EXHIBIT 4.6
RECORDING REQUESTED BY
______________________
WHEN RECORDED MAIL TO
The Northwestern Mutual Life Ins. Co.
000 Xxxx Xxxxxxxxx Xxxxxx - Xx X00XX
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx
LOAN NO. C-332156 SPACE ABOVE THIS LINE FOR RECORDER'S USE
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This instrument was prepared by Xxxx X. XxXxxxx, Attorney, for The Northwestern
Mutual Life Insurance Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
ABSOLUTE ASSIGNMENT OF LEASES AND RENTS
(With License Back)
THIS Absolute Assignment of Leases and Rents (this "Assignment") is
made as of the 30th day of December, 1997, by and between ECHELON INTERNATIONAL
CORPORATION, a Florida corporation, whose mailing address is Xxx Xxxxxxxx Xxxxx,
Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, (herein called "Borrower") and THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, whose
mailing address is c/o Real Estate Department, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, (herein called "Lender").
W I T N E S S E T H
FOR AND IN CONSIDERATION of the indebtedness hereinafter described,
Xxxxxxxx has granted, bargained, sold and conveyed, and by these presents does
grant, bargain, sell and convey, unto Xxxxxx, its successors and assigns
forever, all and singular the property hereinafter described (collectively, the
"Security"), to wit:
(a) All rents, issues and profits arising from or related to the
land, situated in the Counties of Pinellas and Xxxx, in the State of
Florida and described in Exhibit "A" attached hereto and fully
incorporated herein by reference for all purposes and all improvements
and any other property, whether real, personal or mixed, located
thereon (which land, improvements and other property are hereinafter
collectively called the "Property");
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(b) All of Borrower's rights, titles, interests and privileges, as
lessor, in the leases now existing or hereafter made affecting the
Property, whether or not made by Borrower and as the same may have
been, or may from time to time hereafter be, modified, extended and
renewed (hereinafter collectively called the "Leases").
(c) All tenant security deposits and other amounts due and
becoming due under the Leases;
(d) All guarantees of the Leases, including guarantees of tenant
performance;
(e) All insurance proceeds, including rental loss coverage and
business interruption coverage with respect to the Leases; and
(f) All judgments and settlements of claims in favor of Xxxxxxxx
(including condemnation proceeds, if any) and all rights, claims and
causes of action under any court proceeding, including without
limitation any bankruptcy, reorganization or insolvency proceeding, or
otherwise arising from the Leases.
TO HAVE AND TO HOLD the Security unto Xxxxxx, its successors and
assigns forever, and Xxxxxxxx does hereby bind itself, its heirs, legal
representatives, successors and assigns, to warrant and forever defend the
Security unto Xxxxxx, its successors and assigns forever against the claim or
claims of all persons whomsoever claiming the same or any part thereof.
ARTICLE I
DEFINITIONS
1.01 TERMS DEFINED ABOVE. As used in this Assignment, the terms
"Borrower", "Leases", "Lender", "Property", and "Security" shall have the
respective meanings indicated above.
1.02 CERTAIN DEFINITIONS. The following terms shall have the meanings
assigned to them below whenever they are used in this Assignment, unless the
context clearly otherwise requires. Except where the context otherwise requires,
words in the singular form shall include the plural and vice versa.
"EVENT OF DEFAULT" shall mean any Event of Default as defined in
the Lien Instrument.
"LIEN INSTRUMENT" shall mean that certain Restatement of Mortgage
and Security Agreement of even date herewith, executed by Xxxxxxxx and
granting
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a lien on the Property to Lender, as such instrument may be amended and
restated from time to time.
"LOAN DOCUMENTS" shall mean the Note, the Lien Instrument and all
other instruments and documents (as the same may be amended from time
to time) executed by Xxxxxxxx and delivered to Lender in connection
with, or as security for, the indebtedness evidenced by the Note,
except any separate environmental indemnity agreement.
"NOTE" shall mean that certain Amendment, Renewal and Restatement
of Note of even date herewith, in the original principal amount of
$45,000,000.00, executed by Xxxxxxxx and payable to the order of
Lender, as such instrument may be amended, renewed and restated from
time to time.
"OBLIGATIONS" shall mean the following:
(a) The indebtedness evidenced by the Note and all interest
thereon;
(b) The performance of all covenants and agreements of
Borrower contained in the Loan Documents;
(c) All funds hereafter advanced by Lender to or for the
benefit of Borrower as contemplated by any covenant or provision
contained in any Loan Document and all interest thereon;
(d) All renewals, extensions, rearrangements and
modifications of any of the Obligations described hereinabove; and
(e) Any and all attorneys' fees and expenses of collection
payable under the terms of any Loan Document.
ARTICLE II
ASSIGNMENT
2.01 ABSOLUTE ASSIGNMENT. This Assignment is, and is intended to be, an
absolute and present assignment of the Security from Borrower to Lender with a
concurrent license back to the Borrower (which license is subject to revocation
upon the occurrence of an Event of Default as herein provided) and is not
intended as merely the granting of a security interest relating to the
Obligations.
2.02 LICENSE. Borrower is hereby granted the license to manage and
control the Security and to collect at the time of, but not prior to, the date
provided for the payment
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thereof, all rents, issues and profits from the Property and to retain, use and
enjoy the same. The license created and granted hereby shall be revocable upon
the terms and conditions contained herein.
2.03 REVOCATION OF LICENSE. Immediately upon the occurrence of an Event
of Default and at any time thereafter, Lender may, at its option and without
regard to the adequacy of the security for the Obligations, either by an
authorized representative or agent, with or without bringing or instituting any
judicial or other action or proceeding, or by a receiver appointed by a court,
immediately revoke the license granted in Section 2.02, as evidenced by a
written notice to said effect given to Borrower, and further, at Xxxxxx's option
(without any obligation to do so), take possession of the Property and the
Security and have, hold, manage, lease and operate the Property and the Security
on such terms and for such period of time as Lender may deem proper, and, in
addition, either with or without taking possession of the Property, demand, sue
for or otherwise collect and receive all rents, issues and profits from the
Property, including those past due and unpaid, with full power to make, from
time to time, all alterations, renovations, repairs or replacements thereto or
thereof as may seem proper to the Lender in its sole discretion, and to apply
(in such order and priority as Lender shall determine in its sole discretion)
such rents, issues and profits to the payment of:
(a) all expenses of (i) managing the Property, including without
implied limitation, the salaries, fees and wages of a managing agent
and such other employees as Lender may in its sole discretion deem
necessary or desirable, (ii) operating and maintaining the Property,
including without implied limitation, all taxes, charges, claims,
assessments, water rents, sewer rents and any other liens, and premiums
for all insurance which Lender may in its sole discretion deem
necessary or desirable, (iii) the cost of any and all alterations,
renovations, repairs or replacements of or to the Property, and (iv)
any and all expenses incident to taking and retaining possession of the
Property and the Security; and
(b) the Obligations.
The exercise by Xxxxxx of the rights granted it in this Section 2.03, and the
collection and receipt of rents, issues and profits and the application thereof
as herein provided, shall not be considered a waiver of any Event of Default.
2.04 TRUST FUNDS. All monies or funds covered by this Assignment paid
to, or for the benefit of, Borrower after an Event of Default are hereby
declared, and shall be deemed to be, trust funds in the hands of Borrower for
the sole benefit of Lender, until all Events of Default have been cured or
waived or the Obligations have been paid and performed in full. Xxxxxxxx, or any
officer, director, representative or agent thereof receiving such trust funds or
having control or direction of same, is hereby made and shall
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be construed to be a trustee of such trust funds so received or under its
control and direction, and such person shall be under a strict obligation and
duty should such persons receive or constructively receive trust funds to (1)
remit any and all such trust funds to Lender within twenty-four (24) hours of
receipt, upon demand therefor by Lender or (2) to apply such trust funds only to
Obligations then due or the operating expenses of the Property.
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES
3.01 LIABILITY. Lender shall not be liable for any loss sustained by
Borrower resulting from Xxxxxx's failure to let the Property after an Event of
Default or from any other act or omission of Lender in managing the Property or
the Security after an Event of Default, except for acts constituting gross
negligence or willful misconduct. Lender shall not be obligated to perform or
discharge, nor does Lender hereby undertake to perform or discharge, any
obligation, duty or liability under any Lease, and Borrower shall and does
hereby indemnify Lender for, and save and hold Lender harmless from, any and all
liability, loss or damages, except so much thereof as shall result from the
gross negligence or willful misconduct of Lender, which may or might be incurred
under any Lease or under or by reason of this Assignment and from any and all
claims and demands whatsoever which may be asserted against Lender by reason of
any alleged obligation or undertaking on its part to perform or discharge any of
the terms, covenants or agreements contained in any Lease, including without
implied limitation, any claims by any tenants of credit for rents for any period
paid to and received by Borrower but not delivered to Lender. Should Lender
incur any such liability under any Lease in defense of any such claim or demand,
the amount thereof, including without implied limitation all costs, expenses and
attorneys' fees, shall be added to the principal of the Note and Xxxxxxxx shall
reimburse Lender therefor immediately upon demand. This Assignment shall not
operate to place responsibility upon Lender for the control, care, upkeep,
management, operation or repair of the Property and the Security or for the
carrying out of any of the terms and conditions of any Lease; nor shall this
Assignment operate to make Lender responsible or liable for any waste committed
on the Property by the tenants or any other party, for any dangerous or
defective condition of the Property or for any negligence in the control, care,
upkeep, operation, management or repair of the Property resulting in loss or
injury or death to any tenant, licensee, employee, stranger or other person
whatsoever.
3.02 TERMINATION. Upon payment and performance of the Obligations in
full, this Assignment shall become null and void and of no further legal force
or effect, but the affidavit, certificate, letter or statement of any officer,
agent, authorized representative or attorney of Lender showing any part of the
Obligations remaining unpaid or unperformed shall be and constitute conclusive
evidence of the validity, effectiveness and continuing
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force of this Assignment upon which any person may, and is hereby authorized to,
rely. Borrower hereby authorizes and directs all tenants under the Leases, all
guarantors of Leases, all insurers providing rental loss or business
interruption insurance with respect to the Property, all governmental
authorities and all other occupants of the Property, upon receipt from Lender of
written notice to the effect that Lender is then the holder of the Note and that
an Event of Default exists, to pay over to Lender all rents and other amounts
due and to become due under the Leases and under guaranties of the Leases and
all other issues and profits from the Property and to continue so to do until
otherwise notified in writing by Xxxxxx. This right may be exercised without
Lender taking actual or constructive possession of the Property or any part
thereof.
3.03 SECURITY. Lender may take or release any security for the payment
or performance of the Obligations, may release any party primarily or
secondarily liable therefor and may apply any security held by it to the
satisfaction of all or any portion of the Obligations, without prejudice to any
of its rights under this Assignment, the other Loan Documents or otherwise
available at law or in equity.
3.04 COVENANTS. Borrower covenants with Lender (a) to observe and
perform all material obligations imposed upon the lessor under all Leases and
not to do or permit to be done anything to impair the same without Lender's
prior written consent, provided, however, this subsection (a) shall only apply
to leases of 20,000 or more square feet unless Borrower has acted or failed to
act in such a way as to cause a breach of the lessor's obligations in 25% or
more of the Leases (by number of leases then in effect and not by square
footage) then in effect at any Property in which case, Borrower shall be in
default under this subsection (a);(b) not to collect any of the rent or other
amounts due under any Lease or other issues or profits from the Properties in
any manner in advance of the time when the same shall become due (save and
except only for collecting two months' rent in advance plus the security
deposit, if any, at the time of execution of a Lease); (c) not to execute any
other assignment of rents, issues or profits arising or accruing from the Leases
or from the Properties; (d) with respect to leases of 20,000 or more square
feet, not to enter into any lease agreement affecting the Properties, except
those leases entered into in the ordinary course of business and consistent with
then-prevailing market terms and conditions, without the prior written consent
of Lender, which consent or denial will be given by Lender within five (5)
business days of receipt of said Lease for consideration by Xxxxxx; (e) to
execute and deliver, at the request of Xxxxxx, all such further assurances and
acknowledgments of the assignment contained herein and the other provisions
hereof, with respect to specific Leases or otherwise, as Lender shall from time
to time require; (f) to use reasonable efforts to obtain from any tenant at the
Properties, from time to time as requested by Xxxxxx, estoppel certificates, in
form and substance satisfactory to Lender, confirming the terms of such tenant's
Lease and the absence of default thereunder; and (g) with respect to leases of
20,000 or more square feet, not to cancel, surrender or terminate any Lease,
exercise any option which
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might lead to such termination or consent to any change, modification, or
alteration thereof, to the release of any party liable thereunder or to the
assignment of the lessee's interest therein, except as is consistent with the
usual and customary operation of the Properties, without the prior written
consent of Lender, which consent or denial will be given by Lender within five
(5) business days of receipt of said Lease for consideration by Xxxxxx, and any
of said acts, if done without the prior written consent of Lender, shall be null
and void. Xxxxxx's consent shall be deemed to have been given if Xxxxxx fails to
reject or consent to a proposal within five (5) business days after receipt
thereof.
3.05 AUTHORITY TO ASSIGN. Borrower represents and warrants that (a)
Borrower has full right and authority to execute this Assignment and has no
knowledge of any existing defaults under any of the existing Leases, (b) all
conditions precedent to the effectiveness of said existing Leases have been
satisfied, (c) Borrower has not executed or granted any modification of the
existing Leases, either orally or in writing, (d) the existing Leases are in
full force and effect according to the terms set forth in the lease instruments
heretofore submitted to Lender and (e) Borrower has not executed any other
instrument which might prevent Lender from operating under any of the terms and
conditions of this Assignment, including any other assignment of the Leases or
the rents, issues and profits from the Property.
3.06 CROSS-DEFAULT. Violation or default under any of the covenants,
representations, warranties and provisions contained in this Assignment by
Borrower shall be deemed a default hereunder as well as under the terms of the
other Loan Documents, and any default thereunder shall likewise be a default
under this Assignment. Any default by Borrower (beyond any applicable grace or
curative period) under any of the terms of any Lease shall be deemed a default
hereunder and under the terms of the other Loan Documents if such default
entitles the tenant to terminate the Lease or to a set off against the rentals
payable thereunder and any expenditures made by Lender in curing such default on
Borrower's behalf, with interest thereon at the Default Rate (as defined in the
Note), shall become part of the Obligations.
3.07 NO MORTGAGEE IN POSSESSION. The acceptance by Lender of this
Assignment, with all of the rights, powers, privileges and authority created
hereby, shall not, prior to entry upon and taking possession of the Property by
Xxxxxx, be deemed or construed to constitute Lender a "mortgagee in possession",
or hereafter or at any time or in any event obligate Lender to appear in or
defend any action or proceeding relating to any Lease, the Property or the
Security, to take any action hereunder, to expend any money, incur any expense,
perform or discharge any obligation, duty or liability under any Lease, or to
assume any obligation or responsibility for any security deposits or other
deposits delivered to Borrower by any tenant and not actually delivered to
Lender. Lender shall not be liable in any way for any injury or damage to any
person or property sustained in or about the Property.
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ARTICLE IV
GENERAL
4.01 REMEDIES. The rights and remedies provided Lender in this
Assignment and the other Loan Documents are cumulative. Nothing contained in
this Assignment, and no act done or omitted by Lender pursuant hereto, including
without implied limitation the collection of any rents, shall be deemed to be a
waiver by Lender of any of its rights and remedies under the other Loan
Documents or applicable law or a waiver of any default under the other Loan
Documents, and this Assignment is made and accepted without prejudice to any of
the rights and remedies provided Lender by the other Loan Documents. The right
of Lender to collect the principal sum and interest due on the Note and to
enforce the other Loan Documents may be exercised by Xxxxxx either prior to,
simultaneously with, or subsequent to any action taken by it hereunder.
4.02 NOTICES. Any notice or demand hereunder shall be in writing, may
be delivered personally or sent by certified mail with postage prepaid, by
reputable courier service with charges prepaid, by telecopier or by such other
method whereby the receipt thereof may be confirmed. Any notice or demand sent
to Borrower by certified mail or reputable courier service shall be addressed to
Borrower at the address set forth above or such other address in the United
States of America as Borrower shall designate in a notice to Lender given in the
manner described herein. Any notice sent to Borrower by telecopier shall be
telecopied to (000) 000-0000 or to such other telecopier number in the United
States of America as shall be designated in a notice given to Lender in the
manner described herein. Any notice sent to Lender shall be addressed to the
attention of the Real Estate Investment Department at 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 and shall refer to the Loan No. set forth above and, if
telecopied, shall be telecopied to 414/299-1557 or at such other address or
telecopier number as Lender shall designate in a notice given in the manner
described herein. Any notice or demand sent hereunder by telecopier shall also
be sent by certified mail or reputable courier service. Any notice or demand
hereunder shall be deemed given when received. Any notice or demand which is
rejected, the acceptance of delivery of which is refused or which is incapable
of being delivered for any reason whatsoever at the address or telecopier number
specified herein or such other address or telecopier number designated pursuant
hereto shall be deemed received as of the date of attempted delivery.
4.03 CAPTIONS. The titles and headings of the various Articles and
Sections hereof are intended solely for reference and are not intended to
modify, explain or affect the meaning of the provisions of this Assignment.
4.04 SEVERABILITY. If any of the provisions of this Assignment or the
application thereof to any persons or circumstances shall to any extent be
invalid or unenforceable,
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the remainder of this Assignment, and the application of such provision or
provisions to persons or circumstances other than those as to whom or which it
is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Assignment shall be valid and enforceable to the fullest
extent permitted by law.
4.05 ATTORNEYS' FEES. In the event of any controversy, claim, dispute,
or litigation between the parties hereto to enforce any provision of this
Assignment or any right of Lender hereunder, Xxxxxxxx agrees to pay to Lender
all costs and expenses, including reasonable attorneys' fees incurred therein by
Xxxxxx, whether in preparation for or during any trial, as a result of an appeal
from a judgment entered in such litigation or otherwise.
4.06 AMENDMENTS. This Assignment may not be modified, amended or
otherwise changed in any manner unless done so by a writing executed by the
parties hereto.
4.07 BENEFITS. This Assignment and all the covenants, terms and
provisions contained herein shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
4.08 ASSIGNMENT. Borrower shall have no right to assign or transfer the
revocable license granted herein. Any such assignment or transfer shall
constitute a default.
4.09 TIME OF ESSENCE. Time is of the essence of this Assignment.
4.10 GOVERNING LAW. The laws of the State of Florida shall govern and
control the interpretation of this Assignment and the rights, obligations,
duties and liabilities of the parties hereto.
4.11 LIMITATION OF LIABILITY. Notwithstanding any provision contained
in this Assignment, the personal liability of Borrower shall be limited as
provided in the Note.
(CONTINUED ON NEXT PAGE)
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IN WITNESS WHEREOF, this Assignment has been entered into as of the day
and year first-above written.
BORROWER:
ECHELON INTERNATIONAL
Signed in presence of: CORPORATION, a Florida corporation
_____________________________ By:____________________________________
_____________________________ ____________________________________
Name Type or Printed
____________________________________
____________________________________
_____________________________ By:____________________________________
_____________________________ ____________________________________
Name Type or Printed
____________________________________
____________________________________
(corporate seal)
LENDER:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, a Wisconsin
Signed in presence of: corporation
_____________________________ By:____________________________________
Xxxx X. Xxxxxx Xxxxxx X. Xxxxx, Vice President
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
_____________________________ Attest:________________________________
Xxxxxxxx Xxxxxxx Xxxxxx X. Xxxxx, Xx., Ass't Secretary
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(corporate seal)
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STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this______ day of_______ ,
1997, by _______________ and _______________ , as ________________ President and
______________ Secretary, of ECHELON INTERNATIONAL CORPORATION, a Florida
corporation, on behalf of the corporation. They are personally known to me or
have produced _______________ as identification and did take an oath.
NOTARY PUBLIC:
Signature ____________________________
______________________________________
Name (typed or printed)
State of ______________ at Large
My Commission Expires:
STATE OF WISCONSIN )
)ss.
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this 29th day of December,
1997, by Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx, Xx., as Vice President and
Assistant Secretary, of THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation, on behalf of the corporation.
NOTARY PUBLIC:
Signature ____________________________
XXXX X.XXXXXX
Name (typed or printed)
State of Wisconsin
My Commission Expires: November 28,
1999
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