agent and the Required Lenders make certain amendments to the Credit Agreement; and WHEREAS, the Administrative Agent and the Required Lenders have agreed to make certain amendments to the Credit Agreement, on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the agreements herein contained and other good and valuable consideration, the parties hereby agree as follows: 1. Amendments to Credit Agreement. The Credit Agreement is amended as follows: (a) The following definitions are inserted into Section 1.1 in the appropriate alphabetical order: “Eligible Machinery and Equipment” means, as of any date of determination, all Equipment that: (a) is owned by a Borrower free and clear of all Liens other than (i) Liens in favor of the Administrative Agent securing the Obligations and (ii) Permitted Encumbrances; (b) is installed in a facility owned or leased by a Loan Party at either 0000 Xxxx 000xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx or 000 Xxxxx Xxxxx, Xxxx Lake, Xxxxx Xxxxx Xxxxxxxx, XX 00000, and either (i) a Collateral Access Agreement has been delivered to the Administrative Agent or (ii) Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto; (c) is in good operating condition (ordinary wear and tear excepted); (d) is not obsolete or surplus Equipment; (e) is covered by casualty and liability insurance required by this Agreement and the Security Agreement; (f) is subject to a first priority perfected Lien in favor of the Administrative Agent, subject to Permitted Encumbrances; and
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5 (including fees, charges and disbursements of counsel to the respective Credit Parties and amounts payable under Article 3), ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to the extent of any excess of such proceeds, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Revolving Loans and other Obligations (other than the Term Loans and any other Obligations related solely to the Term Loans), ratably among the Revolving Lenders in proportion to the respective amounts described in this clause Third payable to them, which shall be applied first to the portion of the Revolving Loans that are not M&E Revolving Loans and second to the portion of the Revolving Loans that are M&E Revolving Loans; Fourth, to the extent of any excess of such proceeds, to the payment of that portion of the Obligations constituting unpaid principal of the Revolving Loans, ratably among the Revolving Lenders in proportion to the respective amounts described in this clause Fourth held by them, which shall be applied first to the portion of the Revolving Loans that are not M&E Revolving Loans and second to the portion of the Revolving Loans that are M&E Revolving Loans; Fifth, to the extent of any excess of such proceeds, to the payment of that portion of the Obligations constituting accrued and unpaid interest on the Term Loans and other Obligations relating solely to the Term Loans, ratably among the Term Lenders in proportion to the respective amounts described in this clause Fifth payable to them; Sixth, to the extent of any excess of such proceeds, to the payment of that portion of the Obligations constituting unpaid principal of the Term Loans, ratably among the Term Lenders in proportion to the respective amounts described in this clause Sixth held by them; Seventh, to the extent of any excess of such proceeds, to the payment of all other Obligations that are due and payable to the Secured Parties or any other holder of Obligations, or any of them, on such date, ratably based on the respective aggregate amounts of all such Obligations owing to the Secured Parties on such date; and Last, to the extent of any excess of such proceeds, the balance, if any, after all of the Obligations (other than contingent indemnification and expense reimbursement obligations, in each case, for which no claims have been asserted or amounts requested to be paid) have been paid in full, to the Borrowers or as otherwise required by law. (b) with respect to all payments and all proceeds of or relating to Term Loan Priority Collateral: First, to the payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article 3), in each case payable to the Administrative Agent in its capacity as such; Second, to the extent of any excess of such proceeds, to the payment of that portion of the Obligations constituting fees, indemnities and other amounts, payable to the Credit Parties (including fees, charges and disbursements of counsel to the respective Credit Parties and amounts payable under Article 3), ratably among them in proportion to the respective amounts described in this clause Second payable to them
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7 by the Administrative Agent and the Lenders, respectively, in connection with the preparation, negotiation and execution of this Amendment and any other agreements and documents executed and delivered in connection herewith. 3. Ratification and Affirmation. Except as herein amended, the Credit Agreement shall remain in full force and effect in accordance with its terms, and the Credit Agreement, as so amended, is hereby ratified and affirmed. This Amendment is a Loan Document. Execution of this Amendment shall not alter or diminish any rights of any Lender, the Administrative Agent or any Borrower under any other note, instrument or obligation secured by or entitled to the benefits of the Credit Agreement, including, without limitation, the other Loan Documents. 4. Representations of Credit Parties. Each Borrower represents and warrants to the Administrative Agent and the Required Lenders, in each case as of the First Amendment Closing Date, that: (a) each of the representations and warranties of the Loan Parties set forth in the Loan Documents is true and correct in all material respects, in each case on and as of the date of this Amendment as if made on and as of such date, provided that to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct in all material respects as of such earlier date, and provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language is true and correct (after giving effect to any qualification therein) in all respects on such respective dates; and (b) no Default or Event of Default exists, or would result from the effectiveness of this Amendment. 5. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. [remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written. BORROWERS: EMCORE CORPORATION By: Name: Xxx Xxxxxxxxxxx Title: Chief Financial Officer EMCORE SPACE & NAVIGATION CORPORATION By: Name: Xxx Xxxxxxxxxxx Title: Chief Financial Officer EMCORE CHICAGO INERTIAL CORPORATION By: Name: Xxx Xxxxxxxxxxx Title: Chief Financial Officer DocuSign Envelope ID: 744CD3D0-1F59-4278-9371-C3DDB88C8B20
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