UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D/A-1
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
MAKO MARINE INTERNATIONAL, INC.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
560878 10 0
(CUSIP Number)
KENNETH BURROUGHS
TRACKER MARINE, L.P.
1915-C SOUTH CAMPBELL
SPRINGFIELD, MISSOURI 65809
(417) 882-4444
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
Copy to:
ROBERT H. WEXLER, ESQ.
GALLOP, JOHNSON & NEUMAN, L.C.
101 SOUTH HANLEY, SUITE 1600
ST. LOUIS, MO 63105
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Page 1 of 6 Pages
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SCHEDULE 13D
1. NAME OF REPORTING PERSON
SS OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Tracker Marine, L.P.
43-1686170
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY 8. SHARED VOTING POWER
EACH 0
REPORTING
PERSON 9. SOLE DISPOSITIVE POWER
WITH 0
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,330,000 shares of Common Stock.
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) APPROXIMATELY 81.0%.
Based upon 9,055,000 shares of Mako Common Stock outstanding (including
the 6,400,000 to be issued upon consummation of the transactions
described in Item 3 hereof) as of December 4, 1996, as reported by the
Issuer, calculated pursuant to Rule 13d-3(d)(1).
14. TYPE OF REPORTING PERSON
PN
Page 2 of 6 Pages
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Item 3. Source and Amount of Funds or Other Consideration.
- ------- --------------------------------------------------
Pursuant to the Stock Purchase Agreement dated as of December 4, 1996
by and between Tracker and Mako (the "Mako Stock Purchase Agreement"), Tracker
agreed to purchase from Mako 6.4 million authorized but unissued shares of Mako
Common Stock (the "Mako Shares"), at an aggregate purchase price consisting of
$4,140,000 in cash together with certain assets of Tracker constituting
Tracker's saltwater boat business. Consummation of the transaction contemplated
by the Mako Stock Purchase Agreement is subject to certain conditions,
including: (a) expiration or termination of all waiting periods applicable to
the consummation of the transaction under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (which condition has been satisfied); (b)
consummation of Tracker's acquisition of the "CAVC Shares" (defined below); and
(c) satisfaction of certain other conditions. Upon consummation of its
acquisition of the Mako Shares, Tracker will have the right to designate five
out of the seven directors to constitute the Board of Directors of Mako. The
directors of Mako following such acquisition will be Douglas W. Baena, Bruce S.
Foerster, Joseph J. Messina, Kenneth Burroughs, Joe C. Greene, Susie Henry and
Larry Mueller. Reference is made to the Information Statement filed by Mako with
the Securities and Exchange Commission pursuant to Section 14(f) of the
Securities Exchange Act of 1934, as amended, for additional information related
to, among other things, the aforementioned directors.
The Mako Stock Purchase Agreement also provides, among other things,
that during the period beginning on the closing date and ending ninety (90)
business days following the exercise, redemption or expiration date (e.g.,
August 23, 2000) of Mako's publicly traded warrants, Mako will issue to Tracker:
an additional 1,800,000 shares of Mako Common Stock if the market price of Mako
Common Stock is $5.00 or more during a period of ten consecutive trading days;
an additional 1,800,000 shares, if the market price of the Mako Common Stock is
$6.00 or more during a period of ten consecutive trading days; and an additional
3,629,900 shares if the market price of the Mako Common Stock is $7.00 or more
during a period of ten consecutive trading days. The shares referred to in the
previous sentence are referred to herein as the "Contingent Stock." The Mako
Stock Purchase Agreement further provides for the grant by Mako to Tracker of an
option (the "Anti- Dilution Option") to acquire additional shares of Mako Common
Stock at $1.50 per share. Such option is exercisable from time to time upon the
exercise of any currently outstanding options and warrants to purchase Mako
Common Stock (the "Derivative Securities"), to the extent necessary to maintain
an 80 percent equity interest in Mako, based upon the sum of the number of
shares of Mako Common Stock outstanding immediately following the closing of
Tracker's purchase of the Mako Shares and the number of shares of Mako Common
Stock issued pursuant to the exercise of the Derivative Securities. Derivative
Securities to purchase an aggregate of 3,622,900 shares of Mako Common Stock are
currently outstanding. The Mako Stock Purchase Agreement further contemplates
that following the consummation of the transactions, Mako's Articles of
Page 3 of 6 Pages
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Incorporation will be amended to increase the number of shares of authorized
Mako Common Stock so that there is at least a sufficient number of shares
available for issuance (a) upon exercise of the Derivative Securities, (b) to
meet Mako's requirement to issue shares of Contingent Stock, and (c) upon
exercise of the Anti-Dilution Option.
Pursuant to the Stock Purchase Agreement (the "CAVC Stock Purchase
Agreement"), dated as of December 4, 1996, by and between Tracker and
CreditAmerica Venture Capital, Inc., a Florida corporation ("CAVC"), Tracker
agreed to purchase from CAVC, under certain circumstances, 930,000 shares of
Mako Common Stock owned by CAVC (the "CAVC Shares"), at an aggregate purchase
price, payable in cash, of $1,860,000. In connection therewith, Tracker has
agreed to indemnify Mako's officers and directors and CAVC, and its officers,
directors and controlling persons against certain matters in respect of the sale
of the CAVC Shares.
Consummation of the transactions contemplated by the Mako Stock
Purchase Agreement and the CAVC Stock Purchase Agreement would require in the
aggregate cash in the amount of $5,960,000. The cash required to fund Tracker's
acquisition of the Mako Shares and the CAVC Shares be provided from internally
generated funds.
A copy of the Mako Stock Purchase Agreement is included as Exhibit 2.1
to this Schedule 13D and is incorporated herein by this reference. The foregoing
description of the Mako Stock Purchase Agreement is qualified in its entirety by
reference to such exhibit. A copy of the CAVC Stock Purchase Agreement is
included as Exhibit 2.2 to the Schedule 13D and is incorporated herein by this
reference. The foregoing description of the CAVC Stock Purchase Agreement is
qualified in its entirety by reference to such exhibit.
The transactions provided for under the Mako Stock Purchase Agreement
and the CAVC Stock Purchase Agreement were consummated on January 16, 1997,
whereupon Tracker acquired the CAVC Shares and immediately thereafter, the Mako
Shares, for a total of 7,330,000 shares of Mako Common Stock. Such shares
acquired by Tracker represent approximately eighty-one percent (81%) of the
currently outstanding Mako Common Stock.
Item 5. Interest in Securities of Issuer.
- ------- ---------------------------------
With its acquisition of the CAVC Shares and the Mako Shares described
in Item 3 above, Tracker has sole voting power and sole dispositive power with
respect to 7,330,000 shares of Mako Common Stock.
The foregoing description of certain terms of the Mako Stock Purchase
Agreement and the CAVC Stock Purchase Agreement is qualified in its entirety by
reference to the Mako Stock Purchase Agreement which is filed as Exhibit 2.1
hereto and which is incorporated herein by this reference, by reference to the
CAVC Stock Purchase Agreement which is filed as Exhibit 2.2 hereto and which is
Page 4 of 6 Pages
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incorporated herein by this reference, and by reference to the Letter Agreement
dated January 16, 1997 amending the CAVC Stock Purchase Agreement and the Mako
Stock Purchase Agreement, which is filed as Exhibit 2.3 hereto and which is
incorporated herein by this reference.
To the best of Tracker's knowledge, neither JLM nor any executive
officer or director of JLM beneficially owns any shares of Mako Common Stock,
nor have any transactions in Mako Common Stock been effected during the past 60
days by Tracker or, to the best of Tracker's knowledge, by JLM or any executive
officer or director of JLM. In addition, no other person is known by Tracker to
have the right to receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, the securities covered by this Schedule 13D,
as amended.
Item 7. Material to be Filed as Exhibits.
- ------- ---------------------------------
The following exhibits are filed as part of this Schedule 13D:
Exhibit 2.1 -- Mako Stock Purchase Agreement (including the
form of Anti-Dilution Option attached as
Exhibit thereto).
Exhibit 2.2 -- CAVC Stock Purchase Agreement.
Exhibit 2.3 -- Letter Agreement dated January 16, 1997.
Page 5 of 6 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
TRACKER MARINE, L.P.
By: JLM Management Company,
its General Partner
By: /s/ Kenneth Burroughs
Name: Kenneth Burroughs
Title: President
Dated: January 21, 1997
Page 6 of 6 Pages
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EXHIBIT INDEX
-------------
Exhibit Description
- ------- -----------
2.1 Stock Purchase Agreement, dated
December 4, 1996, by and between
Tracker Marine, L.P. and Mako Marine
International, Inc. (including the
form of Anti-Dilution Option
attached as Exhibit A thereto).
2.2 Stock Purchase Agreement, dated
December 4, 1996, by and between
Tracker Marine, L.P. and Credit
America Venture Capital, Inc.
2.3 Letter Agreement, dated January 16,
1997, amending the Mako Stock
Purchase Agreement and the CAVC
Stock Purchase Agreement.
January 16, 1997
Mako Marine International, Inc.
4355 N.W. 128th Street
Miami, Florida 33054
CreditAmerica Venture Capital, Inc.
c/o Douglas W. Baena
4355 N.W. 128 Street
Miami, Florida 33054
Gentlemen:
This letter, when executed by each of you, shall constitute an
agreement between (i) Tracker Marine, L.P. ("Tracker") and Mako Marine
International, Inc., ("Mako") with respect to certain additional agreements and
modifications to the Stock Purchase Agreement dated as of December 4, 1996 by
and between Tracker and Mako (the "Mako Agreement"), as amended, and (ii)
Tracker and CreditAmerica Venture Capital, Inc. ("CAVC") with respect to certain
additional agreements and modifications of the Stock Purchase Agreement dated as
of December 4, 1996 by and between Tracker and CAVC (the "CAVC Agreement").
As you know, certain environmental issues have arisen in connection
with Tracker's environmental due diligence review and analysis of Mako's
Opa-Locka, Florida property upon which its executive offices and manufacturing
facility are located (the "Property"). The results of such due diligence review
and analysis is described in the Phase I and Limited Phase II Environmental Site
Assessment dated December 16, 1996, issued by Environmental Works, Inc., of
Springfield, Missouri, as modified by a report dated January 2, 1997 ("ERM
Report"), issued by ERM-South, Inc. ("ERM") (collectively, the "Environmental
Reports"). As a result thereof, subject to the creation of the escrow described
below, Tracker has agreed to waive any conditions set forth in the Mako
Agreement or the CAVC Agreement which would not be satisfied as a result of any
and all of the environmental issues referred to in the Environmental Reports and
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 2
waive any right it would have to terminate the Mako Agreement or the CAVC
Agreement as a result of the effect of any and all of the environmental issues
referred to in the Environmental Reports, (such waivers being collectively
referred to herein as the "Waivers"). The Waivers are hereby given, subject to
and in consideration of the agreement of Mako and CAVC as follows:
1. With respect to the Mako Agreement:
(a) A new Section 6.14 is hereby added to the Mako Agreement
to read as follows:
"6.14 Nasdaq Listing. Tracker acknowledges its intent to cause Mako to
reapply to the Nasdaq Stock Market, Inc., for the listing of its shares
of Common Stock and Common Stock Purchase Warrants on the Nasdaq
SmallCap Market at such time as the Board of Directors of Mako
determines that such action is appropriate in view of Mako's cash flow
position and profitability.
(b) New subparagraphs (h) and (i) are hereby added to Section
7.2 of the Mako Agreement to read as follows:
(h) The current employment agreements between Mako and
each of Douglas W. Baena, Hugh L. Russ, Jr., and
Lawrence Tierney shall have been modified in form
reasonably satisfactory to Tracker and signed copies
of such modifications shall be delivered at Closing.
(i) (A) The Amended Triple Net Lease dated April 18, 1995
between Robert C. Schwebke and Mako ("Lease") shall
have been modified pursuant to an Amendment to Lease
in form reasonably satisfactory to Tracker and signed
copies of such amendment shall be delivered at
Closing.
(c) Except to the extent assumed by CAVC under the CAVC Agreement, Mako
will be responsible for, and shall pay directly, all Cleanup Costs (as
hereinafter defined). "Cleanup Costs" is defined herein as all costs and
expenses incurred in connection with the investigation, clean up, removal,
containment, remediation or response action performed in connection with the
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 3
preparation, negotiation, implementation and completion of an "Approved Action
Plan" (as hereinafter defined). Tracker's environmental due diligence costs
incurred prior to Closing are not Cleanup Costs for which Mako is responsible
pursuant to this paragraph, except for payment for the services provided by ERM.
(d) Except to the extent provided herein, Tracker and Mako each ratify
and confirm all of the provisions of the Mako Agreement. To the extent of any
inconsistencies between any provision contained herein and any provision
contained in the Mako Agreement, the provision contained herein shall prevail.
2. With respect to the CAVC Agreement:
(a) CAVC shall be responsible for and pay (i) all fees of Stroock &
Stroock & Lavan, Mako's counsel, incurred by Mako in connection with or related
to such firm's services performed on behalf of Mako in connection with the Mako
Agreement (including, without limitation, work performed on behalf of Mako in
connection with the Nasdaq delisting matter and the information statement
relating to the proposed change of control of Mako), and all of the transactions
contemplated thereunder, whether such fees were incurred on, before or after the
Closing Date, it being represented by CAVC that no portion of such expenses has
been paid by Mako, and (ii) additional expenses of $300,000 incurred by Mako
prior to the Closing Date as agreed by the parties on the Closing Date. CAVC's
responsibility as provided herein is undertaken in consideration of Tracker's
closing the Mako Agreement, notwithstanding certain operating losses to date.
(b) The responsibility for and the obligation to pay Cleanup
Costs will be as follows:
(i) the first $100,000 will be the responsibility
of and paid by Mako;
(ii) the next $300,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(iii) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako;
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Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 4
(iv) the next $200,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(v) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako;
(vi) the next $200,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(vii) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako;
(viii) the next $200,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(ix) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako;
(x) the next $200,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(xi) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako;
(xii) the next $200,000 of such Cleanup Costs will
be the responsibility of and paid by CAVC;
(xiii) the next $50,000 of such Cleanup Costs will be
the responsibility of and paid by Mako; and
(xiv) the next $10,000 of such Cleanup Costs will be
the responsibility of and paid by CAVC.
(xv) the balance of such Cleanup Costs will be the
responsibility of Mako.
The obligations of the parties under this Section 2(b) shall survive
the closing of the Mako Agreement and the CAVC Agreement.
CAVC's payments of Cleanup Costs shall be made from the escrow account
described below.
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 5
(c) At the Closing, a total of $1,310,000 of the "Purchase Price" (as
defined in the CAVC Agreement) shall be deposited in escrow with Sun Trust Bank,
Miami, N.A. as escrow agent, solely for the purpose of the payment of Cleanup
Costs for which CAVC is responsible pursuant to subparagraph (b) of this
Paragraph 2. Such escrow agent shall hold, administer and distribute such
escrowed funds pursuant to an escrow agreement ("Escrow Agreement") being
executed concurrently herewith.
(d) On January 2, 1997, ERM issued the ERM Report to Tracker in
response to a request to identify contamination on, in or under the Property
("Contamination"). The ERM Report indicated there was Contamination consisting
of certain volatile organics located in the area of MW-1A, more specifically
described in the ERM Report. The ERM Report also mentioned other Contamination
as set forth below. Tracker has engaged ERM to conduct further investigative
activities post-closing to determine: (a) whether the chlorinated solvents in
groundwater on the Property and the lead in groundwater on the Property arise
from on-site or off-site sources; and (b) whether there is Contamination
associated with either the soakage pit or retention tank (the "ERM Post-Closing
Investigation"). As soon as practicable the ERM Post-Closing Investigation
Report shall be submitted to CAVC. Tracker and CAVC shall both be provided the
opportunity to review and comment on a draft version of the ERM Post-Closing
Investigation Report before it is finalized.
(e) Within 30 days of receipt of the ERM Post-Closing Investigation
Report, CAVC, on behalf of Mako, shall request proposals from three mutually
acceptable environmental consulting firms to develop a proposed plan of action
for submittal to the Dade County Department of Environmental Resources
Management ("DERM"), based on the ERM Post-Closing Investigation Report. CAVC,
after first consulting with Mako, shall engage one of the three firms to submit
to DERM a letter (which, together with any further correspondence on behalf of
Mako to DERM, is referred to as the "Mako Letter Report"), including supporting
documentation and laboratory analyses, describing all Contamination identified
by ERM and identifying sources where any such Contamination may have been
disposed, discharged, or released. In addition, there shall be submitted to DERM
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 6
a plan of action (the "Action Plan") for proposed remediation, monitoring, or no
further action, as appropriate, with respect to environmental matters associated
with the Property. CAVC and Mako will consult as often as is necessary and
advisable with respect to the preparation of the Mako Letter Report and Action
Plan. A draft of the Mako Letter Report and Action Plan shall be submitted to
Tracker for review and approval prior to submittal to DERM. Any written report
or correspondence thereafter submitted to DERM shall be first provided to Mako
for review and approval. Mako will be notified of and invited to participate in
any meetings scheduled with DERM regarding the Property. Mako will also be
invited to meet with CAVC before any DERM meetings to discuss and develop
appropriate strategies. If after the initial meeting with DERM, Mako in its
reasonable judgment, determines that any significant information contained in
the draft Post-Closing Investigation Report has not been submitted to DERM, then
Mako may submit to DERM the ERM Post-Closing Investigation Report. Prior to such
submittal, Mako shall identify to CAVC the specific "significant information" of
concern and CAVC shall have 30 days therefrom to submit such information to
DERM. If such submittal is unsatisfactory to Mako, Mako may then file the ERM
Post-Closing Investigation Report.
CAVC will seek DERM's written approval of the Action Plan. DERM's
failure to take exception to any proposal in the Action Plan for no further
action for a period of 90 days following receipt of the Action Plan shall be
deemed to be approval by DERM of such no further action proposal; provided,
however, that ongoing negotiations as to no further action will toll such 90 day
period. Subject to the terms outlined herein, CAVC agrees that it shall oversee
and implement, to the satisfaction of DERM, all investigation and remediation of
the Property and other response actions outlined in the Action Plan as approved
by DERM and all amendments thereto (the "Approved Action Plan"). CAVC agrees
that it shall commence and perform to completion all activities required under
the Approved Action Plan in a diligent and timely manner.
Within 30 days of receipt of DERM's written approval of the Action
Plan, CAVC and Mako shall obtain proposals from three mutually acceptable
environmental consulting firms to develop and implement such Approved Action
Plan and to estimate the Cleanup Costs associated therewith. Unless otherwise
agreed after receiving and reviewing the proposals, CAVC will award the work and
hire the consulting firm which has submitted the lowest bid;
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 7
provided, however, that if Mako objects to the retention of the lowest bidding
consulting firm, it shall notify CAVC in writing, of its objection and the
parties will seek a bid from a fourth consulting firm. If the bid from such
fourth consulting firm is not greater than 10% of the bid from the lowest
bidding consulting firm, then such lowest bidding firm shall be retained. If the
bid from such fourth firm is greater than 10% of the lowest bidding consulting
firm, then the bid of such lowest bidding consulting firm shall not be
considered and the consulting firm then having submitted the next lowest bid
will be awarded the work. Within ten days following the approval of DERM of an
Action Plan, Mako shall notify the escrow agent to release to CAVC an amount
equal to the excess of the funds in escrow over the product of 125% of CAVC's
portion of the Cleanup Costs then estimated by the retained consulting firm to
implement the Approved Action Plan. Thereafter, Mako agrees from time to time to
notify the escrow agent that funds should be released to it for payment of
CAVC's portion of the Cleanup Costs as incurred. When the Approved Action Plan
is completed to the satisfaction of DERM, indicated by DERM's written
acknowledgment, Mako will notify the escrow agent to release the balance of the
funds, if any, in escrow to CAVC.
(f) CAVC's obligations herein are limited to activities relating to or
required under the Approved Action Plan. CAVC shall not be responsible for any
spills, releases, or discharges of pollutants or contaminants which occur from
conditions not existing prior to Closing.
(g) CAVC agrees that it shall not permit and shall cause its agents to
not permit any damage, nuisance or waste on the property in the course of its
implementation and completion of activities in the Approved Action Plan
("Activities"). Mako agrees that it shall grant CAVC access to the Property on
the condition that the actions of CAVC and its agents will not unreasonably
interfere with Mako's use of the Property and that these activities shall be
performed in such a manner to prevent or minimize disruption to Mako's
operations on the Property. Mako agrees that, to the extent practicable, CAVC
and its agents shall be permitted to perform the Activities without hindrance or
obstruction.
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 8
(h) CAVC and Mako agree that any consultants, contractors,
subcontractors or other agents engaged to perform relative to obligations
outlined herein shall maintain and furnish evidence of insurance mutually
satisfactory to Mako and CAVC for any insurance required by Florida law,
including workers' compensation insurance, automobile liability insurance and
commercial general liability insurance and professional liability insurance.
(i) CAVC agrees that upon receipt of the ERM Post-Closing
Investigation Report, it will promptly undertake preparation of the Mako Letter
Report and the finalization of the Action Plan. CAVC shall commence all
activities outlined in the Approved Action Plan as soon as possible following
receipt of approval thereof from DERM. CAVC shall implement and oversee all such
activities in a timely and diligent manner. Should CAVC default in a material
respect in implementing the Activities under the Approved Action Plan, Mako
shall be entitled to undertake such activities on its own volition and to
receive a full reimbursement from the escrow of all costs incurred by Mako which
were the responsibility of and for which the obligation to pay was attributable
to CAVC as outlined herein at Section 2(b) thereof. Prior to Mako's undertaking
such activities, Mako shall notify CAVC of the specific default, and CAVC shall
have 30 days to cure any such default.
(j) Both parties agree to promptly provide the other party with copies
of all studies, reports, permits, data, analysis, correspondence and other
documents relating to environmental matters associated with the Property. Draft
copies of all submissions to DERM shall be provided by one party to the other
party at least five days prior to submittal.
(k) If DERM determines that another agency should regulate the matters
referred to in the Mako Letter Report, then all references to DERM contained
herein shall be deemed to refer to such other regulatory agency.
(l) The parties hereto recognize that responsibility for certain of the
Cleanup Costs may be the responsibility of the landlord under the Lease. Within
a reasonable period of time as agreed by the parties, Tracker agrees to cause
Mako to retain counsel reasonably acceptable to CAVC to determine the nature and
extent of the liability of the landlord under the Lease for Cleanup Costs. If it
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 9
is determined that such landlord is or may be liable for the Cleanup Costs, Mako
agrees to pursue diligently all of its rights and remedies against such landlord
to recover any amount expended by Mako or CAVC for the Cleanup Costs. If such
pursuit results in an action or proceeding against the landlord, CAVC shall have
the right to participate in the pursuit of such action or proceeding and, at its
sole cost and expense, to retain counsel for such purpose. Any amount recovered
by Mako from the landlord by reason of his responsibility for the Cleanup Costs
will be divided between Mako and CAVC pro rata to the extent of amounts paid by
each for Cleanup Costs under the Mako Agreement and the CAVC Agreement ("Pro
Rata Split"). The obligations of Mako under this paragraph 2(1) will cease if
Mako acquires the Property.
(m) If any of the Contamination is determined to have been caused by
hird parties (other than the landlord under the Lease)or is covered by insurance
policies, Mako agrees to pursue such third party or insurance policies and any
proceeds net of expenses recovered from such third parties or insurance carriers
relating to the Contamination shall be subject to the Pro Rata Split.
(n) The legal expense of any action or proceeding under paragraph 2(l)
and (m) will be advanced by Mako, subject to reimbursement in accordance with
the Pro Rata Split. CAVC's portion of such legal expense if not paid directly,
may be withdrawn from the escrow.
3. (a) The rights of the parties herein are not assignable.
(b) This Letter Agreement is solely for the benefit of the parties
hereto and no provision of this Letter Agreement shall be deemed to confer upon
third parties any remedy, claim, liability, release or waiver in excess of those
existing without reference to this Agreement. Without limiting the generality of
the foregoing, no release or waiver by any party hereto shall operate as a
release, waiver or discharge or any liability upon any third party, or otherwise
effect any actual or potential liability with respect to environmental remedial
or clean up costs with respect to the Property.
(c) Any dispute arising out of or relating to paragraph 2(d) through
2(n) of this Letter Agreement shall be submitted to and determined in binding
arbitration. The arbitration shall be
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 10
conducted before and by a single arbitrator selected as follows: (i) each of
Mako and CAVC shall select an arbitrator; (ii) the two arbitrators selected
shall select a single person to serve as the arbitrator hereunder; and (iii) if
such single arbitrator has not been selected within ten days of written demand
by either party to the other party for arbitration, the arbitrator shall be
selected by the American Arbitration Association pursuant to the then current
rules of that Association. The arbitrator shall have authority to fashion such
just, equitable and legal release as such arbitrator, in his or her sole
discretion, may determine. Each party shall bear all its own expenses of
arbitration. All arbitration proceedings shall be conducted in the City of
Miami, State of Florida. The duty to arbitrate shall survive the Closing of the
Mako Agreement and the CAVC Agreement.
Except to the extent modified herein, Tracker and CAVC each ratify and
confirm all of the provisions of the CAVC Agreement. To the extent of any
inconsistencies between any provision contained herein and any provision
contained in the CAVC Agreement, the provision contained herein shall prevail.
If you are in agreement with the provisions of Paragraph 1, in the case
of Mako, and Paragraph 2, in the case of CAVC, please so indicated by signing a
copy hereof in the appropriate space provided below and returning same to the
undersigned.
Very truly yours,
TRACKER MARINE, L.P.
By: JLM MANAGEMENT COMPANY
Its: General Partner
/s/ Kenneth Burroughs
---------------------
By: Kenneth Burroughs
Title: President
<PAGE>
Mako Marine International, Inc.
CreditAmerica Venture Capital, Inc.
January 16, 1997
Page 11
Agreed to and accepted this day of January, 1997.
Mako Marine International, Inc.
/s/ Douglas W. Baena
--------------------
By: Douglas W. Baena
Title: President
Agreed to and accepted this day of January, 1997.
CreditAmerica Venture Capital, Inc.
/s/ Douglas W. Baena
--------------------
By: Douglas W. Baena
Title: President
