EXHIBIT
10.4
Recording Requested By
and
When Recorded Mail To:
GE Life and Annuity Assurance
Company
707 East Main Street
Suite 1300-A
Richmond, Virginia
23219-3310
Attention: Mr. Peter
Smith
GELAAC Loan No. 3982
LOAN ASSUMPTION
AGREEMENT
THIS AGREEMENT is dated this 1st day
of August, 2005, and is made by GE LIFE AND ANNUITY ASSURANCE
COMPANY, a Virginia corporation (“Lender”); K-5
ASSOCIATES, LLC, a North Carolina limited liability company
(“Borrower”); ROBERT S. KADIS and HAROLD L. KADIS
(“Guarantors”); and A4 REALTY, LLC, a North Carolina
limited liability company (“Purchaser”).
RECITALS
A. Loan Documents . On or
about October 25, 2000, Lender made a loan
(“Loan”) to Borrower in the principal sum of Four
Million Four Hundred Thousand and No/100 Dollars ($4,400,000.00)
evidenced by the following (together with this Agreement, the
“Loan Documents”):
|
|
1.
|
Promissory Note
dated October 25, 2000 (“Note”) in the Loan
amount.
|
|
|
2.
|
Deed of Trust,
Assignment of Rents and Leases and Security Agreement dated
October 25, 2000, recorded with the Wake County Register of
Deeds on October 25, 2000, in Book 008715, Page 01964, and
re-recorded on November 9, 2000, in Book 8729, Page
2323.
|
|
|
3.
|
Assignment of
Rents and Leases (the “Assignment”) dated
October 25, 2000, recorded with the Wake County Register of
Deeds on October 25, 2000, in Book 008715, Page 01998, and
re-recorded on November 9, 2000, in Book 008729, Page
2359.
|
|
|
4.
|
UCC Financing
Statement filed with the North Carolina Secretary of State under
Document No. 00-007582.
|
|
|
5.
|
Unconditional
Guaranty (the “Guaranty”) dated October 25, 2000,
executed by Guarantors.
|
|
|
6.
|
An Indemnity
regarding environmental matters dated October 25,
2000.
|
B. Permitted Transfer .
Paragraph 4.1 of the Deed of Trust prohibits the transfer of the
Property without the prior written consent of Lender.
C. Request for Consent to
Transfer . Borrower has asked Lender to consent to the transfer
of the Property to Purchaser and Purchaser’s assumption of
the Loan pursuant to provision 4.2 of the Deed of Trust. Lender is
willing to do so upon the terms below.
THEREFORE, the parties agree as
follows:
1. Purchaser’s
Acknowledgement of Loan Documents . Purchaser acknowledges that
it is fully familiar with the terms of the Loan Documents and that
they express the entire understanding of the parties regarding the
Loan.
2. Purchaser’s Assumption
of Loan Obligations . Purchaser assumes and agrees to perform
all of Borrower’s obligations under the Loan Documents.
However, Purchaser shall be personally liable on the Note only to
the extent that Borrower has been liable; that is, the extent of
the personal liability of Purchaser shall at all times be the same
as if Purchaser had been the original maker of the Note without the
release referred to in the following paragraph 3.
3. Borrower’s and
Guarantors’ Liability . Borrower and Guarantors are
hereby relieved of personal liability for acts or occurrences
arising out of matters occurring after the date hereof, and, as to
matters where the time when such act or occurrence took place is in
dispute, the Borrower and Guarantors shall have the burden of proof
that such act or occurrence took place subsequent to the date
hereof.
4. Liability of Borrower and
Purchaser . Purchaser and Borrower shall be jointly and
severally liable under the Note and all other Loan Documents to the
extent provided therein but subject to the terms and limitations in
this Agreement.
5. Loan Modification . The
Loan is modified as provided herein, and the Deed of Trust is
further modified as follows:
Trustor Name(s); Matters
Affecting Financing Statement Filings . At the request of Beneficiary, Trustor shall
execute a certificate in form satisfactory to Beneficiary listing
the trade-names or fictitious business names under which Trustor
intends to operate the Property or any business located thereon and
representing and warranting that Trustor does business under no
other trade names or fictitious business names with respect to the
Property. Trustor will not change any of the following without
notifying the Beneficiary of such change in writing at least thirty
(30) days prior to the effective date of such change and
without first obtaining the prior written consent of the
Beneficiary:
|
|
(a)
|
Trustor’s
name or identity (including its trade name or names);
|
|
|
(b)
|
if Trustor is
an individual, Trustor’s principal residence;
|
|
|
(c)
|
if Trustor is
an organization, Trustor’s corporate, partnership or other
structure;
|
-2-
|
|
(d)
|
if Trustor is
an organization, Trustor’s jurisdiction of organization
(i.e., the jurisdiction [State] under whose law the Trustor is
organized); or
|
|
|
(e)
|
if Trustor is
an organization, Trustor’s place of business (if Trustor has
only one place of business) or Trustor’s chief executive
office (if Trustor has more than one place of business);
|
Upon any change in the matters
referred to above (if permitted hereunder), Trustor will, upon
request of Beneficiary, execute any financing statement amendments,
additional financing statements and other documents required by
Beneficiary to reflect such change.
This Deed of Trust shall be
effective as a Financing Statement filed as a fixture filing with
respect to all goods which are or are to become fixtures related to
the Property. The information below is provided in connection with
the filing of this instrument as a Financing Statement, and the
Trustor hereby represents and warrants it to be true and correct as
of the date of this instrument:
The name and address of the record
owner of the real estate described in this instrument
is:
A4 Realty, LLC, a North Carolina
limited liability company
5501 Dillard Drive
Cary, North Carolina
27511
Attention: Ms. Cindy
Pittman
|
|
(b)
|
the name,
mailing address and, if Debtor is not an individual, type of
organization, jurisdiction or organization and organizational
number (if any) of the Debtor is:
|
A4 Realty, LLC, a North Carolina
limited liability company
5501 Dillard Drive
Cary, North Carolina
27511
Attention: Ms. Cindy
Pittman
Organizational Number:
NC-787453
|
|
(c)
|
The name and
address of the Secured Party is:
|
GE Life and Annuity Assurance
Company, a Virginia corporation
707 East Main Street
Suite 1300-A
Richmond, Virginia
23219-3310
Trustor specifically authorizes
Beneficiary to file such Uniform Commercial Code Financing
Statements before, on or after the date hereof, and to file such
amendme
