EXHIBIT 10.4
SECOND AMENDMENT TO AGREEMENT FOR
PURCHASE AND SALE AND LEASEBACK BETWEEN
SPI HOLDINGS, LLC AND THE SPORTS AUTHORITY, INC.
This Second Amendment ("Amendment") to that certain Agreement for
Purchase and Sale and Leaseback dated as of May 14, 1999 (the "Purchase
Agreement"), by and between THE SPORTS AUTHORITY, INC, a Delaware corporation,
and THE SPORTS AUTHORITY FLORIDA, INC., collectively as "Seller," and SPI
HOLDINGS, LLC, a Delaware limited liability company or its nominee, as "Buyer,"
as previously amended by that certain letter agreement dated June 14, 1999 (the
"First Amendment"), is made to be effective as of the 29th day of July, 1999.
For the purposes of this Amendment, the Purchase Agreement together with the
First Amendment are collectively referred to herein as the "Agreement."
1. INCORPORATION. The terms and provisions of this Amendment are hereby
incorporated by this reference in the Agreement as though fully set forth
therein.
2. DEFINITIONS. Terms not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Agreement.
3. EXTENSION OF FINAL DATE FOR EXPIRATION OF APPROVAL PERIOD FOR
CERTAIN BUILDINGS. Seller and Buyer agree that the date for the expiration of
the Approval Period with respect to each of the Buildings located in Arrowhead,
Arizona, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and Fresno,
California (the "Four Buildings"), shall be extended to the date that is 30 days
following the earlier to occur of (i) the date on which Buyer receives from
Seller either (x) a fully-executed amendment to the EFL Ground Lease
substantially in the form attached hereto as Exhibit "A" and incorporated herein
(the "EFL Ground Lease Amendment"), or (y) a fully-executed amended and restated
version of the EFL Ground Lease (the "Amended and Restated EFL Ground Lease")
containing the lender protection provisions substantially in the form contained
in the EFL Ground Lease Amendment, or (ii) the date on which Seller and Buyer
mutually agree in writing to the substitution of another property for the East
Fort Lauderdale Building if Seller is unsuccessful in obtaining either the EFL
Ground Lease Amendment or the Amended and Restated EFL Ground Lease, as provided
for above, but in no event later than September 30, 1999. Notwithstanding the
provisions of Section 11 of the Purchase Agreement, in the event that Seller,
after using its reasonable good faith efforts, is unsuccessful in obtaining
either the EFL Ground Lease Amendment or the Amended and Restated EFL Ground
Lease, Buyer and Seller SHALL agree to substitute a different store property
owned and operated by Seller for the deleted East Fort Lauderdale Building;
provided, however, that Seller's good faith efforts shall not be deemed to
include the obligation to pay any sums to the lessor under the EFL Ground Lease,
other than for the attorneys' fees incurred by the lessor under the EFL Ground
Lease in connection with the review and negotiation of the EFL Ground Lease
Amendment or the Amended and Restated EFL
Ground Lease in an amount not to exceed Five Thousand and No/100 Dollars
($5,000.00). In such event, Seller and Buyer agree to cooperate in good faith in
reaching agreement on the selection of a substitute store property. In addition
to the extension of the date for the expiration of the Approval Period with
respect to each of the Four Buildings, Buyer shall also have until the new
expiration date of the Approval Period (as provided for above) for the Chula
Vista and Fresno Buildings to provide Seller the written notifications of any
unacceptable exceptions in the Title Reports and Surveys for such two Buildings.
4. TIMING AND EXTENSION OF CLOSING. Subject to the satisfaction of all
conditions precedent to the Closing of Escrow as set forth in the Agreement, the
Closing of Escrow for each of the Four Buildings shall take place through
Escrow, and shall occur within 30 days of the date of the expiration of the
Approval Period with respect to such Four Buildings, as extended by Section 3 of
this Amendment (the "Extended Outside Closing Date"). At the election of Buyer,
which shall be exercised at least seven business days prior to the Extended
Outside Closing Date, Buyer may extend such Extended Outside Closing Date by 30
days by paying an additional deposit (the "Four Buildings Extension Deposit")
into Escrow. The Four Buildings Extension Deposit shall be equal to the sum of
the amounts designated on EXHIBIT B to the Agreement for the Prorata Extension
Deposits for the Four Buildings, if Buyer elects to extend the Extended Outside
Closing Date as to all of the Four Buildings. If Buyer elects to extend the
Extended Outside Closing Date for less than all of the Four Buildings, then the
applicable Prorata Extension Deposit shall be paid as to each of the Four
Buildings for which the Extended Outside Closing Date is extended, with each
such payment to be in the respective amount shown on EXHIBIT B attached to the
Agreement (as such amounts may be adjusted pursuant to Section 11.3 of the
Agreement). The election to extend shall be effective for all of the Four
Buildings, unless at the time Buyer makes the Four Buildings Extension Deposit,
Buyer notifies Seller that the extension does not apply to one or more of the
Four Buildings. Escrow Holder shall place the Four Buildings Extension Deposit
in an interest-bearing account for the benefit of Buyer. The Four Buildings
Extension Deposit, excluding the interest earned thereon, shall be included in
the "Deposit" and shall be non-refundable, except as expressly provided in the
Agreement with respect to the Extension Deposit. The portion of the Deposit
allocable to the Four Buildings as so increased shall be credited to the
Purchase Price as to each of the Four Buildings at Closing, such credit to be in
the amounts shown on EXHIBIT B (as such amounts may be adjusted pursuant to
Section 11.3 of the Agreement).
5. CONFLICTS. In the event of any conflict between the terms and
provisions of this Amendment and those of the Agreement, the terms and
provisions of this Amendment shall control.
6. EFFECT. Except as modified hereby, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the 29th day of July, 1999.
"SELLER" "BUYER"
THE SPORTS AUTHORITY, INC., SPI HOLDINGS, LLC
a Delaware corporation a Delaware limited liability company
By:____________________
Name:__________________
Title:_________________ By_______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Manager
By:____________________
Name:__________________
Title:_________________
THE SPORTS AUTHORITY FLORIDA, INC.,
a Florida corporation
By:____________________
Name:__________________
Title:_________________
By:____________________
Name:__________________
Title:_________________
SPI Sports Authority: 1999 Purchase Transaction:
Docs: 2nd Amdt PSA v.1 7522.10
EXHIBIT "A" TO SECOND AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE AND LEASEBACK
BETWEEN SPI HOLDINGS, LLC AND THE SPORTS AUTHORITY, INC.
SECOND AMENDMENT TO 99-YEAR LEASE
THIS SECOND AMENDMENT TO 99-YEAR LEASE (herein referred to as the
"Amendment") made as of July __, 1999 by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Individually and as
Trustee of the of the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust A, and ▇▇▇▇▇ ▇▇▇▇▇▇, Individually,
whose address is ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(herein referred to as the "Ground Lessor"), and THE SPORTS AUTHORITY, INC., a
Delaware corporation, having its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇,
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, his wife as lessor (herein the
"Ground Lessor"), and ▇▇▇▇▇▇▇ ▇▇▇▇, as lessee, were parties to certain
Ninety-Nine Year Leases recorded April 16, 1958 in Official Records Book 1200,
Page 500 and Official Records Book 1200, Page 538, each of the Public Records of
Broward County, Florida (herein collectively called the "Ground Lease"), wherein
Ground Lessor leased to the lessee therein, Ground Lessor's right, title and
interest in and to certain land (hereinafter called the "Property") situate in
Fort Lauderdale, Broward County, State of Florida, and being more particularly
described on EXHIBIT "A", attached hereto and made a part hereof; and
WHEREAS, the lessee's right, title and interest in and to the Ground
Lease was assigned to The ▇▇▇▇▇▇▇▇ Corporation by virtue of that certain
Assignment of Leases recorded in Official Records Book 1866, Page 591, of the
Public Records of Broward County, Florida; and
WHEREAS, the lessee's right, title and interest in and to the Ground
Lease was further assigned to Anacapri, Inc., a Florida corporation, by virtue
of that certain Assignment of Lease, recorded in Official Records Book 11557,
Page 5, of the Public Records of Broward County, Florida; and
WHEREAS, the lessee's right, title and interest in and to the Ground
Lease was further assigned to Anacapri Limited Partnership, a Florida limited
partnership, by virtue of that certain Assignment of Lease recorded in Official
Records Book 13932, Page 912, of the Public Records of Broward County, Florida;
and
WHEREAS, the lessee's right, title and interest in and to the Ground
Lease was acquired by FNB Properties, Inc., a Florida corporation (hereinafter
called "FNB), by virtue of that certain Amended Certificate of Title recorded in
Official Records Book 19856, Page 536, of the Public Records of Broward County,
Florida; and
WHEREAS, FNB as "Seller", and Southern Centers Associates, a Florida
general partnership, as "Buyer" (hereinafter called "Southern"), entered into a
Contract For Purchase and Sale dated February 22, 1994 for the purchase by
Southern of FNB's interest and rights under the Ground Lease and all
improvements located thereon, including the Anacapri Hotel (hereinafter called
the "Purchase Contract"); and
WHEREAS, Southern assigned all of its right, title and interest to the
Purchase Contract to Bayshore Developers, Inc., a Florida corporation (herein
called "Bayshore"), and Bayshore thereafter assigned all of its right, title and
interest in and to the Purchase Contract to The Sports Authority, Inc., a
Delaware corporation (hereinafter called "Sports Authority"), and Ground Lessor
and Sports Authority entered into that certain Amendment to 99-Year Lease dated
as of May 26, 1994. The Ground Lease as amended is referred to herein as the
"Lease".
WHEREAS, Sports Authority desires to amend the Lease to facilitate the
ability of Sports Authority, its successors and permitted assigns under the
Lease to finance their leasehold interest therein, as hereinafter provided, and
the Ground Lessor has consented thereto.
NOW, THEREFORE, in connection of these presents and for other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The Lease is amended by inserting the following new Article as
Article XXXVIII thereof:
LENDER PROTECTION PROVISIONS:
The terms "Lender", "Loan", "Mortgage" shall have the following
meanings: (a) "Lender" shall mean an entity identified as such in writing to
Lessor which makes a Loan to Lessee, secured by a Mortgage and evidenced by a
Note or which is the holder of the Mortgage and Note as a result of an
assignment thereof; (b) "Loan" shall mean a loan made by a Lender to Lessee
secured by a Mortgage and evidenced by a Note; and (c) "Mortgage" shall mean a
first priority mortgage, deed of trust or similar security instrument from
Lessee to Lender hereafter executed covering Lessee's leasehold estate in the
demised premises.
Lessor consents to the encumbrance of Lessee's leasehold estate and
interest in the demised premises ("Leasehold Estate") by a Mortgage in favor of
Lender. Lessor further agrees that the consent of Lessor shall not be required
in connection with (a) Lender's transfer or assignment of all or any portion of
its interest in the Loan and/or
Mortgage to any party; and (b) the assignment of Lessee's interest in the
Leasehold Estate at a duly and properly conducted foreclosure sale, or an
assignment of Lessee's interest in the Leasehold Estate made in lieu of a
foreclosure sale. Lessor acknowledges that this Lease shall not be affected by
lender's acquisition of the Leasehold Estate or the assignment thereof as
provided above. Any subsequent assignment of the Leasehold Estate shall be
subject to the provisions of Article XIII hereof, which provides for free
assignability, subject to compliance with the conditions therein stated.
Lessor shall give written notice of any default by Lessee to Lender
concurrently with the delivery of such notice to Lessee. Such notices shall be
given to Lender in the manner required under Article XXVI, to such address as
Lender may provide to Lessor from time to time. No notice of termination of the
Lease shall be effective against Lender unless a copy of such notice is
delivered to Lender concurrently with the delivery of such notice to Lessee.
Lessor agrees that if there is a default under the Lease, before Lessor
shall exercise any right to terminate the Lease, Lender shall have the right,
but not the obligation, to perform any term, covenant, condition or agreement
and to remedy the default, (a) for a period of 30 days after the period for cure
of such default granted to Lessee under the Lease if the default is the failure
to timely pay rent or other monetary sums due under the Lease, and (b) if the
default is other than the payment of rent or other monetary sums, for a period
of 60 days after the time period for cure of such default granted to Lessee
under the Lease; provided however that in the event the default is of such a
nature that it cannot reasonably be cured by Lender within said 60 days, the
cure period shall be extended for a reasonable time to complete such cure
provided that Lender notifies Lessor within said 60 day period that it is
undertaking the cure of such default and thereafter Lender undertakes and
diligently pursues such cure to completion. If, due to the nature of such
default, Lender cannot effect a cure until possession of the demised premises
has been obtained, Lender's cure period shall not commence to run until
possession or control of the demised premises is obtained, provided Lender
notifies Lessor within the aforesaid 60 days period that it is undertaking the
cure of such default, and provided that Lender then diligently pursues its
remedies under the Mortgage to gain possession of the premises, and further
provided that all material obligations that that can be performed without
possession of the Premises are performed. Lessor agrees to accept performance by
Lender of any term, covenant, obligation or condition of the Lease on Lessee's
part to be kept or performed, with the same force and effect as though performed
by Lessee.
Lessor agrees that Lender shall not be obligated to cure defaults of
Lessee that are not reasonably susceptible of being cured by Lender including,
without limitation, the failure of Lessee to keep books and records or deliver
statements, the failure of Lessee to comply with the time requirements under the
Lease, the bankruptcy, insolvency or similar event relating to Lessee, or the
failure of Lessee to give required
notices or certificates, and all such defaults which are not susceptible to cure
by Lender shall be deemed waived as against Lender. As used herein defaults that
are "not susceptible of being cured" shall mean those that are incapable of
being performed by any party other then Lessee, or that by their nature are not
physically or legally capable of being cured by Lender, including those
specifically mentioned above.
Subject to the terms and conditions of this Article, the rights and
interests of Lender under the Loan and Mortgage shall at all times be subject
and subordinate to the rights and interests of Lessor under the Lease, and
nothing herein shall be construed to encumber or subordinate Lessor's fee
interest in the demised premises or Lessor's reversionary right in the demised
premises and the improvements and fixtures thereon, to Lender or to the Mortgage
or other instruments securing the Loan. While neither the Lease nor Lessor's
interest in the Property are subordinate to the Mortgage, Lessor and Lessee
agree that while the Mortgage is outstanding, the disposition of all proceeds
from insurance carried by Lessee shall be subject to the disbursement provisions
of the Mortgage, rather than the provisions of Article IX of the Lease.
Lessor and Lessee agree that they shall not modify or amend this Lease
without Lender's prior written consent, which shall not be unreasonably
withheld, and any amendment or modification without Lender's prior written
consent shall not be effective against Lender.
Upon assignment by Lender of this Lease and the Leasehold Estate,
Lender shall have no liability for obligations accruing after the date of such
assignment. If Lender becomes the Lessee under the Lease, Lender's liability
thereunder during such period as the Lease is in full force and effect shall be
limited to its interest in the subleased premises.
Lessor agrees that Lessee may finance and refinance Lessee's interest
in the premises, from time to time without obtaining the consent of Lessor,
through any Lender, and that the terms and conditions set forth in this
Agreement in favor of a Lender shall apply to and for the benefit of the
Lender(s) of such financing and refinancing if Lessor is provided written notice
of such Lender(s). Upon such notice, all references to "Lender" in this Article
shall mean and refer to such lender(s) and all references to "Loan" shall mean
and refer to such lender's or lenders' loan or loans.
In the event this Lease is rejected or terminated in any proceedings
involving the insolvency or bankruptcy of Lessee, upon the request of Lender
made to Lessor within 30 days after such rejection or termination, Lessor shall
enter into a new lease with Lender or Lender's assignee or nominee on the same
terms and conditions as the Lease.
Lessor, upon the request of Lender, shall provide an estoppel
certificate to Lender in the form reasonably requested by Lender, covering the
matters described in
Article XXXIV hereof and such other matters pertaining to the Lease as may be
reasonably requested by Lender.
NOTE: IF LESSOR'S INTEREST IN THE PROPERTY IS ENCUMBERED AT THE TIME
THE LEASE AMENDMENT IS ENTERED INTO, LESSOR'S MORTGAGEE MUST EXECUTE A
RECOGNITION AGREEMENT IN FORM ACCEPTABLE TO LESSEE AND LENDER CONFIRMING THAT
SUCH MORTGAGEE WILL RECOGNIZE LESSEE'S INTEREST IN THE LEASE AND LENDER'S
MORTGAGE INTEREST THEREIN, IN THE EVENT OF A FORECLOSURE OF THE FEE INTEREST IN
THE PROPERTY.