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Exhibit 4.11
ASSIGNMENT OF PARTICIPATION INTEREST
THIS ASSIGNMENT OF PARTICIPATION INTEREST (this "Assignment"),
dated as of the 5th day of November, 1996, is made by ECHELON INTERNATIONAL
CORPORATION, a Florida corporation having its principal place of business at
Xxx Xxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Borrower"), to SALOMON
BROTHERS REALTY CORP., a New York corporation having an office at Seven World
Trade Center, New York, New York 10048 ("Lender").
R E C I T A L S :
Borrower is the owner of the participation or joint credit
interest described on Annex A attached hereto (the "Owned Interests") created
under the agreements described on Annex A attached hereto (collectively, the
"Participation Agreements");
Borrower, Lender, and LaSalle National Bank, as collateral
agent, are parties to a Loan Agreement dated as of even date herewith (said
Loan Agreement, as modified and supplemented and in effect from time to time,
the "Loan Agreement"; capitalized terms used but not defined herein having the
meanings set forth in the Loan Agreement). The Loan Agreement provides for a
loan (the "Loan") to be made by Lender to Borrower in an aggregate principal
amount of $105,000,000. The Loan is to be evidenced by, and repayable with
interest thereon in accordance with the promissory note dated the date hereof,
executed and delivered by Borrower to the order of Lender (as modified,
supplemented or substituted and in effect from time to time, collectively, the
"Note").
The execution and delivery of this Assignment by Borrower to
Lender is a condition precedent to the obligation of Lender to make the Loan.
NOW, THEREFORE, for good and valuable consideration, receipt
of which by the parties hereto is hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Secured Obligations. This Assignment is made for
the purpose of securing the following (collectively, the "Secured
Obligations"):
(a) the prompt and punctual payment when due of all
amounts now outstanding or hereafter becoming due and payable under
the Note and the other Loan Documents and all modifications thereof;
and
(b) the performance and observance of all other
covenants, agreements and obligations of Borrower under the Loan
Documents.
Section 2. Assignment. As security for the payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, now existing or hereafter arising, Borrower hereby
assigns, transfers and pledges to Lender, and hereby grants to
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Lender a security interest in, all of Borrower's right, title and interest,
whether now owned or hereafter acquired, in, to and under the Participation
Agreements (including, without limitation, the Owned Interests) and the loans
and documents related thereto (collectively, the "Participation Interests").
Section 3. Exercise of Assigned Rights.
(a) Borrower hereby irrevocably directs the other party(ies)
to any Participation Agreement, upon demand from Lender, to recognize and
accept Lender as the holder of the Owned Interests for any and all purposes as
fully as it would recognize and accept Borrower and the performance of Borrower
thereunder.
(b) Notwithstanding anything to the contrary contained herein,
subject to the other provisions of this Assignment and the Loan Documents, for
so long as no Event of Default (as defined in the Loan Agreement) shall have
occurred and be continuing and the Indebtedness has not been accelerated,
Borrower may exercise all of its rights and privileges under the Participation
Agreements. Borrower's foregoing right shall immediately cease and terminate
upon and during the continuance of any such Event of Default and acceleration
of the Indebtedness.
Section 4. Representations and Warranties. Borrower hereby
represents and warrants to Lender as follows:
(a) Borrower has the full power, right and authority to
execute and deliver this Assignment.
(b) Borrower lawfully holds the rights and interests of
Borrower in the Participation Interests, has the authority to assign
its interest under each Participation Agreement, and has not sold,
assigned, transferred, mortgaged or pledged any portion of the
Participation Interests to any person other than Lender and has not
executed any other document or instrument that might prevent or limit
Lender from operating under or realizing the benefits of the terms,
conditions and provisions of this Assignment.
(c) No authorizations, consents, approvals, licenses, permits,
filings or registrations with any governmental authority or agency are
necessary for the execution, delivery or performance by Borrower of
this Assignment or for the validity or enforceability thereof.
Section 5. Covenants of Borrower. Borrower covenants and
agrees as follows:
(a) Borrower shall perform and observe, in a timely manner,
all of the covenants, conditions, obligations and agreements of
Borrower under the Participation Agreements and shall suffer or permit
no delinquency on its part to exist thereunder.
(b) Without the prior written consent of Lender, the Borrower
shall not, other than in the ordinary course of business, (i) sell,
assign, transfer, mortgage or pledge any portion of the Participation
Interests or (ii) cancel, terminate, amend, supplement or modify any
of the Participation Agreements shown on Annex A.
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(c) Borrower shall exercise all reasonable efforts to enforce
or secure the performance of each and every obligation, covenant,
condition and agreement to be performed by the other party(ies) under
each of the Participation Agreements.
Section 6. No Obligation of Lender; Borrower Remains Liable.
Nothing contained herein shall operate or be construed to obligate Lender to
perform any of the terms, covenants or conditions contained in the
Participation Agreements or otherwise to impose any obligation upon Lender with
respect to the Participation Agreements. Notwithstanding anything to the
contrary, (i) Borrower shall remain liable in respect of the Participation
Agreements to the extent set forth therein to perform and satisfy all of its
duties and obligations thereunder to the same extent as if this Assignment had
not been executed and (ii) the exercise by Lender of any of the rights and
remedies hereunder shall not release Borrower from any of its duties or
obligations under the Participation Agreements.
Section 7. Further Assurances. Borrower shall, from time to
time upon the written request of Lender, promptly execute and deliver such
further documents and take such further action as Lender may reasonably request
in order create, preserve, perfect and protect the assignment and security
interest granted hereby or to enable Lender to exercise and enforce its rights
and remedies hereunder. All of the foregoing shall be at Borrower's expense
(including, without limitation, (i) all filing, registration and recording fees
and (ii) all stamp taxes and other taxes and charges in connection therewith).
Section 8. Attorney-in-Fact. Lender is hereby appointed the
attorney-in-fact of Borrower for the purpose of carrying out the provisions of
this Assignment and taking any action and executing any instruments which
Lender may deem necessary or advisable to accomplish the purposes hereof,
including, without limitation, the right to sign and file any financing
statement (or amendment or extension thereof) deemed necessary by Lender in
connection herewith although the same has been signed only by Lender, which
appointment as attorney-in-fact is irrevocable and coupled with an interest,
provided that the Lender may not exercise such power of attorney unless an
Event of Default has occurred and is continuing and the Indebtedness has been
accelerated.
Section 9. Security Agreement.
(a) This Assignment shall also constitute a security agreement
as that term is used in the Uniform Commercial Code in effect from time to time
in New York (the "UCC"). Lender shall have, in addition to all other rights and
remedies provided herein or in any other Loan Document, in law, at equity or
otherwise, all rights and remedies of a secured party under the UCC. Lender
shall give Borrower ten (10) days' written notice of the time and place of any
public sale of any Participation Agreement or portion of the Participation
Interests or the time after which any private sale or any other intended
disposition is to be made. After deducting all expenses incurred in connection
with the enforcement of its rights hereunder, Lender shall cause the proceeds
of the Participation Agreement or portion of the Participation Interests to be
applied to the payment of the Secured Obligations in such order as Lender may
determine, and Borrower, subject to the terms of the other Loan Documents,
shall remain liable for any deficiency.
(b) Prior to or concurrently with the execution and delivery
of this Assignment, Borrower shall file such financing statements and other
documents in such offices as Lender may request to perfect the security
interests granted by this Assignment.
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Section 10. Indemnity. Borrower shall indemnify, defend and
hold Lender harmless against and from all liability, loss, damage and expense
(including reasonable attorney's fees and disbursements), which Lender may or
shall incur or be subject to by reason of this Assignment, or by reason of any
action taken in good faith by Lender hereunder, and against 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 and conditions contained in the
Participation Agreements, provided, however, that Lender shall have no right to
be indemnified hereunder for its own fraud, bad faith, gross negligence or
willful misconduct. Should Lender incur any such liability, loss, damage or
expense, the amount thereof, together with interest thereon at the rate of
interest applicable from time to time under the Note, shall be payable by
Borrower to Lender immediately upon demand.
Section 11. Termination. Lender, by the acceptance of this
Agreement, agrees that when all Secured Obligations shall have been paid in
full and fully performed, this Assignment shall terminate, and Lender shall
execute and deliver to Borrower, upon such termination, such instruments of
re-assignment, all without recourse and without any representation or warranty
whatsoever, as shall be reasonably requested by Borrower.
Section 12. Expenses. If any suit or other proceeding is
instituted by Lender to enforce this Assignment (or any portion hereof),
Borrower shall pay, upon demand, all of the reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by Lender in connection therewith. The obligations of
Borrower under this Section 11 shall survive the expiration or termination of
this Assignment.
Section 13. Reinstatement. This Assignment and the security
interest created hereunder shall automatically be reinstated if and to the
extent that for any reason any payment by or on behalf of Borrower in respect
of the Secured Obligations is rescinded or must otherwise be restored by any
holder of the Secured Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and Borrower shall indemnify Lender
on demand for all reasonable costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements) incurred by Lender in connection
with such rescission or restoration.
Section 14. Miscellaneous.
(a) No Waiver. No failure on the part of Lender or any of
its agents to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by Lender or any of its
agents of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies provided
by law.
(b) Governing Law. This Assignment shall be governed by
the law of the State of New York.
(c) Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (i) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of Lender in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or
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enforceability of such provision in any other jurisdiction. In any such event,
the parties hereto shall negotiate in good faith to agree upon a substitute
provisions that has the same economic effect.
(d) Cumulative Remedies. All rights and remedies set forth in
this Assignment are cumulative, and Lender may recover judgment thereon, issue
execution therefor, and resort to every other right or remedy available at law
or in equity, without first exhausting and without affecting or impairing the
security of any right or remedy afforded hereby; and no such right or remedy
set forth in this Assignment shall be deemed exclusive of any of the remedies
or rights granted to Lender in the Note, the Loan Agreement or any other
document. Nothing contained in this Assignment shall be deemed to limit or
restrict the rights and remedies of Lender under any other document related to
the Secured Obligations.
(e) Waivers, Etc. This Assignment may not be amended,
waived or discharged except by an instrument in writing duly executed by
Borrower and Lender, except Lender may elect to waive any of its rights
hereunder from time to time without permanently waiving any such right by
virtue of any single such waiver or being obligated so to waive such right (or
any other right) in any future similar or dissimilar circumstances.
(f) Successors and Assigns. This Assignment shall be binding
upon, and shall inure to the benefit of the respective successors and assigns
of Borrower, Lender and each holder of any of the Secured Obligations;
provided, however, that Borrower shall not assign or transfer its rights or
obligations hereunder without the prior written consent of Lender.
(g) Notices. All notices, requests and other communications
provided for herein shall be given or made in writing in the manner specified
in the Mortgage.
(h) Headings. Headings used in this Assignment are for
convenience of reference only and do not constitute part of this Assignment for
any purpose.
(j) WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
LAW, BORROWER HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING BROUGHT BY BORROWER OR LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS
ASSIGNMENT.
(k) Interpretation. If, and to the extent that, any provision
of this Assignment shall conflict or be inconsistent with a provision contained
in the Loan Agreement, then, unless this Assignment shall expressly provide
that this Assignment shall control notwithstanding any other Loan Document to
the contrary, the Loan Agreement provision shall control.
(l) Counterparts. This Assignment may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument and either of the parties hereto may execute this
Assignment by signing any such counterpart.
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IN WITNESS WHEREOF, the parties have executed this Assignment
as of the day and year first written above.
BORROWER:
ECHELON INTERNATIONAL CORPORATION,
a Florida corporation
By:
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice-President
LENDER:
SALOMON BROTHERS REALTY CORP.,
a New York corporation
By:
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Name: Xxxxx Xxxxxx
Title: Vice President
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Annex A
1. An undivided 80% participation ownership interest in that certain
$4,500,000 loan from Madison Savings and Loan Association ("Madison")
to Madison Building, Inc., and the note and other loan documents and
title insurance policy executed and/or delivered in connection
therewith, which interest was created under and pursuant to the
Madison Savings and Loan Associates Participation Agreement, dated
October 12, 1988, between Madison and Progress Financial Services
Incorporated ("PFSI"). Borrower is the successor by merger to PROGRESS
LEASING CORPORATION, the successor by merger to PROGRESS CREDIT
CORPORATION, formerly known as PFSI.
2. Borrower's interest in, to and under the Lenders' Agreement, dated as
of December 28, 1988, between Xerox Credit Corporation ("Xerox") and
PFSI, setting forth the parties respective rights, obligations and
remedies in connection with that certain loan to
Continuum-Crow-Arboretum ("CCA") in the aggregate principal amount of
$22,000,000, which loan was jointly made by Xerox and PFSI and is
evidenced by two Promissory Notes from Borrower in the original
principal amount of $11,000,000, one made payable to Xerox and the
other made payable to PFSI, which notes are equally and ratably
secured by, among other things, a first priority deed of trust naming
both Xerox and PFSI as beneficiaries. Borrower is the successor by
merger to PROGRESS LEASING CORPORATION, the successor by merger to
PROGRESS CREDIT CORPORATION, formerly known as PFSI.
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