SECOND MODIFICATION TO MORTGAGE AND SECURITY AGREEMENT

 

Exhibit 10.2

Recording Requested By and

When Recorded Return To:

▇▇▇▇▇▇ LLP

▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇

Attn: ▇▇▇▇ ▇. ▇▇▇▇, Esq.

SPACE ABOVE FOR RECORDER’S USE

 

SECOND MODIFICATION TO MORTGAGE AND SECURITY AGREEMENT

This SECOND MODIFICATION TO MORTGAGE AND SECURITY AGREEMENT (this “Modification”) is entered into as of December 19, 2014, by and between ASC DEVENS LLC, a Delaware limited liability company, having an address at c/o American Superconductor Corporation, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“Mortgagor”), and HERCULES TECHNOLOGY GROWTH CAPITAL, INC., a Maryland corporation, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Legal Officer (“Mortgagee”).

RECITALS

WHEREAS, American Superconductor Corporation, a Delaware corporation (“Parent”), the direct 100% owner of Mortgagor, Mortgagor and Superconductivity, Inc. and Mortgagee entered into a Loan and Security Agreement dated as of June 5, 2012, as amended by that certain First Amendment to Loan and Security Agreement dated as of November 15, 2013 (as so amended, and as may have been further amended, restated, supplemented or otherwise modified from time to time, the “Original Loan Agreement”), pursuant to which Mortgagee made a loan in the maximum principal amount of $15,000,000 (the “Loan”) to Parent, subject to the terms and conditions contained in the Original Loan Agreement.

 

WHEREAS, in connection with the Original Loan Agreement, Mortgagor executed in favor of Mortgagee a Mortgage and Security Agreement dated as of July 31, 2012 and recorded with the Worcester District Registry of Deeds in Book 49380, Page 245, as amended by that certain First Modification to Mortgage and Security Agreement dated as of November 15, 2013 and recorded with the Worcester District Registry of Deeds in Book 51759, Page 380 (as so amended, and as may have been further amended, restated, supplemented or otherwise modified from time to time, the “Mortgage”), to secure the Secured Obligations (as defined in the Original Loan Agreement).

 

WHEREAS, Parent now desires to amend the Original Loan Agreement pursuant to that certain Second Amendment to Loan and Security Agreement dated as of the date hereof among Parent, Mortgagor and Superconductivity, Inc. and Mortgagee (the “Amendment”).

 

 

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WHEREAS, the Original Loan Agreement, as amended by the Amendment, shall be referred to herein as the “Loan Agreement”; capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Loan Agreement.

 

WHEREAS, Mortgagee is willing to enter into the Amendment on the condition, among others, that the Mortgage be amended as set forth herein.

 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by this reference, and the mutual covenants herein set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree to the following amendments to the Mortgage:

1.Amendments to Mortgage.

(a)The first Recital on page 1 of the Mortgage is hereby amended and restated in its entirety to read as follows:

“WHEREAS, pursuant to that certain Loan and Security Agreement dated as of June 5, 2012 among American Superconductor Corporation (“Parent”), the direct 100% owner of Mortgagor, Mortgagor and Superconductivity, Inc. and Mortgagee, as amended by that certain First Amendment to Loan and Security Agreement dated as of November 15, 2013 among Parent, Mortgagor and Superconductivity, Inc. and Mortgagee, as further amended by that certain Second Amendment to Loan and Security Agreement dated as of December ___, 2014 among Parent, Mortgagor and Superconductivity, Inc. and Mortgagee (as so amended, and as may have been and may be further amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), Mortgagee has made (i) a loan to Parent in the principal amount of $10,000,000 (the “Term Loan”), which Term Loan is evidenced by that certain Secured Term Promissory Note in the amount of the Term Loan executed by Mortgagor in favor of Mortgagee (the “Term Note”), (ii) a loan to Parent in the principal amount equal to the difference between $15,000,000 and the principal amount outstanding on the Term Loan at the time when such other loan was funded (the “Term B Loan”), which Term B Loan may be evidenced by a promissory note if so requested by Mortgagee (any such note, the “Term B Note”) and (iii) a loan to Parent in the principal amount of $1,500,000 (the “Term C Loan”; and, together with the Term Loan and the Term B Loan, the “Loan”), which Term C Loan may be evidenced by a promissory note if so requested by Mortgagee (any such note, the “Term C Note”; and, together with the Term Note and the Term B Note, the “Note”); and”

(b)Wherever the Mortgage may refer to the “Loan Documents” such reference shall hereafter be deemed to include, without limitation, the Loan Agreement and the Mortgage, as amended by this Modification.

2.Representations and Warranties.  Mortgagor hereby represents and warrants that no default or event of default (under the Mortgage or any other Loan Document),

 

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breach or failure of condition has occurred (whether or not existing on the date hereof), or would exist with notice or the lapse of time or both, under the Mortgage, and that all warranties and representations made in the Mortgage, continue to be true and complete in all material respects as of the date hereof after giving effect to this Modification (other than representations and warranties made as of a specific date, in which case such representations and warranties are true and correct in all material respects on the date made).

3.Reaffirmation.  Mortgagor hereby reaffirms its obligations under each of the Loan Documents.

4.Non-Impairment; Entire Agreement.  Except as expressly provided herein, nothing in this Modification shall alter or affect any provision, condition or covenant contained in the Mortgage or affect or impair any rights, powers, or remedies of Mortgagee thereunder, it being the intent of Mortgagor that the provisions of the Mortgage shall continue in full force and effect, except as expressly modified hereby.  This Modification and the other Loan Documents constitute and contain the entire agreement of the parties hereto and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.  The parties hereto further agree that the Loan Documents, as amended, comprise the entire agreement of the parties thereto and supersede any and all prior agreements, negotiations, correspondence, understandings and other communications between the parties thereto, whether written or oral respecting the extension of credit by Mortgagee to Mortgagor or Parent.

5.Governing Law. This Modification shall be governed by and shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.

6.Claims, Counterclaims, Defenses, Rights of Set-Off.  Mortgagor hereby represents and warrants to Mortgagee that it has no knowledge of any facts that would support a claim, counterclaim, defense or right of set-off.

7.Counterparts; Effectiveness.  This Modification may be executed in any number of counterparts, each of which when so delivered shall be deemed an original, but all such counterparts taken together shall constitute but one and the same instrument.  Each such agreement shall become effective upon the execution of a counterpart hereof or thereof by each of the parties hereto and telephonic notification that such executed counterparts have been received by Mortgagor and Mortgagee.

[Signatures appear on following page.]

 

 

 

 

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IN WITNESS WHEREOF, Mortgagor and Mortgagee have executed this Modification as of the date first above written.

State of Massachusetts

County Worcester

On this 18^th day of December, 2014, before me appeared ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇                                 to me personally known, who, being by me duly sworn (or affirmed), did say that he/she/they is(are) the         EVP, CFO of AMERICAN SUPERCONDUCTOR CORPORATION, a Delaware corporation, the sole member of ASC DEVENS LLC, a Delaware limited liability company, and that the seal affixed to said instrument is the seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇                         acknowledged said instrument to be the free act and deed of said corporation.

/s/▇▇▇▇ ▇. ▇▇▇▇▇▇

Notary Public

Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇

My commission expires:

September 28, 2018

[signatures continue on the following page]

 

 

 

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State of CA

County San Mateo

On this 18^th day of December, 2014, before me appeared Ben Bang                                              to me personally known, who, being by me duly sworn (or affirmed), did say that he/she/they is(are) the Assoc Gen Counsel     of HERCULES TECHNOLOGY GROWTH CAPITAL, INC., a Maryland corporation, and that the seal affixed to said instrument is the seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors (or shareholders), and said Ben Bang                               acknowledged said instrument to be the free act and deed of said corporation.

/s/ Ane Nisa

Notary Public

Print Name: Ane Nisa

My commission expires:

5/17/17

 

 

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EXHIBIT A

LEGAL DESCRIPTION

The land with the improvements thereon situated on the southeasterly side of ▇▇▇▇▇▇▇ Road and the southwesterly side of Givry Street, Harvard, Worcester County, Massachusetts and being shown as Lot 7 on plan entitled “▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇” dated July 19, 2000, prepared by ▇▇▇▇ Surveying Associates, Inc. and recorded with the Worcester District Registry of Deeds in Plan Book 761, Plan 44.

 

Together with the benefit of the appurtenant rights as set forth in the following deeds:

 

 

a.Deed from the USA recorded with said Deeds in Book 17907, Page 1;

 

 

b.Deed to ASC Devens LLC recorded with said Deeds in Book 23120, Page 209, except the slope easements recited therein, which have been released.