EXHIBIT 4.15
SECOND SUPPLEMENT AND AMENDMENT
TO
SALTWATER JOINT MARKETING AGREEMENT
AND ADDITIONAL AGREEMENTS
This Second Supplement and Amendment to Saltwater Joint Marketing
Agreement (this "Second Supplement") dated as of January 16, 1997 is entered
into by and between Brunswick Corporation, a Delaware corporation ("Brunswick"),
and Mako Marine International, Inc., a Florida corporation (the "Company").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
1. General. Brunswick and the Company have entered into that certain
Saltwater Joint Marketing Agreement dated as of November 21, 1994 (as
supplemented and amended to date, the "Saltwater Agreement"). Subsequent to the
date of the Saltwater Agreement, the Company has become an 80% owned subsidiary
of Tracker Marine, L.P. Tracker Marine, L.P. is also a customer of Brunswick and
a company in which Brunswick owns an interest. This Supplement further
supplements, amends and modifies the Saltwater Agreement and certain other
agreements between the parties, in each case to the extent set forth herein, but
is not part of any program offered thereby, and sets forth additional agreements
between Brunswick and the Company. The parties agree that this Supplement does
not constitute an amendment to the terms of the Secured Note dated November 21,
1994, in the original principal amount of $825,000 (the "Note"), except for the
maturity date thereof as set forth in Section 2 and the matters addressed at
Section 10. "Outboard" shall have the same meaning as set forth in the Saltwater
Agreement.
2. Maturity of the Note. The maturity of the Note (as defined in the
Note) is hereby extended to April 14, 2008.
3. Pricing. From and after the date hereof, Brunswick's base price of
outboard motors to the Company shall be the discount off published dealer price
set forth on Exhibit 1 hereto. The Company acknowledges that in no event shall
the effect of this Second Supplement provide the Company with pricing less
favorable than that in effect prior to the date hereof. The foregoing pricing
shall apply notwithstanding any provision of the Saltwater Agreement to the
contrary, including, without limitation, Sections 2.3 and 4.1 thereof. Such
pricing shall terminate and be of no further force or effect from and after the
date that Tracker Marine, L.P. shall cease to be a majority shareholder of the
Company. From and after such date, the pricing applicable without giving effect
to this Second Supplement shall control.
4. Term. The Term of the Saltwater Agreement shall continue until the
earlier of (a) April 14, 2008 or (b) the date that the Saltwater Agreement is
terminated pursuant to Section 5 thereof. The foregoing term shall apply
notwithstanding the termination dates set forth in (i) Section 1 of the
Saltwater Agreement or (ii) Section 1 of the November 29, 1994 Supplement and
Amendment to Saltwater Joint Marketing Agreement and Additional Agreements (the
"First Supplement"). Upon termination (other than termination referred to in
clause (b) above made at the election of Brunswick), the Company shall enter
into a new saltwater joint marketing agreement with Brunswick, provided that the
Company is still a majority-owned subsidiary of Tracker Marine, L.P. and
provided further, that Tracker Marine, L.P. is continuing to purchase outboard
engines from Brunswick at such time. Such new saltwater joint marketing
agreement shall have substantially the same pricing terms as Tracker Marine,
L.P, has for the purchase of outboard motors from Brunswick.
5. Purchasing Outboard Engines. Brunswick Outboards shall be installed
on all boats sold by the Company, except as permitted below. Notwithstanding the
foregoing and anything to the contrary set forth in the Saltwater Agreement
(including, without limitation, Section 3.1 thereof) or the First Supplement
(including, without limitation, Section 2 thereof), the Company is hereby
permitted to purchase and sell, on an annual basis, from third-party
manufacturers of engines, such engines for installation on up to the Applicable
Percentage of its saltwater boats. The "Applicable Percentage" shall be 35%
until July 1, 2001, 25% for model years 2002 through and including model year
2006 (if the Saltwater Agreement is still in effect), and 15% for model year
2007 and after (if the Saltwater Agreement is still in effect). The Company will
use all commercially reasonable efforts, however, to promote Brunswick's engines
to its dealers and to encourage its dealers to purchase Brunswick's engines.
Within 30 days after the end of each fiscal quarter, the Company shall deliver
to Brunswick a certificate signed by an executive officer setting forth the
number of engines manufactured by third party manufacturers purchased and sold
by the Company pursuant hereto during such quarter and the percentage that such
third-party engines represent of all engines sold by the Company during such
quarter.
Notwithstanding anything to the contrary set forth in the Saltwater
Agreement (including, without limitation, Section 2.2 thereof) or the First
Supplement (including, without limitation, Section 3 thereof), the Company shall
not be obligated to purchase, pay for and install Quicksilver controls, remote
controls or cables on any saltwater boat sold with an engine of a third-party
manufacturer pursuant to the exception set forth above.
Section 3.2 of the Saltwater Agreement is hereby deleted and of no
further force or effect.
The second sentence of the second paragraph of Section 2 of the First
Supplement is deleted and the following is inserted in its place:
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"If the Company purchases all or substantially all of the assets or
capital stock of another boat manufacturing company, or if the Company
manufactures and sells boats under a name other than Mako (such as "Sea Craft"
and "Silver King"), then outboard engines purchased by the Company from
Brunswick to be used in connection with the newly acquired boat manufacturing
company's boat lines or such boat lines manufactured and sold under another name
shall be counted as Qualifying Engines for purposes of this Agreement, including
for purposes of Market Share calculation and Loan reduction."
Section 5 of the First Supplement is hereby deleted and of no further
force or effect.
6. Assignability. Sections 7.2 and 5(d) of the Saltwater Agreement (as
amended by the First Supplement) are hereby deleted and of no further force or
effect.
7. Dealer Appointment. The Company shall have the independent power and
authority to appoint "package only" Brunswick dealers (i.e., sale of packages
consisting of boats manufactured by the Company and Brunswick motors, parts and
service with no right to purchase loose Brunswick motors from Brunswick) on the
terms and conditions of the Company's standard dealer agreements except in those
states where such appointment may be prohibited by law; provided that Brunswick
shall be entitled to stipulate whether any particular dealer is a Mercury or
Mariner dealer. The Company's power to appoint "package only" Brunswick dealers
shall be irrevocable during the term hereof. Brunswick hereby agrees to enter
into its standard parts and service agreement with "package only" Brunswick
dealers appointed pursuant to the terms of this Agreement. The Company hereby
appoints, and Brunswick hereby consents to the appointment of, all existing
Company dealers as "package only" dealers of Brunswick products; provided that
Brunswick retains the right to stipulate whether any such dealer is a Mercury
dealer or a Mariner dealer. Dealers appointed by the Company ("package only" or
"full line") shall be entitled to receive from Brunswick Special Dealer Program
benefits for the purchase and sale of the Outboards as though sold by Brunswick
as a part of a Brunswick branded boat/motor package. Brunswick's Mercury Marine
Division will make its dealer support services available to all "full-line, or
"package only" dealers appointed by the Company who qualify under the
Mercury/Mariner criteria for participation in the Mercury Marine Dealer Support
Services Program. Dealers appointed by the Company shall be entitled to the same
co-operative advertising allowances for advertising as other Brunswick dealers
under similar circumstances. The power and authority granted to the Company
under this Section 7 shall be non- assignable and shall terminate immediately
upon Tracker Marine, L.P. no longer being a majority shareholder of the Company.
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8. Forecasts. On the fifth day of each month commencing July, 1997, the
Company shall submit (i) a three-month forecast (each a "Short-Term Forecast")
setting forth the Company's projected requirements for Outboards for the three
months commencing with the month immediately following the month in which such
forecast is submitted and (ii) an eight-month forecast (each a "Long-Term
Forecast") for the eight months commencing with the fourth month following the
month in which such forecast is submitted. The first month of each Short-Term
Forecast shall be treated for all purposes hereof as a firm order and may vary
by not more than 10% from the amount of Outboards forecasted to be purchased by
the Company in such month in the immediately preceding Short-Term Forecast. The
forecast for the second month of each Short-Term Forecast is a forecast only and
may vary by not more than 15% from the amount of Outboards forecasted to be
purchased by the Company during such month in the immediately preceding Short-
Term Forecast. The forecast for the third month of any Short-Term Forecast is a
forecast only and the obligation of Brunswick to supply Outboards to meet any
firm order shall not exceed 160% of the number of Outboards first forecasted to
be purchased for such month (as modified by the two immediately preceding
sentences) in the Long-Term Closing Date Forecast or the initial Long-Term
Forecast with respect to the month in question.
Brunswick shall not be obligated to supply any Outboards ordered
pursuant to any "firm order" under this Section 8 if the amount of Outboards
ordered exceeds the amount of Outboards permitted to be included in the
Short-Term Forecast containing such firm order (the excess of the amount ordered
over the amount permitted to be included in a Short-Term Forecast being referred
to as the "Excess order"). However, Brunswick agrees to use its reasonable
efforts to supply the Excess Order Outboards to the Company. In times of short
supply of Outboards, Brunswick shall not discriminate against the Company in
attempting to fill orders for Outboards. However, Brunswick shall not be
obligated to take any action that would unfairly affect the supply of Outboards
to its distributor or dealer organization. Brunswick agrees to promptly notify
the Company, in writing, of any anticipated failure, refusal or inability to
sell the Outboards to the Company immediately upon receipt of information which
reasonably leads Brunswick to conclude that such failure, refusal or inability
is imminent. Following the occurrence of any material change in the status of
any interruption of performance, Brunswick shall promptly, but in no event later
than 3 business days following such occurrence, notify the Company in writing of
such material change. In addition, Brunswick shall periodically inform the
Company on a timely basis of the current status of the interruption and as to
the anticipated duration of the interruption.
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9. Freight; Payment Terms. Notwithstanding anything in the Saltwater
Agreement to the contrary, outboards will be shipped F.O.B. Company plants in
full truck loads. Any shipment made to more than one Company plant shall be
deemed to have been a full truck load shipment so long as (i) the aggregate
shipment amounts to a full truck load and (ii) all plants taking delivery are in
the State of [Florida]. The Company shall pay for Outboards within 60 days after
the date each such Outboard is shipped. The Company shall pay for all products
(other than Outboards) purchased from Brunswick in accordance with Brunswick's
standard payment terms.
10. No minimums. Brunswick waives the minimum purchase requirements in
(a) the last paragraph of Section 4 of the First Supplement and (b) the fourth
paragraph of the Note.
11. Basic Agreement. Sections 1.6 and 1.7 of that certain Basic
Agreement dated November 21, 1994 between Brunswick and the Company are hereby
deleted and of no further force or effect.
12. Renewals. Section 7 of the First Supplement is hereby deleted and
of no further force or effect.
13. Notices. Copies of all notices sent to the Company shall also be
sent to:
Tracker Marine, L.P.
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
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and
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L,L.P,
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Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
14. Effective Date. The agreements and amendments set forth in this
Second Supplement are effective as of the date of this Second Supplement.
15. Continuing Effect. To the extent that the terms of this Supplement
are inconsistent with the terms of the Saltwater Agreement and the First
Supplement, the terms of this Supplement shall control; provided that the
Saltwater Agreement shall otherwise continue in full force and effect. The
Saltwater Agreement, as amended hereby, and the other Agreements executed in
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connection therewith, continue in full force and effect. The Company reaffirms
its obligations under the Note.
BRUNSWICK CORPORATION MAKO MARINE INTERNATIONAL, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President; Title: President
General Manager of the OBU
Mercury Marine
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Exhibit 1
The Company will receive a discount on engines purchased hereunder
equal to the greater of (1) a 19% discount off the published dealer net price on
outboard motors shipped to the Company and an 18% discount off the published
dealer net price on outboard motors shipped to dealers, and (2) the best
available percentage discount off of Base Dealer Price (as defined from time to
time in applicable purchase documentation) as is in effect from time to time for
purchases of outboard motors from Brunswick by Tracker Marine, L.P. (whether
directly or through affiliates), provided that this clause (2) shall apply only
with respect to the period that Tracker Marine, L.P. remains the majority
shareholder of the Company.