EXHIBIT 10.35
AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE ("Amendment") is made this 16th day of
January, 1997 by and between Xxxxxx X. Xxxxxxxx, an individual and Mako Marine
International, Inc., a Florida corporation, as Landlord and Tenant,
respectively, under Amended Triple Net Lease dated April 18, 1995 (the "Lease")
for the purpose of amending the Lease as provided herein. A legal description of
the Property leased by Landlord to Tenant under the Lease is attached hereto as
Exhibit A.
Terms not otherwise defined herein shall have the same meaning as
ascribed to them under the Lease.
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged by Landlord and Tenant, it is agreed by the parties
hereto that effective upon the acquisition by Tracker Marine, L.P. of 6.4
million shares of the common stock of Tenant from Tenant (expected to occur on
or about January 17, 1997) (the "Acquisition"), the Lease is hereby amended as
follows:
1. Early Termination Option. Notwithstanding Section 2 or any other
provision under the Lease, Tenant may, upon written notice to Landlord ("Early
Termination Notice") given in accordance with Section 40 of the Lease on or
before July 17, 1998, together with the payment of a lease termination fee in
the amount of $330,000 (the "Lease Termination Fee"), terminate the Lease
effective as of the close of business on the day immediately prior to the second
anniversary of this Amendment, and upon the giving of such Early Termination
Notice accompanied by the payment of the Lease Termination Fee, the Lease shall
automatically, and without further action on the part of Landlord or Tenant,
terminate on such date. If the Notice and Lease Termination Fee is not given and
paid on or before July 17, 1998, the option of Tenant set forth in this Section
1 shall automatically terminate.
2. Purchase Option. (a) From and after the date of this Amendment and
though the close of business on the day immediately preceding the first
anniversary of the date of this Amendment (the "Term"), Tenant shall have the
right to purchase the entire interest of Landlord in the Property, at a purchase
price of Five Million Dollars ($5,000,000) net to Landlord and on the other
terms and conditions set for below (the "Option").
(b) Tenant shall exercise the Option by delivering written
notice thereof (the "Notice") to Landlord at any time during the Term of the
Option in accordance with Section 40 of the Lease. If Tenant exercises the
Option, the closing of the purchase and sale of the Property will occur at a
time and place specified in the Notice; provided, however, that such closing
shall occur within 30 days of the giving of the Notice by Tenant and shall be
within Dade County, Florida.
(c) At closing, Landlord shall convey to Tenant by special
warranty deed fee simple title to the Property, free and clear of all mortgages,
liens and encumbrances of any kind, except for (i) liens for taxes not yet due
and payable, and (ii) such easements, imperfections or irregularities which are
minor in nature and will not, either individually or collectively, adversely
affect the value of the Property or the use thereof (such permitted encumbrances
specified in the foregoing clause (i) and (ii) being collectively called the
"Permitted Encumbrances"). Moreover, Landlord shall execute and deliver all
other customary closing documents reasonably requested by Tenant or the title
company.
(d) At closing, Tenant shall pay the purchase price to
Landlord by cashier's check, certified check or other readily available funds.
Tenant shall also pay (i) all unpaid rent or other charges due and owing under
the Lease, and (ii) all expenses and costs incurred in connection with the
exercise of the Option, including, without limitation, title insurance premiums,
transfer or stamp taxes, closing fees and recording fees. Landlord shall furnish
to Tenant, at Tenant's expense, an ALTA Owner's Policy, dated as of the closing
date, from a title company licensed to do business in Florida, with standard
non-survey exceptions deleted showing Tenant as having good and marketable fee
simple title in the Property, subject only to the Permitted Encumbrances, and,
at the request of Tenant given at least 10 business days prior to closing,
provide, at Tenant's expense, a survey of the Property as required to delete all
standard survey exceptions from such Owner's Policy.
(e) Landlord shall not, without the prior written consent of
Tenant, cause or permit any lien or encumbrance (other than current liens and
encumbrances) to be created upon or attach to the Property or increase the
amount of indebtedness secured by current mortgages against the Property until
in either case the Option shall have expired without being exercised. Attached
as Exhibit B hereto is a list of currently outstanding mortgages, liens and
other encumbrances against the Property and, where applicable the currently
outstanding indebtedness secured thereby.
3. Notice of Acquisition. Tenant shall give Landlord prompt written
notice (in accordance with Section 40 of the Lease) of the completion of the
Acquisition, specifying the date thereof, which date shall constitute the
commencement of this Amendment. If the Acquisition does not occur on or before
February 28, 1997, then this Amendment shall not go into effect and shall
automatically terminate.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed the day and year first above written.
"LANDLORD"
/s/ Xxxxxx X. Xxxxxxxx
WITNESS XXXXXX X. XXXXXXXX
"TENANT"
MAKO MARINE INTERNATIONAL,
INC., a Florida corporation
Attest:
By:/s/ Xxxxxxx X. Xxxxx
Print Name: Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxx, Xx. Title: President and Chief
Name: Xxxx X. Xxxx, Xx. Executive Officer
Title: Vice President/Secretary
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Exhibit A
Legal Description
Tracts A & B, XXXXXXXX PARK, according to the Plat thereof, as recorded in Plat
Book 92, at Page 30, of the Public Records of Dade County, Florida.
and
All of Lot 5 and 6, of Block 3 and all of Xxx 00, Xxxxx 0 xx XXXXX XXXX
COMMERCIAL PARK, according to the Plat thereof, as recorded in Plat Book 126,
Page 29 of the Public Records of Dade County, Florida.
Exhibit B
SCHEDULE OF MORTGAGE PAYMENTS DUE BY LANDLORD
Exhibit 1. Xxxxxxx Bank Amortization Schedule*
Exhibit 2. The Prudential Amortization Schedule
*Notwithstanding that the amortization schedule is attached as Exhibit 1 lists
amounts required to fully amortize the subject loan through July 1, 2006, Lessee
acknowledges that the maturity date of the subject loan is June 30, 2000, as set
forth in that certain Mortgage Spreader and First Modification to Note and
Mortgage between Landlord and Xxxxxxx Bank of South Florida, N.A., of even date
herewith.
