EXHIBIT 10.45
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the First Amendment ) is made and
entered into as of this 1st day of May, 1994, by and between ROOSEVELT
ASSOCIATES LIMITED PARTNERSHIP, an Illinois limited partnership,
successor in interest to Minwick Centers, Inc., a Delaware corporation
( Landlord ), and SPORTMART, INC., a Delaware corporation ( Tenant ).
RECITALS:
A. Landlord and Tenant are subject to that certain lease dated
November 16, 1973 (the Lease ) with respect to certain premises
located at 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx (the Premises or
the Demised Premises ).
B. Xxxxxx Xxxx and Xxxxxx Xxxxx, as Trustee under a certain
Trust Agreement and Declaration of Trust dated January 1, 1984 and
known as Trust No. 7184, contracted to sell Roosevelt Plaza , the
Shopping Center within which the Premises are located, pursuant to the
Agreement of Purchase and Sale dated July 25, 1991 (the Agreement ).
C. Landlord has succeeded to the interest of the purchaser
under said Agreement.
D. Landlord intends to improve the Shopping Center by (i)
making certain improvements to the existing buildings and parking lot;
and (ii) further developing the plaza to enhance sales through an
additional draw of customers.
E. It was critical to Landlord s acquisition of the Shopping
Center that the parties hereto agree to certain changes to the Lease
as hereinafter set forth.
F. Initially capitalized terms not otherwise defined herein
shall have the meanings attributed to them in the Lease.
G. Landlord and Tenant are mutually desirous of amending
certain items in the Lease on the terms and conditions set forth
herein.
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. Lease Term. Notwithstanding anything to the contrary
contained in Sections 4.1 and 4.2 of the Lease, as of the date hereof
the original term of the Lease, which has currently been extended
through January 31, 1998, shall be extended so as to terminate on
January 31, 2008.
2. Options to Extend. The first two (2) grammatical sentences
of Section 4.2 of the Lease are hereby deleted in their entirety and
replaced with the following new sentences:
4.2. The Tenant shall have the option to extend the
o r i ginal term of this Lease for two (2) separate,
consecutive additional periods, the first option being for a
period of five (5) years and two (2) months commencing on
February 1, 2008, and the second option being for a period
of five (5) years commencing on April 1, 2013 (each an
"Option Period"). Each Option Period shall be on all of the
same terms and conditions set forth in this Lease other than
Minimum Rent. Each such option must be exercised, if at
all, by notifying the Landlord in writing, not less than six
(6) months prior to the expiration of the original term, or
of the then current Option Period, as the case may be.
Should Tenant neglect to exercise any of its options by the
applicable date specified above, Tenant's right to exercise
shall not expire until thirty (30) days after notice from
Landlord of Tenant's failure to exercise the option. Minimum
Rent payable during each Option Period is specified in
Section 5.1.
3. Minimum Rent. Effective as of the date hereof Section
5.1 of the Lease shall be deleted in its entirety and
replaced with the following new Section 5.1:
5.1. MINIMUM RENT. During the term of this Lease,
Tenant agrees to pay to Landlord a minimum rent (the
Minimum Rent ) according to the schedule set forth below,
payable in equal monthly installments in the amount of one-
twelfth (1/12) of the annual Minimum Rent. Minimum Rent
shall be prorated for any partial calendar months and years.
Each monthly installment of rental shall be payable in
advance on or before the first (1st) day of each calendar
month during the term. 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.
The Minimum Rent is as follows:
Schedule Annual Monthly
April 1, 1993 - May 31, 1997 $225,000.00 $18,750.00
Effective June 1, 1997 and at the end of every sixty (60)
month period thereafter during the term and the Option
Periods, the annual Minimum Rent shall be increased by the
lesser of (i) 12.5% of the annual Minimum Rent paid during
the preceding sixty (60) month period, or (ii) the increase
in the CPI for the immediately preceding sixty (60) month
period, which increase shall be the result of a fraction,
the numerator of which is the CPI for the month of September
immediately preceding the effective date of the applicable
increase, and the denominator of which is the CPI for the
month of September immediately preceding the sixty (60)
month period preceding the effective date of the applicable
increase.
CPI shall mean the Consumer Price Index-United States All
Items for All Urban Consumers (1982-1984=100) published by
the Bureau of Labor Statistics of the Department of Labor.
If the manner in which such Consumer Price Index as
determined by the Bureau of Labor Statistics shall be
substantially revised, an adjustment shall be made in such
revised index, which would produce results equivalent, as
nearly as possible, to those which would have been obtained
if the Consumer Price Index had not been so revised. If the
Consumer Price Index shall become unavailable to the public,
Landlord will substitute therefor a comparable index based
upon changes in the cost of living or purchasing power of
the consumer dollar published by any other governmental
agency, a major bank or other financial institution, a
university or a recognized financial publication.
4. Common Area Charges. Effective as of the date hereof,
the first grammatical sentence of Section 2.9 of the Lease is hereby
modified to delete therefrom the following words: the lesser of (A)
fifteen cents (15 cents) per square foot of floor area in the Demised
Premises and (B) .
5. Outlot Development. Notwithstanding any provisions in the
Lease to the contrary, Landlord shall have the right, from time to
time, to develop or permit the development of outlots in the Shopping
Center, provided that (i) Marshalls consent, if necessary, is
obtained, and (ii) the amount of available parking spaces in the
aggregate in the Shopping Center shall not be less than 4.5 cars per
1,000 square feet of leasable floor area.
6. Notices. Section 25 of the Lease is hereby deleted in its
entirety and replaced with the following new Section 25:
25. NOTICES. A n y 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: Roosevelt Associates Limited Partnership
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:
Roosevelt Associates Limited Partnership
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, if any, at its
address currently on file with Landlord and Tenant.
7. Tenant's Right to Go Dark. The following new Section 32 is
hereby incorporated into, added to, and made a part of the Lease:
32. TENANT'S RIGHT TO GO DARK. If, during the term of
this Lease, Tenant discontinues conducting business to the
public in the Demised Premises and vacates the Demised
Premises ("goes dark"), and the Demised Premises remain dark
for a period of four (4) months, Landlord may, at any time
after the expiration of such four (4) month period while the
Demised 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 part of the
Demised 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 its Demised
Premises. Tenant is not deemed to have gone dark if it
closes the Demised 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
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 Demised Premises or
pursuant to an assignment or subletting of the Demised
Premises, provided that the same does not result in the
Demised 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.
8. Full Force. Except as hereby expressly or by necessary
implication modified or amended by this First 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 First Amendment, the terms of this First Amendment shall govern
and control.
9. No Further Amendment. This First Amendment may not be
amended, waived or modified in any respect unless the same shall be in
writing and signed by both parties. This First 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.
10. Counterparts. This First 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 caused this First
Amendment to be executed as of the year and day first above written.
TENANT:
SPORTMART, INC.,
a Delaware Corporation
By: /S/ XXXXXX XXXXXXXX
Its: PRESIDENT
LANDLORD:
ROOSEVELT ASSOCIATES LIMITED
PARTNERSHIP, an Illinois limited partnership
By: North Riverside Corp., an Illinois corporation,
its General Partner
By: /S/ XXXXXXXX XXXX
Its: VICE PRESIDENT
