EXHIBIT #10.14
FIRST AMENDMENT TO SALE, PURCHASE
AND BUILD TO SUIT AGREEMENT
THIS FIRST AMENDMENT TO SALE, PURCHASE AND BUILD TO SUIT AGREEMENT is made and
entered into effective as of 9th day of October, 2003, by and between NAVARRE
CORPORATION, a Minnesota corporation (the "Seller") and NL VENTURES IV, L.P., a
Texas limited partnership (the "Buyer").
WHEREAS, Seller and Buyer previously entered into that certain Sale, Purchase
and Build to Suite Agreement having an Effective Date of August 14, 2003 (the
"Purchase Agreement") relating to that certain real property located in New
Hope, Minnesota; and
WHEREAS, the Seller and Buyer have agreed to amend the Purchase Agreement as set
forth in this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby amend the
Purchase Agreement as follows:
1. ADDITION OF EXHIBIT E. The attached Exhibit E, Landlord's
Waiver and Consent, is hereby made a part of the Purchase
Agreement. The parties acknowledge and agree that at Closing
the Buyer or its assigns, as Landlord, shall execute the
Landlord Waiver and Consent in the form attached to this First
Amendment as Exhibit E.
2. AMENDMENT TO ARTICLE 16, REVIEW PERIOD. The first sentence of
Article 16 is hereby deleted in its entirety and replaced with
the following: "For the purposes of this Agreement, the term
"Review Period" shall mean the period of time commencing on
the Effective Date and expiring on October 28, 2003."
3. EFFECT ON PURCHASE AGREEMENT. Except as amended by this First
Amendment, all of the terms and conditions of the Purchase
Agreement shall continue in full force and effect.
4. COUNTERPART EXECUTIONS EFFECTIVENESS. This First Amendment may
be executed in counterparts, each of which shall be deemed an
original but all of which, taken together, shall constitute
one in the same instrument.
[REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this First Amendment as of the
date stated above.
SELLER:
NAVARRE CORPORATION,
a Minnesota corporation
By:
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Name:
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Title:
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PURCHASER:
NL VENTURES IV, L.P., a Texas limited
partnership
By: AIC NET LEASE MANAGEMENT IV,
L.P., a Texas limited partnership, its sole
General Partner
By: AIC OPCO IV, L.L.C.
a Texas limited liability company,
its sole General Partner
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Xxxxx X. Xxxxxxx, President
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EXHIBIT E
Landlord's Waiver and Consent
THIS LANDLORD'S WAIVER AND CONSENT ("Waiver and Consent") is made and entered
into as of this _____ day of ___________________ by and between
____________________ ("Landlord"), and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, as agent ("Agent") for the lenders (collectively,
"Lenders") from time to time party to the Credit Agreement described below.
A. Landlord is the owner of the real property commonly known as
________________________ (the "Premises").
B. Landlord has entered into that certain Lease Agreement dated
__________ (together with all amendments and modifications
thereto and waivers thereof, the "Lease") with Navarre
Corporation, a Minnesota corporation ("Company"), with respect
to the Premises.
C. Agent and Lenders have previously entered or are about to
enter into a Credit Agreement with Company, and to secure the
obligations arising under such Credit Agreement, Company has
granted to Agent, for its own benefit and the ratable benefit
of Lenders, a security interest in and lien upon certain
assets of Company, including, without limitation, all of
Company's cash, cash equivalents, goods, inventory, machinery,
equipment, and furniture and trade fixtures (such as equipment
bolted to floors), together with all additions, substitutions,
replacements and improvements to, and proceeds of, the
foregoing, but excluding all of the buildings, structures,
fixtures, facilities, installations and other improvements of
every kind and description now or hereafter in, on, over and
under the Premises and all plumbing, gas, electrical,
ventilating, lighting and other utility systems, ducts, hot
water heaters, oil burners, domestic water systems, elevators,
escalators, canopies, air conditioning systems and all other
building systems and fixtures attached to or comprising a part
of the buildings, including, but not limited to, all other
building systems and fixtures necessary to the operation of
the buildings (but not excluding any or all personal property
now or hereafter belonging to Company) (collectively, the
"Collateral").
NOW, THEREFORE, in consideration of any financial accommodations extended by
Lenders to Company at any time, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Landlord acknowledges that (a) the Lease is in full force and
effect and (b) Landlord is not aware of any existing default
under the Lease.
2. Landlord will use its best efforts to provide Agent with
written notice (a "Default Notice") of any default by Company
under the Lease resulting in (i) termination of the Lease or
(ii) the repossession of the Premises and/or removal of the
Company from the Premises. Agent shall have at least 15 days
following receipt of such Default Notice to cure such default,
but neither Agent nor any Lender shall be under any obligation
to cure any default by
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Company under the Lease. No action by Agent or any Lender
pursuant to this Waiver and Consent shall be deemed to be an
assumption by Agent or Lenders of any obligation under the
Lease, and, except as provided in paragraphs 6 and 7 below,
Agent shall not have any obligation to Landlord.
3. Landlord acknowledges the validity of Agent's lien on the
Collateral and, until such time as the obligations of Company
to Lenders are indefeasibly paid in full, Landlord waives any
interest in the Collateral and agrees not to distrain or levy
upon any Collateral or to assert any landlord lien, right of
distraint or other claim against the Collateral for any
reason.
4. Landlord agrees that any Collateral bolted to the floor shall
not be deemed a fixture or part of the real estate but shall
at all times be considered personal property.
5. Prior to (i) a termination of the Lease or (ii) repossession
of the Premises and/or removal of the Company from the
Premises, Agent or its representatives or invitees may enter
upon the Premises at any time without any interference by
Landlord to inspect or remove any or all of the Collateral,
including, without limitation, by public auction or private
sale pursuant to the provisions of paragraph 7 below. Agent
will be responsible for repair of all damages to the premises
caused by the Agent's removal of the Collateral from the
premises.
6. Upon (i) a termination of the Lease or (ii) repossession of
the Premises and/or removal of the Company from the Premises,
Landlord will permit Agent and its representatives and
invitees to occupy and remain on the Premises; provided, that
(a) such period of occupation (the "Disposition Period") shall
not exceed up to 120 days following receipt by Agent of a
Default Notice or, if the Lease has expired by its own terms
(absent a default thereunder), up to 30 days following Agent's
receipt of written notice of such expiration, (b) for the
actual period of occupancy by Agent, Agent will pay to
Landlord the basic rent due under the Lease pro-rated on a per
diem basis determined on a 30-day month, and shall provide and
retain liability and property insurance coverage, electricity
and heat to the extent required by the Lease, and (c) such
amounts paid by Agent to Landlord shall exclude any rent
adjustments, indemnity payments or similar amounts for which
the Company remains liable under the Lease for default,
holdover status or other similar charges. If any injunction or
stay is issued that prohibits Agent from removing the
Collateral and there is also an injunction or stay which
prohibits Landlord from terminating the Lease, repossessing
the Premises or removing the Company from the Premises, the
commencement of the Disposition Period will be deferred until
such injunction or stay is lifted or removed.
7. During any Disposition Period, (a) Agent and its
representatives and invitees may inspect, repossess, remove
and otherwise deal with the Collateral, and Agent may
advertise and conduct public auctions or private sales of the
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Collateral at the Premises, in each case without interference
by Landlord or liability of Agent or any Lender to Landlord so
long as Agent fulfills its obligations hereunder, and (b)
Agent shall make the Premises available for inspection by
Landlord and prospective tenants and shall cooperate in
Landlord's reasonable efforts to re-lease the Premises. If
Agent conducts a public auction or private sale of the
Collateral at the Premises, Agent shall use reasonable efforts
to notify Landlord first and to hold such auction or sale in a
manner which would not unduly disrupt Landlord's or any other
tenant's use of the Premises.
8. Agent shall promptly repair, at Agent's expense, or reimburse
Landlord for any physical damage to the Premises actually
caused by the conduct of such [auction or] sale and any
removal of Collateral by or through Agent (ordinary wear and
tear excluded). Neither Agent nor any Lender shall be liable
for any diminution in value of the Premises caused by the
absence of Collateral removed, and neither Agent nor any
Lender shall have any duty or obligation to remove or dispose
of any Collateral or any other property left on the Premises
by Company.
9. All notices hereunder shall be in writing, sent by certified
mail, return receipt requested or by telecopy with verified
receipt, to the respective parties and the addresses set forth
on the signature page or at such other address as the
receiving party shall designate in writing.
10. This Waiver and Consent may be executed in any number of
several counterparts, shall be governed and controlled by, and
interpreted under, the laws of the State of Minnesota, and
shall inure to the benefit of Agent and its successors and
assigns and shall be binding upon Landlord and its successors
and assigns (including any transferees of the Premises).
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IN WITNESS WHEREOF, this Landlord's Waiver and Consent is entered into as of the
date first set forth above.
"LANDLORD"
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By:
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Title:
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Attention:
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Telephone:
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Facsimile:
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"AGENT"
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT
By:
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Title:
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Its: Duly Authorized Signatory
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Attention:
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Telephone:
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Facsimile:
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