EXHIBIT 5
LOAN MODIFICATION AGREEMENT
(105 West Charleston Boulevard, Las Vegas, Nevada)
THIS LOAN ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into as of the ___ day of March, 1999, by and between GENERAL ELECTRIC
CAPITAL BUSINESS ASSET FUNDING CORPORATION, a Delaware corporation, whose
address is Real Estate Department, 00000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 ("Lender"), successor by merger to General Electric
Capital Business Asset Financial Corporation, a Delaware corporation formerly
known as MetLife Capital Financial Corporation ("MetLife"), and NATIONS
FLOORING, INC., a Delaware corporation, whose address is 000 Xxxxxx Xxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("New Borrower"), successor by merger to C.B.
Realty of Delaware, Inc., a Delaware corporation ("Original Borrower"), with
reference to the recitals hereinafter set forth.
R E C I T A L S:
A. MetLife has heretofore made to Original Borrower a certain
loan, pursuant to which Borrower executed and delivered to MetLife the following
documents (collectively, the "Loan Documents"), all dated as of May 13, 1998:
1. A Promissory Note (the "Note") in the principal face
amount of $500,000, on which there is currently owing
the principal sum of $482,005.54.
2. A Commercial Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing
(the "Deed of Trust") respecting the Property
recorded in Book Xx. 000000, Xxxxxxxx Xx. 00000, of
the Official Records of Xxxxx County, Nevada, with
respect to certain real property in the City of Las
Vegas, Xxxxx County, Nevada, commonly known as 000
Xxxx Xxxxxxxxxx Xxxxxxxxx, and more particularly
described in Exhibit A attached hereto (the
"Property").
3. An Assignment of Rents and Leases (the "Assignment")
recorded in Book Xx. 000000, Xxxxxxxx Xx. 00000, in
the Official Records of Xxxxx County, Nevada.
4. An Indemnity Agreement Regarding Hazardous Materials
(the "Indemnity").
B. Lender is the holder of all of the right, title,
and interest originally held by MetLife under the Loan Documents.
1
D. Original Borrower has merged with and into New Borrower,
and New Borrower is the successor by merger to Original Borrower. Under the
terms of Section 17 of the Deed of Trust, the sale, transfer or assignment of
any interest in Borrower requires the Lender's prior written consent. Lender is
willing to consent to the merger of Original Borrower into New Borrower on the
terms and subject to the conditions set forth herein.
E. The parties desire to amend the Loan Documents to reflect
the merger of Original Borrower into New Borrower, the merger of MetLife into
Lender, and New Borrower's ratification of the obligations of Original Borrower
under the Loan Documents.
NOW, THEREFORE, in consideration of the above premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, New Borrower and Lender agree as follows:
1. Consent to Transfer. Lender hereby consents to the merger
of Original Borrower into New Borrower. Nothing contained herein shall be
construed to release New Borrower from any liability of Original Borrower under
the Loan Documents.
2. Ratification of Obligations. New Borrower hereby accepts,
assumes, ratifies, and undertakes to perform all covenants, obligations and
liabilities of Original Borrower under the Loan Documents. New Borrower shall
execute such Uniform Commercial Code financing statements and amendments and
such other documentation as Lender may reasonably deem appropriate or necessary
in order to protect its security interest in the Property.
3. Loan Documents. Except as is expressly set forth herein,
the Loan Documents shall remain unmodified and in full force and effect.
4. Notices. The addresses of New Borrower and Lender for
notices pursuant to Section 18 of the Deed of Trust and otherwise under the Loan
Documents shall be their respective addresses shown in the first paragraph
hereof.
2
5. Representations and Warranties of New Borrower. New
Borrower hereby represents, warrants and covenants with Lender as follows:
(a) This Agreement is the legally, valid and
binding obligation of New Borrower,
enforceable against it in accordance with
its terms, except as enforcement may be
limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
or equitable principles relating to or
limiting creditors' rights generally.
(b) There is no action or proceeding pending or
threatened against New Borrower which may
substantially affect New Borrower's ability
to perform under this Agreement or the
validity, priority or enforceability of this
Agreement.
(c) The execution, delivery and performance of
this Agreement have not constituted and will
not constitute a breach, default, or
violation of or under any agreement,
indenture, contract, lease, law, order,
decree, judgment or injunction to which New
Borrower is a party or may be bound.
(d) No representation or warranty of New
Borrower contained in this Agreement
contains any untrue statement of a material
fact, or omits to state a material fact
necessary to make the statements contained
herein or therein not misleading.
(e) There exists no default under any of the
Loan Documents.
(f) All taxes due and payable on the Property
have been paid.
(g) Any and all certificates of occupancy,
permits, licenses, and other authorizations
required for the operation of the Property
are in full force and effect.
6. Incorporation of Exhibits, Etc.. The preamble, recitals and
exhibits hereto are hereby incorporated into this Agreement.
7 . Governing Law. This Agreement, and the transaction
contemplated hereunder, shall be governed by and construed in accordance with
the laws of the State of Nevada applicable to contracts made and to be performed
therein (excluding choice-of-law principles).
3
8. Counterparts. This Agreement may be executed in
any number of counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
9. Attorneys' Fees of Lender. Borrower shall reimburse the
Lender for its reasonable out-of-pocket expenses and pay the fees and
disbursements of Hunter, Maclean, Xxxxx & Xxxx, P.C., counsel for the Lender, in
connection with the preparation of this Agreement and the exhibits hereto and
any and all other documents and agreements pursuant hereto.
10. Modification. No provision of this Agreement may be
changed, waived, discharged, or terminated except by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge,
or termination is sought. This Agreement shall inure to the benefit and be
binding upon the parties hereto and their respective heirs, successors and
permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized officers, under seal, as of the day and year
first above written.
LENDER:
GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION,
a Delaware corporation
By: _________________________________________
Title:________________________________________
Attest:_______________________________________
Title:________________________________________
[SEAL]
4
NEW BORROWER:
NATIONS FLOORING, INC.,
a Delaware corporation
By: _________________________________________
Title:________________________________________
Attest:_______________________________________
Title:________________________________________
[SEAL]
5
STATE OF __________ )
) ss
COUNTY OF _________ )
This instrument was acknowledged before me on March ___, 1999, by
______ ___________________ and __________________________, as
_____________________ and ______________________, respectively, of Nations
Flooring, Inc.
--------------------------------------
[stamp]
6
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
This instrument was acknowledged before me on March ___, 1999, by
__________________ and __________________________, as _____________________ and
______________________, respectively, of General Electric Capital Business Asset
Funding
Corporation.
--------------------------------------
[stamp]
7
EXHIBIT A
(105 West Charleston Boulevard, Las Vegas, Nevada)
Legal Description:
That portion of the Northeast Quarter (NE1/4) of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 61 East, M.D.M., City of Las Vegas, Xxxxx County, Nevada, more
particularly described as follows:
Lot Two (2) as shown by Map thereof in File 82 of Parcel Maps, page 14, in the
Office of the County Recorder of Xxxxx County, Nevada.
8
