THIRD AMENDMENT TO LEASE EXHIBIT 10.51
THIS THIRD AMENDMENT TO LEASE (the Third Amendment ) is made,
entered into, and effective as of the 23rd day of April, 1996, by and
between TORRENCE PROPERTIES, an Illinois limited partnership, as sole
beneficiary of American National Bank and Trust Company of Chicago,
not personally but solely as Trustee under Trust Agreement dated
December 5, 1973 and known as Trust No. 00000 ( Xxxxxxxx ), and
SPORTMART, INC., a Delaware corporation ( Tenant ).
RECITALS:
A. By that certain Lease dated September 24, 1974 (the
Original Lease ), by and between Landlord and Tenant, Landlord leased
to Tenant certain premises consisting of approximately 44,753 square
feet of retail space (the leased premises ) located in the shopping
center commonly known as Sportmart Plaza (the Shopping Center ) at
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx.
B. The Original Lease was amended by the following documents by
and between Landlord and Tenant: (i) that certain Lease Amendment
dated October 16, 1979 (the First Amendment ); (ii) that certain
Lease Extension dated January 6, 1979 (the First Extension ); (iii)
that certain Lease Extension and Amendment dated April 16, 1987 (the
Second Extension ); and (iv) that certain Second Lease Amendment
dated July 19, 1989 (the Second Amendment ). The Original Lease, the
First Amendment, the First Extension, the Second Extension, and the
Second Amendment are referred to herein collectively as the Lease .
C. Landlord and Tenant are mutually desirous of amending
certain items in the Lease on the terms and conditions set forth
herein.
D. Initially capitalized terms not otherwise defined herein
shall have the meanings attributed to them in the Lease.
NOW, THEREFORE, in consideration of the foregoing Recitals, the
mutual covenants hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each party hereto, Landlord and Tenant hereby
agree as follows:
AGREEMENT
1. Landlord s Recapture Right if Tenant Goes Dark. The
following new paragraph 11 is hereby incorporated into, added to, and
made a part of the Lease at the end of Article IV thereof:
11. If, during the term of this Lease, Tenant discontinues
conducting business to the public from the leased premises
and vacates the leased premises ("goes dark"), and the
leased premises remain dark for a period of four (4)
consecutive months, Landlord may, at any time after the
expiration of such four (4) month period while the leased
premises remain dark, notify Tenant of its intent to
terminate this Lease, which termination will be effective
sixty (60) days after the receipt of such notice; provided,
however, that if Tenant notifies Landlord within thirty (30)
days after receipt of such notice that all or a substantial
part of the leased premises will be re-opened for business
by Tenant as of a date certain not more than ninety (90)
days after the date of Tenant's notice, Landlord's notice of
termination will be of no force and effect and this Lease
shall continue so long as Tenant does then timely reopen the
leased premises. Tenant is not deemed to have gone dark if
it closes the leased premises to the general public (i) in
order to prepare for sales or to take stock of current
inventory, provided that the same does not result in
Tenant's business being closed to the public for more than
ten (10) consecutive business days, or for more than twenty
(20) total business days, in any consecutive twelve (12)
month period; (ii) in connection with the performance of any
construction, alteration, repair or restoration work on the
leased premises so long as the same is diligently pursued by
Tenant and does not result in Tenant's business being closed
to the public for more than two hundred forty (240) days in
a n y consecutive twelve (12) month period; (iii) to
accommodate a change in use of the leased premises or
pursuant to an assignment or subletting of the leased
premises, provided that the same does not result in the
leased premises being closed to the public for more than one
hundred fifty (150) days in any consecutive twelve (12)
month period; or (iv) while a condition of force majeure
prevents operation and for a reasonable time thereafter.
2. Tenant s Right of Redemption. The following new paragraph 6
is hereby incorporated into, added to, and made a part of the Lease at
the end of Article VIII thereof:
If Landlord obtains a judgment in an eviction, unlawful
d e t ainer or other proceeding whereby this Lease is
terminated, then if Tenant pays the amount of such judgment
within ninety (90) days after the date that the judgment
becomes a final judgment, together with all of Landlord's
reasonable attorneys' fees and costs, the rights of the
parties shall be as if the judgment had never been entered,
and the Lease had never been terminated, and appropriate
papers and stipulations shall be filed so that the judgment
is rescinded, and the action dismissed. For purposes of the
rights of third parties (e.g., lenders and creditors) this
Lease will not be deemed to have been terminated unless the
ninety (90) day period passes without payment as provided
for herein. Tenant's right of redemption hereunder shall
not apply to an action or proceeding arising from Tenant's
failure to pay basic rent or any installment thereof, unless
such failure of payment resulted from Tenant's good faith
exercise of a right of set-off, withholding or deduction
provided for herein or under applicable law.
3. Notices. Article XI of the Lease is hereby deleted in its
entirety and replaced with the following new Article XI:
ARTICLE XI
Notices
Any notice to be given or served in connection with this
Lease shall be in writing and shall be served by certified
or registered mail, postage prepaid, or by reputable
overnight (or second business day) air courier service which
provides written evidence of delivery, in either case
addressed as specified below, or to such other address as
requested by either party in writing. Service shall be
deemed effective three (3) days after deposit in the U.S.
mail in accordance herewith or on the next business day (or
second business day, if applicable) following delivery to
such air courier service in accordance herewith. Either
party by written notice to the other may designate two
additional parties to receive copies of notices sent to it.
Such designees may be changed by written notice.
If to Tenant: Sportmart, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
With copies of all notices to Tenant to be
sent to:
Sportmart, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President,
Corporate Development
If to Landlord: Torrence Properties
c/o SM Property Management Co., Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
With copies of all notices to Landlord to be
sent to:
Torrence Properties
c/o SM Property Management Co., Inc.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President,
Corporate Development
and to Landlord's lender at its address
currently on file with Landlord and Tenant.
4. Full Force. Except as hereby expressly or by necessary
implication modified or amended by this Third Amendment, the parties
hereto acknowledge and agree that all of the terms and provisions of
the Lease shall be and remain in full force and effect. In the event
of any conflict or inconsistency between the terms of the Lease and
this Third Amendment, the terms of this Third Amendment shall govern
and control.
5. No Further Amendment. This Third Amendment may not be
amended, waived or modified in any respect unless the same shall be in
writing and signed by both parties. This Third Amendment constitutes
the entire agreement of the parties and supersedes all prior
agreements, arrangement and contracts, whether oral or written,
concerning the subject matter hereof.
6. Counterparts. This Third Amendment may be executed in
multiple counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Third
Amendment as of the date first above written.
LANDLORD:
TORRENCE PROPERTIES,
an Illinois limited partnership
By: /S/ XXXXX XXXXXXXX
Title: PRESIDENT
TENANT:
SPORTMART, INC.,
a Delaware corporation
By: /S/ XXXXXX XXXXXXXX
Title: PRESIDENT
