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Exhibit 10.3.3
AGREEMENT FOR THE PURCHASE AND SALE OF A VESSEL AND CERTAIN ASSETS
THIS AGREEMENT FOR THE PURCHASE AND SALE OF A VESSEL AND CERTAIN ASSETS
(hereafter "Agreement") is made and entered into as of the 2nd day of August,
2000, by and between, EUROPASKY CORPORATION, a Delaware corporation
(hereinafter referred to as "Seller"), and STARDANCER CASINO, INC., a South
Carolina corporation (hereinafter referred to as the "Buyer" or "Purchaser").
WITNESSETH:
WHEREAS, the Seller and/or its parent company, Europa Cruises Corporation,
and/or its subsidiaries, own, inter alia, two vessels and other property and
operate a gambling ship which sails from Xxxxxxx'x Xxxxxx, Madeira Beach,
Florida; and
WHEREAS, the Seller desires to sell a single vessel, Official Number D982256,
known as the M/V Europa Sky (the "Vessel") which is currently docked at
Xxxxxxx'x Xxxxxx, Madeira Beach, Florida, together with certain slot machines,
equipment and furniture thereon which are owned by Seller and used on said
Vessel, subject to the terms, conditions and provisions contained herein; and
WHEREAS, the Seller desires to sublease, subject to the consent of Xxxxxxx
Enterprises, Inc., any and all lease rights it may have to a dock, parking lots
and ticket booth currently leased from Xxxxxxx Enterprises, Inc. (hereafter
"Xxxxxxx") to Buyer; and
WHEREAS, the Buyer desires to purchase the Vessel and certain slot machines,
equipment and furniture on the Vessel which are owned by Europa subject to the
terms, conditions and provisions contained herein; and
WHEREAS, the Buyer desires to sublease, subject to Xxxxxxx'x consent, any and
all premises which Seller leases from Xxxxxxx, including a dock, parking lots
and ticket booth;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, together with other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto do agree as
follows:
1. RECITALS
The above recitals are true and correct and are incorporated herein by
reference.
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2. PURCHASE AND SALE OF A SINGLE VESSEL
Seller agrees to sell, transfer, convey and deliver to Buyer, and Buyer agrees
to purchase from Seller, that Vessel commonly known as the M/V Europa Sky for
the consideration set forth in this Agreement.
3. PURCHASE AND SALE OF CERTAIN VESSEL-RELATED ASSETS
Seller agrees to sell, transfer, convey and deliver to Buyer, and Buyer agrees
to purchase from Seller the slot machines, equipment and furnishings on the
Vessel which are owned by Seller and listed on Attachment 1 for the
consideration set forth in this Agreement.
4. LEASED ASSETS AND EQUIPMENT
It is understood that the Seller is not selling property to Buyer which is
leased and, accordingly, not owned by Seller. This property includes:
Let-It-Ride: ($395 rental per month)
Tech-Art (peepholes for viewing cards): (4 units $94 per month)
Xxxxxx Leasing POS System: ($261 per month)
Sunny South Motel Sign: $125.00 Monthly
Certain leased slot machines (3) (identified on Attachment 2)
Siemens Saturn PBX phone system: $993 per month
Direct TV: $116 per month
Atlantic City Coin & Slot Service Company (wheel of Madness): $550 per month
Oasis Ice Crusher
ATM Machine
ComCheck and ComCheck equipment
5. SUBLEASE OF PREMISES LEASED FROM XXXXXXX ENTERPRISES INC.
The Buyer understands that Seller leases certain premises located at Hubbards
Marina, Xxxxx Pass Village, Madeira Beach, Florida from Xxxxxxx Enterprises,
Inc. which are used for a wet storage berth for the vessel, parking, and a
ticket booth pursuant to that Second Addendum to Lease dated November 1, 1996
between Xxxxxxx Enterprises, Inc. and Europa Sky Corporation and Exhibit A
thereto entitled "Lease Agreement" dated November 13, 1990. The two documents
are hereinafter referred to as the "Xxxxxxx Lease".
The Buyer acknowledges that it has been provided with a copy of the Second
Addendum to Lease dated November 1, 1996 between Xxxxxxx Enterprises, Inc. and
Europa Sky Corporation and Exhibit A thereto (Lease Agreement dated November
13, 1990). The Buyer further acknowledges that it and its attorneys have been
provided with access to the complete files of Europa in XXXXXXX ENTERPRISES,
INC. V. EUROPASKY CORPORATION (Circuit Court for
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Pinellas County, Florida, Case No. 99-003715) and all prior agreements relating
to Europa and Xxxxxxx. The Buyer understands that Xxxxxxx has appealed the
lower court decision entered in favor of Europa in this case. The Buyer
understands that Article VI of the Xxxxxxx Lease states as follows:
Lessee hereby acknowledges and agrees that it shall not have the right to
assign or sublease Lessee's interest in this Lease, without first having
obtained the prior written consent of Lessor, which consent shall not be
unreasonably withheld.
The Buyer understands that this Agreement is contingent on obtaining the prior
written consent of Xxxxxxx to sublease the premises. Subject to the written
consent of Xxxxxxx, the Seller agrees to sublease the premises to Buyer and
Buyer agrees to pay any and all rents required to be paid under the Xxxxxxx
Lease. The Buyer understands that there can be no assurance that Xxxxxxx will
allow Seller to sublease the premises to Buyer.
The Buyer agrees to provide the Seller with a separate, irrevocable Letter of
Credit to secure the payment of any and all rents or other amounts that might
be due to Xxxxxxx Enterprises, Inc. during the term of the Lease or any
extensions thereof.
6. PURCHASE PRICE AND TERMS
(a) The total purchase price is $5,200,000.
(b) The purchase price will be allocated as follows:
(i) M/V Europa Sky $ 5,000,000
(ii) Goodwill 50,000
(iii) Slot Machines, Equipment, Furniture $ 150,000
TOTAL PURCHASE PRICE: $ 5,200,000
The parties agree to use the above allocation for purposes of filing their
local, state and federal income tax returns.
7. PAYMENT OF PURCHASE PRICE
The full amount of the Purchase Price shall be paid to the Seller in full in
cash or good certified checks in the amount of Five Million, Two Hundred
Thousand Dollars ($5,200,000). The terms of payment will vary depending on
whether the Purchaser also purchases the M/V Europa Star from Europa Cruises of
Florida 1, Inc. pursuant to a separate agreement.
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The Seller agrees to use the proceeds of the sale to pay First Union National
Bank of Florida the approximate $2,500,000 due to said Bank and to pay the
remaining $900,000 due to the State of Florida pursuant to a settlement
agreement reached by Europa and the State of Florida in 1999. The Seller shall
provide Buyer with proof of the amount paid to the Bank and State from each
payment toward the purchase price received. The Seller represents that First
Union is agreeable to being paid a fractional portion of each payment received
by Seller. The Purchaser has the right to contact First Union to ensure that
the Seller has, in fact, made payments toward the approximate $2,500,000 which
Europa owes First Union from the proceeds received from the sale. In the event
the Seller does not make payment to First Union or the State of Florida, the
Purchaser will then be entitled to make payment due directly to First Union
and/or the State of Florida.
A) PAYMENT TERMS IN THE EVENT THE PURCHASER HEREIN ALSO PURCHASES THE M/V
EUROPA STAR FROM EUROPA CRUISES OF FLORIDA 1, INC.
In the event the Purchaser herein also purchases the M/V Europa Star from
Europa Cruises of Florida 1, Inc. pursuant to a separate agreement, and does
not elect to terminate the agreement to purchase the M/V Europa Star on or
before September 1, 2000, the payment of the $5,2000,000 Purchase Price due
under this Agreement will be as follows:
1) On or before August 7, 2000: $ 800,000
2) September 1, 2000: 800,000
3) October 1, 2000: 500,000
4) November 1, 2000: 500,000
5) December 1, 2000: 500,000
6) January 1, 2001: 500,000
7) February 1, 2001: 400,000
8) March 1, 2001: 400,000
9) April 1, 2001: 400,000
10) May 1, 2001: 400,000
TOTAL: $5,200,000
B) PAYMENT TERMS IN THE EVENT THE PURCHASER HEREIN DOES NOT PURCHASE THE
M/V EUROPA STAR FROM EUROPA CRUISES OF FLORIDA 1, INC.
In the event the Purchaser herein does not purchase the M/V Europa Star from
Europa Cruises of Florida 1, Inc. pursuant to a separate agreement or in the
event the Purchaser exercises any option it may have to terminate a separate
agreement relating to the
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purchase of the M/V Europa Star, the payment of the $5,2000,000 Purchase Price
due under this Agreement will be as follows:
1) On or before August 7, 2000: $ 800,000
2) September 1, 2000: 900,000
3) October 1, 2000: 900,000
4) November 1, 2000: 900,000
5) December 1, 2000: 900,000
6) January 1, 2001: 800,000
TOTAL: $5,200,000
In addition to the payments listed in the above schedule, the Purchaser will
pay interest on the balance of the Purchase Price due beginning September 1,
2000 until the full Purchase Price has been paid. Interest will be calculated
at 7% per annum on the outstanding balance of the total purchase price and will
be due and payable together with the principal payments due above.
In the event the Purchaser elects to exercise its option under a separate
agreement to terminate its purchase of the M/V Europa Star, any credits due
from the purchase of the Star will be applied to the last payment due on
January 1, 2001. Any excess amount to be applied will be applied to the payment
due December 1, 2000.
8. OFFSETS
The parties agree that they are entitled to no offsets, credits or refunds
arising out of any prior transaction between the parties.
9. LETTER OF CREDIT
The Buyer will provide the Seller, upon signing of this Agreement, with an
irrevocable Letter of Credit on terms acceptable to the Seller in the amount of
$4,400,000, to secure payment of the full amount due for the purchase of the
Vessel, slot machines, equipment and furnishings. The Letter of Credit will be
returned to the Issuer of the Letter of Credit upon payment of the full
$5,200,000 due to Seller.
10. DEFAULT
In the event a payment to be made herein to Seller is not received when due,
the Purchaser shall be deemed to be in default. In the event the default is not
cured within ten calendar days after the Seller delivers written notice of
default to Purchaser, the Seller will, without further notice, present the
Letter of Credit for payment. In the event the Seller is unable, for any
reason, to collect the full amount due under the Letter of Credit within two
business days of presentment to the Issuer of the Letter of Credit
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or the default is not cured, Europa shall be entitled to take immediate
possession of the Vessel and the slot machines, equipment and furnishings
thereon, but Europa shall still be entitled to all sums due pursuant to this
Agreement, pursuant to the Letter of Credit, and attorneys fees and costs
incident to collection of any sums payable under this Agreement or Letter of
Credit. Europa shall be entitled to immediately sell the Vessel, slot machines,
equipment and furnishings without further notice to Buyer. In addition, in the
event the default is not cured within ten calendar days, any sublease of the
Xxxxxxx premises shall be deemed null and void and of no force and effect and
Europa shall be entitled to take immediate and exclusive possession of the
premises without further notice to Buyer.
11. NO REAL PROPERTY CONVEYED AND NO OTHER PROPERTY OR ASSETS CONVEYED BY
THIS AGREEMENT
It is understood and agreed by the parties that Seller is not selling or
conveying to Buyer any real property pursuant to this Agreement. It is
understood and agreed by the parties that Seller is not selling or conveying to
Buyer any other Vessel other than the M/V Europa Sky, or any other assets owned
or used by Seller, by its parent, Europa Cruises Corporation, or by any
affiliate or subsidiary of Seller and/or its parent, other than the slot
machines, equipment and furnishings identified herein.
EUROPA CRUISES CORPORATION HEADQUARTERS
SUITE 202 (CONDOMINIUM)
It is understood that Europa Cruises Corporation, the parent of EuropaSky
Corporation, owns a condominium at 000-000xx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxx 00000. It is understood that the Seller is not selling this
condominium to Purchaser or leasing this condominium to Purchaser pursuant to
this Agreement.
SUITE 200 (PRESIDENT'S OFFICE)
It is understood that Europa Cruises Corporation leases an office 000-000xx
Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxx 00000. It is understood that this
office is leased on a month-to-month basis from a third party Lessor for
approximately $608.75 per month and a $185 per month condominium fee. It is
understood that the Purchaser must obtain a lease for this office from the
third party Lessor should Purchaser desire to lease these premises.
CASH EXCLUDED
It is understood by the parties that the Seller is not conveying any cash,
checks, credit card or other funds on hand in its cage, in its bank accounts,
or elsewhere.
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ACCOUNTS RECEIVABLE EXCLUDED
This sale does not include any of Seller's accounts or notes receivable, all of
which remain Seller's property. If, following the close of this sale, Buyer
shall collect any of Seller's accounts or notes receivable, Buyer shall
promptly remit the proceeds to Seller.
CASINO CHIPS
It is understood by the parties that the Seller is not conveying casino chips
or tokens or cash equivalents to the Buyer. The Buyer, should he desire to do
so, is welcome to use the Seller's chips pending the Buyer's ability to
purchase replacement chips.
The parties agree that in the event the Buyer desires to use Seller's chips
pending receipt of its own chips, the Buyer will tender a certified check to
the Seller for the amount of chips the Buyer desires to borrow for use. The
Seller will hold the check. Upon return of the chips to Seller, the Buyer will
pay to the Seller the difference between the value of the chips borrowed by
Buyer and the value of the chips returned by Buyer. The Seller will then return
Buyer's original check to Buyer. In the event Buyer does not return all of the
chips to Seller on or before the date that is ninety (90) days after the Date
of Transfer of Possession, Seller shall be entitled to cash Buyer's certified
check and retain that amount representing the full value of chips that were not
returned by Buyer. The parties agree that the Buyer will purchase chips to be
delivered to Buyer within 90 days of the Date of Transfer of Possession.
TOKENS
It is understood by the parties that the Seller is not conveying
casino tokens or cash equivalents to the Buyer. Seller shall retain
title to any and all tokens used on the in the operation, provided
however, that Seller agrees to permit Buyer to use such Tokens for a
period of not more than ninety (90) days from the Date of Transfer of
Possession so that Buyer may have an opportunity to acquire its own
tokens without an interruption in the operation of the business. In
the event that Buyer wishes to make such temporary use of the Tokens:
(i) Buyer shall tender to Seller on the Date of Transfer of Possession
as security for the Tokens a certified check for the full face amount
of the Tokens that Buyer wishes to use. (For example, if Buyer wishes
to use 100 five dollar tokens, 100 one dollar tokens and 100
twenty-five cent tokens, then Buyer shall tender $625.00 to Seller);
(ii) Seller shall hold such certified check until the earlier of the
date that Buyer returns the Tokens to Seller or the date that is
ninety (90)
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days after the Date of Transfer of Possession; (iii) upon the return of the
Tokens to Seller, Buyer shall pay to Seller the difference between the value of
the Tokens borrowed by Buyer and the value of the Tokens returned to Seller by
Buyer, and Seller shall thereafter return Buyer's certified check. In the event
that Buyer does not return all of the Tokens to Seller on or before the date
that is ninety (90) days after the Date of Transfer of Possession, Seller shall
be entitled to cash Buyer's certified check and retain that amount representing
the full value of Tokens that were not returned by Buyer.
USE OF TRADEMARK OR TRADE NAME "SEAKRUZ"
Europa Cruises Corporation and/or its subsidiaries (hereafter collectively, the
"Europa Group"), have conducted or presently conduct business in several
locations under the trademark or trade name "SeaKruz" or "Europa SeaKruz". It
is understood and agreed that Buyer is not purchasing any right to use the
trademark or trade name "SeaKruz" in connection with the Madeira Beach
operation. The Buyer shall acquire no right, title, or interest in the
trademark or trade name.
12. HIRED EMPLOYEES
Prior to the Date of Transfer of Possession, the Purchaser agrees to offer
employment to at least two-thirds of the employees of Europa Sky Corporation
(the "Hired Employees") for a minimum of sixty (60) days commencing on the Date
of Transfer of Possession, during which period Purchaser shall evaluate the
feasibility of the continued employment of the Hired Employees. Seller shall
pay the cost of any compensation, severance or benefits which may be payable
through the Date of Transfer of Possession to Seller's employees. Purchaser
shall pay the cost of any compensation, severance or other benefits which may
be payable after the Date of Transfer of Possession to the Hired Employees.
13. ASSUMED LIABILITIES
(a) Assumption of Contracts by Buyer. On the Date of Transfer of
Possession, the Buyer will assume all rights, obligations and liabilities of
the Seller under the contracts entered into by Seller in the regular course of
business that remain executory and that are identified in Paragraph 4 above.
(b) Sublease of Xxxxxxx Lease. Upon the Date of Transfer of
Possession, subject to the written consent of Xxxxxxx Enterprises, Inc., Seller
will sublease to Buyer the premises currently leased by Seller from Xxxxxxx
Enterprises, Inc.
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14. ASSUMPTION OF VESSEL LIABILITIES
On the Date of Transfer of Possession of the Vessel, slot machines, equipment
and furnishings, the Buyer will assume all rights, obligations and liabilities
arising out of or relating to Buyer's possession or operation of the Vessel,
slot machines, equipment and furnishings from the Date of Transfer of
Possession, subject to (i) the Seller's agreement to indemnify the Buyer
against obligations and liabilities incurred prior to the Date of Transfer of
Possession, and (ii) the Buyer's agreement to indemnify the Seller against
obligations and liabilities incurred on and after the Date of Transfer of
Possession.
15. CONDITION OF THE VESSEL
The Buyer acknowledges that Seller has made no representations or claims as to
the condition of the Vessel or slot machines, equipment or furnishings which
are the subject of this Agreement.
SELLER SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AND ANY
WARRANTIES AS TO THE PHYSICAL OR MECHANICAL CONDITION OF THE VESSEL. BUYER
ACKNOWLEDGES THAT BUYER IS PURCHASING THE VESSEL "AS IS" "WHERE IS" "TOGETHER
WITH ALL FAULTS." ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. IT
IS EXPRESSLY UNDERSTOOD THAT THE VESSEL IS SOLD "AS IS," "WHERE IS" "TOGETHER
WITH ALL FAULTS."
16. INSPECTION
The parties agree that the Buyer and/or its representatives, technicians or
experts shall have complete access to the Vessel for the purpose of informing
themselves of the condition of the Vessel at any time or times prior to taking
possession of the Vessel.
17. CLOSING
The Closing of this transaction shall occur on May 1, 2001 or January 1, 2001
depending on which payment terms apply under Paragraph 7, unless otherwise
agreed by the parties in writing. Closing shall take place in Myrtle Beach,
South Carolina or in international waters or at such other location as is
agreed to by the parties in writing. Closing shall be effective as of 12:01
a.m. on the Closing Date. In the event that Buyer fails for any reason to close
on the Closing Date, Seller shall be deemed to have elected to terminate this
Agreement and shall be entitled to sell the Vessel, slot machines, equipment
and furnishings to any other buyer without further obligation or notice to the
Buyer. In the event that Buyer fails for any reason to close on or before the
Closing Date, any payments received will be forfeited to
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Seller. The Buyer shall remain liable for payments due under this Agreement and
for attorneys' fees and expenses incurred in collecting same.
18. TITLE TO VESSEL IS NOT TO BE CONVEYED UNTIL CLOSING
It is understood that title to the Vessel, slot machines, equipment and
furnishings thereon will not be conveyed until the Closing Date. It is
understood that the Seller shall NOT convey title to the Vessel, slot machines,
equipment or furnishings being sold to Buyer until the Purchase Price has been
paid in full. The parties understand that certain entities have liens on the
Vessel and must release said liens prior to transfer of title. These include:
First Union National Bank of Florida and the Florida Department of Revenue. The
foregoing have agreed to release their liens upon payment of certain sums to
them which the Seller agrees to pay. Seller shall, at Seller's expense, convey
title to the Vessel at Closing or as soon as is possible after the Purchase
Price has been paid in full.
19. OBLIGATIONS FOLLOWING DATE OF TRANSFER OF POSSESSION AND CLOSING
(a) TRANSFER OF LICENSES
Seller shall cooperate with Buyer and take all reasonable steps
necessary for the transfer to Buyer of any and all transferable licenses and
permits necessary for the ownership and operation of the Vessel.
(b) BUYER TO PAY TAXES ON PURCHASE PRICE
The purchase price of the Vessel, slot machines, equipment and
furnishings conveyed herein does not include any sales or use tax. Buyer
acknowledges that payment of these taxes is Buyer's obligation and that all
required tax returns will be filed and all taxes due will be remitted to the
appropriate tax authority when due. Buyer will indemnify and hold Seller
harmless from any liability for sales or use tax arising out of this purchase
and sale transaction and for any and all expenses incurred by Seller, including
attorneys' fees, should Buyer fail to pay taxes when due.
(c) SELLER TO PAY BROKER'S COMMISSIONS
The Seller warrants to Buyer that Seller has not engaged or retained
the services of a broker regarding this Agreement except as follows and that in
the event a broker shall claim a commission due with regard to this Agreement
on account of the Seller, Seller shall protect, save harmless and indemnify
Buyer from and against any claim brought by said broker, whether founded or
unfounded.
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The Seller has agreed to pay a commission equal to three percent of the
Purchase Price (3% of $5,200,000) or a total commission in the amount of One
Hundred and Fifty-Six Thousand Dollars ($156,000) to:
Coastal Passenger Vessels, LTD., LLP
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
The commission will be due and paid upon receipt of payments received by Seller
from the Buyer on each portion of the payment received. The Buyer warrants to
Seller that Buyer has not engaged or retained the services of a broker
regarding this Agreement and that in the event a broker shall claim a
commission due with regard to this Agreement on account of the Buyer, Buyer
shall protect, save harmless and indemnify Seller from and against any claim
brought by said broker, whether founded or unfounded.
(d) DOCUMENTS
Seller and Buyer agree to execute all documents as may reasonably be required
to transfer the Vessel, slot machines, equipment and furnishings thereon owned
by Europa in accordance with the provisions hereof including, without
limitation, a Xxxx of Sale for the Vessel and any other documents and
instruments as may be necessary or appropriate for the consummation of the
transaction contemplated herein.
(e) COOPERATION IN DEFENSE OF LAWSUITS AND CLAIMS
The parties agree to cooperate fully and completely with each other in the
event either party or its officers, directors or employees are the subject of a
complaint, claim or lawsuit. Each party agrees to use its best efforts to
assist the other party in defending any claim or lawsuit filed against a party
or its officers, directors or employees, including, but not limited to, making
its employees, agents and representatives available for statements, depositions
or trial.
20. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Seller represents, warrants and covenants to the Buyer the following:
(a) AUTHORITY
Seller is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware. This
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Agreement and the transactions contemplated hereunder have been duly authorized
by the Board of Directors of the Seller, EuropaSky Corporation, as well as the
sole shareholder of the Seller, Europa Cruises Corporation, and constitute the
valid and binding obligation of the Seller.
(b) SOLE OWNERSHIP
Seller is the sole owner of the vessel and has the full right and
power to sell and transfer it.
(c) LIENS ON VESSEL
The Vessel will be transferred on the Date of Closing or as soon as is
possible thereafter, free from any security interest, lien or encumbrance.
(d) NO SUITS, CLAIMS, JUDGMENTS, ETC.
Seller has no knowledge of any unsatisfied judgments against the
Vessel. Seller has no knowledge of any suits or claims pending against the
Vessel other than those identified in Attachment 3.
21. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Buyer represents and warrants to the Seller that:
(a) AUTHORITY
Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of South Carolina. This Agreement and
the transactions contemplated hereunder have been duly authorized by all
necessary action of the Purchaser and its Board of Directors and constitute the
valid and binding obligation of the Purchaser.
(b) NO RELIANCE
Seller has not made any representations as to the condition of the
Vessel or as to the past or present earnings or the prospects of future
earnings of the Vessel. The Seller has made no representations as to the past or
present earnings of the business or operation or prospects of future earnings
of the business or operation and Buyer has not relied upon any representation(s)
by Seller or others in entering into this Agreement.
(c) ADEQUATE OPPORTUNITY FOR INSPECTION
Prior to signing this agreement, Buyer and its agents,
representatives, technicians and experts have been afforded adequate
opportunity to inspect the Vessel and all slot machines, equipment, fixtures,
and furnishings conveyed thereon and has had the opportunity to ascertain to
its satisfaction the physical
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condition of the Vessel, slot machines, equipment, fixtures and furnishings
thereon.
22. RISK OF LOSS
Any risk of loss or destruction shall pass to Buyer upon taking possession of
the Vessel on the Date of Transfer of Possession. Buyer will take possession of
the Vessel at the Vessel's then location at Xxxxxxx'x Xxxxxx in Madeira Beach,
Florida, following payment of the first $1,600,000 due.
23. CROSS INDEMNIFICATION
(a) SELLER'S INDEMNIFICATION
Seller agrees to indemnify Buyer, its shareholders, officers and directors and
their respective successors, heirs and assigns, and hold Buyer and them
harmless from and against claims of any nature relating to the Vessel and/or
operation of the Vessel prior to the Date of Transfer of Possession.
(b) BUYER'S INDEMNIFICATION
Buyer agrees to indemnify Seller, its shareholders, officers and directors and
their respective successors, heirs and assigns, and hold Seller and them
harmless from and against claims of any nature relating to the Vessel and/or
operation of the Vessel on and after the Date of Transfer of Possession.
24. ASSIGNMENT
The Buyer shall have no right to assign this Agreement until the full Purchase
Price has been paid without the express, written consent of the Seller. It is
understood that the Seller may withhold consent for any reason and that consent
may be unreasonably withheld. It is understood that the Seller will have the
absolute right to assign this Agreement.
25. PRORATION
The expenses associated with all leases, rents or other contracts which will be
utilized by the Buyer shall be prorated to the date of transfer of possession
of the Vessel.
All inventories of consumable products, including fuel, oil, liquor, beer, soft
drinks and mixers will be inventoried after the last cruise prior to transfer
of possession and the Buyer will reimburse Seller for the value at Seller's
cost of the consumable inventories.
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26. WAIVER
No waiver of any breach or default under this Agreement by any party shall be
considered to be a waiver of any other breach or default under this Agreement.
27. OWNERSHIP
The parties agree that, while the Seller shall retain title to the Vessel as
security until the full Purchase Price has been paid, that the Buyer shall be
deemed the Owner of the Vessel, slot machines equipment and furnishings thereon
for all purposes.
28. TAXES
Although the Seller will retain title to the Vessel until payment of the full
Purchase Price, the Purchaser shall be deemed the owner of the Vessel for all
purposes and shall pay all taxes and assessments of any nature that may be
assessed against the title holder or owner of the Vessel or the Vessel in
connection with the use of the Vessel including, but not limited to, admissions
taxes, sales, taxes, special county taxes, use taxes, federal excise taxes,
registration fees, personal property taxes, liquor taxes, penalties and
interest thereon, and any attorneys fees incurred in connection with the
collection thereof and shall indemnify Europa against any claims, liens and
collection efforts in connection therewith.
29. INSURANCE
The parties agree that the Seller currently carries insurance on the Vessel. It
is agreed that the Purchaser will maintain, at a minimum, the same insurance
coverage now being carried on the Vessel. The Purchaser will pay all insurance
premiums on the Vessel beginning with that date on which the Purchaser takes
possession of the Vessel. The Purchaser shall name EuropaSky Corporation and
Europa Cruises Corporation as insureds under all policies of insurance and shall
furnish proof of all insurance to be carried on the Vessel until the Purchase
Price has been paid in full.
30. TIME IS OF THE ESSENCE
Time is of the essence of this agreement.
31. EXPENSES OF SALE
Each party shall be responsible for its own costs, expenses and legal fees
relating to the transaction. Seller's expenses shall include preparation of the
bills of sale and preparation of Seller's instruments for the transfer of the
Vessel. Buyer's expenses shall include all financing costs, all costs of
registering the xxxx of sale with the United States Coast Guard,
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preparation of any notes and liens hereunder, and preparation of Buyer's
instruments for the transfer of the Vessel.
32. NOTICE
Any and all notices required or contemplated hereunder shall be provided by
delivery via Federal Express and via facsimile to the following:
AS TO SELLER:
EuropaSky Corporation
Xxxxxxx X. Xxxxxx, President
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
AND to:
Xxxxxxx X. Xxxxxx, President
EuropaSky Corporation
000-000xx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
AS TO BUYER:
Xxx Xxxx, President
Stardancer Casino, Inc.
0000 Xxxxxxx 00
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Tel: 000-000-0000
Cell: 000-000-0000
Facsimile: 000-000-0000
33. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida and shall
be enforced only in a court of competent jurisdiction in Pinellas County,
Florida.
34. SEVERANCE
The invalidity or unenforceability of any portion of this Agreement shall in
nowise affect the remaining provisions and portions hereof.
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35. BINDING EFFECT
This agreement shall bind the successors, heirs and assigns of the parties
hereto.
36. CAPTIONS
The paragraph captions used throughout this agreement are for the purpose of
reference only and are not to be considered in the construction of this
agreement or in the interpretation of the rights or obligations of the parties
hereto.
37. ENTIRE AGREEMENT
This Agreement supersedes all prior agreements and oral discussions and
constitutes the entire agreement between the parties and the agreement shall
not be modified in any respect except by an amendment in writing signed by all
parties hereto.
38. REPRESENTATION AS TO AUTHORITY TO ACT
The undersigned represent and warrant that they are duly empowered and
authorized to execute this Agreement on behalf of their respective principals.
IN WITNESS WHEREOF the parties have caused this instrument to be executed as of
the date first above written in international waters at 78.30 degrees longitude
and 33.47 degrees latitude.
SELLER:
EUROPASKY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx, President
Date: August 2, 2000
----------------------------------
BUYER:
STARDANCER CASINO, INC.
By: /s/ Xxx Xxxx
----------------------------------
Xxx Xxxx, President
Date: August 2, 2000
----------------------------------
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A-D-D-E-N-D-U-M
This ADDENDUM to the AGREEMENT FOR THE PURCHASE AND SALE OF A VESSEL AND CERTAIN
ASSETS (hereinafter referred to as "The Agreement") dated as of the 2nd day of
August, 2000, between EUROPASKY CORPORATION, a Delaware corporation (hereinafter
referred to as "Seller"), and STARDANCER CASINO, INC., a South Carolina
corporation (hereinafter referred to as "Buyer" or "Purchaser"), is made and
entered into as of the 12th day of December, 2000, between Seller and Buyer for
the sole purposes expressed herein.
A. Paragraph 18 of The Agreement notwithstanding, upon the execution of
this Addendum title to STARDANCER IV (ex. EUROPA SKY) official number 982256
(hereinafter referred to as "The Vessel), but nothing else, shall be conveyed
to Buyer by the delivery of a Xxxx of Sale by Seller to Buyer, upon which Buyer
shall deliver to Seller a Promissory Note in the principal amount of
$1,600,000.00 and a FIRST PREFERRED SHIP MORTGAGE covering the whole of The
Vessel to secure Buyer's obligations under the Promissory Note.
B. Buyer, upon the execution of this Addendum, shall deliver to Seller a
signed and notarized Xxxx of Sale conveying the vessel together with all
necessaries and appurtenances, including masts, bowsprit, sails, boats,
anchors, cables, tackle, furniture, and all other necessaries there unto
appertaining and belonging. Seller or Seller's agent shall hold the Xxxx of
Sale in escrow and shall redeliver it to Buyer upon the full payment of the
Promissory Note and satisfaction of the FIRST PREFERRED SHIP MORTGAGE. In the
even of default in the Promissory Note or FIRST PREFERRED SHIP MORTGAGE, Seller
may, in Seller's sole discretion, record the Xxxx of Sale and take immediate
possession of the vessel together with all necessaries and appurtenances.
EXCEPT AS PROVIDED ABOVE, The Agreement shall otherwise remain in full force
and effect, and Seller shall retain each and every power or remedy granted in
the Agreement in addition to all powers or remedies now or hereafter existing
in admiralty, in equity, at law, or by statute. No delay or omission by seller
shall impair any
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right, power, or remedy, and no waiver of default shall waive any other
default.
Signed at Alexandria, Virginia the 12th day of December, 2000.
EUROPASKY CORPORATION STARDANCER CASINO, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx Xxxx
---------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx, President Xxx Xxxx, President
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