Exhibit 4.92
AMENDMENT THREE TO
AMENDED AND RESTATED LOAN AGREEMENT
This Amendment Three is dated as of November 30, 1995 and is made by and
between MECHANICAL TECHNOLOGY INCORPORATED, a corporation organized
under the laws of New York (the "Borrower") and THE CHASE MANHATTAN BANK,
N.A., a national banking association organized under the laws of the United
States of America and the successor in interest to Chase Lincoln First Bank,
N.A. (the "Bank").
Statement of the Premises
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The Borrower and the Bank previously entered into an Amended and Restated
Loan Agreement dated as of July 22, 1992 as amended by Amendment One thereto
dated as of August 1, 1994 and Amendment Two thereto dated as of November 22,
1994 (the "Loan Agreement"). The Borrower and the Bank wish to extend the
"Maturity Date" under the Loan Agreement in conjunction with an extension of
the maturity of the Borrower's obligations to Chemical Bank and to make
certain other amendments to the Loan Agreement.
Statement of Consideration
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Accordingly, in consideration of the premises and under the authority of
Section 5-1103 of the New York General Obligations Law, the Borrower and the
Bank agree as follows.
Agreement
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1. Defined Terms. The terms "this Agreement", "hereunder" and similar
references in the Loan Agreement shall be deemed to refer to the Loan Agreement
as amended hereby. Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Loan Agreement.
2. Amendment. Effective as of October 31, 1995, the Loan Agreement is
hereby amended, as follows:
2.1 Section 1.1 of the Loan Agreement is amended by changing the
definitions of "Extended Maturity Date" and "Maturity Date" to read, in their
entirety, respectively, as follows:
"Extended Maturity Date" means October 31, 1998
"Maturity Date" means October 31, 1998.
2.2 Section 1.1 of the Loan Agreement is amended by adding the
following definitions thereto, as follows:
"Additional Loans" means the Additional Loan or Loans which were made
by the Bank to the Borrower pursuant to and under Section 2.6 of the Loan
Agreement as added by Amendment Two to the Loan Agreement as in effect
immediately prior to Amendment Three to this Loan Agreement.
"1995 Installment" means the installment payment of $250,000 due no
later than December 31, 1995 pursuant to Subsection (A) of Section 2.5 as
amended by Amendment Three to this Loan Agreement.
"UTE Proceeds" means any proceeds received by or on behalf of the
Borrower after October 31, 1995 pursuant to and under the Settlement and Claims
Agreement and Order Approving Same entered in the bankruptcy proceeding of
United Telecontrol Electronics, Inc., as Debtor, in the United States
Bankruptcy Court for the District of New Jersey.
2.3 Section 2.1 of the Loan Agreement is amended by adding the
following sentence at the end thereof.
The Bank and the Borrower acknowledge and agree that, as of
October 31, 1995, after giving effect to all applications of
proceeds of Escrow Monies and UTE Proceeds through such date as
well as the incurrence of all Additional Loans through such date,
$1,962,710.10 is the aggregate principal amount outstanding under
the Loan (including all Additional Loans) as of the close of
business on October 31, 1995.
2.4 Subsection (A) of Section 2.5 of the Loan Agreement is hereby
amended to read in its entirety, as follows:
(A) The aggregate principal of the Loan outstanding as at
the close of business on October 31, 1995 shall be payable as
follows: (i) the Borrower shall make a principal payment on the
Loan in the amount of $250,000 no later than December 31, 1995
(the "1995 Installment"); and (ii) the Borrower shall pay thirty
-four consecutive, monthly principal payments due on the last day
of each month, commencing on January 31, 1996 and continuing
through and ending on the Extended Maturity Date in substantially
equal amounts, as follows:
thirty-three payments of $50,373 and a final and thirty-fourth
payment of $50,401.10.
2.5 Section 2.6 is hereby amended to read in its entirety, as
follows:
SECTION 2.6 UTE Proceeds. If payment of UTE Proceeds shall be
received sooner than December 31, 1995, up to $250,000 of the UTE Proceeds
shall be first applied to payment of the Loan in satisfaction, pro
tanto, of the 1995 Installment and, then, up to $50,000 of the UTE
Proceeds shall be remitted to the Borrower, free and clear of any lien
of the Bank. If the 1995 Installment shall have been fully paid and
the UTE Proceeds shall subsequently be received and if no Default
shall then exist, such UTE Proceeds shall be remitted to the Borrower,
free and clear of any lien of the Bank.
2.6 Section 2.7 of the Loan Agreement is hereby amended by deleting
the first sentence of such section.
3. Waiver. All Defaults, if any, which exist on the date hereof
(November 30, 1995) are hereby waived by the Bank, together with the right of
the Bank to assert an Event of Default under Article VII of the Loan
Agreement on the basis of such Defaults.
4. Conditions of Effectiveness. This Amendment Three shall become
effective when and only when this Amendment Three shall have been executed
by the Borrower and the Bank, and all the following items shall have been
completed, each document being in form and substance satisfactory to the Bank,
the Borrower and their respective counsel.
4.1 Consummation of Extension by Chemical Bank. Chemical Bank
shall have extended its $4,000,000 line of credit for an additional
three-year period (the "Chemical Extension"), and the Chemical Extension
shall be in full force and effect.
4.2 Payment of Restructuring Fee. The Borrower shall have paid the
Bank a restructuring fee of $30,000.
4.3 Confirmation of Security Documents. All guaranties and security
interests which were in force on October 31, 1995 shall be confirmed by the
parties thereto.
4.4 Resolutions. The Borrower shall have delivered to the Bank
certified copies of the resolutions of the Board of Directors of the Borrower
approving this Amendment Three.
4.5 Evidence of Bank Authority. The execution and delivery by an
officer of the Bank of a certificate stating that this Amendment Three has been
approved on behalf of the Bank by all necessary and applicable procedures of the
Bank in full concordance with all applicable policies and requirements of the
Bank.
4.5 Legal Expense. The Borrower shall have paid all reasonable
legal fees and disbursements of outside counsel to the Bank incurred on and
after October 30, 1995 in connection with the preparation and negotiation of
this Amendment Three and all ancillary documents up to a maximum aggregate
amount of $7,500.
5. Effect on the Loan Documents.
5.1 Except as specifically amended or waived above, the Loan
Agreement and all Security Documents other than those which are expressly
released by the Bank concurrently herewith shall remain in full force and effect
and are hereby ratified and confirmed.
5.2 The execution, delivery and effectiveness of this Amendment
Three shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Bank under the Loan Agreement or any Security
Document or any agreement or instrument ancillary thereto, nor constitute a
waiver of any provision of any thereof.
5.3 The Borrower acknowledges that as of the date of this Amendment
Three , there exists no defense, counterclaim or set-off to payment of the
"Loan" (as defined in the Loan Agreement) in accordance with its terms.
5.4 The Borrower acknowledges that as of the date of this Amendment
Three the Borrower owes to the Bank the principal amount specified in
Section 2.1 of the Loan Agreement under and pursuant to each evidence of
indebtedness listed on such Schedule 1 hereto.
6. Execution in Counterparts. This Amendment Three may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all or which taken together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment Three to be executed by their respective
representatives thereunto duly authorized, as of the date first above written.
MECHANICAL TECHNOLOGY INCORPORATED
By: /s/ R. Wayne Diesel
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Its: President
_____________________________
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxx X. Xxxx, Xx.
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Its: Vice President
_____________________________
SCHEDULE 1 TO AMENDMENT THREE
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1. Restated Mortgage Note dated as of July 24, 1992 issued by Borrower to
Bank in the original principal amount of $5,000,000.
2. Mortgage Note dated as of October 6, 1995 issued by Borrower to Bank in
the original principal amount of $340,000.
