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EXHIBIT 10.2
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT made and entered as of this 10th day of
July, 1998, between REVENGE MARINE, INC., a Nevada corporation, as Tenant, and
MIAMI RIVER PARTNERS, LTD., a Florida limited partnership, as Landlord.
RECITALS:
WHEREAS, Landlord and Tenant made and entered into that certain Lease
Agreement dated as of May ___, 1998 (the "Lease"), for the Premises therein
described; and
WHEREAS, the parties desire to amend the Lease as hereinafter described.
NOW, THEREFORE, for $10.00 and other good and valuable considerations
herein described, the parties hereto hereby agree that the Lease is modified as
follows:
1. Effective on the Commencement Date, ARTICLE II, RENT AND SECURITY,
SECTION 2.01, AMOUNT OF MINIMUM RENT, is changed to provide that the Annual Rent
for Lease Year number one (1) is increased from $430,500.00 to $448,000.00 and
the Monthly Installments are increased from $35,875.00 to $37,333.34. All
references in the lease to Annual Rent, Monthly Installments thereof, and
adjustments and increases thereto for all Lease Years subsequent to the first
Lease Year, shall be based upon the Annual Rent and Monthly Installment thereof
(as appropriate) as herein modified and increased.
After the word "inclusive" in the second line of the first full
grammatical paragraph of SECTION 2.01, shall be added "(and during each Lease
Year of the Extended Term, if applicable)".
2. ARTICLE II, SECTION 2.02, PAYMENT OF RENT, is modified to provide that
rent, additional rent, sales tax, use and excise tax thereon, shall be paid to
Landlord and sent to the attention of BankAtlantic Development Corporation,
having an office at 0000 X.X. 00xx Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000. Sales
tax on rent and additional rent shall accompany payment of such rent and
additional rent.
3. ARTICLE II, SECTION 2.04, SECURITY, shall be modified to provide that
notwithstanding anything to the contrary therein, Landlord, as the purchaser of
the Premises, shall be entitled to retain as the security deposit under Section
2.04 of the Lease, the $35,000.00 of the $50,000.00 originally intended to be
refunded to Tenant at the sale and purchase closing pursuant to paragraph four
(4) of that certain Assignment and Assumption of Purchase and Sale Agreement
and Escrow Agreement dated on or about May 1, 1998 ("Assignment"), between
Tenant, as Assignor therein, and Landlord, as Assignee therein. Tenant/Assignor
hereby authorizes Landlord/Assignee to retain such $35,000.00 described in the
Assignment as the security deposit under Section 2.04 of the Lease.
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Consistent with the foregoing, SECTION 21.19, LETTER OF CREDIT, is hereby
deleted from the Lease and is of no force or effect, AB INITIO.
4. ARTICLE III, EXPENSES PAYABLE BY TENANT, SECTION 3.01, NET INTENT,
shall be amended to add to the end thereof the following language: "Included in
the costs, expenses and obligations relating to the Premises and the Lease and
which shall be paid by Tenant shall be payment to Landlord of an amount equal
to two percent (2%) of the Annual Rent due hereunder as reimbursement to
Landlord for the management fees paid by Landlord in connection with the
administration of this Lease. Said amount shall be paid in equal monthly
installments, with the monthly installments for the first Lease Year being
$746.66. Tenant shall also reimburse Landlord for any insurance premiums
Landlord pays for liability, property and loss of rents insurance which may be
required, in addition to insurance provided by Tenant, by Landlord's mortgage
lender on the Premises. Such reimbursement shall be made promptly after receipt
by Tenant of a billing therefor from Landlord".
5. SECTION 3.02, TENANT TO PAY IMPOSITIONS, is modified to provide that
real estate taxes shall be paid by Tenant to Landlord in equal monthly
installments during the Lease Term, notwithstanding the other provisions of
this Section. Based on real estate taxes for the year 1997, monthly
installments of real estate taxes starting with the Commencement Date shall be
$5,727.00, prorated for the portion of the month in which the Lease Term
commences and the month in which the Lease Term (or Extended Term, if
applicable), expires. On or before the beginning of each calendar year of the
Lease Term starting with the second calendar year, Landlord shall submit to
Tenant a statement of the estimated monthly installments of real estate taxes
for such calendar year, and Tenant shall pay same to Landlord monthly, together
with the payment of Monthly Installments of Annual Rent, sales tax, the
management fee reimbursement under Section 3.01 and other Additional Rent or
sums due Landlord under the Lease. The estimated monthly installments for real
estate taxes may be changed from time to time by Landlord based upon the prior
calendar year's actual real estate taxes and/or Landlord's good faith estimate
of the current calendar year's real estate taxes. If the total of the monthly
installments for real estate taxes for the calendar year in which they are due
is less than needed to pay the taxes, then Tenant shall pay the difference
needed to pay the real estate taxes in full in a lump sum to Landlord promptly
upon receipt of a billing therefor. Any overpayment of real estate taxes by
Tenant shall be credited towards the real estate tax monthly installment next
coming due in the ensuing calendar year. Tenant expressly agrees that Landlord
may apply the security deposit or any portion thereof in satisfaction of any
Additional Rent, including but not limited to real estate tax monthly
installments, if same is not paid when due; any portion of the security deposit
so applied shall be promptly restored by Tenant to replenish such security
deposit to the full amount. Landlord hereby agrees to pay the real estate taxes
from the total payment therefor received from Tenant, but Landlord shall not be
obligated to pay the same from any of its own funds.
6. ARTICLE IV, INSURANCE, SECTION 4.04, GENERAL INSURANCE PROVISIONS,
PARAGRAPH E, is hereby amended to delete Landlord's waiver and release
contained therein.
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7. ARTICLE VI, REPAIRS, REPLACEMENT MAINTENANCE AND ALTERATION, SECTION
6.04, TENANT'S OBLIGATIONS TO CONSTRUCT, is amended to provide that before
Tenant commences the renovations and improvements required thereunder, Tenant
shall obtain builder's risk insurance therefor and, in compliance with Article
IV, which names Landlord and Landlord's mortgagee as additional insureds and
loss payees thereunder, and that Tenant shall provide to Landlord an original
Certificate of Insurance evidencing same.
8. ARTICLE X, CONDEMNATION, SECTION 10.2, PARTIAL CONDEMNATION,
SUBSECTION (ii) thereof is amended to provide that only that portion of the
award that relates to the taking of improvements, and not that portion relating
to the taking of the land upon which improvements have been constructed, shall
be disbursed for repair and restoration.
9. ARTICLE XIX, EXCULPATORY PROVISIONS, SECTION 19.01, is amended to
provide that Landlord's partners shall be included as parties exculpated
thereunder and after the word "Landlord" in Subsections (b) and (c) of this
Section 19.01, the words "and its partners" shall be deemed added.
10. ARTICLE XX, ENVIRONMENTAL CONCERNS, SECTION 20.02, ENVIRONMENTAL
AUDITS, is amended to provide that Landlord shall have the right to have
environmental audits conducted on and of the Premises on an annual basis, or
more frequently in the event Landlord has reasonable cause to believe the
Premises may be contaminated or is in danger of becoming contaminated by
hazardous substances, the cost of which audits shall be borne by Tenant and
paid to Landlord promptly upon receipt of a statement therefor.
11. SECTION 20.06, STORAGE TANKS, is amended to provide that Tenant
acknowledges that the Approval of Alternative Procedures ("Approval") which
allowed the two (2) underground storage tanks ("UST's") located on the Premises
(together with associated equipment) to remain without being closed, expired in
January, 1998, and that according to Florida law, unless the Approval is
formally extended, the UST's must be timely closed. A copy of the Approval and
a July 30, 1997, Inspection Report concerning this matter have been provided to
Tenant.
Tenant agrees that under this Section 20.06, it shall be solely
responsible at its sole cost and expense for assuring that the UST's comply
with all applicable laws, rules and regulations, and are either timely closed
in accordance therewith or if to be reactivated and used then are put back into
service according to all such applicable laws, rules and regulations (including
installation of all equipment upgrades as required by law). In furtherance of
the foregoing, the Tenant agrees that it shall strictly perform under all
provisions of the Lease concerning any work that must be done to achieve
compliance of the UST's with all applicable laws, rules and regulations,
including but not limited to submitting to Landlord, for its approval all plans
and specification for such work and the contractors to perform any such work
and the obtaining of all permits for such work.
12. ARTICLE XXII, OPTION TO EXTEND, SECTION 22.01 is hereby amended to
make it clear that the Annual Rent during the first year of the Extended Term,
whether calculated and determined under Subsections (i) or (ii) thereof, shall
be deemed the base rent for purposes of adjustment and
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increases thereto under Section 2.01 of the Lease for the remaining years of
the Extended Term.
13. ARTICLE XXIII, OPTION TO PURCHASE, SECTION 22.01, SECTION (c), is
amended to change the purchase price during the first year of the Lease Term
from $3,259,500.00 to $3,392,000.00 and the per day increase that would apply
thereto during the second Lease from $536.00 to $558.00 and the per day
increase that would apply thereto during the third Lease Year from $568.00 to
$591.00 (by way of example and clarification, the purchase price at a closing
anytime during the first Lease Year shall be $3,392,000.00 and if the closing
were to occur on the last day of the second Lease Year the purchase price would
be $3,595,520.00 and if the closing were to occur on the last day of the third
Lease Year the purchase price would be $3,811,251.00 (the foregoing amounts
having been rounded).
14. SECTION 23.01, SUBSECTION (d), is amended to provide that the
Permitted Exceptions, Exhibit "B", shall be the Exhibit "B" attached hereto,
which shall replace that Exhibit "B" attached to the Lease.
15. Except as expressly modified herein, the Lease shall remain unchanged
and in full force and effect and same is hereby ratified and confirmed. Tenant
hereby represents and warrants to Landlord and to its mortgage lender on the
Premises that it is in full compliance with all of the Lease terms, provisions
and conditions and is not in default under any of the same.
IN WITNESS WHEREOF, the undersigned have hereunto set their respective
hands and seals as of the date first hereinabove written.
Signed, sealed and delivered Tenant:
in the presence of: REVENGE MARINE, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Vice President
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Landlord:
MIAMI RIVER PARTNERS, LTD.
BY: MIAMI RIVER PARTNERS, INC.
By:
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Its President
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