SECOND AMENDMENT TO LEASE EXHIBIT 10.49
THIS SECOND AMENDMENT TO LEASE (the Second Amendment ) is
made, entered into, and effective as of the 31st day of March,
1 9 9 6, by and between NORTH RIVERSIDE ASSOCIATES LIMITED
PARTNERSHIP, an Illinois limited partnership ( Landlord ), and
SPORTMART, INC., a Delaware corporation ( Tenant ).
RECITALS:
A. By that certain Lease with a reference date of October 31,
1988 (the Original Lease ), by and between Landlord and Tenant,
Landlord leased to Tenant certain premises consisting of approximately
39,347 square feet of retail space (the Store or the Mart ) located
in the shopping center commonly known as Sportmart Plaza (the
Shopping Center ) at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx,
Xxxxxxxx.
B. The Original Lease was amended by that certain First Lease
Amendment dated December 2, 1988 (the First Amendment ), by and
between Landlord and Tenant. The Original Lease and the First
Amendment are referred to herein collectively as the Lease .
C. Tenant desires to lease additional space consisting of
approximately 12,690 square feet (the Additional Premises ) within
the Shopping Center for the purpose of operating a clearance center
for the sale of sporting goods, sports apparel and active wear, and
such other merchandise as may be sold from time to time in Tenant's
similarly merchandised clearance center stores.
D. Landlord and Tenant are mutually desirous of amending the
Lease to reflect the terms and conditions under which the Additional
Premises will be leased to Tenant.
E. 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. Additional Premises. Landlord hereby leases to Tenant and
Tenant hereby takes from Landlord, on the terms and conditions set
forth herein, the Additional Premises consisting of approximately
12,690 square feet. The Additional Premises have a street address of
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxx, and are in the
approximate location shown on the site plan (the Site Plan ) attached
hereto and made a part hereof as Exhibit A. Except as is expressly
set forth in this Second Amendment, from and after the Commencement
Date (as hereinafter defined) and until the lease term for the
Additional Premises is terminated pursuant to Section 4 below, the
term Store , as used in the Lease, shall include and mean for all
purposes (including, without limitation, for purposes of determining
Tenant's pro-rata share of Common Area Charges, real estate taxes, and
insurance) both the Store and the Additional Premises leased herein.
Once the lease term for the Additional Premises is terminated
pursuant to Section 4 below, then the term Store shall have the
meaning originally attributed to such term in the Original Lease.
2. Commencement Date. For purposes of the Additional Premises
only, the term Commencement Date shall mean December 7, 1995.
3. As-Is Basis. Effective as of the Commencement Date,
Tenant agrees that is shall accept the Additional Premises on an as
is basis. Tenant shall be entitled to vacant possession of the
Additional Premises on the Commencement Date. Tenant shall be
entitled to inspect the Additional Premise prior to the Commencement
Date to confirm the condition of the premises. In addition, Tenant
and its agents, employees and contractors shall be afforded access to
the Additional Premises prior to the Commencement Date, at reasonable
times and upon reasonable prior notice, to inspect the same, take
measurements and plan its intended modifications and fixturing
thereof.
4. Lease Term for the Additional Premises Only. With respect
to the Additional Premises only, the lease term shall commence on the
Commencement Date and shall continue on a month-to-month basis until
terminated by either Landlord or Tenant pursuant to the immediately
f o llowing sentence. Notwithstanding anything to the contrary
contained in the Lease, with respect to the Additional Premises only,
either Landlord or Tenant may elect to terminate the Lease for any
reason or for no reason by serving thirty (30) days advance written
notice upon the other party. Upon the effective date of such
termination, the Lease shall be null and void and of no effect with
respect to the Additional Premises only (but shall continue in full
force and effect with respect to the Store, as defined in the Lease),
and, with respect to the Additional Premises only, both Landlord and
Tenant shall have no rights under the Lease or this Second Amendment,
nor be subject to liability for any kind or amount thereunder or
hereunder, except for those obligations and liabilities which
expressly survive the termination or expiration of the Lease.
5. Minimum Rent for the Additional Premises Only. With respect
to the Additional Premises only, during the term of this Second
Amendment, the Minimum Rent for the Additional Premises for each
calendar month shall be a sum equal to five percent (5%) of Tenant's
Gross Sales made from the Additional Premises during each calendar
month. Tenant shall make monthly payments on the twentieth (20th) day
of each calendar month, in arrears, in an amount equal to five percent
(5%) of Tenant's Gross Sales made from the Additional Premises during
the prior calendar month. All rent and other payments to be made by
Tenant to Landlord shall be sent to the place to which notices are
required to be sent, unless otherwise directed by the Landlord in
writing. Within twenty (20) days after the close of each calendar
month during the term of this Second Amendment, Tenant shall submit to
Landlord a statement indicating the amount of its Gross Sales made
from the Additional Premises for the previous calendar month. Minimum
Rent due for the Additional Premises shall accompany such statement.
Other than the Minimum Rent set forth herein, and notwithstanding
anything to the contrary contained in the Lease, Tenant shall owe no
Percentage Rent for the Additional Premises.
6. Tenant's Right to Go Dark. The following new Section 9.4 is
hereby incorporated into, added to, and made a part of the Lease:
9.4 Going Dark. If, during the term of this Lease,
Tenant discontinues conducting business to the public in the
Store and vacates the Store ("goes dark"), and the Store
remains dark for a period of four (4) months, Landlord may,
at any time after the expiration of such four (4) month
period while the Store remains 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
part of the Store will be re-opened for business by Tenant
as of a date certain not more than ninety (90) days after
t h e 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
Store. Tenant is not deemed to have gone dark if it closes
the Store 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 Demised 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 any consecutive twelve (12)
month period; (iii) to accommodate a change in use of the
Store or pursuant to an assignment or subletting of the
Store, provided that the same does not result in the Store
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.
7. Full Force. Except as hereby expressly or by necessary
implication modified or amended by this Second 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 Second Amendment, the terms of this Second Amendment shall govern
and control.
8. No Further Amendment. This Second Amendment may not be
amended, waived or modified in any respect unless the same shall be in
writing and signed by both parties. This Second 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.
9. Counterparts. This Second 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 Second
Amendment as of the date first above written.
LANDLORD:
NORTH RIVERSIDE ASSOCIATES LIMITED
PARTNERSHIP, an Illinois limited partnership
By: North Riverside Corporation, an Illinois Corporation,
Its General Partner
By: /S/ XXXXXXXX XXXX
Title: VICE PRESIDENT
Date: Xxxxx 00, 0000
XXXXXX:
SPORTMART, INC.,
a Delaware corporation
By: /S/ XXXXXX XXXXXXXX
Title: PRESIDENT
Date: March 31, 1996
Site Plan Showing Location of Additional Premises
