Exhibit 10.3
LOAN MODIFICATION AGREEMENT NO. 5
Preamble:
This Loan Modification Agreement (this "Agreement"), dated as of May
22, 2007 (the "Amendment Date"), is made by and among Wells Fargo Bank, National
Association, acting through its Wells Fargo Business Credit operating division,
as Agent; each Person identified as a "Lender" on the signature page hereof, as
lenders; and each Person identified as a "Borrower" on the signature page
hereof, as borrowers (each, a "Borrower", and, collectively, the "Borrowers"),
for the purpose of amending or otherwise modifying the terms of that certain
Credit Agreement, dated as of August 12, 2005 (which, as it has been, or
hereafter may be, modified or amended, the "Credit Agreement"), among the
Borrowers, the various lenders from time to time party thereto (the "Lenders")
and Wells Fargo Bank, National Association, acting through its Wells Fargo
Business Credit operating division, as a Lender and as agent for the Lenders (in
such capacity, the "Agent").
Now, therefore, in consideration of the mutual
promises contained herein and in the Credit Agreement, the receipt and
sufficiency of which are hereby acknowledged, the Agent, the Lenders and the
Borrowers, each intending to be legally bound, agree as follows:
1.
DEFINITIONS.
CAPITALIZED TERMS USED HEREIN, BUT NOT EXPRESSLY DEFINED
THEMSELVES HEREIN, SHALL HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE CREDIT
AGREEMENT.
2.
CONSENT TO SALE AND LEASEBACK OF PERRIS PROPERTY.
NOTWITHSTANDING THE
PROHIBITIONS SET FORTH IN SECTIONS 6.2.8 AND 6.2.10 OF THE CREDIT AGREEMENT, THE
AGENT AND THE LENDERS HEREBY CONSENT TO (A) HOLDINGS' SALE OF ITS REAL PROPERTY
LOCATED AT 3411 NORTH PERRIS BOULEVARD, PERRIS, CALIFORNIA 92571 (THE "NORTH
PERRIS PROPERTY") AND 100 WEST SINCLAIR AVENUE, PERRIS, CALIFORNIA 92571 (THE
"WEST SINCLAIR PROPERTY"; THE NORTH PERRIS PROPERTY AND THE WEST SINCLAIR
PROPERTY ARE HEREINAFTER REFERRED TO COLLECTIVELY AS THE "PERRIS PROPERTY") TO
FIRST INDUSTRIAL, L.P., A DELAWARE LIMITED PARTNERSHIP ("PURCHASER"), IN
EXCHANGE FOR A PURCHASE PRICE, NET OF ALL FEES AND EXPENSES PAYABLE BY THE
BORROWERS, OF NOT LESS THAN THIRTY MILLION DOLLARS ($30,000,000) (THE "RELEASE
AMOUNT") AND (B) NRV'S LEASE OF THE PERRIS PROPERTY FROM PURCHASER IMMEDIATELY
FOLLOWING THE CONSUMMATION OF THE SALE DESCRIBED IN THE FOREGOING CLAUSE (A)
(SUCH SALE AND LEASE ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE "PERRIS
SALE/LEASEBACK"); SUBJECT, HOWEVER, TO THE SATISFACTION OF THE FOLLOWING
CONDITIONS (THE "CONSENT CONDITIONS") AS DETERMINED BY THE AGENT IN ITS SOLE
DISCRETION: (I) PRIOR TO THE CONSUMMATION OF THE PERRIS SALE/LEASEBACK, THE
BORROWERS, THE LENDERS AND THE AGENT SHALL HAVE EXECUTED THIS AGREEMENT AND EACH
OF THE CONDITIONS PRECEDENT TO THE EFFECTIVENESS HEREOF SET FORTH IN SECTION 9
HEREOF SHALL HAVE BEEN SATISFIED; (II) THE BORROWERS SHALL HAVE DELIVERED TO THE
AGENT AND THE LENDERS ONE OR MORE LANDLORD WAIVERS EXECUTED BY PURCHASER WITH
RESPECT TO THE PERRIS PROPERTY, WHICH SHALL BE SATISFACTORY IN FORM AND
SUBSTANCE TO THE AGENT AND THE LENDERS; (III) THE BORROWERS SHALL HAVE DELIVERED
TO THE AGENT AND THE LENDERS TRUE, CORRECT AND COMPLETE COPIES OF ALL DOCUMENTS
PERTAINING TO THE PERRIS