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EXHIBIT 10.12D
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MORTGAGE MODIFICATION AGREEMENT
This MORTGAGE MODIFICATION AGREEMENT ("Agreement") is made as of this
29th day of September, 2000, by and between EDAC TECHNOLOGIES CORPORATION with a
mailing address of 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000
("Borrower") and FLEET NATIONAL BANK, a national banking association with a
place of business at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Bank").
W I T N E S S E T H:
WHEREAS, on May 12, 1989, the Borrower granted to the Bank a mortgage
on certain premises located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx,
0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx and 0000 Xxx Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx, which mortgage was recorded in the Farmington Land
Records on May 15, 1989 in Volume 394 at Page 521, and which mortgage was
modified by that certain Mortgage Modification Agreement dated November 10, 1989
and recorded in the Farmington Land Records on November 21, 1989 in Volume 403
at Page 644 (collectively, the "Mortgage"); and
WHEREAS, on July 30, 1992, the parties modified the Mortgage by
entering into that certain Second Modification Agreement to Open-End Mortgage
Deed recorded in the Farmington Land Records on August 6, 1992 in Volume 446 at
Page 002; and
WHEREAS, on December 23, 1992, the parties modified the Mortgage by
entering into that certain Third Modification Agreement to Open-End Mortgage
Deed recorded in the Farmington Land Records on February 25, 1993 in Volume 456
at Page 1010; and
WHEREAS, on March 22, 1993, the parties modified the Mortgage by
entering into that certain Fourth Modification Agreement to Open-End Mortgage
Deed recorded in the Farmington Land Records on March 31, 1993 in Volume 458 at
Page 738; and
WHEREAS, on March 29, 1994, the parties modified the Mortgage by
entering into that certain Fifth Modification Agreement to Open-End Mortgage
Deed recorded in the Farmington Land Records on April 19, 1994 in Volume 480 at
Page 855; and
WHEREAS, Borrower does hereby give, grant, bargain, sell and confirm
unto the Bank, for itself and it successors and assigns forever, all that tract
or parcel of land lying and being located in the Town of Farmington, County of
Hartford and State of Connecticut known as 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx and more particularly described in Schedule A of the Mortgage, as
hereinafter defined (the "Property"), together with all right, title and
interest of Borrower in the Property, with the buildings, structures and
improvements now or hereafter placed thereon; and
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TO HAVE AND TO HOLD the above-granted and bargained Property with all the
privileges and appurtenances thereof, unto Bank, its successors and assigns
forever, to its and their proper use and behoof.
AND ALSO, Borrower does for itself, its successors and assigns, covenants
with Bank, its successors and assigns, that at and until the ensealing of these
presents, it has good right to bargain and sell said Property in manner and form
as above-written, and that the same is free from all encumbrances whatsoever,
except as set forth in Exhibit "B" hereto.
AND FURTHERMORE, Borrower does by these presents bind itself and its
successors and assigns forever to WARRANT AND DEFEND the above-granted and
bargained Property to Bank, its successors and assigns, against all claims and
demands whatsoever, except as set forth in Exhibit "B" hereto.
WHEREAS, the parties desire to further modify the Mortgage;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree that the Amended Note, the Mortgage and certain
other related documents and instruments evidencing and/or securing the principal
amount set forth in the Amended Note ("Loan"), which together with the Amended
Note and the Mortgage are sometimes collectively referred to as the "Loan
Documents", shall be modified as follows:
1. Acknowledgments. The Borrower represents, warrants, and
covenants that:
(a) The recitals set forth above are true and correct.
(b) The Borrower is legally, validly and enforceably liable
for any and all costs and expenses of collection and attorneys' fees related to
or in any way arising out of the Loan Documents and/or the Loan.
2. Amendment of Mortgage.
(a) That certain Amended and Restated Term Note dated of even
date herewith from Borrower to Bank, a copy of which is attached hereto and made
a part hereof as Exhibit A (the "Amended Note") is substituted for and replaces
any and all prior notes and amended notes that have been secured by the Mortgage
at any time.
(b) This Mortgage now only serves as collateral for the
repayment of the Amended Note.
3. Miscellaneous.
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(a) The parties hereby acknowledge and agree that, except as
provided in this Agreement, none of the Loan Documents have been modified,
amended, canceled, terminated, superseded, or otherwise rendered of no force and
effect.
(b) Borrower does hereby expressly reconfirm the conveyance
and grant of the security interests to Bank in the collateral to secure the
obligations under the Amended Note (the "Collateral"). Every other term,
condition, and provision contained in the Amended Note, the Mortgage, and the
other Loan Documents shall continue in full force and effect, except as modified
herein, and as so modified are hereby ratified and confirmed.
(c) Borrower hereby knowingly and, after receiving advice of
counsel, acknowledges and agrees that Borrower does not now have or know of any
basis for any claim in tort, contract or otherwise against Bank, its officers,
directors, agents or employees (collectively, "Bank Affiliates") for breach of
any of the Loan Documents including, without limitation, the Amended Note, the
Mortgage, or this Agreement, or which may arise out of the relationship between
it and Bank or any of the Bank Affiliates under any of the Loan Documents
including, without limitation, the Amended Note, the Mortgage or this Agreement
as of the date hereof, which period includes the execution and delivery of this
Agreement and the documents and instruments to be executed and delivered
pursuant to this Agreement.
(d) Borrower agrees to hold Bank harmless from and against any
and all liabilities, claims, demands, losses, damages, costs and expenses
(including without limitation, reasonable attorney's fees and litigation
expenses), actions or causes of action, arising out of or relating to any breach
of any covenant or agreement or the incorrectness or inaccuracy of any
representation and warranty of Borrower contained in this Agreement, any of the
Loan Documents or any document delivered to Bank by Borrower or any other person
on behalf of Borrower pursuant to the terms of this Agreement. This indemnity
shall survive the payment of the amounts contemplated by Paragraph 1 of this
Agreement and shall extend to the successors and assigns of Bank.
(e) All of the real and personal property described in the
Mortgage shall remain in all respects subject to the lien, charge and
encumbrance of the Mortgage, and nothing herein contained and nothing done
pursuant hereto, shall affect or be construed to affect the priority of the
lien, charge or encumbrance of the Mortgage as a first priority lien against the
Property.
(f) Borrower acknowledges and agrees that the occurrence of an
Event of Default under the terms of this Agreement shall constitute a default
under the Amended Note, the Mortgage, and the other Loan Documents in effect at
the time of any such default and under the documents evidencing any other loan
now existing or hereafter made by Bank to Borrower. The security interests,
liens and other rights and interests in and relative to any of the collateral
now or hereafter granted to Bank by Borrower by or in any instrument or
agreement, including, but not limited to, this Agreement and the Loan Documents
shall serve as security for any and all
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liabilities of Borrower to Bank, including, but not limited to, the liabilities
described in this Agreement, the Amended Note, the Mortgage and the other Loan
Documents, and, for the repayment thereof, Bank may resort to any security held
by it in such order and manner as it may elect.
(g) This Agreement shall inure to the benefit of and bind the
parties hereto and their respective successors and assigns.
4. Assignment or Transfer. Notwithstanding anything in the Loan
Documents to the contrary, Borrower agrees that Bank may assign, transfer, or
negotiate the Loan Documents and in such event all the provisions of the Loan
Documents (as the same may be modified hereby) shall inure to the benefit of and
may be exercised by or on behalf of the assignee, transferee, or holder and,
unless contrary to applicable law, all payments of principal and interest due
and to become due under the Amended Note and/or Mortgage (as modified hereby)
shall not thereafter be subject to any defense, counterclaim, or setoff which
Borrower may have against Bank.
5. Fees and Expenses. Borrower agrees to pay the reasonable legal
and other fees, commissions, costs, charges, taxes and other expenses and
disbursements of Bank's counsel (including local or special counsel, when
applicable), appraisal fees, environmental consultants' fees, fees and charges
for surveys, examination of title to the Property, mortgage title insurance
premiums and charges for endorsements, mortgage taxes, documentary stamp taxes,
transfer taxes and all recording fees and charges Bank or any assignee,
transferee, or holder of the Loan Documents incurred as of September 29, 2000 in
the preparation, execution and delivery of this Agreement or in connection with
or incidental to any of the obligations of Borrower or rights of Bank or of such
assignee, transferee, or holder under the Loan Documents, by litigation or
otherwise; and all such fees and expenses shall be indebtedness under the
Amended Note and shall be secured by the Mortgage.
6. Waivers.
(a) Borrower waives presentment, demand, notice, protest,
notice of acceptance of this Agreement, notice of loans made, credit extended,
collateral received or delivered or other action taken in reliance hereon and
all other demands and notices of any description. With respect both to the
obligations evidenced by the Amended Note (the "Obligations") and the
Collateral, Borrower assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of the
Collateral, to the addition or release of any party or person primarily or
secondarily liable therefor, to the acceptance of partial payments thereon and
the settlement, compromising or adjusting of any thereof, all in such manner and
at such time or times as Bank may deem advisable in its sole and absolute
discretion. Bank shall have no duty as to the collection or protection of the
Collateral or any income thereon, nor as to the preservation of rights against
prior parties, nor as to the preservation of any rights pertaining thereto
beyond the safe custody thereof. Bank may exercise its rights with respect to
the Collateral without resorting, or regard to, other collateral or sources of
reimbursement for liability. Bank shall not be deemed to have waived any of its
rights upon
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or under the Obligations or the Collateral unless such waiver be in writing and
signed by Bank. No delay or omission on the part of Bank in exercising any right
shall operate as a waiver of such right or any other right. A waiver on any one
occasion shall not be construed as a bar to any subsequent enforcement by Bank.
All rights and remedies of Bank with respect to the Obligations or the
Collateral, shall be cumulative and may be exercised singularly or concurrently.
(b) THE BORROWER AND EACH AND EVERY ENDORSER, GUARANTOR AND
SURETY OF THE OBLIGATIONS SECURED BY THIS AGREEMENT, AND EACH OTHER PERSON WHO
IS OR WHO SHALL BECOME LIABLE FOR ALL OR ANY PART OF THE OBLIGATIONS SECURED BY
THIS AGREEMENT, HEREBY ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS AGREEMENT
IS A PART IS A COMMERCIAL TRANSACTION AND WAIVE THEIR RIGHTS TO NOTICE AND
HEARING UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES OR BY OTHER
APPLICABLE LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH BANK MAY DESIRE TO
USE.
(c) BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THIS AGREEMENT AND MAKE THE LOAN.
(d) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT (WITHOUT
GIVING EFFECT TO CONNECTICUT'S PRINCIPLES OF CONFLICTS OF LAW). BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY CONNECTICUT STATE
COURT OR FEDERAL COURT SITTING IN THE STATE OF CONNECTICUT OVER ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND BORROWER HEREBY
AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY CONNECTICUT STATE COURT OR FEDERAL COURT SITTING IN THE STATE OF CONNECTICUT
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO BORROWER AT THE ADDRESS INDICATED ON THE COVER PAGE HEREOF, AND SERVICE SO
MADE SHALL BE COMPLETE TWO (2) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
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(e) Setoff. Borrower and any Guarantor hereby grant to Bank a
lien, security interest and right of setoff as security for all liabilities and
obligations to Bank, whether now existing or hereafter arising, upon and against
all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Bank or any entity under the
control of Fleet Financial Group, Inc., or in transit to any of them. Subject to
any agreement between Borrower and Bank, at any time, without demand or notice,
Bank may setoff the same or any part Thereof and apply the same to any liability
or obligation of Borrower and any Guarantor even though unmatured and regardless
of the adequacy of any other collateral securing the Loan. ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
7. Ratification of Obligations.
(a) The Borrower hereby ratifies and confirms its obligations
and liabilities under the Loan Documents, as may be modified herein, and
acknowledges and agrees that such obligations and liabilities shall continue in
full force and effect. Any default by the Borrower in any of the covenants,
conditions, provisions, stipulations or agreements herein shall, at the option
of Bank, or its successors and assigns, constitute a default under the Mortgage
and/or the Amended Note entitling Bank, or its successors or assigns to any or
all of the other remedies it or they may have thereunder.
(b) In confirmation of the hereinabove, Borrower hereby grants
and conveys to the Bank, with MORTGAGE COVENANTS, the Property; to have and to
hold the Property unto the Bank, its successors and assigns, forever in
accordance with the Amended Note and Mortgage and other Loan Documents, such
that if such sums due hereunder shall be paid and all other obligations of
Borrower under the Loan Documents shall be fully kept and performed, then the
Mortgage, as modified herein, shall be null and void; otherwise to remain in
full force and effect.
8. Severability. In the event any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall be valid and
enforceable to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Signed and delivered in
the presence of:
BORROWER:
EDAC TECHNOLOGIES CORPORATION
_____________________________ ______________________________
Name:
Its
_____________________________ Duly authorized
BANK:
FLEET NATIONAL BANK
_____________________________ By:__________________________
Name:
Its
_____________________________ Duly authorized
STATE OF _______________ )
) at ___________
COUNTY OF ______________ )
On this the ___ day of ____________, 2000, before me, the undersigned
officer, personally appeared _____________, known to me (or satisfactorily
proven) to be the ______________ of ____________________, and acknowledged that
he/she executed the same for the purposes therein contained as his/her free act
and deed and the free act and deed of said bank.
In Witness Whereof I hereunto set my hand.
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STATE OF ______________ )
) at ___________
COUNTY OF _____________ )
On this the ___ day of ____________, 2000, before me, the undersigned
officer, personally appeared _____________, known to me (or satisfactorily
proven) to be the ______________ of ____________________, and acknowledged that
he/she executed the same for the purposes therein contained as his/her free act
and deed and the free act and deed of said bank.
In Witness Whereof I hereunto set my hand.
____________________________________
Notary Public/My Commission Expires:
Commissioner of the Superior Court
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EXHIBIT A
(Amended and Restated Note)
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EXHIBIT B
Those encumbrances in existence as of the date hereof.
