Exhibit 4.103
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 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).
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.
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:Xxxxxxx X. Xxxxxxx
Authorized Officer
PLUG POWER, L.L.C.
BY:Xxxx Xxxxxxxxx
Authorized Officer
KEYBANK NATIONAL ASSOCIATION
BY:Xxxxxxx X. Xxxxxx
Authorized Officer
FIRST ALBANY CORPORATION
BY:Xxx Xxxxxxxx
Authorized Officer
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 9th 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.
Xxxxxxx Xxxxxxxx
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 14th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Xxxx X. Xxxxxxxxx,
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.
Xxxxxxxx X. Xxxxxxxx
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 14th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Xxxxxxx X. Xxxxxxx,
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.
Xxxxxxxx X. Xxxxxxxx
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 12th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Xxxxxxx X. Xxxxxx,
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.
Xxxx X. Xxxxxx
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF ALBANY )
On the 15th day of July, in the year 1999, before me, the undersigned, a
notary public in and for said state, personally appeared Xxx Xxxxxxxx,
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.
Xxxxx X. XxXxxx
Notary Public
