EXHIBIT 10.23
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of July 1, 1999 is by and
among TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY, a public benefit
corporation of the State of New York having an office at The Public Operations
Center, 000 Xxx Xxxxxxxxx Xxxx, Xxxxxx, Xxx Xxxx, 00000 (the "Agency"),
MECHANICAL TECHNOLOGY INCORPORATED, a business corporation organized and
existing under the laws of the State of New York, having its principal place of
business at 000 Xxxxxx-Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 ("MTI"), PLUG POWER,
L.L.C., a limited liability company organized and existing under the laws of the
State of Delaware, having its principal place of business located at 000 Xxxxxx-
Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 ("Plug Power"), KEYBANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States having an office located at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx, 00000 (the "Bank") and FIRST ALBANY CORPORATION, a business
corporation organized and existing under the laws of the State of New York
having an office at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (the
"Underwriter");
WITNESSETH:
WHEREAS, on December 17, 1998, the Agency issued its Industrial Development
Revenue Bonds (Mechanical Technology Incorporated - Letter of Credit Secured),
Series 1998A in the original aggregate principal amount of $6,000,000 (the
"Bonds") to finance a portion of the Project (as hereinafter defined), which
were issued under and secured by a trust indenture dated as of December 1, 1998
by and between the Agency and Manufacturers and Traders Trust Company, as
trustee; and
WHEREAS, the Project consisted of (A)(1) the acquisition of a leasehold
interest in a parcel of land containing approximately 35.6 acres located at 000
Xxxxxx-Xxxxxx Xxxx in the Town of Colonie, Albany County, New York (the "Land"),
together with the existing buildings located thereon which contained
approximately 98,000 square feet in the aggregate (such buildings known
individually as Building I, Building II and Building III and hereinafter
collectively referred to as the "Existing Facility"), (2) the demolition of
Building I which contained approximately 14,105 square feet of space, (3) the
construction of a new building to replace Building I and which contains
approximately 32,000 square feet of space (the "New Facility") (the Existing
Facility and the New Facility hereinafter collectively referred to as the
"Facility"), (4) the renovation of Building III and (5) the acquisition of and
installation therein and thereon of certain machinery and equipment (the
"Equipment") (the Land, the Facility and the Equipment being hereinafter
collectively referred to as the "Project Facility"); all of the foregoing
occupied by MTI and
operated as a manufacturing facility, a portion of which was leased by MTI to
Plug Power and operated as a facility for the manufacture, research and
development of fuel cells for residential and automotive applications and
related products and any other related activities; (B) the financing of all or a
portion of the costs of the foregoing by the issuance of the Bonds; (C) the
granting of certain other "financial assistance" (within the meaning of Section
854(14) of the Act) with respect to the foregoing, including exemption from
certain sales taxes, deed transfer taxes, mortgage recording taxes and real
property taxes; and (D) the sale of the Project Facility to MTI or such other
person as may be designated by MTI and agreed upon by the Issuer; and
WHEREAS, in connection with the issuance of the Bonds, the Agency and MTI
executed and delivered an installment sale agreement dated as of December 1,
1998 (the "Installment Sale Agreement") pursuant to which the Agency agreed to
sell the Project Facility to MTI and a payment in lieu of tax agreement dated as
of December 1, 1998 (the "PILOT Agreement"); and
WHEREAS, Ling Electronics, Inc. ("Ling") executed and delivered to the
Agency a Guaranty dated December 16, 1998 (the "Ling Guaranty") pursuant to
which Ling guaranteed to the Agency the payment and performance by MTI of all of
MTI's covenants and obligations under the Installment Sale Agreement and the
PILOT Agreement; and
WHEREAS, as security for the Bonds, MTI entered into an irrevocable letter
of credit reimbursement agreement dated as of December 1, 1998 (the
"Reimbursement Agreement") with the Bank, pursuant to which the Bank has issued
in favor of the Trustee an irrevocable transferable direct-pay letter of credit;
and
WHEREAS, in connection with the issuance of the Bonds, MTI also entered
into a remarketing agreement with the Underwriter (the "Remarketing Agreement");
and
WHEREAS, MTI has agreed to sell its interest in the Project Facility to
Plug Power and to assign to Plug Power the Installment Sale Agreement, the PILOT
Agreement and the Remarketing Agreement; and
WHEREAS, Section 9.1 of the Installment Sale Agreement provides that MTI
may not assign the Installment Sale Agreement without the prior written consent
of the Agency and the Bank, which consent may not be unreasonably withheld; and
WHEREAS, Section 9.4 of the Installment Sale Agreement provides that MTI
may not sell the Project Facility without the prior written consent of the
Agency and the Bank, which consent may not be unreasonably withheld;
NOW, THEREFORE, for good and valuable consideration, the parties hereto
hereby agree as follows:
SECTION 1. ASSIGNMENT. MTI assigns to Plug Power, as of July 1, 1999 (the
"Substitution Date"), all benefits under and all of MTI's right, title and
interest in the Installment Sale
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Agreement, the PILOT Agreement and the Remarketing Agreement on the terms and
conditions set forth in the Agreement of Sale dated as of June 23, 1999.
SECTION 2. ASSUMPTION. (A) Plug Power will pay, or cause to be paid, (1) all
principal of the Bonds when and as the same shall become due, whether at the
stated maturity thereof or by acceleration or call for prepayment or otherwise,
and (2) all interest on the Bonds when and as the same shall become due.
(B) Plug Power assumes and will pay, or cause to be paid, all payments
or sums now or hereafter owing by MTI, and will perform and observe all
covenants, agreements and other obligations to be performed or observed by
MTI, under:
(1) the Installment Sale Agreement (including, without
limitation, Section 8.2 of the Installment Sale Agreement);
(2) the PILOT Agreement;
(3) the Reimbursement Agreement, as amended and restated by a
Replacement Reimbursement Agreement dated as of the Substitution Date
by and between Plug Power and the Bank;
(4) the Remarketing Agreement;
(5) the mortgage and security agreement dated as of December 1,
1998 from the Agency and MTI to the Bank;
(6) the pledge and security agreement dated December 1, 1998 by
and between MTI and the Bank; and
(7) the lease to issuer dated as of December 1, 1998, between the
Agency and MTI
(all of the foregoing being hereinafter referred to as the "Bond
Documents").
SECTION 3. REPRESENTATIONS AND COVENANTS OF PLUG POWER. Plug Power
represents to and covenants with each of the parties to this Agreement as
follows:
(A) Plug Power is authorized transact business in the State of New
York.
(B) Plug Power will take no action that would cause the Project
Facility to fail to continue to constitute a "project" under the Act (as
defined under the Installment Sale Agreement).
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SECTION 4. CONSENT AND RELEASE. (A) The Agency and the Bank:
(1) consent to the assignment by MTI to Plug Power of the Installment
Sale Agreement, the sale by MTI to Plug Power of MTI's interest in the
Project Facility and the assumption by Plug Power of MTI's obligations
under the Bond Documents;
(2) release MTI, as of the Substitution Date, from all of its
liabilities and obligations under the Bond Documents, except for those
liabilities and obligations which accrued on or before the Substitution
Date; and
(3) release Ling from all of its obligations under the Ling Guaranty.
(B) The Underwriter consents to the assignment by MTI to Plug Power of the
Remarketing Agreement and releases MTI, as of the Substitution Date, from all of
its obligations under the Remarketing Agreement.
SECTION 5. MISCELLANEOUS. (A) This Assignment and Assumption Agreement shall
be binding upon and inure to the benefit of the Agency, the Bank, the
Underwriter, MTI, Plug Power, and their respective successors and assigns.
(B) This Assignment and Assumption Agreement may be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
(C) This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the law of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be duly executed as the date first above written.
TOWN OF COLONIE INDUSTRIAL
DEVELOPMENT AGENCY
BY:
Xxxxx X. Xxxx, Chairman
MECHANICAL TECHNOLOGY
INCORPORATED
BY:
Authorized Officer
PLUG POWER, L.L.C.
BY:
Authorized Officer
KEYBANK NATIONAL ASSOCIATION
BY:
Authorized Officer
FIRST ALBANY CORPORATION
BY:
Authorized Officer
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STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the _____ day of July, in the year 1999, before me, the
undersigned, a notary public in and for said state, personally appeared Xxxxx X.
Xxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
_____________________________________
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the _____ day of July, in the year 1999, before me, the
undersigned, a notary public in and for said state, personally appeared
____________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_____________________________________
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the _____ day of July, in the year 1999, before me, the
undersigned, a notary public in and for said state, personally appeared
____________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_____________________________________
Notary Public
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XXXXX XX XXX XXXX )
ss.:
COUNTY OF ALBANY )
On the _____ day of July, in the year 1999, before me, the
undersigned, a notary public in and for said state, personally appeared
____________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_____________________________________
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the _____ day of July, in the year 1999, before me, the
undersigned, a notary public in and for said state, personally appeared
____________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
_____________________________________
Notary Public
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