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TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
AND
MECHANICAL TECHNOLOGY INCORPORATED
WITH
KEYBANK NATIONAL ASSOCIATION
____________________
BUILDING LOAN CONTRACT
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DATED AS OF DECEMBER 1, 1998
RELATING TO THE MECHANICAL TECHNOLOGY INCORPORATED PROJECT LOCATED ON
ALBANY-SHAKER ROAD IN THE TOWN OF COLONIE, ALBANY COUNTY, NEW YORK
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TABLE OF CONTENTS
ARTICLE 1 TERMS AND DEFINITIONS 2 1.1 Advance. 2 1.2 Affiliate. 2 1.3 Approval.
2 1.4 Architect. 2 1.5 Architects Contract. 2 1.6 Bank Documents. 2 1.7 Bond
Documents. 2 1.8 Bonds. 2 1.9 Commitment. 3 1.10 Completion Date. 3 1.11
Construction Budget. 3 1.12 Construction Contract. 3 1.13 Construction
Inspector. 3 1.14 Contingency Reserve. 3 1.15 Contract Assignment. 3 1.16
Contractor. 3 1.17 Costs of Improvement. 3 1.18 Date of Issuance. 3 1.19
Equipment. 3 1.20 Event of Default. 3 1.21 Existing Facility 3 1.22
Governmental Authority. 3 1.23 Guarantor 4 1.24 Guaranty 4 1.25 Improvements. 4
1.26 Indirect Costs. 4 1.27 Installment Sale Agreement. 4 1.28 Land 4 1.29
Letter of Credit. 4 1.30 Lien Law. 4 1.31 Mortgage. 4 1.32 New Facility 4 1.33
Plans and Specifications. 4 1.34 Pledge And Security Agreement. 4 1.35 Project
Facility. 4 1.36 Project Facility Costs. 4 1.37 Project Fund. 5 1.38
Reimbursement Agreement. 5 1.39 Request for Disbursement 5 1.40 Requirements. 5
1.41 Security Agreement. 5 1.42 Termination Date. 5 1.43 Trustee. 5
ARTICLE 2 BANK DOCUMENTS 5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 5 3.1 Validity of Bank
Documents. 5 3.2 Title to Project Facility. 5 3.3 Absence of Conflicts 6 3.4
Pending Litigation. 6 3.5 Violations of Requirements. 6 3.6 Compliance with
Requirements. 6 3.7 Organization, Status and Authority. 6 3.8 Availability
of Utilities. 6 3.9 Condition of Project Facility. 6 3.10 Brokerage
Commissions. 7 3.11 Financial Statements. 7 3.12 Taxes. 7 3.13 Architect's and
Construction Contracts. 7 3.14 Contractor. 7 3.15 Other Contracts. 7 3.16
Access. 7 3.17 No Default. 8 3.18 Plans and Specifications. 8 3.19 Governmental
Approvals. 8 3.20 Construction Budget. 8 3.21 Effect of Request for
Disbursement. 8 3.22 The Company As Agent; Disbursement of Funds 8
ARTICLE 4 COVENANTS OF THE COMPANY 8 4.1 Commitment. 9 4.2 Contracts. 9 4.3
Insurance. 9 4.4 Application of Proceeds. 9 4.5 Project Facility Costs and
Expenses. 9 4.6 Commencement and Completion of Construction. 9 4.7 Right
of the Bank to Inspect Project Facility. 9 4.8 Correction of Defects. 10
4.9 Sign Regarding Construction Financing. 10 4.10 Approval of Change Orders.
10 4.11 Notice of Occupancy. 10 4.12 Books and Records. 10 4.13 Financial
Statements and Other Information. 10 4.14 Soil Tests. To provide promptly
to the Bank at the Company's expense such soil tests and environmental
assessments of the Land as the Bank may require from time to time. 10 4.15
Insufficiency of Proceeds. 10 4.16 Additional Documents. 11 4.17 Financing
Publicity. 11 4.18 Easements and Restrictions. 11 4.19 Compliance with
Requirements. 11 4.20 Leases. 12 4.21 Compliance With Restrictions, Covenants
and Easements. 12 4.22 Laborers, Subcontractors and Materialmen. 12 4.23
Further Assurance of Title. 12 4.24 Deposit of Income. 12 4.25 No Transfers or
Encumbrances 12
ARTICLE 5 AGREEMENT TO APPROVE ADVANCES 13 5.1 Reimbursement Agreement. 13 5.2
Advances. 13 5.3 Cost Overruns. 13 5.4 Contingency Reserve. 13 5.5 Stored
Materials. 13 5.6 Amount of Advances. 14 5.7 Quality of Work. 14
ARTICLE 6 CONDITIONS PRECEDENT TO DISBURSEMENT OF PROJECT FUND 14 6.1
Conditions of Initial Advance. 14 6.2 Conditions of Subsequent Advances. 17 6.3
Conditions of Final Advance. 19
ARTICLE 7 METHOD OF DISBURSEMENT OF LOAN PROCEEDS 19 7.1 Request for
Disbursement to be Submitted. 19 7.2 Notice and Frequency of Advances;
Retainage. 20 7.3 Funds Advanced. 20 7.4 Advances Do Not Constitute a
Waiver 20 7.5 Trust Fund Provisions 20
ARTICLE 8 EVENTS OF DEFAULT 21
ARTICLE 9 RIGHTS AND REMEDIES 23 9.1 Remedies. 23 9.2 Remedies Not in
Conflict with the Indenture. 26
ARTICLE 10 GENERAL CONDITIONS 27 10.1 Rights of Third Parties. 27 10.2
Limitation on Agency Liability; Indemnity. 27 10.3 Relationship. 28 10.4
Evidence of Satisfaction of Conditions. 28 10.5 Notices. 28 10.6 Assignment. 29
10.7 Successors and Assigns Included in Parties. 29 10.8 Headings. 29
10.9 Invalid Provisions to Affect No Others. 29 10.10 Number and Gender. 29
10.11 Governing Law. 29 10.12 Consent to Jurisdiction. 30 10.13 Amendments. 30
10.14 No Recourse; Special Obligation 30 10.15 Bifurcation 31
Exhibit A Construction Budget
Exhibit B Description Of Land
Exhibit D LIEN LAW, SECTION 22 AFFIDAVIT
BUILDING LOAN CONTRACT
THIS BUILDING LOAN CONTRACT (the "Agreement") is made and entered into as of
December 1, 1998 among KEYBANK NATIONAL ASSOCIATION, a national banking
association with an office for the transaction of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "Bank"),
MECHANICAL TECHNOLOGY INCORPORATED, a New York corporation with its principal
place of business at ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Company") and the TOWN OF COLONIE INDUSTRIAL
DEVELOPMENT AGENCY, a public benefit corporation with an office for the
transaction of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Agency").
W I T N E S S E T H:
WHEREAS, the Agency has determined to issue and sell its $6,000,000.00
Aggragate Principal amount of Taxable Industrial Development Revenue Bonds
(Mechanical Technology Incorporated Project - Letter Of Credit Secured), Series
1998A (the "Bonds") in the maximum aggregate principal amount of $6,000,000.00
to provide financing for the project consisting of construction of a building,
renovation of an existing building and the installation of machinery and
equipment therein and for the related costs and expenses associated therewith
(the "Project"); and
WHEREAS, the Bonds are to be issued pursuant to that certain Trust Indenture,
dated as of December 1, 1998 (the "Indenture"), between the Agency and
Manufacturers And Traders Trust Company, as Trustee (the "Trustee"); and
WHEREAS, the Agency has determined that issuing the Bonds and constructing the
New Facility and acquiring and renovating the Existing Facility and equipping
each will accomplish, in part, its public purposes; and
WHEREAS, in connection with the Bonds, the Bank is about to issue its
irrevocable letter of credit (the "Letter of Credit") in favor of the Trustee;
and
WHEREAS, with regard to the Letter of Credit, the Bank and the Company have or
are about to enter into the Reimbursement Agreement, dated as of December 1,
1998 (the "Reimbursement Agreement"); and
WHEREAS, the Agency, the Bank, the Trustee and the Company have agreed that
draws are to be advanced to the Company by the Trustee in accordance with the
provisions of this Agreement and the provisions of the Indenture.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Bank agrees to issue the Letter of Credit in
accordance with the terms more particularly set forth in the Reimbursement
Agreement, which Letter of Credit has been issued in order to enhance Bonds,
the proceeds of which will be used for construction of the Facility in
accordance with and subject to the terms and conditions hereinafter set forth.
ARTICLE 1
TERMS AND DEFINITIONS
In addition to the other terms defined in this Agreement, the Reimbursement
Agreement or the Indenture, the following additional terms shall have the
meanings set forth in this Article. References to documents and other materials
shall include those documents and materials as they may be revised, amended and
modified, from time to time, with the prior written approval of the Bank.
Capitalized terms not otherwise defined shall have the meanings set forth in
the Indenture.
1.1 Advance. "Advance" means any disbursement by the Trustee of Bond
proceeds in accordance with the provisions of this Agreement, Section 403 of
the Indenture and Section 4.3 of the Instalment Sale Agreement, upon
presentation of a requisition from the Company.
1.2 Affiliate. "Affiliate" means any natural person, corporation,
partnership, limited liability company except Plug Power LLC, or other
organization or entity controlling, controlled by or in common control with,
the Company.
1.3 Approval. "Approval", "Approved", "Approval" or "Approved" means, as
the context so determines, an approval by the Bank and the Trustee of Request
for Disbursement given after full and fair disclosure to the approving parties
of all material facts necessary in order to determine whether approval should
be granted.
1.4 Architect. "Architect" means ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, whose address is
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
1.5 Architects Contract. "Architects Contract" means the Contract dated
June 24, 1998 between the Company and the Architect providing for architectural
services.
1.6 Bank Documents. "Bank Documents" means, collectively, this Building
Loan Contract, the Reimbursement Agreement, the Mortgage, the Guaranty and the
Pledge And Security Agreement.
1.7 Bond Documents. "Bond Documents" means collectively, the Indenture and
any other document executed by the Company in connection with the issuance of
the Bonds other than the Bank Documents.
1.8 Bonds. "Bonds" means the $6,000,000.00 of Aggregate Principal Amount
Taxable Industrial Development Revenue Bonds (Mechanical Technology
Incorporated Project - Letter of Credit Secured), Series 1998A issued by the
Agency pursuant to the Indenture.
1.9 Commitment. "Commitment" means the commitment letter for the Letter of
Credit issued by the Bank to the Company dated July 15, 1998 and accepted by
the Company July 15, 1998.
1.10 Completion Date. "Completion Date" means April 30, 1999.
1.11 Construction Budget. "Construction Budget" means the budget for total
estimated Project Facility Costs, submitted by the Company, approved by the
Bank, and attached hereto as Exhibit A.
1.12 Construction Contract. "Construction Contract" means th Contract dated
June 19, 1998 between the Company and the Contractor providing for the
construction of the Improvements on the Land.
1.13 Construction Inspector. "Construction Inspector" means Omega Design
Architect P.C. or, in the alternative such officers or employees of the Bank.
1.14 Contingency Reserve. "Contingency Reserve" means the amount(s) (if any)
allocated as contingency reserve(s) in the Construction Budget to be disbursed
by the Trustee upon approval of the Bank.
1.15 Contract Assignment. "Contract Assignment" means the Assignment of
Contract Rights dated as of December 1, 1998 given by the Company to the Bank.
1.16 Contractor. "Contractor" means ▇▇▇▇▇▇ & ▇▇▇▇ Builders Inc. whose
address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
1.17 Costs of Improvement. "Costs of Improvement" means those items defined
as such under Section 2(5) of the Lien Law.
1.18 Date of Issuance. "Date of Issuance" means the date of issuance ofthe
Letter of Credit.
1.19 Equipment. "Equipment" means materials, furnishings, fixtures machinery,
equipment and all items of tangible and intangible personal property now or
hereafter owned by the Company and located on the Land or located elsewhere and
intended to be incorporated in the Improvements.
1.20 Event of Default. "Event of Default" means any condition or event
described herein as such.
1.21 Existing Facility. "Existing Facility" means three buildings containing
approximately 98,000 square feet of space located on the Land.
1.22 Governmental Authority. "Governmental Authority" means the United
States of America, the State of New York, any political subdivision thereof,
municipalities in which the Land is located and any agency, authority,
department, commission, board, bureau or instrumentality of any of them.
1.23 Guarantor. "Guarantor" means Ling Electronics, Inc.
1.24 Guaranty. "Guaranty" means the unconditional guarantee of payment by
the Guarantor dated as of December 1, 1998 of the obligations of the Company
under the Bank Documents.
1.25 Improvements. "Improvements" means those portions of the Existing
Facility which will not be demolished and the New Facility which will contain
approximatley 32,000 square feet and will be constructed on the Land in
accordance with the Plans and Specifications.
1.26 Indirect Costs. "Indirect Costs" mean and include title insurance
premiums, survey charges, engineering fees, architectural fees, real estate
taxes during the period of construction, commitment fees and interest payable
to the Bank under the Reimbursement Agreement, premiums for insurance, legal
fees and all other expenses which are, in accordance with sound accounting
practices, capital expenditures relating to the Project Facility.
1.27 Installment Sale Agreement. "Installment Sale Agreement" means the
Installment Sale Agreement between the Agency and the Company dated as of
December 1, 1998.
1.28 Land. "Land" means the real property described in Exhibit B attached
hereto.
1.29 Letter of Credit. "Letter of Credit" means the $6,160,274.00
irrevocable letter of credit issued by the Bank in favor of the Trustee on the
Date of Issuance.
1.30 Lien Law. "Lien Law" means the Lien Law of the State of New York.
1.31 Mortgage. "Mortgage" means the Mortgage And Security Agreement creating
a good and valid first mortgage lien on the Land given by the Agency and the
Company to the Bank and dated as of December 1, 1998.
1.32 New Facility. "New Facility" means an approximately 32,000 square foot
building to be constructed on the Land.
1.33 Plans and Specifications. "Plans and Specifications" means the plans
and specifications for the Improvements.
1.34 Pledge And Security Agreement. "Pledge And Security Agreement" means
the Pledge And Security Agreement dated as of December 1, 1998 from the Company
to the Bank.
1.35 Project Facility. "Project Facility" means the Land, the Improvements
and the Equipment.
1.36 Project Facility Costs. "Project Facility Costs" means and includes all
costs that will be incurred by the Company in connection with the demolition
and renovation of the Existing Facility, construction of the New Facility, the
equipping of the Facility with the Equipment, and the operation and carrying of
the Project Facility through the expiration date of the Letter of Credit,
including without limitation all Indirect Costs.
1.37 Project Fund. "Project Fund" shall mean the Project Fund created
pursuant to Section 403 of the Indenture.
1.38 Reimbursement Agreement. "Reimbursement Agreement" means the
Reimbursement Agreement between the Company and the Bank dated as of December
1, 1998.
1.39 Request for Disbursement. "Request for Disbursement" means the request
for disbursement from Project Fund in the form attached hereto as Exhibit C.
1.40 Requirements. "Requirements" means any law, ordinance, order, rule or
regulation of any Governmental Authority relating in any way to the Project
Facility or the Company.
1.41 Security Agreement. "Security Agreement" means the Security Agreement
dated as of December 1, 1998 given by the Agency and the Company to the Bank.
1.42 Termination Date. "Termination Date" means the Completion Date.
1.43 Trustee. "Trustee" shall mean Manufacturers And Traders Trust Company,
or any successor trustee under the Indenture.
ARTICLE 2
BANK DOCUMENTS
The Bank Documents have been duly authorized, executed and delivered by each of
the parties thereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Bank and the Agency as
follows:
3.1 Validity of Bank Documents. That the Bank Documents to which it is a
party (and assuming proper execution by any other party thereto) are in all
respects valid and legally binding obligations, enforceable in accordance with
their respective terms.
3.2 Title to Project Facility. That the Company has good clear record and
marketable fee simple absolute title to the Land, subject to no liens, security
interests, charges or encumbrances in favor of any person other than the
Trustee or the Bank or any utility servicing the Project Facility and the Lease
to Issuer (as defined in the Indenture).
3.3 Absence of Conflicts. That the execution and delivery of the Bank
Documents by the Company does not, and the performance and observance by the
Company of its obligations thereunder will not, contravene or result in a
breach of (a) any provision of the Company's articles of organization or
operating agreement; (b) any Requirements, or (c) any decree or judgement
binding on the Company, or (d) any agreement or instrument binding on the
Company or any of its properties, nor will the same result in the creation of
any lien or security interest under any such agreement or instrument.
3.4 Pending Litigation. That there are no actions, suits, investigations or
proceedings pending, or, to the knowledge of the Company, threatened against or
affecting the Company (or any Affiliate of the Company), the Guarantor or the
Project Facility, or involving the validity or enforceability of any of the
Bank Documents or the priority of the lien thereof, or which will affect the
Company's ability to pay its obligations under the Bank Documents, at law or in
equity or before or by any Governmental Authority.
3.5 Violations of Requirements. That the Company has no knowledge of any
violations or notices of violations of any Requirements.
3.6 Compliance with Requirements. That the Plans and Specifications and
construction of the Improvements pursuant thereto and the use of the Project
Facility contemplated thereby will comply with all Requirements.
3.7 Organization, Status and Authority. That the Company (i) is a business
corporation duly organized, validly existing and in good standing under the
laws of the state in which it was formed; (ii) is duly qualified to do business
and is in good standing therein and in the State of New York, (iii) it has the
power, authority and legal right to own and operate its properties and assets,
carry on the business now being conducted and proposed to be conducted by it,
and to engage in the transactions contemplated by the Bank Documents, and (iv)
the execution and delivery of the Bank Documents to which it is a party and the
performance and observance of the provisions thereof have been duly authorized
by all necessary actions of the members and/or managers of the Company.
3.8 Availability of Utilities. That all utility services necessary nd
sufficient for the construction, development and operation of the Project
Facility for its intended purposes are presently available to the boundaries of
the Land through dedicated public rights of way or through perpetual private
easements, approved by the Bank, with respect to which the Indenture and the
Mortgage create valid, binding and enforceable liens, including, but not
limited to, water supply, storm and sanitary sewer, gas, electric and telephone
facilities, and drainage.
3.9 Condition of Project Facility. That neither the Project Facility nor
any portion thereof is now damaged or injured as result of any fire, explosion,
accident, flood or other casualty or has been the subject of any condemnation,
and to the knowledge of the Company, no condemnation is pending or
contemplated.
3.10 Brokerage Commissions. That any brokerage commissions due in connection
with the transactions contemplated hereby have been paid in full and that any
such commissions coming due in the future will be promptly paid by the Company.
The Company agrees to and shall indemnify the Bank from any liability, claims
or losses arising by reason of any such brokerage commissions. This provision
shall survive the repayment of the obligations of the Company under the Bank
Documents and shall continue in full force and effect so long as the
possibility of such liability, claims or losses exists.
3.11 Financial Statements. That any financial statements of the Company
previously delivered to the Bank are true and correct in all respects, have
been prepared in accordance with generally accepted accounting principles
consistently applied, and fairly present the respective financial conditions of
the Company as of the respective dates thereof and the results of its
operations for the periods covered thereby; that no adverse change has occurred
in the assets, liabilities, or financial conditions reflected therein since the
respective dates thereof; and that no additional borrowings have been made by
the Company since the date thereof other than the borrowing contemplated hereby
or previously consented to in writing by the Bank.
3.12 Taxes. That all federal, state and other tax returns of the Company
required by law to be filed have been filed, that all federal, state and other
taxes, assessments and other governmental charges upon the Company or its
properties which are due and payable have been paid, and that the Company has
set aside on its books provisions reasonably adequate for the payment of all
taxes (or payment in lieu of taxes) for periods subsequent to the periods for
which such returns have been filed.
3.13 Architect's and Construction Contracts. That (i) both the Construction
Contract and the Architect's Contract are in full force and effect; and (ii)
both the Contractor and the Architect are in full compliance with their
respective obligations under their respective Contracts.
3.14 Contractor. That (i) the work to be performed by Contractor under the
Construction Contract is work called for by the Plans and Specifications and
all work required to complete the Improvements in accordance with the Plans and
Specifications is provided for under the Construction Contract; and (ii) all
work on the Improvements shall be completed in accordance with the Plans and
Specifications in a good and workmanlike manner and shall be free of any
defects.
3.15 Other Contracts. Except for the Mortgage and the Bond Documents, that
the Company has made no contract or arrangement of any kind or type whatsoever
(whether oral or written, formal or informal), the performance of which by the
other party thereto could give rise to a lien or encumbrance on the Project
Facility, except for contracts (all of which have been disclosed in writing to
the Bank) made by the Company with parties who have or will executed and
delivered lien waivers to the Company, and which, in the opinion of the Bank's
counsel, will not create rights in existing or future lien claimants which may
be superior to the lien of the Mortgage.
3.16 Access. That the rights of way for all roads necessary for the full
utilization of the Project Facility for their intended purposes have either
been acquired by the Company, the appropriate Governmental Authority or have
been dedicated to public use and accepted by such Governmental Authority, and
all such roads shall have been completed, or all necessary steps shall have
been taken by the Company and such Governmental Authority to assure the
complete construction and installation thereof prior to the date upon which
access to the Project Facility via such roads will be necessary. All curb cuts,
driveway permits and traffic signals shown on the Plans and Specifications or
otherwise necessary for access to the Project Facility are existing or have
been fully approved by the appropriate Governmental Authority.
3.17 No Default. That no Event of Default exists and no event which but for
the passage of time, the giving of notice or both would constitute an Event of
Default has occurred.
3.18 Plans and Specifications. That the Company has furnished the Bank true
and complete sets of the Plans and Specifications which comply with all
Requirements, all governmental approvals, and all restrictions, covenants and
easements affecting the Project Facility, and which have been approved by any
Governmental Authority as is required for renovation of the Existing Facility
and construction of the New Facility.
3.19 Governmental Approvals. That the Company has obtained all governmental
approvals from, and has given all such notices to, and has taken all such other
actions with respect to such Governmental Authority as may be required under
applicable Requirements for the construction of the Improvements.
3.20 Construction Budget. That the Construction Budget accurately reflects
all costs of construction of the Improvements.
3.21 Effect of Request for Disbursement. That each Request for Disbursement
submitted as provided in Article 6 hereof and pursuant to the Indenture shall
constitute an affirmation that the representations and warranties contained in
Article 3 of this Agreement and in the other Bank Documents remain true and
correct as of the date thereof; and unless the Bank is notified to the
contrary, in writing, prior to the disbursement of the requested Advance or any
portion thereof, shall constitute an affirmation to the Bank and the Trustee
that the same remain true and correct on the date of such disbursement.
3.22 The Company As Agent; Disbursement of Funds. That the Agency, in
compliance with and subject to the terms of the Installment Sale Agreement, has
appointed the Company its true and lawful agent, and the Company has accepted
such agency for the purpose, among other things, of causing the Improvements to
be renovated, constructed and equipped in accordance with the terms and
conditions of this Agreement. The Agency has authorized the Trustee, with the
consent of the Bank, to disburse all monies, as provided for in this Agreement,
the Indenture and the Installment Sale Agreement directly to the Company in
accordance with this Agreement.
ARTICLE 4
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees with the Bank and the Agency as
follows:
4.1 Commitment. To permit no default under the terms of the Commitment.
4.2 Contracts. (i) To permit no default by the Company under the terms of
the Construction or Architect's Contract, (ii) to waive none of the material
and substantial obligations of the Contractor or the Architect thereunder,
(iii) to do no act which would relieve Contractor or Architect from their
respective obligations under their respective Contracts and (iv) to make no
material amendments to or changes under either Contract without the prior
written approval of the Bank.
4.3 Insurance. To obtain insurance or evidence of insurance as the Bank may
reasonably require, including, but not limited to, the insurance required
pursuant to the Bank Documents.
4.4 Application of Proceeds. To use the proceeds of the Bonds solely for
the purpose of paying for the cost of the construction and equipping of the
Improvements in accordance with the terms of this Agreement and the Indenture.
4.5 Project Facility Costs and Expenses. To pay all Project Facility Costs,
regardless of the amount, and to pay all costs and expenses with respect to the
financing and construction of the Project Facility.
4.6 Commencement and Completion of Construction. To commence renovation of
the Existing Facility and construction of the New Facility and the acquisition
and installation therein of the Equipment within thirty (30) days after the
date hereof and to diligently pursue construction to completion prior to the
Completion Date in accordance with the Plans and Specifications, in full
compliance with all restrictions, covenants and easements affecting the Project
Facility, all Requirements, and all governmental approvals, and with all terms
and conditions of the Bank Documents without deviation from the Plans and
Specifications unless with the prior approval of the Bank; to pay all sums and
to perform such duties as may be necessary to complete such renovation of the
Existing Facility and construction of the New Facility in accordance with the
Plans and Specifications and in full compliance with all restrictions,
covenants and easements affecting the Project Facility, all Requirements and
all governmental approvals, and with all terms and conditions of the Bank
Documents, all of which shall be accomplished on or before the Completion Date,
free from any liens, claims or assessments (actual or contingent) asserted
against the Project Facility for any material, labor or other items furnished
in connection therewith. Evidence of satisfactory compliance with the foregoing
shall be furnished by the Company to the Bank on or before the Completion Date.
4.7 Right of the Bank to Inspect Project Facility. To permit the Bank and
its representatives and agents to enter upon the Project Facility and to
inspect the Project Facility and all materials to be used in the construction
thereof and to cooperate and cause any subcontractors to cooperate with the
Bank and its representatives and agents during such inspections (including
making available to the Bank working copies of the Plans and Specifications
together with all related supplementary materials); provided, however, that
this provision shall not be deemed to impose upon the Bank any obligation to
undertake such inspections.
4.8 Correction of Defects. Unless the Company demonstrates to the Bank that
such corrective work is inappropriate or inconsistent with the Plans and
Specifications, to promptly correct all defects in the Improvements or any
departure from the Plans and Specifications not previously approved by the
Bank. The Company agrees that any Advance, whether before or after such defects
or departures from the Plans and Specifications are discovered by, or brought
to the attention, of the Bank, shall not constitute a waiver of the Bank's
right to require compliance with this covenant.
4.9 Sign Regarding Construction Financing. At the Bank's option, to erect
promptly and maintain on a suitable site on the Land a sign indicating that
construction financing is being provided by the Bank, all to the satisfaction
of the Bank; and to prevent the destruction or removal of said sign without the
prior approval of the Bank.
4.10 Approval of Change Orders. To permit no material deviations from the
Plans and Specifications during construction without the prior approval of the
Bank.
4.11 Notice of Occupancy. To notify the Bank at least ten (10) days prior
to, and again on, the date of occupancy of any portion of the Improvements
being renovated or constructed with proceeds of the Bonds.
4.12 Books and Records. To keep and maintain complete proper and accurate
books, records and accounts reflecting all items of income and expense of the
Company in connection with the Project Facility and the renovation of the
Existing Facility and construction of the New Facility and the results of the
operation thereof; and, upon the request of the Bank, to make such books,
records and accounts immediately available to the Bank for inspection or
independent audit.
4.13 Financial Statements and Other Information. To furnish to the Bank such
financial statements and information as the Company has agreed to provide
elsewhere in the Bank Documents.
4.14 Soil Tests. To provide promptly to the Bank at the Company's expense
such soil tests and environmental assessments of the Land as the Bank may
require from time to time.
4.15 Insufficiency of Proceeds. To deposit funds with the Bank as follows:
If at any time or from time to time during the terms of this Agreement, in the
Bank's judgment and opinion, the remaining undisbursed portion of the Project
Fund, together with the undisbursed balances of other sums previously deposited
by the Company with the Bank or the Trustee in connection with the renovation
of the Existing Facility and construction of the New Facility, is or will be
insufficient to fully complete renovation of the Existing Facility and
construction of the New Facility and the acquisition and installation of the
Equipment therein in accordance with the Plans and Specifications, to pay all
other Project Facility Costs and to pay all other sums due or to become due
under the Bank Documents, regardless of how such condition may be caused, the
Company shall, within seven (7) days after written notice thereof from the
Bank, deposit with the Bank or the Trustee such sums of money in cash as the
Bank may require, in an amount sufficient to remedy such condition, and
sufficient to pay any liens for services and materials alleged to be due and
payable at that time in connection with the Project Facility, and, at the
Bank's option, no further Advances shall be made by the Trustee until the
provisions of this paragraph have been fully complied with. All such deposited
sums shall stand as additional security for the Company's obligations under
this Agreement and shall be disbursed in the same manner as Advances before any
further Advances of the other proceeds shall be made. Neither the Bank nor the
Trustee shall have any obligation to pay the Company any interest with respect
to such deposited funds.
4.16 Additional Documents. To perform hereunder as follows:
(a) Regarding Construction. To furnish to the Bank all instruments,
documents, boundary surveys, footing or foundation surveys, certificates, plans
and specifications, appraisals, title and other insurance, reports and
agreements and each and every other document and instrument required to be
furnished by, the terms of the Commitment or this Agreement or the other Bank
Documents, all at the Company's expense.
(b) Regarding Preservation of Security. To execute and deliver to the Bank
such documents, instruments, assignments and other writings, and to do such
other acts necessary or desirable, to preserve and protect the collateral at
any time securing or intended to secure the obligations of the Company under
the Bank Documents, as the Bank may require.
(c) Regarding this Agreement. To do and execute all and such further lawful
and reasonable acts, conveyances and assurances in the law for the better and
more effective carrying out of the intents and purposes of this Agreement as
the Bank shall require from time to time.
4.17 Financing Publicity. To permit the Bank to obtain publicity in
connection with the construction of the Improvements through press releases and
participation in such events as ground breaking and opening ceremonies; and to
give the Bank ample advance notice of such events and to give the Bank as much
assistance as possible in connection with obtaining such publicity as the Bank
may request.
4.18 Easements and Restrictions. To submit to the Bank for the Bank's
approval prior to the execution thereof by the Company all proposed easements,
restrictions, covenants, permits, licenses, and other instruments which would
or might affect the title to the Project Facility, accompanied by a survey
showing the exact proposed location thereof and such other information as the
Bank shall reasonably require. The Company shall not subject the Project
Facility or any part thereof to any easement, restriction or covenant
(including any restriction or exclusive use provision in any lease or other
occupancy agreement) without the prior approval of the Bank.
4.19 Compliance with Requirements. To comply promptly with all Requirements
and governmental approvals and to furnish the Bank, on demand, with independent
evidence of such compliance.
4.20 Leases. To enter into no leases or occupancy agreements affecting the
Project Facility without the prior approval of the Bank. The Bank is aware of
and has approved the Lease to Issuer and existing leases with Plug Power and
▇▇▇▇▇▇ ▇▇▇▇▇▇. The Company shall deliver to the Bank executed counterparts of
all leases and occupancy agreements affecting the Project Facility whether
executed before or after the date of this Agreement, and shall not amend any
provision thereof or waive any obligations of tenants under any leases or
occupancy agreements affecting the Project Facility without the prior approval
of the Bank.
4.21 Compliance With Restrictions, Covenants and Easements. To comply with
all restrictions, covenants and easements affecting the Project Facility.
4.22 Laborers, Subcontractors and Materialmen. To furnish to the Bank, upon
request at any time, and from time to time, affidavits listing all laborers,
subcontractors, materialmen, and any other parties who might or could claim
statutory or common law liens and are furnishing or have furnished labor or
material to the Project Facility or any portion thereof, together with
affidavits, or other evidence satisfactory to the Bank, showing that such
parties have been paid all amounts then due for labor and materials furnished
to the Project Facility. In addition, the Company will notify the Bank
immediately, and in writing, if the Company receives any notice, written or
oral, from any laborer, subcontractor or materialmen to the effect that said
laborer, subcontractor or materialmen has not been paid when due for any labor
or materials furnished in connection with the renovation of the Existing
Facility and construction of the New Facility. The Company will also furnish to
the Bank, at any time and from time to time upon demand by the Bank, lien
waivers bearing a then current date from such subcontractors or materialmen as
the Bank may designate.
4.23 Further Assurance of Title. To further assure title as follows: if at
any time the Bank or the Bank's counsel has reason to believe that any Advance
is not secured or will or may not be secured by the Mortgage as a lien or
security interest on the Project Facility, then the Company shall, within ten
(10) days after written notice from the Bank, do all things and matters
necessary, to assure to the satisfaction of the Bank and the Bank's counsel
that any Advance previously made by the Trustee or to be made, is secured or
will be secured by the Mortgage as a valid first mortgage lien or collateral
security interest on the Project Facility, and the Bank, at its option, may
decline to consent to further Advances until the Bank has received such
assurance.
4.24 Deposit of Income. To deposit with the Bank, upon request at any time,
any sums received by the Company from tenants or occupants of the Project
Facility, in a special account, from which no funds shall be drawn by the
Company without the Bank's prior approval, and which sums shall stand as
additional security for the Company's obligations to the Bank under the Bank
Documents.
4.25 No Transfers or Encumbrances. To cause or permit no sale, conveyance,
transfer, assignment or encumbering of the Project Facility or any interest
therein without the prior approval of the Bank.
ARTICLE 5
AGREEMENT TO APPROVE ADVANCES
Subject to the terms and conditions set forth in this Agreement, the Bank
agrees to consent to Advances by the Trustee to the Company from time to time
during the period from the date hereof to the Termination Date of proceeds in
the Project Fund to pay Project Facility Costs actually incurred in connection
with the renovation of the Existing Facility and construction of the New
Facility and the cost of acquisition and installation of the Equipment in the
Project Facility (including Indirect Costs) if and to the extent such Project
Facility Costs are reflected in the Construction Budget as being funded by
proceeds of the Bonds.
5.1 Reimbursement Agreement. The Company shall have an obligation to pay
all sums due under the Reimbursement Agreement and the other Bank Documents (as
well as any and all reasonable fees and expenses set forth therein).
5.2 Advances. The Construction Budget reflects, by category and line items,
the purposes and the amounts for which funds to be advanced under this
Agreement and the Indenture are to be used. The Bank shall not be required to
consent to any disbursement for any category or line item more than the amount
specified therefor in the Construction Budget.
5.3 Cost Overruns. If the Company becomes aware of any change in Project
Facility Costs which will increase a category or line item of Project Facility
Costs reflected on the Construction Budget (as the Construction Budget is
revised from time to time and approved by the Bank), the Company shall
immediately notify the Bank in writing and promptly submit to the Bank for its
approval a revised Construction Budget. No further Advances need be consented
to by the Bank unless and until the revised Construction Budget so submitted by
the Company is approved by the Bank, and the Bank reserves the right to approve
or disapprove any revised Construction Budget in its sole and absolute
discretion. If the Bank approves the revised Construction Budget, and such
revised Construction Budget reflects Project Costs to be funded by the Bank in
excess of the proceeds available in the Project Fund, the amount of such excess
shall be funded by the Company.
5.4 Contingency Reserve. Any amount allocated as Contingency Reserve in the
Construction Budget is not intended to be disbursed and will only be disbursed
upon the prior approval of the Bank, which approval can be withheld for any
reason or for no reason. The disbursement of a portion of the Contingency
Reserve shall in no way prejudice the Bank from withholding its consent to
disbursement of any further portion of the Contingency Reserve.
5.5 Stored Materials. Advances of Bond proceeds shall not be made for any
materials, furnishings or Equipment not yet incorporated into the Land or the
Facility (the "Stored Materials") without the prior written consent of the
Bank. Any disbursement for the cost of Stored Materials shall be contingent
upon the Bank's receiving satisfactory evidence that:
(a) The Stored Materials are components in a form ready for incorporation
into the Improvements;
(b) The Stored Materials are stored either at the Land, in a bonded
warehouse, at a site controlled by the Company, or at such other site as the
Bank shall approve, and are protected against theft and damage;
(c) The Stored Materials have been paid for in full or will be paid for
with the funds to be disbursed and all lien rights or claims of the supplier
have been released or will be released upon payment with disbursed funds;
(d) The Bank and the Trustee have or will have upon payment with disbursed
funds a perfected, first priority security interest in the Stored Materials;
and
(e) The Stored Materials are insured for an amount equal to their
replacement costs.
5.6 Amount of Advances. In no event shall any Advance exceed the Indirect
Costs approved by the Bank and theretofore paid or to be paid with the proceeds
of such Advance plus ninety (90%) percent of all costs for construction of
Improvements approved by the Bank and incurred by the Company through the date
of the Request for Disbursement for such Advance, less the aggregate amount of
any Advances previously made. It is further understood that the retainage
described above is intended to provide a contingency fund protecting the Bank
against failure of the Company to fulfill any obligations under the Bank
Documents, and that the Bank may charge amounts against such retainage in the
event the Bank is required or elects to expend its own funds to cure any Event
of Default.
5.7 Quality of Work. No Advance shall be due unless all work done at the
date the Request for Disbursement for such Advance is submitted is done in a
good and workmanlike manner and without defects, but the Trustee, upon consent
by the Bank, may disburse all or part of any Advance before the sum shall
become due if the Bank believes it advisable to do so, and all such Advances or
parts thereof shall be deemed to have been made pursuant to this Agreement.
ARTICLE 6
CONDITIONS PRECEDENT TO DISBURSEMENT OF PROJECT FUND
6.1 Conditions of Initial Advance. The obligation of the Bank to consent to
the initial Advance shall be subject to the following conditions precedent:
(a) Commitment. All items required by the Commitment shall have been
delivered to the proper parties as required therein, and all conditions set
forth in the Commitment shall have been satisfied.
(b) Bank Documents. The Bank Documents, in form and substance satisfactory
to the Bank and the Trustee shall have been duly executed and delivered by the
parties thereto and shall be in full force and effect, and the Bank shall have
received an original or a fully executed counterpart thereof. All Bank
Documents to be filed or recorded in the public records shall have been so
filed or recorded in the appropriate public records.
(c) Construction Documents. The Architect's Contract and Construction
Contract, in form and substance satisfactory to the Bank, shall have been duly
executed and delivered by the parties thereto, shall be in full force and
effect, and the Bank shall have received a certified or a fully executed
counterpart thereof. The Architect and Contractor shall have duly executed and
delivered to the Bank a consent to the assignment of their respective
Contracts, in form and substance satisfactory to the Bank, and the Bank shall
have received the original or a fully executed counterpart thereof.
(d) Subcontracts. The Company shall have delivered to the Bank, and the
Bank shall have approved, a list of all subcontractors and materialmen who have
been or, to the extent identified by the Company, will be supplying labor or
materials for the Project Facility, a copy of the standard form of subcontract
to be used by the Company, and correct and complete photocopies of all executed
subcontracts and contracts.
(e) Other Contracts. The Company shall have delivered to the Bank correct
and complete photocopies of all other executed contracts with contractors,
engineers or consultants for the Project Facility, and of all development,
management, brokerage, sales or leasing agreements for the Project Facility.
(f) Deliveries. The following items or documents shall have been delivered
to the Bank:
(1) Plans and Specifications. Two complete sets of the Plans and
Specifications and approval thereof by any necessary Governmental Authority,
with a certification from the Architect that the Facility to be constructed
complies with all Requirements and that the contracts and subcontracts provided
to the Bank satisfactorily provide for the construction of the Improvements.
(2) Title Insurance Policy. A paid Title Insurance Policy or report in all
respects satisfactory to the Bank and the Trustee and their respective counsel.
(3) Other Insurance. Policies (or, if permitted, certificates or other
evidence of) all insurance required by this Agreement or any other Bank
Document.
(4) Evidence of Sufficiency of Funds. Evidence satisfactory to the Bank
that the proceeds of the Bonds (but excluding the Contingency Reserve), will be
sufficient to cover all Project Facility Costs reasonably anticipated to be
incurred, and to satisfy the obligations of the Company under this Agreement
and the Indenture.
(5) Evidence of Access, Availability of Utilities, Requirements. Evidence
satisfactory to the Bank as to:
(A) the methods of access to and egress from the Project Facility, and
nearby or adjoining public ways, meeting the reasonable requirements of
property of the type contemplated to be completed under this Agreement and the
status of completion of any required improvements to such access;
(B) the availability of storm and sanitary sewer facilities meeting the
reasonable requirements of the Project Facility;
(C) the availability of all other required utilities, in location and
capacity sufficient to meet the reasonable needs of the Project Facility; and
(D) the satisfying of all Requirements for the construction of the
Improvements, together with copies of all certificates and permits evidencing
said compliance.
(6) Environmental Report. An environmental assessment report or reports of
one or more qualified environmental engineering or similar inspection firms
approved by the Bank in form, scope and substance satisfactory to the Bank,
which report or reports shall indicate a condition of the Land in all respects
satisfactory to the Bank in its sole discretion and upon which report or
reports the Bank is expressly entitled to rely.
(7) Survey; Site Plan.
(A) A survey prepared in accordance with the Bank's survey requirements,
certified by a land surveyor registered as such in the state in which the Land
is located, which survey shall be in form and substance satisfactory to the
Bank, and as stated in the Commitment.
(B) A site plan complying with all Requirements, together with copies of the
resolutions approving the site plan and all conditions thereto.
(8) Request for Disbursement. A Request for Disbursement complying with the
provisions of this Agreement and the Indenture.
(9) Trade Cost Breakdown. A detailed trade cost breakdown and itemization of
non-construction expenses, showing all costs required to complete the
Improvements according to the Plans and Specifications.
(g) Legal Opinions. The Bank shall have received opinions in form and
substance satisfactory to the Bank and the Bank's counsel from counsel
satisfactory to the Bank as to such matters as the Bank shall reasonably
request.
(h) Certification Regarding Chattels. The Bank shall have received a
certification from the Title Insurer or counsel satisfactory to the Bank (which
shall be updated from time to time at the Company's expense upon request by the
Bank) that a search of the public records disclosed no conditional sales
contracts, chattel mortgages, leases of personalty, financing statements or
title retention agreements which affect the Project Facility other than those
required by the Bank Documents.
(i) Notices. All notices required by any Governmental Authority or by any
applicable Requirement to be filed prior to commencement of construction of the
Improvements shall have been filed.
(j) Performance; No Default. The Company shall have performed and complied
with all terms and conditions herein required to be performed or complied with
by it at or prior to the date of the initial Advance, and on the date of the
initial Advance, there shall exist no Event of Default or event which but for
the passage of time, the giving of notice or both would constitute an Event of
Default.
(k) Representations and Warranties. The representations and warranties made
by the Company in the Bank Documents or otherwise made by or on behalf of the
Company in connection therewith or after the date thereof shall have been true
and correct in all respects on the date on which made and shall also be true
and correct in all respects on the date of the initial Advance.
(l) Other Documents. Such other documents, opinions and certificates as the
Bank or its counsel may reasonably require.
(m) Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement and/or the other Bank Documents
shall be satisfactory to the Bank and the Bank's counsel in form and substance,
and the Bank shall have received all information and such counterpart originals
or certified copies of such documents and such other certificates, opinions or
documents as the Bank and the Bank's counsel may reasonably require.
6.2 Conditions of Subsequent Advances. The obligation of the Bank to
consent to any Advance after the initial Advance shall be subject to the
following conditions precedent:
(a) Prior Conditions Satisfied. All conditions precedent to the initial
Advance and any prior Advance shall continue to be satisfied as of the date of
such subsequent Advance.
(b) Performance; No Default. The Company shall have performed and complied
with all terms and conditions herein required to be performed or complied with
by it at or prior to the date of such advance, and on the date of such Advance
there shall exist no Event of Default or event which but for the passage of
time, the giving of notice or both would constitute an Event of Default.
(c) Representations and Warranties. The representations and warranties made
by the Company in the Bank Documents or otherwise made by or on behalf of the
Company in connection therewith after the date thereof shall have been true and
correct in all respects on the date on which made and shall also be true and
correct in all respects on the date of such Advance.
(d) No Damage. The Project Facility shall not have been injured or damaged
by fire, explosion, accident, flood or other casualty, unless the Bank and the
Trustee shall have received insurance proceeds sufficient in the judgment of
the Bank to effect the satisfactory restoration of the Project Facility and to
permit the completion thereof prior to the Completion Date.
(e) Receipt by the Bank. The Bank shall have received:
(1) Request for Disbursement. A Request for Disbursement complying with the
requirements hereof;
(2) Endorsement to Title Insurance Policy(ies). A "run down" endorsement to
the Title Insurance Policy or report indicating no change in the state of title
and containing no survey exceptions not approved by the Bank, which endorsement
shall, expressly or by virtue of a proper "pending disbursements" clause or
endorsement in the policy, increase the coverage of the policy to the aggregate
amount of all Advances made on or before the effective date of such
endorsement;
(3) Current Survey. An updated survey if required by the Bank;
(4) Certificates. Certificates from the Company, the Architect and the
Construction Inspector to the effect that in their opinion, based upon on-site
observations and submissions by the Contractor, the construction to the date
thereof was performed in a good and workmanlike manner and in accordance with
the Plans and Specifications, stating the estimated total cost of construction
of the Improvements, stating the percentage of the in-place construction of the
Improvements and stating that the remaining non- disbursed portion of the
Project Fund allocated for such purpose is adequate to complete the
construction of the Improvements;
(5) Contracts. Evidence that one hundred percent (100%) of the cost of the
remaining construction work is covered by firm contracts or subcontracts, or
orders for the supplying of materials, with contractors, subcontractors,
materialmen or suppliers satisfactory to the Bank;
(f) Bank Approval. The Bank shall have determined that the construction to
the date thereof was performed in a good and workmanlike manner and in
accordance with the Plans and Specifications and the remaining non-disbursed
portion of the proceeds of the Bonds allocated for such purpose is adequate to
complete the renovation of the Existing Facility and construction of the New
Facility;
(g) Other Documents. Such other documents, opinions and certificates as the
Bank or its counsel may reasonably require.
6.3 Conditions of Final Advance. In addition to the conditions set forth in
Paragraph 6.2 above, the Bank's obligation to consent to the final advance of
sums retained pursuant to this Agreement (the "Final Advance") shall be subject
to receipt by the Bank of the following:
(a) Approval of Project Facility. Evidence of the approval of the Project
Facility by all Governmental Authorities with jurisdiction of (i) the Project
Facility in its entirety for permanent occupancy to the extent any such
approval is or will be a condition of lawful use and occupancy of the Project
Facility and (ii) the contemplated uses thereof.
(b) Approval by Construction Inspector. Notification from the Construction
Inspector to the effect that the Improvements have been completed in a good and
workmanlike manner in accordance with the Plans and Specifications.
(c) Final Survey. A final survey acceptable to the Bank showing the
as-built location of the completed Facility.
(d) Certificate of Architect. A Certificate of the Architect that the
renovation of the Existing Facility and construction of the New Facility have
been completed in accordance with the Plans and Specifications and that the
renovation of the Existing Facility and construction of the New Facility comply
with all applicable Requirements Governmental Approvals and are in all respects
ready for occupancy.
(e) Payment of Costs. Evidence satisfactory to the Bank that all sums due
in connection with the renovation of the Existing Facility and construction of
the New Facility have been paid in full (or will be paid out of the funds
requested to be advanced) and that no party claims or has a right to claim any
statutory or common law lien arising out of the renovation of the Existing
Facility and construction of the New Facility or the supplying of labor,
material, and/or services in connection therewith.
ARTICLE 7
METHOD OF DISBURSEMENT OF LOAN PROCEEDS
The Bank agrees to consent to Advances requisitioned of the Trustee by the
Company in accordance with the Construction Budget, subject to the following
conditions and procedures:
7.1 Request for Disbursement to be Submitted. At such time as the Company
shall desire an Advance, the Company shall complete and execute a Request for
Disbursement for presentation to the Bank for its consent prior to delivery to
the Trustee. Each Request for Disbursement shall be accompanied by:
(a) a completed and itemized Application and Certificate for Payment (AIA
Document No. G702) or similar form approved by the Bank, containing a
certification from the Architect as to the accuracy of same, together with
invoices relating to all items of direct cost covered thereby; all such
applications for payment shall show all subcontractors by name and trade, the
total amount of each subcontract, the amount theretofore paid to each
subcontractor as of the date of such application, and the amount to be paid
from the proceeds of the Advance to each subcontractor;
(b) if the Request for Disbursement includes payments for Indirect Costs,
it shall be accompanied by a completed and itemized Indirect Cost statement
executed by the Company, together with invoices for all items of Indirect Costs
covered thereby;
(c) written lien waivers from such laborers, subcontractors and materialmen
for work done and materials supplied by them which were paid for pursuant to
any prior Request for Disbursement;
(d) a written request of the Company for any necessary changes in the Plans
and Specifications or the Construction Budget;
(e) copies of all change orders and subcontracts, and, to the extent
requested by the Bank, of all inspection or test reports and other documents
relating to the construction of the Improvements, not previously delivered to
the Bank; and
(f) such other information, documentation and certification as the Bank
shall reasonably request.
7.2 Notice and Frequency of Advances; Retainage. Each Request for
Disbursement shall be submitted to the Bank for its consent at least ten (10)
business days prior to the date of submission of the Request for Disbursement
to the Trustee, and no more frequently than monthly, based on the value of the
work (including the value of architectural and engineering work) completed,
less the holdback (the "Retainage") provided for at Section 5.6 herein, pending
issuance of certificates of occupancy and such evidence of lien-free completion
of construction as the Bank may reasonably require.
7.3 Funds Advanced. The Company irrevocably authorizes the Trustee to make
an Advance from the Project Fund for any sums requisitioned under this
Agreement in accordance with the Indenture.
7.4 Advances Do Not Constitute a Waiver. No Advance shall constitute a
waiver of any of the conditions of the Bank's obligation to consent to further
Advances nor, in the event the Company is unable to satisfy any such condition,
shall any Advance have the effect of precluding the Bank from thereafter
declaring such inability by the Company to be an Event of Default hereunder.
7.5 Trust Fund Provisions. All proceeds Advanced pursuant to this Agreement
shall be subject to the trust fund provisions of Section 13 of the Lien Law.
The affidavit attached hereto as Exhibit D is made pursuant to and in
compliance with Section 22 of the Lien Law, and, if so indicated in said
affidavit, a portion of the proceeds of the Bonds will be used, in part, for
reimbursement for payments made by the Company prior to the initial Advance
hereunder but subsequent to the commencement of the construction and equipping
of the Project Facility for items constituting Costs of Improvement.
ARTICLE 8
EVENTS OF DEFAULT
The occurrence of any one or more of the following conditions or events (each
an "Event of Default") shall constitute a default under and breach of this
Agreement:
(a) any failure by the Company to pay as and when due (including any grace
periods) and payable any interest on or principal of or other sums due and
payable under the Installment Sale Agreement or the Reimbursement Agreement; or
(b) any failure by the Company to pay as and when due and payable any other
sums to be paid by the Company under this Agreement and continuance of such
failure for a period of fifteen (15) days after written notice thereof from the
Bank or the Trustee; or
(c) title to the Project Facility becomes unsatisfactory to the Bank or the
Trustee by reason of any lien, charge, encumbrance, title condition or
exception (including without limitation, any mechanic's, materialman's or
similar statutory or common law lien or notice thereof), and such matter
causing title to be or become unsatisfactory is not cured or removed (including
by bonding) within sixty (60) days after notice thereof from the Trustee or the
Bank to the Agency and the Company; or
(d) any refusal by the Title Insurer to insure any Advance as being secured
by the Mortgage as a first lien on the Project Facility and continuance of such
refusal for a period of sixty (60) days after notice thereof by the Trustee or
the Bank to the Agency and the Company; or
(e) the renovation of the Existing Facility and construction of the New
Facility is not completed by the Completion Date or, in the reasonable
estimation of the Bank, will not be completed by the Completion Date; or
(f) the Project Facility or any portion thereof is injured by fire,
explosion, accident, flood or other casualty, unless proceeds available for
restoration and held by the Trustee pursuant to the Indenture are sufficient,
in the reasonable estimation of the Bank, to effect the satisfactory
restoration of the Project Facility and to permit the completion of the
Improvements prior to the Completion Date; or
(g) the Project Facility is subject to any Condemnation, or the Project
Facility or any portion thereof is subject to any Condemnation which will
prevent, in the reasonable estimation of the Bank, the completion of the
Improvements prior to the Completion Date; or
(h) any voucher or invoice is submitted at any time which the Company knows
has not been earned by the payee for services performed or for materials used
in or furnished for the Project Facility; or
(i) any cessation at any time in construction of the Improvements for more
than twenty (20) consecutive days except for strikes, acts of God, fire or
other casualty, or other causes entirely beyond the Company's control; or
(j) any failure by the Company to duly observe or perform any term,
covenant, condition or agreement requiring the Company to maintain insurance or
to comply with the terms of the Commitment or the Bank Documents; or
(k) the Company requests a redemption of the Bonds, or confesses inability
to continue or complete renovation of the Existing Facility and construction of
the New Facility in accordance with this Agreement; or
(l) any representation or warranty made or deemed to be made by or on
behalf of the Company in this Agreement or in any other Bank Document, or in
any report, certificate, financial statement, Request for Disbursement or other
instrument furnished in connection with this Agreement any Advance or any other
Bank Document, shall prove to have been false or incorrect in any material
respect as at the date of which made or deemed to be made; or
(m) any dissolution, termination, partial or complete liquidation, merger
or consolidation of the Company, any Affiliate, or any sale, transfer or other
disposition of all or substantially all of the assets of the Company than with
the prior written approval of the Bank; or
(n) any suit or proceeding shall be filed against the Company or the
Project Facility which, if adversely determined, would have a materially
adverse affect on the ability of the Company to perform each and every one of
its obligations under and by virtue of the Bank Documents; or
(o) any failure by the Company to obtain any governmental approvals
necessary to satisfy any Requirements, or the revocation or other invalidation
of any governmental approvals previously issued; or
(p) any change in the legal or beneficial ownership of the Company or any
Affiliate (except Plug Power), other than with the prior written approval of
the Bank; or
(q) any one or more of the obligations of the Company under the Bank
Documents shall at any time and for any reason cease to be in full force and
effect; or
(r) any default in the payment of money shall occur and remain uncured
under or in respect of any loan agreement, credit agreement, promissory note,
bond, trust deed, indenture, mortgage, pledge, security agreement, indemnity or
guaranty to which the Company is a party (whether as principal or guarantor or
other surety), or any other default shall occur and remain uncured thereunder
which would entitle the holder thereof to declare all amounts payable with
respect thereto to be immediately due and payable; or
(s) the Company shall be involved in financial difficulties as evidenced
by: (1) its commencement of a voluntary case under Title 11 of the United
States Code as from time to time in effect, or its authorizing, by appropriate
proceedings of partners, directors or other governing body, the commencement of
such a voluntary case; (2) its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title 11, or seeking, consenting to
or acquiescing in the relief therein provided, or by its failing to controvert
timely the material allegations of any such petition; (3) the entry of an order
for relief in any involuntary case commenced under said Title 11; (4) its
seeking relief as a debtor under any applicable law, other than said Title 11,
of any jurisdiction relating to the liquidation or reorganization of debtors or
to the modification or alteration of the rights of creditors, or by its
consenting to or acquiescing in such relief; (5) the entry of an order by a
court of competent jurisdiction which is not withdrawn, reversed or rescinded
within one hundred twenty (120) days after its entry (i) finding it to be
bankrupt or insolvent, (ii) ordering or approving its liquidation,
reorganization or any modification or alteration of the rights of its
creditors, or (ii) assuming custody of, or appointing a receiver or other
custodian for, all or a substantial part of its property; (6) by its making an
assignment for the benefit of, or entering into a composition with, its
creditors, or appointing or consenting to the appointment of a receiver or
other custodian for all or a substantial part of its property; or (7)
generally, its failure to pay its debts as such debts become due; or
(t) any failure by the Company to duly observe or perform any other term,
covenant, condition or agreement under this Agreement and continuance of such
failure for a period of thirty (30) days after written notice thereof from the
Bank; or
(u) any "default" or "event of default" as such term is defined therein
shall occur under any of the other Bank Documents.
ARTICLE 9
RIGHTS AND REMEDIES
9.1 Remedies. Upon the occurrence of any Event of Default, the Bank may at
any time thereafter refuse to consent to further Advances and at its option,
and upon written notice to the Trustee, exercise any or all of the following
rights and remedies:
(a) The Bank may, in its sole discretion, deliver to the Trustee, with a
copy to the Agency and the Company, notice of such occurrence and upon
compliance with the Indenture, direct the Trustee to redeem the Bonds; and
(b) The Bank may, in its sole discretion, by notice to the Trustee, the Agency
and the Company, declare all unpaid principal of and accrued interest due in
accordance with the Reimbursement Agreement, together with all other sums
payable under the Bank Documents, to be immediately due and payable, whereupon
same shall become and be immediately due and payable, anything in the
Reimbursement Agreement or other Bank Documents to the contrary
notwithstanding, and without presentation, protest or further demand or notice
of any kind, all of which are expressly hereby waived by the Company; provided,
however, that the Bank may consent to Advances by the Trustee thereafter
without thereby waiving the right to demand payment of the sums owing under the
Reimbursement Agreement, without being obligated to consent to any other or
further Advances, and without affecting the validity of or enforceability of
the Reimbursement Agreement or other Bank Documents. Notwithstanding and
without limiting the generality of the foregoing, upon the occurrence of an
Event of Default under paragraph (s) of Article 8, or if any event has occurred
which but for the passage of time, the giving of notice or both would
constitute an Event of Default, at the sole option of the Bank, all obligations
of the Trustee to make further Advances shall terminate, and all unpaid
principal of and accrued interest on the Bonds, together with all sums payable
under the Bank Documents, automatically shall become and be immediately so due
and payable, without any declaration or other act.
(c) At the discretion of the Bank and on behalf of the Trustee (but in its
on behalf in the event that the Trustee has drawn upon the Letter of Credit in
accordance with the Indenture), the Bank may cause the renovation of the
Existing Facility and construction of the New Facility to be completed and may
enter upon the Land and construct, equip and complete the renovation of the
Existing Facility and construction of the New Facility in accordance with the
Plans and Specifications, with such changes therein as the Bank may, from time
to time, and in its sole discretion, deem appropriate.
In connection with any renovation or construction undertaken by the Bank
pursuant to the provisions of this subparagraph, the Bank may:
(1) use any funds of the Company, including any balance which may be held
by the Bank as security or in escrow, and any funds remaining unadvanced under
the Indenture;
(2) employ existing contractors, subcontractors, agents, architects,
engineers, and the like, or terminate the same and employ others;
(3) employ security watchmen to protect the Project Facility;
(4) make such additions, changes and corrections in the Plans and
Specifications as shall, in the judgment of the Bank, be necessary or
desirable;
(5) take over and use any and all Equipment contracted for or purchased by
the Company, if appropriate, or dispose of the same as the Bank sees fit;
(6) execute all applications and certificates on behalf of the Company
which may be required by any Governmental Authority or Requirement or contract
documents or agreements;
(7) pay, settle or compromise all existing or future bills and claims which
are or may be liens against the Project Facility, or may be necessary for the
completion of the Improvements or the clearance of title to the Project
Facility;
(8) enter into leases and occupancy agreements, and modify or amend
existing leases and occupancy agreements, all as the Bank shall deem to be
necessary or desirable;
(9) prosecute and defend all actions and proceedings in connection with the
construction of the Improvements or in any other way affecting the Project
Facility;
(10) enter into agreements or modify or amend existing agreements (including
the Bank Documents) with the Agency and the Trustee as the Bank, the Agency and
the Trustee in their absolute discretion deem necessary or desirable; and
(11) take such action hereunder, or refrain from acting hereunder, as the
Bank may, in its sole and absolute discretion, from time to time determine, and
without any limitation whatsoever, to carry out the intent of this
subparagraph. The Company shall be liable to the Bank for all costs paid or
incurred for the construction, completion and equipping of the Project
Facility, whether the same shall be paid or incurred pursuant to the provisions
of this subparagraph or otherwise, and all payments made or liabilities
incurred by the Bank hereunder of any kind whatsoever shall be deemed advances
made to the Company under this Agreement and shall be secured by the Mortgage
or the Indenture, and the other Bank Documents.
To the extent that any costs so paid or incurred by the Bank, together with all
other Advances made by the Bank hereunder, exceed the Project Funds, such
excess costs shall be paid by the Company to the Bank on demand, with interest
thereon at the rate set forth at Section 2.2(a)(i) of the Reimbursement
Agreement, until paid; and the Company shall execute such notes or amendments
to the Reimbursement Agreement as may be requested by the Bank to evidence the
Company's obligation to pay such excess costs and until such notes or
amendments are so executed by the Company, the Company's obligation to pay such
excess costs shall be deemed to be evidenced by this Agreement and the
Reimbursement Agreement. In the event the Bank takes possession of the Project
Facility and assumes control of such construction as aforesaid, it shall not be
obligated to continue such construction longer than it shall see fit and may
thereafter, at any time, change any course of action undertaken by it or
abandon such construction and decline to make further payments for the account
of the Company whether or not the Project Facility shall have been completed.
For the purpose of this subparagraph, the construction, equipping and
completion of the Project Facility shall be deemed to include any action
necessary to cure any Event of Default by the Company under any of the terms
and provisions of any of the Bank Documents.
(d) the Bank may to the extent permitted by applicable law, at any time and
from time to time, without notice (any such notice being expressly waived),
without regard to the adequacy of any collateral, set off and apply any and all
deposits (general or specific, time or demand, provisional or final, regardless
of currency, maturity, or the branch of the Bank where the deposits are held)
at any time held or other sums credited by or due from the Bank to the Company
against any and all liabilities, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising of the Company to the
Bank.
(e) the Bank may exercise any or all of the rights and remedies set forth
in the Reimbursement Agreement or the Mortgage, or other Bank Documents, as
appropriate.
9.2 Remedies Not in Conflict with the Indenture. In addition, and to the
extent not in conflict with the Indenture, the Company agrees to the following:
(a) Power of Attorney. For the purposes of carrying out the provisions and
exercising the rights, powers and privileges granted by or referred to in this
Agreement, the Company hereby irrevocably constitutes and appoints the Bank its
true and lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and do and perform any acts which are
referred to in this Agreement, in the name and on behalf of the Company. The
power vested in such attorney-in-fact is, and shall be deemed to be, coupled
with an interest and irrevocable.
(b) Remedies Cumulative. Upon the occurrence of any Event of Default and
expiration of any cure period, the rights, powers and privileges provided in
this Article 9 and all other remedies available to the Bank under this
Agreement, the Reimbursement Agreement, or under any of the other Bank
Documents or at law or in equity may be exercised by the Bank at any time and
from time to time and shall not constitute a waiver of any of the Bank's other
rights or remedies thereunder, whether or not the Bonds shall be due and
payable, and whether or not the Bank shall have instituted any foreclosure
proceedings or other action for the enforcement of its rights under the
Reimbursement Agreement or other Bank Documents.
(c) Annulment of Defaults. An Event of Default shall not be deemed to be in
existence for any purpose of this Agreement, the Reimbursement Agreement or any
other Bank Document if the Bank shall have waived such Event of Default in
writing or stated in writing that the same has been cured to its reasonable
satisfaction, but no such waiver shall extend to or affect any subsequent Event
of Default or impair any of the rights of the Bank upon the occurrence thereof.
(d) Waivers. The Company hereby waives to the extent not prohibited by
applicable law (a) all presentments, demands for payment or performance,
notices of nonperformance (except to the extent required by the provisions
hereof or of any other Bank Documents), protests and notices of dishonor, (b)
any requirement of diligence or promptness on the Bank's part in the
enforcement of its rights (but not fulfillment of its obligations) under the
provisions of this Agreement, the Reimbursement Agreement, or any other Bank
Document, and (c) any and all notices of every kind and description which may
be required to be given by any statute or rule of law and any defense of any
kind which the Company may now or hereafter have with respect to its liability
under this Agreement or under any other Bank Document.
(e) Course of Dealing, Etc. No course of dealing between the Company and
the Bank shall operate as a waiver of any of the Bank's rights under this
Agreement or any Bank Document. No delay or omission on the Bank's part in
exercising any right under this Agreement or any other Bank Document shall
operate as a waiver of such right or any other right hereunder. A waiver on any
one occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion No waiver or consent shall be binding upon the
Bank unless it is in writing and signed by the Bank. The making of an Advance
hereunder during the existence of an Event of Default shall not constitute a
waiver thereof.
ARTICLE 10
GENERAL CONDITIONS
The following conditions shall be applicable throughout the term of this
Agreement:
10.1 Rights of Third Parties. All conditions of the obligations of the Bank
hereunder, including the obligation to consent to Advances, are imposed solely
and exclusively for the benefit of the Bank and its successors and assigns and
no other person shall have standing to require satisfaction of such conditions
in accordance with their terms or be entitled to assume that the Bank will make
Advances in the absence of strict compliance with any or all thereof and no
other person shall, under any circumstances, be deemed to be a beneficiary of
such conditions, any and all of which may be freely waived in whole or in part
by the Bank at any time if in its sole discretion it deems it desirable to do
so. In particular, the Bank makes no representations and assumes no obligations
as to third parties, including, but not limited to, the Agency or the holders
of the Bonds, concerning the quality of the construction by the Company of the
Improvements or the absence therefrom of defects. In this connection the
Company agrees to and shall indemnify the Trustee and the Bank from any
liability, claims or losses resulting from the disbursement of Advances or from
the condition of the Project Facility whether related to the quality of
construction or otherwise and whether arising during or after the termination
of the Letter of Credit. This provision shall survive the repayment of the
Bonds and any sums due under the Bank Documents and shall continue in full
force and effect so long as the possibility of such liability, claims or losses
exists.
10.2 Limitation on Agency Liability; Indemnity. No provision or covenant
contained in this Agreement or any obligation herein or the breach thereof
shall constitute or give rise to pecuniary or other liability or charge upon
the Agency, its members, officers, employees or agents. The Company shall
indemnify the Agency against all claims, demands, expenses, and liabilities
under this Agreement in accordance with the provisions of the Installment Sale
Agreement.
10.3 Relationship. The relationship between the Bank and the Company is
solely that of a lender and borrower, and nothing contained herein or in any of
the other Bank Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender
and borrower.
10.4 Evidence of Satisfaction of Conditions. Any condition of this Agreement
which requires the submission of evidence of the existence or non-existence of
a specified fact or facts implies as a condition the existence or
non-existence, as the case may be, of such fact of facts and the Bank shall, at
all times, be free independently to establish to its satisfaction and in its
absolute discretion such existence or non-existence.
10.5 Notices. (a) All notices, certificates and other communications
hereunder shall be in writing and shall be sufficiently given and shall be
deemed given when (1) sent to the applicable address stated below by registered
or certified mail, return receipt requested, or by such other means as shall
provide the sender with documentary evidence of such delivery, or (2) delivery
is refused by the addressee, as evidenced by the affidavit of the Person who
attempted to effect such delivery.
(b) The addresses to which notices, certificates and other communications
hereunder shall be delivered are as follows:
If to the Company:
Mechanical Technology Incorporated
▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
With a Copy to:
▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇, ▇▇▇.
D'Agostino, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Agency:
Town of Colonie Industrial Development Agency
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Director
With a Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Trustee:
Manufacturers And Traders Trust Company
One M&T Plaza, 7th Floor
Buffalo, New York 14203
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
If to the Bank:
KeyBank National Association
Corporate Banking Department
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a Copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
St. ▇▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a Copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(c) A duplicate copy of each notice, certificate and other communication
given hereunder by (1) the Company or the Agency shall also be given to the
Trustee, and (2) the Company, Agency or the Trustee shall also be given to the
Bank.
(d) The Agency, the Company, the Trustee and the Bank may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates and other communications shall be sent.
10.6 Assignment. The Company may not assign this Agreement or any of its
rights or obligations hereunder without the prior approval of the Bank.
10.7 Successors and Assigns Included in Parties. Whenever in this Agreement
one of the parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be included and
all covenants and agreements contained in this Agreement by or on behalf of the
Company or by or on behalf of the Bank shall bind and inure to the benefit of
their respective heirs, legal representatives, successors and assigns, whether
so expressed or not.
10.8 Headings. The headings of the Articles, Paragraphs and subparagraphs of
this Agreement are for the convenience of reference only, are not to be
considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
10.9 Invalid Provisions to Affect No Others. If fulfillment of any provision
hereof or any transaction related hereto at the time performance of such
provisions shall be due, shall involve transcending the limit of validity
presently prescribed by law, with regard to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision herein contained
operates or would prospectively operate to invalidate this Agreement in whole
or in part, then such clause or provision only shall be held for naught, as
though not herein contained, and the remainder of this Agreement shall remain
operative and in full force and effect.
10.10 Number and Gender. Whenever the singular or plural number, or the
masculine, feminine or neuter gender is used herein, it shall equally include
the other.
10.11 Governing Law. This Agreement shall be governed by and construed in
accordance with laws of the State of New York.
10.12 Consent to Jurisdiction. The Company hereby irrevocably and
unconditionally (a) submits to personal jurisdiction in the State of New York
over any suit, action or proceeding arising out of or relating to this
Agreement, and (b) waives any and all personal rights under the laws of any
state (i) to the right, if any, to trial by jury, or (ii) to object to
jurisdiction within the State of New York or venue in any particular forum
within the State of New York. Nothing contained herein, however, shall prevent
the Bank from bringing any suit, action or proceeding or exercising any rights
against any security and against the Company, and against any property of the
Company, in any other state. Initiating such suit, action or proceeding or
taking such action in any state shall in no event constitute a waiver of the
agreement contained herein that the laws of the State of New York shall govern
the rights and obligations of the Company and the Bank hereunder or the
submission herein by the Company to personal jurisdiction within the State of
New York.
10.13 Amendments. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
10.14 No Recourse; Special Obligation. (a) The obligations and agreements of
the Agency, if any, contained herein and in the other Bank Documents and any
other instrument or document executed in connection therewith or herewith, and
any other instrument or document supplemental thereto or hereto, shall be
deemed the obligations and agreements of the Agency, and not of any member,
officer, director, agent (other than the Company) or employee of the Agency in
his individual capacity, and the members, officers, directors, agents (other
than the Company) and employees of the Agency shall not be liable personally
hereon or thereon or be subject to any personal liability or accountability
based upon or in respect hereof or thereof or of any transaction contemplated
hereby or thereby.
(b) The obligations and agreements of the Agency contained herein and
therein shall not constitute or give rise to an obligation of the State of New
York or the Town of Colonie, New York, and neither the State of New York nor
the Town of Colonie, New York shall be liable hereon or thereon, and, further,
such obligations and agreements shall not constitute or give rise to a general
obligation of the Agency, but rather shall constitute limited obligations of
the Agency payable solely from the revenues of the Agency derived and to be
derived from the sale or other disposition of the Project Facility (except for
revenues derived by the Agency with respect to the Unassigned Rights).
(c) No order or decree of specific performance with respect to any of the
obligations of the Agency hereunder shall be sought or enforced against the
Agency unless (1) the party seeking such order or decree shall first have
requested the Agency in writing to take the action sought in such order or
decree of specific performance, and ten (10) days shall have elapsed from the
date of receipt of such request, and the Agency shall have refused to comply
with such request (or, if compliance therewith would reasonably be expected to
take longer than ten days, shall have failed to institute and diligently pursue
action to cause compliance with such request within such ten day period) or
failed to respond within such notice period, (2) if the Agency refuses to
comply with such request and the Agency's refusal to comply is based on its
reasonable expectation that it will incur fees and expenses, the party seeking
such order or decree shall have placed in an account with the Agency an amount
or undertaking sufficient to cover such reasonable fees and expenses, and (3)
if the Agency refuses to comply with such request and the Agency's refusal to
comply is based on its reasonable expectation that it or any of its members,
officers, agents (other than the Company) or employees shall be subject to
potential liability, the party seeking such order or decree shall (A) agree to
indemnify, defend and hold harmless the Agency and its members, officers,
directors, agents (other than the Company) and employees against any liability
incurred as a result of its compliance with such demand, and (B) if requested
by the Agency, furnish to the Agency satisfactory security to protect the
Agency and its members, officers, directors, agents (other than the Company)
and employees against all liability expected to be incurred as a result of
compliance with such request. Any failure to provide the indemnity and/or
security required in this Section 10.14 shall not affect the full force and
effect of an Event of Default hereunder.
IN WITNESS WHEREOF, the Company, the Agency and the Bank have executed this
Agreement under seal on the date first above written.
The Company:
MECHANICAL TECHNOLOGY INCORPORATED
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
The Bank:
KEYBANK NATIONAL ASSOCIATION
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The Agency:
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this day of December, 1999, before me the subscriber personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who being by me duly sworn, did depose and say; that she
resides at Castleton, New York, that she is a Vice President of Mechanical
Technology Incorporated the corporation described in and which executed the
foregoing instrument; and that she signed her name thereto by order of the
Board of Directors of said corporation.
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF ALBANY )
On this _______ day of December, 1998 before me personally appeared ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me personally known, who, being by me duly sworn, did depose and say
that he resides in Athens, New York; that he is a Vice President of KEYBANK
NATIONAL ASSOCIATION, the national banking association described in and which
executed the within Building Loan Contract; and that he signed his name thereto
by order of its Board of Directors.
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this day of December, 1999, before me the subscriber personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇, who being by me duly sworn, did depose and say; that he resides
at __________________________, that he is Chairman of the Town of Colonie
Industrial Development Agency the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
members of said Agency.
NOTARY PUBLIC
Exhibit A Construction Budget
Exhibit B Description Of Land
Exhibit C REQUEST FOR DISBURSEMENT FROM PROJECT FUND
COMPANY: MECHANICAL TECHNOLOGY INCORPORATED
REQUISITION NO.:
DATE:
PROJECT: MECHANICAL TECHNOLOGY INCORPORATED PROJECT LOCATED ON
ALBANY-SHAKER ROAD, TOWN OF COLONIE, ALBANY COUNTY, NEW YORK
Pursuant to the Building Loan Contract (the "Agreement") between Mechanical
Technology Incorporated (the "Company"), Town of Colonie Industrial Development
Agency (the "Agency") and KeyBank National Association (the "Bank") executed in
connection with the issuance of the Agency's Taxable Industrial Development
Revenue Bonds (Mechanical Technology Incorporated Project - Letter of Credit
Secured) Series 1998A in the aggregate principal amount of $6,160,274.00 (the
"Bonds"), the Company hereby requests that the Bank consent to a disbursement
from the Project Fund (as defined in the Indenture dated as of December 1, 1998
between the Agency and Manufacturers and Traders Trust Company, as trustee) for
the following purpose(s) and in the following amounts:
Amount Purpose(s) Attributable to
$
Total: $
IN CONNECTION WITH AND IN ORDER TO INDUCE THE BANK TO CONSENT TO THE
DISBURSEMENT OF THE AMOUNT REQUESTED ABOVE, THE COMPANY HEREBY REPRESENTS,
WARRANTS AND STIPULATES AS FOLLOWS:
1. There is existing no Event of Default (as defined in the Agreement) and
no event which but for the passage of time, the giving of notice or both would
constitute an Event of Default. The undersigned has duly complied with and
observed all of the terms, covenants and conditions of each of said instruments
required to be performed by the undersigned to the date of this requisition,
and unless the Bank is notified to the contrary prior to the disbursement
requested above, will be so on the date hereof.
2. The amounts herein are true and correct to the best of the Company's
knowledge and after the honoring of this requisition, amounts in the Project
Fund not yet advanced, less the retainage held, if any, shall be sufficient to
pay for the completion of the costs of construction of the Improvements not yet
paid.
3. All sums previously requisitioned have been applied to the payment of
the costs of construction of the Improvements heretofore incurred and the
proceeds of any advance made in accordance with this requisition will be
applied to, and solely to, payment of the foregoing items.
4. All work has been performed fully in accordance with the Plans and
Specifications as defined in the Agreement.
MECHANICAL TECHNOLOGY INCORPORATED
By: Authorized Officer
KeyBank National Association hereby consents to the disbursement of the
foregoing amounts from the Project Fund:
KEYBANK NATIONAL ASSOCIATION
By: Authorized Officer
Exhibit D LIEN LAW, SECTION 22 AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, being duly sworn, deposes and says:
A. That she is a Vice President of Mechanical Technology Incorporated
described as the Company in the Building Loan Contract, dated as of December 1,
1998 (the "Agreement"), to which this Affidavit is annexed, relating to the
acquisition, construction and equipping of a certain industrial development
facility described therein on premises located on Albany-Shaker Road, Town of
Colonie, Albany County, New York and more particularly bounded and described in
Exhibit B to the Agreement.
B. The Agreement is intended to be filed in the Schohaire County Clerk's
Office in accordance with Section 22 of the Lien Law. All capitalized terms
used herein and not otherwise defined shall have the same meanings assigned
thereto in the Agreement.
C. The Bond proceeds will be advanced by the Trustee to the Company with
the consent of the Bank in accordance with the terms of the Agreement.
D. The consideration, or to be paid, in connection therewith are as
follows:
1. Architect's and/or Engineer's fees $ __________
2. The purchase price of the Land $ __________
3. Fair and reasonable sums paid for obtaining financing:
(a) Letter of Credit Fee and other expenses $ __________ (b) Letter
of Credit Commitment fee $ __________ (c) Legal fee and
disbursements of the Bank's Counsel $ __________ (d) Appraisal Fee $
__________ (e) Construction Inspector's fees $ __________ (f) Agency's
administrative fee $ __________ (g) Legal fee and disbursements of
Agency counsel $ __________ (h) the Trustee's fees $ __________ (i)
Legal fees and disbursements of the Trustee's counsel $ __________ (j)
Underwriter/Remarketing Agent fees $ __________ (k) Legal fees and
disbursements of Underwriter's counsel $ __________ (l) Cost of title
examination and UCC searches, title insurance premiums and title continuation
charges $ _________ (m) Cost of survey(s) (n) Recording and filing fees
$ _________
4. Taxes (including payments-in-lieu of taxes), assessments and water
rents accruing during the construction of the Improvements $ _________
6. Taxes, assessment and water rents existing prior to the commencement of
the Improvements $ _________
7. Interest on the Bonds during construction period $ _________
8. Sums paid to repay the Bank for sums advanced to pay the costs of
construction of the Improvements incurred prior to the date of the Agreement $
_________
TOTAL $ _________
Certain of the foregoing amounts are based upon good faith estimates of costs
or expenses not yet incurred and certain items listed above may cost more or
less than such estimates. The Company reserves the right to use unexpended
amounts from any of said items to defray increases incurred in any other item
or items listed above so long as the total amount expended on such items does
not exceed the amount of items shown above.
After payment of all the above items, the net amount available to the Company
for the improvements (monies which will be available to the Company for the
cost of constructing, renovating, and equipping the Improvements) will be $ .
All monies advanced to the Company under and pursuant to the Agreement shall be
subject to the Trust Fund provisions of Section 13 of the Lien Law. If an Event
of Default occurs during construction of the Improvements, the Trustee may
refuse to advance additional funds and such unadvanced sums would not be
available to the Company to pay the cost of constructing the Improvements, the
Trustee may transfer all or a portion of incurred but unpaid items qualifying
as Project Costs and amounts sufficient to discharge any filed mechanic's lien,
to the Project Fund established under the Indenture for application to
redemption of the Bonds in accordance with the terms of the Indenture.
IN THAT EVENT, SUCH MONIES WILL NOT BE AVAILABLE TO THE COMPANY FOR THE
IMPROVEMENT.
This affidavit is made pursuant to and in compliance with Section 22 of the
Lien Law by the Company, as an "owner" for the purposes of said Section.
E. The facts herein stated are true to the best of deponent's knowledge.
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Sworn to before me this _______ day of December, 1998.
NOTARY PUBLIC-STATE OF NEW YORK
BUILDING LOAN CONTRACT
BUILDING LOAN CONTRACT
BUILDING LOAN CONTRACT
Exhibit A page 1
Exhibit B page 1
Exhibit C page 2
Exhibit D page 3