exv10w86



 



Exhibit 10.86



THIS DOCUMENT PREPARED BY

AND WHEN RECORDED MAIL

TO:


Jeffrey A. Hechtman, Esq.

Horwood Marcus & Berk Chtd.

180 North LaSalle Street

Suite 3700

Chicago, Illinois 60601


ASSIGNMENT OF LEASES AND RENTS



     This ASSIGNMENT OF LEASES AND RENTS (“Assignment”) is made as of the 30th
day of September, 2003, by and between Electric City Corp., a Delaware
corporation (“Assignor”) to American Chartered Bank, an Illinois banking
association (“Assignee”). Assignor is the sole owner of the real property and
improvements commonly known as 1280 Landmeier Road, Elk Grove Village, Illinois
and legally described on Exhibit A, attached hereto and by this reference made
a part hereof (the “Premises”).


     WHEREAS, Assignee has agreed to make a loan to Assignor and its
subsidiary, Great Lakes Controlled Energy Corporation, a Delaware corporation
(“Great Lakes”), to provide a $640,000.00 Mortgage Loan (“Note”);


     WHEREAS, payment of the Note is secured by, among other things, that
certain Mortgage, Assignment of Leases and Rents and Security Agreement dated
the date hereof as amended, modified or restated from time to time (“Mortgage”)
from Assignor, securing the Premises, as well as other security; and


     WHEREAS, the execution and delivery of this Agreement is a condition
precedent to Assignee’s obligation to make the loan.


     NOW THEREFORE, Assignor, for good and valuable consideration, the receipt
of which is hereby acknowledged, to secure the Secured Indebtedness (as defined
in the Mortgage) does hereby bargain, sell, transfer, assign, convey, set over
and deliver unto Assignee all right, title and interest of the Assignor in, to
and under all present leases of the Premises together with all future leases
hereinafter entered into affecting the Premises or any portion thereof, and all
guarantees, amendments, extensions and renewals of said leases and each of them
(all of which are hereinafter collectively referred to as the “Leases” and
individually, as the “Lease”) and all rents, income and profits which may now
or hereafter be or become due or owing under the Leases and each of them, or on
account of the use of the Premises or any portion thereof.


     Assignor covenants and agrees with Assignee that:


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	1.
	 	There are no Leases which now affect the Premises. Assignor shall not
enter into any Lease without the prior written consent of Assignee.




	2.
	 	The sole ownership of the entire landlord’s interest in the Leases is
vested in the Assignor. Assignor shall not: (a) perform any act or
execute any other instrument which might prevent Assignee from fully
exercising its rights under any term, covenant or condition of this
Assignment; (b) execute any assignment or pledge of rents, income, profits
on the Leases except an assignment or pledge securing the Secured
Indebtedness secured hereby; (c) accept any payment of any installment of
rent more than thirty (30) days before the date thereof; or (d) make any
Lease of the Premises or any portion thereof except for actual occupancy
by the tenant thereunder.




	3.
	 	No Lease will be altered, modified, amended, terminated, cancelled,
renewed or surrendered nor will any term or condition thereof be waived in
any manner whatsoever, except as heretofore approved in writing by
Assignee.




	4.
	 	There is no default now existing under the Leases and there exists no
state of fact which, with the giving of notice or lapse of time or both,
would constitute a default under the Leases; and that Assignor will
fulfill and perform each and every covenant and condition of the Leases by
the landlord thereunder to be fulfilled or performed and, at the sole cost
and expense of Assignor, enforce (excluding termination of the Leases) the
performance and observance of each and every covenant and condition of all
the Leases by the tenants thereunder to be performed and observed.




	5.
	 	Assignor shall give prompt notice to Assignee of each notice received by
Assignor claiming that a default has occurred under the Leases on the part
of the landlord, together with a complete copy of each such notice.
Without Assignee’s prior written consent in each case, Assignor will not
suffer or permit the Leases to become subordinate to any lien other than
the lien of (i) the Mortgage; (ii) this Assignment; and (iii) general real
estate taxes not delinquent.




	6.
	 	This Assignment is absolute and is effective immediately; however, until
notice, in writing, is sent by Assignee to the Assignor that an Event of
Default has occurred under the Note, the Mortgage or any of the other Loan
Documents (as defined in the Mortgage) (each such notice is hereafter
called a “Notice”), Assignor may receive, collect and enjoy the rents,
income and profits accruing from the Premises.




	7.
	 	If any Event of Default occurs at any time under the Note, the Mortgage,
or any of the other Loan Documents, Assignee may, at its option, after
service of a Notice, or otherwise in accordance with law, receive and
collect when due all such rents, income and profits from the Premises and
under the Leases of all or any part of the Premises. Assignee shall
thereafter continue to receive and collect all such rents, income and
profits until such event of default is cured and during the pendency of
any foreclosure proceedings, and, if there is a deficiency, during the
redemption period, to the extent that the waiver of such redemption period
cannot legally be effected.




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	8.
	 	The Assignor hereby irrevocably appoints Assignee its true and lawful
attorney-in-fact, with full power of substitution and with full power for
Assignee, in its own name and capacity or in the name and capacity of
Assignor, (from and after the service of a Notice), to demand, collect,
receive and give complete acquittances for any and all rents, income and
profits occurring from the Premises, and, at Assignee’s discretion, to
file any claim or take any other action or proceeding and make any
settlement in its own name or in the name of Assignor or otherwise, which
Assignee may deem necessary or desirable in order to collect and enforce
the payment of the rents, income and profits. All present and future
tenants of the Premises are hereby expressly authorized and directed to
pay to Assignee, or to such nominee as Assignee may designate in a writing
delivered to and received by such tenants, all amounts due Assignor or any
of them pursuant to the Leases. All present and future tenants are
expressly relieved of all duty, liability or obligation to Assignor and
each of them in respect of all payments so made to Assignee or such
nominee.




	9.
	 	After service of a Notice, Assignee is hereby vested with full power to
use all measures, legal and equitable, deemed by it necessary or proper to
enforce this Assignment and to collect the rents, income and profits
assigned hereunder, including the right of Assignee or its designee to
enter upon the Premises, or any part thereof, with or without force and
with or without process of law, and take possession of all or any part of
the Premises together with all personal property, fixtures, documents,
books, records, papers and accounts of Assignor relating thereto, and may
exclude the Assignor and its agents wholly therefrom. Assignor hereby
grants full power and authority to Assignee to exercise all rights,
privileges and powers herein granted at any and all times, after service
of a Notice, without further notice to Assignor, with full power to use
and apply all of the rents and other income herein assigned to payment of
the costs of managing and operating the Premises and to payment of all
Indebtedness and liability of Assignor to Assignee, including but not
limited to: (a) the payment of taxes, special assessments, insurance
premiums, damage claims, the costs of maintaining, repairing, rebuilding
and restoring the improvements on the Premises or of making the same
rentable, attorneys’ fees incurred in connection with the enforcement of
this Assignment; and (b) principal and interest payments and all other
sums due from Assignor to Assignee under the Note, the Mortgage or the
other Loan Documents; all in such order and for such time as Assignee may
determine.




	10.
	 	Assignee shall be under no obligation to exercise or prosecute any of the
rights or claims assigned to it hereunder or to perform or carry out any
of the obligations of any landlord under the Leases. Assignee does not
hereby assume any of the liabilities in connection with or arising or
growing out of the covenants and agreements of Assignor under the Leases.
This Assignment shall not operate to place responsibility for the control,
care, management or repair of the Premises, or parts thereof, upon
Assignee, nor shall it operate to make Assignee liable for the




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performance or observance of any term, condition, covenant or
agreement contained in the Leases, or for any waste of the Premises
by any tenant under the Leases or any other person, or for any
dangerous or defective condition of the Premises or for any
negligence in the management, upkeep, repair or control of the
Premises resulting in loss, injury or death to any tenant, occupant,
licensee, employee or stranger.


	11.
	 	Assignor hereby covenants and agrees to indemnify Assignee and to hold
Assignee harmless from any liability, loss or damages including, without
limitation, reasonable attorneys’ fees which may or might be incurred by
Assignee under the Leases or by reason of this Assignment, and from any
and all claims and demands whatsoever which may be asserted against
Assignee by reason of any alleged obligation or undertaking on its part to
perform or discharge any term, covenant or agreement contained in the
Leases.




	12.
	 	Assignee may: (a) take or release any party primarily or secondarily
liable for any of the Secured Indebtedness; (b) grant extensions, renewals
or indulgences with respect to such Secured Indebtedness; and (c) apply
any other security therefor held by Assignee to the satisfaction of such
Secured Indebtedness; in each case without prejudice to any of Assignee’s
other rights hereunder or under any other security given to secure the
Secured Indebtedness.




	13.
	 	Assignee may, at its option, although it shall not be obligated to do so,
perform any Lease covenant for and on behalf of the Assignor and each of
them, and all monies expended in so doing shall be chargeable to the
Assignor, with interest thereon at the Default Rate, as defined and set
forth in the Note and shall be added to the Secured Indebtedness, and
shall be immediately due and payable.




	14.
	 	The waiver of, or acquiescence by Assignee in, any default by the
Assignor, or failure of the Assignee to insist upon strict performance by
the Assignor of any covenant, condition or agreement in this Assignment or
otherwise, shall not constitute a waiver of any subsequent or other
default or failure, whether similar or dissimilar.




	15.
	 	The rights, remedies and powers of Assignee under this Assignment are
cumulative and are not in lieu of, but are in addition to, all other
rights, remedies and powers which Assignee has under the Note, the
Mortgage the other Loan Documents, and at law and in equity.




	16.
	 	If any provision contained in this Assignment or its application to any
entity or circumstances is to any extent invalid or unenforceable, the
remainder of this Assignment and the application of such provisions to
persons or circumstances (other than those as to which it is invalid or
unenforceable) shall not be affected, and each term of this Assignment
shall be valid and enforceable to the fullest extent permitted by law.




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	17.
	 	All communications provided for herein shall be in writing and shall be
deemed to have been given or made when delivered personally, three days
after deposited in the United States mail (certified mail, postage
prepaid) or one day after deposited with a nationally recognized overnight
courier (delivery prepaid), or upon receipt of a confirmation of a
facsimile transmission, addressed as follows:





	 	 	 	 	 
	 	 	
To Assignee:
	 	William D. Provan
	 	 	 	 	American Chartered Bank
	 	 	 	 	1119 East Higgins Road
	 	 	 	 	Schaumburg, Illinois 60173
	 	 	 	 	Telecopier Number: 847-517-2848
	 	 	 	 	 
	 	 	
With a copy to:
	 	Jeffrey A. Hechtman, Esq.
	 	 	 	 	Horwood Marcus & Berk Chartered
	 	 	 	 	180 North LaSalle Street, Suite 3700
	 	 	 	 	Chicago, Illinois 60601
	 	 	 	 	Telecopier Number: 312-606-3232
	 	 	 	 	 
	 	 	
To Assignor:
	 	Electric City Corp.
	 	 	 	 	Jeff Mistarz, CFO
	 	 	 	 	1280 Landmeier Road
	 	 	 	 	Elk Grove Village, Illinois 60007
	 	 	 	 	Telecopier Number: 847-437-4969
	 	 	 	 	 
	 	 	
With a copy to:
	 	Andrew H. Connor, Esq.
	 	 	 	 	Schwartz Cooper Greenberg & Krauss
	 	 	 	 	180 North LaSalle Street
	 	 	 	 	Suite 2700
	 	 	 	 	Chicago, Illinois 60601
	 	 	 	 	Telecopier Number: 312-782-8416





	17.
	 	The term “Assignor” and “Assignee” shall be construed to include the
successors and assigns thereof to the extent so permitted.




	18.
	 	This Assignment may not be amended, modified or changed nor shall any
waiver of any provision hereof be effective, except only by an instrument
in writing and signed by the party against whom enforcement of any waiver,
amendment, change, modification or discharge is sought.




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     IN WITNESS WHEREOF, the said Assignor has caused this Assignment of Leases
and Rents to be signed and sealed as of the date first above written.



	 	 	 	 	 
	 	 	ASSIGNOR:
	 	 	 	 	 
	 	 	ELECTRIC CITY CORP, a Delaware corporation
	 	 	 	 	 
	 	 	
By:
	 	/s/ Jeffrey Mistarz
	 	 	 	 	

	 	 	
Name:
	 	Jeffrey Mistarz
	 	 	 	 	

	 	 	
Its:
	 	Chief Financial Officer
	 	 	 	 	

	 	 	 	 	 
	 	 	ASSIGNEE:
	 	 	 	 	 
	 	 	AMERICAN CHARTERED BANK
	 	 	 	 	 
	 	 	
By:
	 	/s/ William Provan
	 	 	 	 	

	 	 	
Name:
	 	William Provan
	 	 	 	 	

	 	 	
Its:
	 	Senior Vice President
	 	 	 	 	








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STATE OF ILLINOIS    )

                                          ) SS.

COUNTY OF COOK      )


     I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that                               , personally
known to me to be the                      of Electric City Corp., a Delaware
corporation, appeared before me this day in person and acknowledged that as
such duly authorized member of the company, he signed and delivered the said
instrument as his free and voluntary act, and as the free and voluntary act and
deed of said corporation, for the uses and purposes therein set forth.


     Given under my hand and official seal this            day of September, 2003.



	 	 	 
	 	 	 
	 	 	


	 	 	
Notary Public
	 	 	 
	 	 	
My commission expires:
	 	 	







 







 


STATE OF ILLINOIS    )

                                          ) SS.

COUNTY OF COOK      )


     I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that                               , personally known to
me to be the                      of AMERICAN CHARTERED BANK, an Illinois state banking
corporation, a national banking association, appeared before me this day in
person and acknowledged that as such duly authorized member of the company, he
signed and delivered the said instrument as his free and voluntary act, and as
the free and voluntary act and deed of said company, for the uses and purposes
therein set forth.


     Given under may hand and official seal this day of September, 2003.



	 	 	 
	 	 	 
	 	 	


	 	 	
Notary Public
	 	 	 
	 	 	
My commission expires:
	 	 	







 







 


EXHIBIT A

LEGAL DESCRIPTION



LOT 9 IN GULLO INTERNATIONAL CONTEMPORARY PARK, BEING A RESUBDIVISION OF LOT
230 IN HIGGINS INDUSTRIAL PARK UNIT 165, BEING A SUBDIVISION IN THE SE 1/4 OF
SECTION 27, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN
(EXCEPTING THEREFROM THE NORTH 220.00 FEET OF THE EAST 420.00 FEET) IN COOK
COUNTY, ILLINOIS.



 







 


EXHIBIT B

EXISTING LEASES AFFECTING THE PREMISES