EXHIBIT 4.1
NOTE SEVERANCE (SPLITTER) AGREEMENT
THIS NOTE SEVERANCE (SPLITTER) AGREEMENT (the "AGREEMENT") is made as
of December 30, 1997 (the "SEVERANCE DATE"), between ECHELON INTERNATIONAL
CORPORATION, a Florida corporation having an address at Xxx Xxxxxxxx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 ("BORROWER"), and SALOMON BROTHERS REALTY CORP., a New
York corporation having an address at Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("LENDER").
RECITALS
Borrower, Lender and LaSalle National Bank, as collateral agent and
custodian, are parties to a Loan Agreement, dated as of November 5, 1996 (as it
may heretofore have been, or hereafter be, amended, supplemented or otherwise
modified, the "LOAN AGREEMENT"; capitalized terms used but not defined herein
shall have the meaning ascribed thereto in the Loan Agreement), pursuant to
which Lender made a Loan in the original principal amount of One Hundred Five
Million Dollars ($105,000,000) to Borrower.
In evidence of the Loan, Borrower executed and delivered to Lender a
promissory note, dated November 5, 1996 in the stated maximum principal amount
of One Hundred Five Million Dollars ($105,000,000) payable to the order of
Lender and any subsequent holders of such note (the "Original Note").
As of the date hereof, the amount of principal indebtedness outstanding
under the Original Note is Fifty-Eight Million Thirty-Nine Thousand Eight
Hundred Fourteen and 28/100 Dollars ($58,039,814.28) (the "CURRENT PRINCIPAL
INDEBTEDNESS AMOUNT").
Borrower and Lender desire to modify the indebtedness currently
evidenced by the Original Note so that, instead of being evidenced by the
Original Note, such indebtedness shall continue in full force and effect but
instead be split and severed into two notes.
In connection therewith Borrower is executing and delivering to Lender
the following documents simultaneously with the execution of this Agreement:
(i) A restated promissory note ("NOTE A1") a copy of which is
attached as EXHIBIT "A" and made a part hereof, in a principal amount equal to
Forty-Five Million and NO/100 Dollars ($45,000,000), which Note A1 Borrower is
simultaneously herewith delivering to Lender; and
(ii) A restated promissory note ("NOTE A2") a copy of which is
attached as EXHIBIT "B" and made a part hereof, in a principal amount equal to
Thirteen Million Thirty-Nine Thousand Eight Hundred Fourteen and 28/100 Dollars
($13,039,814.28), which Note A2 Borrower is simultaneously herewith delivering
to Lender; and
Simultaneously herewith, the Original Note is not being marked "Paid"
or being returned to Borrower, but is being endorsed to indicate that it has
been reduced and split into two separate notes (Note A1 and Note A2) pursuant to
this Agreement.
NOW, THEREFORE, in consideration of the promises and agreements
contained in this Agreement, the parties covenant and agree as follows:
1. MODIFICATION OF THE INDEBTEDNESS. Upon execution of this Agreement,
the outstanding principal indebtedness evidenced by the Original Note shall
continue in full force and effect but shall no longer be evidenced by the
Original Note, but instead shall be evidenced by Note A1 and Note A2, the
aggregate amount of which is equal to the Current Principal Indebtedness Amount.
Such indebtedness constitutes the same current outstanding principal
indebtedness evidenced by the Original Note.
2. DELIVERY OF NOTES. Borrower is executing and delivering Note A1 and
Note A2 to Lender simultaneously with this Agreement, to evidence and continue
the same indebtedness previously evidenced by the Original Note.
3. EFFECT OF SUBSTITUTE NOTES. The same current outstanding principal
indebtedness evidenced by the Original Note has now been continued and split
between Note A1 and Note A2. Note A1 and Note A2 are not intended to create any
greater oustanding principal amount of indebtedness than the Current Principal
Indebtedness Amount.
4. AMOUNT OF INDEBTEDNESS AND PRIORITY OF LIEN. Nothing contained in
this Agreement, Note A1 or Note A2 shall be deemed to impair the priority of or
to extinguish or impair any of the following: (a) the indebtedness secured by
the Borrower Mortgage or any of the other Loan Documents creating a security
interest in favor of Lender (collectively, the "SECURITY DOCUMENTS"); or (b) the
lien of the Security Documents, except that the lien of the Security Documents
shall now secure the indebtedness under Note A1 and Note A2.
5. RELATIVE PRIORITIES. Notwithstanding anything to the contrary in
this Agreement, the indebtedness evidenced by the Note A1 is intended to and
shall be pari passu with and equal in priority to Note A2.
6. CROSS DEFAULT. Any default under either of Note A1 or Note A2 beyond
the expiration of any applicable notice and cure period shall be deemed and
construed to be an Event of Default or a default beyond any applicable notice
and cure period under Note A2 or Note A1 or each of Note A1 and Note A2, as the
case may be.
7. NO WAIVERS. Neither the splitting and severance of the Original
Note, nor Lender's execution and delivery of this Agreement nor its acceptance
of Note A1 or Note A2 shall operate to waive, modify (as expressly set forth
herein), impair, release or in any manner affect Borrower's liability under the
Original Note, the Security Documents or any of the other Loan Documents, nor
shall the foregoing operate to waive any breach, violation or default which has
heretofore occurred or any future breach, violation or default which may
hereafter occur with respect to Borrower's obligations under any of the Loan
Documents or any rights of Lender against any person, firm, association,
corporation or other entity liable for the performance of any for the
provisions, covenants, agreements, terms or conditions contained in any of the
Loan Documents.
8. CROSS REFERENCES. From and after the Severance Date, all references
to the Original Note in the Loan Documents shall be deemed to be references to
Note A1 and Note A2, collectively.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the Severance Date.
SALOMON BROTHERS REALTY CORP.,
a New York corporation
By: __________________________________
Xxxxx X. Xxxxxx
Authorized Agent
ECHELON INTERNATIONAL CORPORATION
a Florida corporation,
By: __________________________________
Xxxxx X. Xxxxxxx
Senior Vice President
Attachments:
Acknowledgments
Exhibit A = Note A1
Exhibit B = Note A2
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ACKNOWLEDGMENTS
STATE OF _______________ )
) SS
COUNTY OF _____________ )
On the __ day of December __, 1997, before me personally came XXXXX X.
XXXXXXX, to me known, who, being duly sworn by me, did depose and say that he
resides at _______________________________________________________________; that
he is a Senior Vice President of ECHELON INTERNATIONAL CORPORATION; that he had
the authority to sign the foregoing instrument by order of the board of
directors of said corporation; and that he did duly acknowledge to me that he
executed the same as the act and deed of ECHELON INTERNATIONAL CORPORATION for
the uses and purposes mentioned therein.
_______________________________
Notary Public
STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
On the __ day of December, 1997, before me personally came XXXXX X.
XXXXXX, to me known, who, being duly sworn by me, did depose and say that he
resides at ________________________________________________________; that he is
an Authorized Agent of SALOMON BROTHERS REALTY CORP.; that he had the authority
to sign the foregoing instrument by order of the board of directors of said
corporation; and that he did duly acknowledge to me that he executed the same as
the act and deed of SALOMON BROTHERS REALTY CORP. for the uses and purposes
mentioned therein.
___________________________
Notary Public
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EXHIBIT A
NOTE A-1
(see attached)
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EXHIBIT B
NOTE A-2
(see attached)
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