EXHIBIT 4.4
FLORIDA
LOAN NO. C-332156
AMENDMENT, RENEWAL AND RESTATEMENT OF NOTE
$45,000,000.00 Dated as of December 30, 1997
(Date)
This Amendment, Renewal and Restatement of Note (the "Note") made by
ECHELON INTERNATIONAL CORPORATION, a Florida corporation, whose address is Xxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, herein called
"Borrower", for the benefit of THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a
Wisconsin corporation, hereinafter referred to as "Lender", amends renews and
restates that certain Promissory Note executed by Borrower and payable to the
order of Salomon Brothers Realty Corporation in the original sum of
$45,000,000.00 dated of even date herewith (the "Existing Note").
The terms, covenants, agreements and provisions of the Existing Note are
hereby modified, amended and restated in their entirety so that henceforth the
terms, provisions, covenants and agreements thereof shall be as set forth
herein, and in the event of any conflict in the terms, provisions, covenants or
agreements with this note, this note shall prevail.
NOW, THEREFORE, FOR VALUE RECEIVED, Xxxxxxxx promises to pay to the order
of Lender at the address of Lender set forth above (or at such other place as
Lender shall designate in writing), in coin or currency which, at the time or
times of payment, is legal tender for public and private debts in the United
States, the principal sum of FORTY-FIVE MILLION DOLLARS or so much thereof as
shall have been advanced from time to time plus interest on the outstanding
principal balance at the rate and payable as follows:
Interest shall accrue from the date of advance until maturity at
the rate of seven and nine hundredths percent (7.09%) per annum (the
"Interest Rate").
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This Note is given in renewal and replacement of the principal indebtedness
heretofore evidenced by that certain Promissory Note dated as of even date
herewith, made by Xxxxxxxx and payable to the order of Salomon Brothers Realty
Corp. in the original principal amount of $45,000,000.00 (the "PRIOR NOTE"). All
applicable State of Florida documentary stamp and intangibles tax with respect
to the Prior Note and this Note have been paid and evidence of such payment is
noted on the Mortgage recorded in O.R. Book 8343 at page 1973 of the Public
Records of Hillsbourough County, Florida.
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Accrued interest only on the amount advanced shall be paid on the
first day of the month following the date of advance ("Amortization Period
Commencement Date"). On the first day of the following month and on the
first day of each month thereafter until maturity, installments of
principal and interest shall be paid in the amount of $320,638.91. All
installments shall be applied first in payment of interest, calculated
monthly on the unpaid principal balance, and the remainder of each
installment shall be applied in payment of principal. The entire unpaid
principal balance plus accrued interest thereon shall be due and payable on
December 1, 2004 (the "Maturity Date").
Borrower shall have the right, upon thirty (30) days advance written
notice, beginning January 1, 2001 of paying this note in full with a prepayment
fee. This fee represents consideration to Lender for loss of yield and
reinvestment costs. The fee shall be the greater of Modified Yield Maintenance
or 1% of the outstanding principal balance of this note.
As used herein, "Modified Yield Maintenance" means the amount, if any, by which
(i) the present value of the Then Remaining Payments (as
hereinafter defined) calculated using a periodic discount
rate (corresponding to the payment frequency under this
note) which, when compounded for such number of payment
periods in a year, equals the sum of the Applicable
Percentage and the per annum effective yield of the Most
Recently Auctioned United States Treasury Obligation having
a maturity date equal to the Maturity Date (or, if there is
no such equal maturity date, then the linearly interpolated
per annum effective yield of the two Most Recently Auctioned
United States Treasury Obligations having maturity dates
most nearly equivalent to the Maturity Date) as reported by
THE WALL STREET JOURNAL five business days prior to the date
of prepayment; exceeds
(ii) the outstanding principal balance of this note (exclusive of
all accrued interest).
If such United States Treasury obligation yields shall not be reported as
of such time or the yields reported as of such time shall not be ascertainable,
then the periodic discount rate shall be equal to the sum of the Applicable
Percentage and the Treasury Constant Maturity Series yields reported, for the
latest day for which such yields shall have been so reported, as of five
business days preceding the prepayment date, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for actively traded
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United States Treasury obligations having a constant maturity most nearly
equivalent to the Maturity Date.
As used herein, "Then Remaining Payments" means payments in such amounts
and at such times as would have been payable subsequent to the date of such
prepayment in accordance with the terms of this note.
As used herein, "Applicable Percentage" means .50%.
As used herein, "Most Recently Auctioned United States Treasury
Obligations" means the U.S. Treasury bonds, notes and bills with maturities of
30 years, 10 years, 5 years, 3 years, 2 years and 1 year which, as of the date
the prepayment fee is calculated, were most recently auctioned by the United
States Treasury.
Upon the occurrence of an Event of Default (as defined in the Lien
Instrument) followed by the acceleration of the whole indebtedness evidenced by
this note, or a condemnation or sale under threat of condemnation of all or
substantially all of the Property, the payment of such indebtedness will
constitute an evasion of the prepayment terms hereunder and be deemed to be a
voluntary prepayment hereof and such payment will, therefore, to the extent not
prohibited by law, include the prepayment fee required under the prepayment in
full privilege recited above or, if such prepayment occurs prior to January 1,
2001 and results from an Event of Default followed by an acceleration of the
whole indebtedness, then such payment will, to the extent not prohibited by law,
include a prepayment fee equal to the greater of Yield Maintenance or 6% of the
outstanding principal balance of this note. If such prepayment occurs prior to
January 1, 2001 and results from a condemnation or sale under threat of
condemnation of all or substantially all of the Property, the prepayment fee
shall be the greater of Modified Yield Maintenance or 2% of the outstanding
principal balance of this note.
As used herein, "Yield Maintenance" shall be calculated in the same manner
as Modified Yield Maintenance, except that the Applicable Percentage shall be
0.0% in the case of Yield Maintenance.
Notwithstanding the above and provided Borrower is not in default under any
provision contained in the Loan Documents (as defined in the Lien Instrument),
this note may be prepaid in full at any time, without a prepayment fee, during
the last sixty (60) days of the term of this note.
Xxxxxxxx acknowledges and agrees that the Interest Rate hereunder shall be
increased if certain financial statements and other reports are not furnished to
Lender, all as described in more detail in the provision of the Lien Instrument
entitled "FINANCIAL STATEMENTS".
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This note is secured by certain properties (collectively the "Property") in
the City of St. Petersburg, Pinellas County, Florida and in the City of
Tallahassee, Xxxx County, Florida described in a Restated Mortgage and Security
Agreement (the "Lien Instrument") of even date herewith executed by ECHELON
INTERNATIONAL CORPORATION, a Florida corporation to THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY.
Upon the occurrence of an Event of Default (as defined in the Lien
Instrument), the whole unpaid principal hereof and accrued interest shall, at
the option of Lender, to be exercised at any time thereafter, become due and
payable at once without notice, notice of the exercise of, and the intent to
exercise, such option being hereby expressly waived.
All parties at any time liable, whether primarily or secondarily, for
payment of indebtedness evidenced hereby, for themselves, their heirs, legal
representatives, successors and assigns, respectively, expressly waive
presentment for payment, notice of dishonor, protest, notice of protest, and
diligence in collection; consent to the extension by Lender of the time of said
payments or any part thereof; further consent that the real or collateral
security or any part thereof may be released by Lender, without in any way
modifying, altering, releasing, affecting, or limiting their respective
liability or the lien of the Lien Instrument; and agree to pay reasonable
attorneys' fees and expenses of collection in case this note is placed in the
hands of an attorney for collection or suit is brought hereon and any attorneys'
fees and expenses incurred by Lender to enforce or preserve its rights under any
of the Loan Documents in any bankruptcy or insolvency proceeding.
Any principal, interest or other amounts payable under any of the Loan
Documents (as defined in the Lien Instrument), not paid when due (without regard
to any notice and/or cure provisions contained in any of the Loan Documents),
including principal becoming due by reason of acceleration by Lender of the
entire unpaid balance of this note, shall bear interest from the due date
thereof until paid at the Default Rate. As used herein, "Default Rate" means the
lower of a rate equal to the interest rate in effect at the time of the default
as herein provided plus 5% per annum or the maximum rate permitted by law.
No provision of this note shall require the payment or permit the
collection of interest, including any fees paid which are construed under
applicable law to be interest, in excess of the maximum permitted by law. If any
such excess interest is collected or herein provided for, or shall be
adjudicated to have been collected or be so provided for herein, the provisions
of this paragraph shall govern, and Borrower shall not be obligated to pay the
amount of such interest to the extent that it is in excess of the amount
permitted by law. Any such excess collected shall, at the option of Lender,
unless otherwise required by applicable law, be immediately refunded to Borrower
or credited on the principal of this note immediately upon Xxxxxx's awareness of
the collection of such excess.
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Notwithstanding any provision contained herein or in the Lien Instrument to
the contrary, if Lender shall take action to enforce the collection of the
indebtedness evidenced hereby or secured by the Lien Instrument (collectively,
the "Indebtedness"), its recourse shall, except as provided below, be limited to
the Property or the proceeds from the sale of the Property and the proceeds
realized by Xxxxxx in exercising its rights and remedies (i) under the Absolute
Assignment (as defined in the Lien Instrument), (ii) under any of the other Loan
Documents (as defined in the Lien Instrument) and (iii) in any other collateral
securing the Indebtedness. If such proceeds are insufficient to pay the
Indebtedness, Xxxxxx will never institute any action, suit, claim or demand in
law or in equity against Borrower for or on account of such deficiency;
provided, however, that the provisions contained in this paragraph
(i) shall not in any way affect or impair the validity or
enforceability of the Indebtedness or the Lien Instrument; and
(ii) shall not prevent Xxxxxx from seeking and obtaining a judgment
against Xxxxxxxx, and Borrower shall be personally liable, for
the Recourse Obligations;
(iii) shall not be applicable in the event of a violation of any of
the provisions of the Lien Instrument following the caption
entitled "PROHIBITION ON TRANSFER/ONE-TIME TRANSFER" (i.e.
Borrower shall be personally liable for all of the
Indebtedness in the event of such violation).
As used herein, the term "Recourse Obligations" means
(a) rents and other income from the Property from and after the date of any
default under the Loan Documents remaining uncured on the date of the
foreclosure sale of the Property pursuant to the Lien Instrument or the
conveyance of the Property to Lender in lieu of foreclosure, which rents
and other income have not been applied to the payment of principal and
interest on this note or to reasonable operating expenses of the Property,
(b) amounts necessary to repair any damage to the Property caused by the
intentional acts or omissions of Borrower or its agents,
(c) insurance loss and condemnation award proceeds released to Borrower but
not applied in accordance with any agreement between Borrower and Lender as
to their application,
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(d) the amount of insurance loss proceeds which would have been available
with respect to a casualty on the Property, but were not available due to
the default by Borrower in carrying all insurance required by Xxxxxx,
(e) damages suffered by Xxxxxx as a result of fraud or misrepresentation in
connection with the Indebtedness by Borrower or any other person or entity
acting on behalf of Xxxxxxxx, and
(f) amounts necessary to pay real estate taxes, special assessments and
insurance premiums with respect to the Property either paid by Xxxxxx and
not reimbursed prior to, or remaining due or delinquent on, either (i) the
later of (A) the date on which title vests in the purchaser at the
foreclosure sale of the Property pursuant to the Lien Instrument or (B) the
date on which Borrower's statutory right of redemption shall expire or be
waived or (ii) the date of the conveyance of the Property to Lender in lieu
of foreclosure,
(g) all outstanding amounts due hereunder, including principal, interest
and other charges, if: (i) Borrower shall file a voluntary petition for
relief under the federal bankruptcy code; (ii) an involuntary petition in
bankruptcy filed against Borrower shall remain undismissed for a period of
ninety (90) days, or (iii) Borrower shall become the subject of any
liquidation, receivership or other similar proceedings.
This note, the interpretation hereof and the rights, obligations, duties
and liabilities hereunder shall be governed and controlled by the laws of
Florida.
ECHELON INTERNATIONAL
CORPORATION, a Florida corporation
By:_________________________________
By:_________________________________
(corporate seal)
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