Exhibit 4.95
SECURITY AGREEMENT
Date: September 22, 1998
The undersigned, LING ELECTRONICS, INC., a California corporation with
an office for the transaction of business located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein referred to as "Guarantor") as guarantor of
payment of the obligations of MECHANICAL TECHNOLOGY INCORPORATED, a New York
corporation,with an office for the transaction of business located at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (herein referred to as "Borrower"), hereby
agrees in favor of KEYBANK NATIONAL ASSOCIATION, a national banking association
with an office for the transaction of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Bank") as follows:
1. DEFINITIONS. All capitalized terms used herein which are
defined in the Credit Agreement of even date herewith (hereinafter, together
with all exhibits thereto, as it may from time to time be amended, modified or
supplemented, referred to as the "Credit Agreement") by and between the Borrower
and the Bank, shall have the respective meanings provided therefor in the Credit
Agreement, unless otherwise defined herein or unless the context otherwise
requires.
2. THE INDEBTEDNESS. In consideration of one or more loans,
advances, or other financial accommodations at any time before, at or after the
date hereof made or extended by the Bank to or for the account of Borrower,
directly or indirectly, as principal, guarantor or otherwise (the
"Indebtedness") Guarantor hereby grants to the Bank a continuing security
interest in and a right of set-off against, and Guarantor hereby assigns to the
Bank, the Collateral described in Paragraph 3, to secure the payment,
performance and observance of (i) all indebtedness, obligations, liabilities
and agreements of any kind of Borrower to the Bank, now existing or hereafter
arising, direct or indirect, absolute or contingent, secured or unsecured, due
or not, arising out of or relating to the Indebtedness and (ii) all agreements,
documents and instruments evidencing any of the foregoing or under which any of
the foregoing may have been issued, created, assumed or guaranteed (all of the
foregoing being herein referred to as the "Obligations").
3. THE COLLATERAL. The Collateral is described on Schedule "A"
annexed hereto as part hereof and also includes all attachments, accessions and
equipment now or hereafter affixed to the Collateral or used in connection
therewith, substitutions and replacements therefor (unless the description of
Collateral expressly excludes after-acquired Collateral), all items of
Collateral now owned or existing and hereafter acquired, created or arising, and
all proceeds thereof (including, without limitation, claims of Guarantor against
third parties for loss or damage to or destruction of any Collateral).
4. WARRANTIES, REPRESENTATIONS AND COVENANTS. Guarantor warrants,
represents and covenants that:
(a) The chief executive office and other places of business of
Guarantor, the Collateral and the books and records relating to the
Collateral and the Collateral are, and have been during the four month
period prior to the date hereof (or in the case of a new business, from the
date of commencement of said business), located at the address(es) set
forth below and Guarantor will not change the same, or merge or
consolidate with any person or change its name, without prior written
notice to and consent of the Bank:
Addresses: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) Guarantor will use the Collateral for lawful and business
purposes only, with all reasonable care and caution and in conformity with
all applicable laws, ordinances and regulations;
(c) Guarantor will keep the Collateral in good order, repair,
running and marketable condition as used in the ordinary course of
business, at Guarantor's sole cost and expense;
(d) The Bank shall at all times have free access to and right
of inspection of the Collateral and any records pertaining thereto, and the
right to make extracts from and to receive from Guarantor originals or true
copies of such records and any papers and instruments relating to any
Collateral upon request therefor (which rights shall, except after the
occurrence of an Event of Default, be exercised only upon reasonable notice
during regular business hours), and Guarantor hereby grants to the Bank a
security interest in all such records, papers and instruments to secure the
payment, performance and observance of the Obligations;
(e) Guarantor, at its sole cost and expense, will insure the
Collateral in the name of and with loss or damage payable solely to the
Bank, as its interest may appear, against such risks, with such companies a
nd in such amounts, as may be required by the Bank from time to time (all
such policies providing ten (10) days minimum written notice of
cancellation to the Bank) and Guarantor will deliver to the Bank the
original or duplicate policies, or certificates or other evidence
satisfactory to the Bank attesting thereto, and Guarantor will promptly
notify the Bank of any loss or damage to any Collateral or arising from its
use;
(f) Guarantor will, at its sole cost and expense, and at all
times, pay and discharge all taxes and assessments and keep the Collateral
free and clear of any and all liens, security interests or encumbrances
(other than in favor of the Bank), perform all acts and execute all
documents requested by the Bank from time to time to evidence, perfect,
maintain or enforce the Bank's primary security interest granted herein or
otherwise in furtherance of the provisions of this Security Agreement;
(g) At any time and from time to time, Guarantor shall, at its
sole cost and expense, execute and deliver to the Bank such financing
statements pursuant to the Uniform Commercial Code ("UCC"), applications
for certificate of title and other papers, documents or instruments as may
be requested by the Bank in connection with this Security Agreement, and
Guarantor hereby authorizes the Bank to execute and file at any time and
from time to time one or more financing statements or copies thereof or of
this Security Agreement with respect to the Collateral signed only by the
Bank;
(h) In its discretion, the Bank may, at any time and from
time to time, after a Default (as hereinafter defined) or an event which
but for the passage of time, the giving of notice or both would constitute
a Default has occurred and is continuing, in its name or Guarantor's or
otherwise, notify any account debtor or obligor of any account, contract,
document, instrument, chattel paper or general intangible included in the
Collateral to make payment to the Bank;
(i) In their discretion, the Bank may, at any time and from
time to time, after a Default has occurred and is continuing, demand, ▇▇▇
for, collect or receive any money or property at any time payable or
receivable on account of or in exchange for, or make any compromise or
settlement deemed desirable by the Bank with respect to, any Collateral,
and/or extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, or release, any Collateral or Obligations,
all without notice to or consent by Guarantor and without otherwise
discharging or affecting the Obligations, the Collateral or the security
interest granted herein;
(j) In their discretion, the Bank may, at any time and from
time to time, for the account of Guarantor, pay any amount or do any act
required of Guarantor hereunder and which Guarantor fails to do or pay,
and any such payment shall be deemed an advance by the Bank to Guarantor
payable on demand together with interest at the highest rate then payable
on any of the Obligations;
(k) Guarantor will pay the Bank for any sums, costs, and
expenses which the Bank may pay or incur pursuant to the provisions of
this Security Agreement or in negotiating, executing, perfecting,
defending, or protecting the security interest granted herein or in
enforcing payment of the Obligations or otherwise in connection with the
provisions hereof, including but not limited to court costs, collection
charges, travel expenses, and reasonable attorneys' fees, all of which,
together with interest at the highest rate then payable on any of the
Obligations, shall be part of the Obligations and be payable on demand;
(l) All proceeds of any other Collateral received by Guarantor
after the occurrence of a Default shall not be commingled with other
property of Guarantor, but shall be segregated, held by Guarantor in trust
for the Bank, and immediately delivered to the Bank in the form received,
duly endorsed in blank where appropriate to effectuate the provisions
hereof, the same to be held by the Bank as additional Collateral hereunder
or, at the Bank's option, to be applied to payment of the Obligations,
whether or not due and in any order; and
(m) In their sole discretion, the Bank may, subject to the
terms of the Credit Agreement, at any time and from time to time, assign,
transfer or deliver to any transferee of any Obligations, any Collateral,
whereupon the Bank shall be fully discharged from all responsibility and
the transferee shall be vested with all powers and rights of the Bank
hereunder with respect thereto, but the Bank shall retain all rights and
powers with respect to any Collateral not assigned, transferred or
delivered.
5. DEFAULT. It shall constitute an event of default ("Default")
under this Security Agreement if an Event of Default shall have occurred under
any of the Loan Documents or if any one or more of the following shall occur:
(a) Guarantor shall fail to perform any covenant, agreement or
obligation contained in this Security Agreement for a period of fifteen
(15) days after notice from the Bank of such failure; or
(b) the Collateral shall be subjected to waste, sale, transfer
or other disposition or any lien, encumbrance or other imposition is placed
upon said Collateral; or
(c) any levy, seizure, attachment, condemnation, forfeiture or
other proceeding shall be brought against or with respect to the
Collateral; or
(d) the occurrence of a material and adverse change in the
condition or affairs (financial or otherwise) of the Borrower which the
Bank reasonably believes substantially impairs their security or
substantially increases the risk of failure of payment or performance under
any of the Loan Documents.
6. REMEDIES. Upon the occurrence and continuation of any Default
and at any time thereafter, the Bank shall have the following rights and
remedies (to the extent permitted by applicable law) in addition to all rights
and remedies of a secured party under the UCC or of the Bank under the
Obligations, all such rights and remedies being cumulative, not exclusive and
enforceable alternatively, successively or concurrently:
(a) the Bank may at any time and from time to time, with or
without judicial process or the aid and assistance of others, enter upon
any premises in which any Collateral may be located and, without resistance
or interference by Guarantor, take possession of the Collateral; and/or
dispose of any Collateral on any such premises; and/or require Guarantor to
assemble and make available to the Bank at the expense of Guarantor any
Collateral at any place and time designated by the Bank which is reasonably
convenient to both parties; and/or remove any Collateral from any such
premises for the purpose of effecting sale or other disposition thereof
(and if any of the Collateral consists of motor vehicles, the Bank may use
Guarantor's license plates); and/or sell, resell, lease, assign and
deliver, grant options for or otherwise dispose of any Collateral in its
then condition or following any commercially reasonable preparation or
processing, at public or private sale or proceedings or otherwise, by one
or more contracts, in one or more parcels, at the same or different times,
with or without having the Collateral at the place of sale or other
disposition, for cash and/or credit, and upon any terms, at such place(s)
and time(s) and to such person(s) as the Bank deem best, all without
demand, notice or advertisement whatsoever except that where an applicable
statute requires reasonable notice of sale or other disposition Guarantor
hereby agrees that the sending of five days' notice by registered or
certified mail, return receipt requested, to any address of Guarantor set
forth in this Security Agreement shall be deemed reasonable notice thereof.
If any Collateral is sold by the Bank upon credit or for future delivery,
the Bank shall not be liable for the failure of the purchaser to pay for
same and in such event the Bank may resell such Collateral. The Bank may
buy any Collateral at any public sale and, if any Collateral is of a type
customarily sold in a recognized market or is of the type which is the
subject of widely distributed standard price quotations, the Bank may buy
such Collateral at private sale and in each case may make payment therefor
by any means. The Bank may apply the sale proceeds actually received from
any sale or other disposition to the reasonable expenses of retaking,
holding, preparing for sale, selling, leasing and the like, to reasonable
attorneys' fees and all legal, travel and other expenses which may be
incurred by the Bank in attempting to collect the Obligations or enforce
this Security Agreement or in the prosecution or defense of any action or
proceeding related to the subject matter of this Security Agreement; and
then to the Obligations in such order and as to principal or interest as
the Bank may desire; and Guarantor shall remain liable and will pay the
Bank on demand any deficiency remaining, together with interest thereon
at the highest rate then payable on the Obligations and the balance of any
expenses unpaid, with any surplus to be paid to Guarantor, subject to any
duty of the Bank imposed by law to the holder of any subordinate security
interest in the Collateral known to the Bank;
(b) The Bank may appropriate, set off and apply to the payment
of the Obligations, any Collateral in or coming into the possession of the
Bank or their agents, without notice to Guarantor and in such manner as the
Bank may in their discretion determine.
7. DESIGNATION AND AUTHORIZATION. To effectuate the terms and
provisions hereof, Guarantor hereby designates and appoints the Bank and each of
its designees or agents as attorney-in-fact of Guarantor, irrevocably and with
power of substitution, with authority, after the occurrence of a Default, to:
receive, open and dispose of all mail addressed to Guarantor and notify the
Post Office authorities to change the address for delivery of mail addressed to
Guarantor to such address as the Bank may designate; endorse the name of
Guarantor on any notes, acceptances, checks, drafts, money orders, instruments
or other evidences of Collateral that may come into the Bank's possession; sign
the name of Guarantor on any invoices, documents, drafts against and notices to
account debtors or obligors of Guarantor, assignments and requests for
verification of accounts; execute proofs of claim and loss; execute
endorsements, assignments of other instruments of conveyance or transfer; adjust
and compromise any claims under insurance policies or otherwise; execute
releases; and do all other acts and things necessary or advisable in the sole
discretion of the Bank to carry out and enforce this Security Agreement or the
Obligations. All acts done under the foregoing authorization are hereby
ratified and approved and neither the Bank nor any designee or agent thereof
shall be liable for any acts of commission or omission, for any error of
judgment or for any mistake of fact or law. This power of attorney being
coupled with an interest is irrevocable while any Obligations shall remain
unpaid.
8. PRESERVATION AND DISPOSITION OF COLLATERAL;
MISCELLANEOUS. The Bank shall have the duty to exercise reasonable care in the
custody and preservation of any Collateral in its possession, which duty shall
be fully satisfied if the Bank maintains safe custody of such Collateral.
Except as hereinabove specifically set forth, the Bank shall not be deemed to
assume any other responsibility for, or obligation or duty with respect to, any
Collateral, or its use, of any nature or kind, or any matter or proceedings
arising out of or relating thereto, including, without limitation, any
obligation or duty to take any action to collect, preserve or protect its or
Guarantor's rights in the Collateral or against any prior parties thereto, but
the same shall be at Guarantor's sole risk and responsibility at all times.
Guarantor hereby releases the Bank from any claims, causes of action and demands
at any time arising out of or with respect to this Security Agreement, the
Obligations, the Collateral and its use and/or any actions taken or omitted to
be taken by the Bank with respect thereto, and Guarantor hereby agrees to hold
the Bank harmless from and with respect to any and all such claims, causes of
action and demands. The Bank's prior recourse to any Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of the Obligations. No act, omission or delay by the Bank shall
constitute a waiver of its rights and remedies hereunder or otherwise. No
single or partial waiver by the Bank of any Default or right or remedy which it
may have shall operate as a waiver of any other Default, right or remedy or of
the same Default, right or remedy on a future occasion. Guarantor hereby waives
presentment, notice of dishonor and protest of all instruments included in or
evidencing any Obligations or Collateral, and all other notices and demands
whatsoever (except as expressly provided herein). In the event of any litigati
on with respect to any matter connected with this Security Agreement, the
Obligations or the Collateral, Guarantor hereby waives the right to a trial by
jury. Guarantor hereby irrevocably consents to the jurisdiction of the Courts
of the State of California and of any Federal Court located in such State in
connection with any action or proceeding arising out of or relating to the
Obligations, this Security Agreement or the Collateral, or any document or
instrument delivered with respect to any of the Obligations. Guarantor hereby
waives personal service of any process in connection with any such action or
proceeding and agrees that the service thereof may be made by certified or
registered mail directed to Guarantor at any address of Guarantor set forth in
this Security Agreement. Guarantor so served shall appear or answer to such
process within thirty (30) days after the mailing thereof. Should Guarantor
so served fail to appear or answer within said thirty (30) day period, Guarantor
shall be deemed in default and judgment may be entered by the Bank against
Guarantor for the amount or such other relief as may be demanded in any process
so served. In the alternative, in its discretion, the Bank may effect service
upon Guarantor in any other form or manner permitted by law. All capitalized
terms used and not otherwise defined shall have the meanings set forth in the
Credit Agreement and other terms herein shall have the meanings as defined in
the UCC, unless the context otherwise requires. No provision hereof shall be
modified, altered or limited except by a written instrument expressly referring
to this Security Agreement and to such provision, and executed by the party to
be charged. This Security Agreement and all Obligations shall be binding upon
the successors, or assigns of Guarantor and shall, together with the rights and
remedies of the Bank hereunder, inure to the benefit of the Bank and their
successors, endorsees and assigns. This Security Agreement and the Obligations
shall be governed in all respects by the laws of the State of California applic
able to contracts executed and to be performed in such State. If any term of
this Security Agreement shall be held to be invalid, illegal or unenforceable,
the validity of all other terms hereof shall in no way be affected thereby.
The Bank is authorized to annex hereto any schedules referred to herein.
Guarantor acknowledges receipt of a copy of this Security Agreement.
IN WITNESS WHEREOF, the undersigned has executed or caused this Security
Agreement to be executed in the State of New York as of the date first above set
forth.
LING ELECTRONICS, INC.
By: /s/ ▇.▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 22nd day of September, 1998, before me the subscriber
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who being by me duly sworn,
did depose and say; that she resides at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, that she is Secretary of Ling Electronics, Inc.,
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.
/s/ ▇.▇.▇▇▇▇
----------------------
M. ▇▇▇▇▇▇ ▇▇▇▇
NOTARY PUBLIC
Schedule "A"
All personal property and fixtures of the Guarantor, whether now or
hereafter existing or now owned or hereafter acquired and wherever located, of
every kind and description, tangible or intangible, and all goods, equipment,
inventory, accounts, chattel paper, general intangibles, credits, claims,
demands and any other property, rights and interests of the Guarantor, and any
and all additions and accessions thereto, all substitutions and replacements
therefor and all products and proceeds thereof and proceeds of insurance
thereon.