Exhibit 4.94
SECURITY AGREEMENT
Date: September 22, 1998
The undersigned, MECHANICAL TECHNOLOGY INCORPORATED, a New York
corporation, with an office for the transaction of business located at 968
Albany Shaker Road, Latham, New York 12110 (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 66 South Pearl
Street, Albany, New York 12207 (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") Borrower hereby grants to the Bank a continuing security
interest in and a right of set-off against, and Borrower 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 Borrower against
third parties for loss or damage to or destruction of any Collateral).
4. WARRANTIES, REPRESENTATIONS AND COVENANTS. Borrower warrants,
represents and covenants that:
(a) The chief executive office and other places of
business of Borrower, 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 Borrower 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: 968 Albany Shaker Road, Latham, New York 12110; [OTHER
ADDRESSES TO BE PROVIDED]
(b) Borrower 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) Borrower will keep the Collateral in good order, repair,
running and marketable condition as used in the ordinary course of
business, at Borrower'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 Borrower 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 Borrower 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) Borrower, 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
and 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 Borrower will deliver to the Bank the
original or duplicate policies, or certificates or other evidence
satisfactory to the Bank attesting thereto, and Borrower will promptly
notify the Bank of any loss or damage to any Collateral or arising from
its use;
(f) Borrower 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, Borrower 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
Borrower 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 Borrower'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 sue
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 Borrower 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 Borrower, pay any amount or do any act
required of Borrower hereunder and which Borrower fails to do or pay, and
any such payment shall be deemed an advance by the Bank to Borrower payable
on demand together with interest at the highest rate then payable on any of
the Obligations;
(k) Borrower 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 Borrower
after the occurrence of a Default shall not be commingled with other
property of Borrower, but shall be segregated, held by Borrower 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) Borrower 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 Borrower, take possession of the Collateral; and/or
dispose of any Collateral on any such premises; and/or require Borrower to
assemble and make available to the Bank at the expense of Borrower 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
Borrower'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 Borrower
hereby agrees that the sending of five days' notice by registered or
certified mail, return receipt requested, to any address of Borrower 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 Borrower 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 Borrower, 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 Borrower and in such manner as the
Bank may in their discretion determine.
7. DESIGNATION AND AUTHORIZATION. To effectuate the terms and
provisions hereof, Borrower hereby designates and appoints the Bank and each of
its designees or agents as attorney-in-fact of Borrower, irrevocably and with
power of substitution, with authority, after the occurrence of a Default, to:
receive, open and dispose of all mail addressed to Borrower and notify the Post
Office authorities to change the address for delivery of mail addressed to
Borrower to such address as the Bank may designate; endorse the name of Borrower
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 Borrower on any invoices, documents, drafts against and notices to account
debtors or obligors of Borrower, 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 ower 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 Borrower's rights in the
Collateral or against any prior parties thereto, but the same shall be at
Borrower's sole risk and responsibility at all times. Borrower 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 Borrower 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 a
nd 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. Borrower 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 litigation with respect to any matter
connected with this Security Agreement, the Obligations or the Collateral,
Borrower hereby waives the right to a trial by jury. Borrower hereby
irrevocably consents to the jurisdiction of the Courts of the State of New York
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. Borrower 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
Borrower at any address of Borrower set forth in this Security Agreement.
Borrower so served shall appear or answer to such process within thirty (30)
days after the mailing thereof. Should Borrower so served fail to appear or
answer within said thirty (30) day period, Borrower shall be deemed in default
and judgment may be entered by the Bank against Borrower 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 Borrower 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 Borrower 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 New York applicable 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. Borrower 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.
MECHANICAL TECHNOLOGY INCORPORATED
By: /s/ C.Scheuer
--------------------------------------------
Name: Cynthia A. Scheuer
Title: Vice President and Chief Financial Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 22nd day of September, 1998, before me the subscriber
personally appeared Cynthia A. Scheuer, who being by me duly sworn, did depose
and say; that she resides at Castleton, New York, that she is Vice President
and Chief Financial Officer 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.
\s\ M.S. Lamb
--------------------
M. Sheila Lamb
NOTARY PUBLIC
Schedule "A"
All personal property and fixtures of the Borrower, 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 Borrower, and any
and all additions and accessions thereto, all substitutions and replacements
therefor and all products and proceeds thereof and proceeds of insurance thereon
provided that Borrower's interest in Plug Power LLC shall not be included as
Collateral.