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Exhibit 10.3.4
AGREEMENT FOR PURCHASE AND SALE OF A VESSEL
THIS AGREEMENT FOR THE PURCHASE SALE OF A VESSEL (hereafter
"Agreement") is made and entered into as of the 2nd day of August, 2000, by and
between EUROPA CRUISES OF FLORIDA 1, INC., a Delaware corporation (hereinafter
referred to as "Seller" or "Europa"), 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 gaming business out of Madeira Beach, Florida; and
WHEREAS, the Seller desires to sell a single vessel, IMO number
7722047, known as the Europa Star (the "Vessel") which is currently docked at
Oyster Bay Land Co., 0000 Xxxx Xxxxxx, Xxxx Xxxxx Xxxxx, Xxxxxxx 00000,
together with certain equipment thereon which is owned by Seller and used on
said Vessel, subject to the terms, conditions and provisions contained herein;
and
WHEREAS, the Buyer desires to purchase the Vessel and that equipment
on the Vessel owned by Europa subject to the terms, conditions and provisions
contained herein.
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.
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 Star and
any equipment thereon for the consideration set forth in this Agreement.
It is understood and agreed by the parties that Seller is not selling or
conveying to Buyer any other Vessel, business or assets owned or used by
Seller, by its parent, Europa Cruises Corporation, or by any affiliate or
subsidiary of Seller and/or its parent. It is understood and agreed by the
parties that Seller is not selling or conveying to Buyer any real property
pursuant to this Agreement.
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3. ASSUMPTION OF VESSEL LIABILITIES
The Buyer will take possession of the Vessel forty-eight hours after the Vessel
enters drydock (hereafter "Time of Transfer of Possession.")
Upon taking possession of the Vessel, the Buyer will assume all rights,
obligations and liabilities arising out of or relating to Buyer's possession or
operation of the Vessel from the Time of Transfer of Possession subject to (i)
the Seller's agreement to indemnify the Buyer against obligations and
liabilities incurred prior to the Time of Transfer of Possession and (ii) the
Buyer's agreement to indemnify the Seller against obligations and liabilities
incurred on and after the Time of Transfer of Possession.
4. PURCHASE PRICE AND TERMS
(a) The total purchase price is $2,100,000.
(b) The purchase price will be allocated as follows:
(i) M/V Europa Star $2,080,000
(ii) Furniture, Fixtures, Equipment
and Inventory $ 20,000
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TOTAL PURCHASE PRICE: $2,100,000
The parties agree to use the above allocation for purposes of filing their
local, state and federal income tax returns.
5. 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 Two Million, One Hundred
Thousand Dollars ($2,100,000) as follows:
1) On or before August 4, 2000: $ 300,000.00
2) 60 calendar days after the Vessel enters drydock: 300,000.00
3) 90 calendar days after the Vessel enters drydock: 300,000.00
4) 120 calendar days after the Vessel enters drydock: 300,000.00
5) 150 calendar days after the Vessel enters drydock: 300,000.00
6) 180 calendar days after the Vessel enters drydock: 300,000.00
7) 210 calendar days after the Vessel enters drydock: 300,000.00
Total: $2,100,000.00
OPTION TO TERMINATE THIS AGREEMENT
International Ship Repair & Marine Services, Inc. (hereafter "International")
has provided both parties to this Agreement with a Drydocking and Repair
estimate dated July 14, 2000. The estimate provided totaled approximately
$655,000. The parties to this Agreement understand that this is International's
"estimate of costs for repairs to bring the Europa Star into compliance with
United States Coast Guard requirements, ready for operation as a vessel
carrying passengers
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for hire." The parties to this Agreement agree that International has explained
to both parties that it cannot estimate the full amount required for any
steelwork absent an out-of-water inspection of the hull of the ship which must
be conducted in drydock.
The Purchaser desires to protect itself from a large increase in the estimated
cost of any additional steelwork that might be required following an inspection
of the hull in drydock. Therefore, the Purchaser shall have the option of
terminating this Agreement to purchase the Vessel and equipment thereon if and
only if the total estimated cost of drydocking the Vessel following an
out-of-water inspection of the hull of the ship by Atlantic Drydock
Corporation, exceeds $750,000. The Purchaser agrees that the election to
terminate this Agreement based on an estimate exceeding $750,000 must be made
no later than September 1, 2000.
In the event the Purchaser elects to terminate this Agreement for the foregoing
reason, all funds which the Purchaser paid for drydocking the Star and all
funds which the Purchaser paid to Seller for the purchase of the Star will be
applied to the purchase price due for the Europa Sky.
6. OFFSETS
The parties agree that they are entitled to no offsets, credits or refunds
arising out of any prior transaction between the parties.
7. DATE VESSEL "ENTERS DRYDOCK"
The date on which the Vessel "enters drydock" will be that calendar date on
which the Vessel enters a drydock facility, but in no event shall said date be
later than August 15, 2000. The Buyer agrees to take the Vessel to drydock on
or before August 15, 2000.
8. LETTER OF CREDIT
The Buyer will provide the Seller, prior to taking possession of the Vessel,
with an irrevocable Letter of Credit on terms acceptable to the Seller in the
amount of $2,100,000, to secure payment of the full amount due for the purchase
of the Vessel and to secure payment of all drydock-related costs. The Letter of
Credit will be returned to the issuer of the Letter of Credit upon payment of
the full $2,100,000 due to Seller and upon payment in full of all costs and
expenses related to drydock of the Vessel.
9. 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 realizes any problem
collecting the amount due under the Letter of Credit or the default has not
been cured, Europa shall be entitled to take possession of the Vessel, but
Europa shall 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.
In the event a payment to be made for drydock related costs or expenses is not
made when due, the Purchaser shall be deemed to be in default. In the event the
default is not cured within ten
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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 realizes any problem collecting the amount due
under the Letter of Credit or the default has not been cured, Europa shall be
entitled to take possession of the Vessel, but Europa shall 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.
10. 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.
11. DRYDOCK
The Purchaser understands that the Vessel's certifications have expired and
have not been renewed. The Purchaser understands that the Vessel must be
drydocked and that substantial steel replacement, hull and other work will be
required in drydock. However, the Seller makes no warranties, express or
implied, as to the costs relating to drydocking of the Vessel. The Purchaser
agrees to take the Vessel to a drydock of its choice on or before August 15,
2000. The Purchaser agrees to pay for all costs and expenses relating to the
repair and drydock of the Vessel. The Parties agree that the Purchaser shall
pay the cost of transporting the Vessel to and from drydock regardless of
whether the Purchaser elects to terminate this Agreement.
12. CLOSING
The Closing of this transaction shall occur 210 days from the date on which the
Vessel enters drydock 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. 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 to any other Buyer without further obligation or
notice to the Buyer. In the event that Buyer fails for any reason (other than
having exercised its option to terminate this Agreement under Paragraph 5 by
September 1, 2000), to close on or before the Closing Date, any payments
received will be forfeited to Seller. The Buyer shall remain liable for
payments due under this Agreement, for all costs and expenses relating to
drydock, and for attorneys' fees and expenses incurred in collecting same.
TITLE TO VESSEL NOT TO BE CONVEYED UNTIL CLOSING
It is understood that title to the Vessel and equipment thereon will not be
conveyed until Closing. It is understood that the Seller shall NOT convey title
to the Vessel or equipment being sold to Buyer until the Purchase Price has
been paid in full and all drydock costs and expenses have 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
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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 and all drydock costs and expenses have been paid in full.
13. POST-CLOSING OBLIGATIONS
(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 and the Acquired Assets 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:
The Seller has agreed to pay a commission equal to three percent of
the Purchase Price (3% of $2,100,000) or a total commission in the
amount of Sixty-Three Thousand Dollars ($63,000) upon receipt of each
payment towards the purchase price to:
Coastal Passenger Vessels, LTD., LLP
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
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.
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(d) DOCUMENTS.
Seller and Buyer agree to execute all documents as may reasonably be
required to transfer the Vessel and equipment owned by Europa thereon
in accordance with the provisions hereof including, without
limitation, a Xxxx of Sale for the Vessel in the form of Exhibit A
attached hereto and any other documents and instruments as may be
necessary or appropriate for the consummation of the transaction
contemplated herein.
14. 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
Agreement and the transactions contemplated hereunder have been duly authorized
by the Board of Directors of the sole shareholder (Europa Cruises Corporation)
of the Seller, Europa Cruises of Florida 1, Inc., 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 free from any
security interest, lien or encumbrance.
(d) No Suits, Judgments, Etc. Seller has no knowledge of any
unsatisfied judgments against the Vessel nor does Seller have any knowledge of
any suits pending against the Vessel.
15. 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 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 and Buyer has not relied upon any
such representations by Seller or others.
(c) Adequate Opportunity for Inspection. Prior to signing this
agreement, Buyer has been afforded adequate opportunity to inspect the Vessel
and all equipment, fixtures, and inventory conveyed thereon and has had the
opportunity to ascertain to its satisfaction the physical condition of the
Vessel and equipment thereon.
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16. RISK OF LOSS
Any risk of loss or destruction shall pass to Buyer forty-eight hours after the
Vessel enters a drydock facility. Buyer will take possession of the Vessel at
the drydock facility.
17. 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 Seller's operation of the Vessel prior to the Time 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
Time of Transfer of Possession.
18. ASSIGNMENT
The Buyer shall have no right to assign this Agreement until the full Purchase
Price has been paid, including any amount due for drydock, without the express,
written consent of the Seller. The Buyer may assign this Agreement provided the
irrevocable Letter of Intent remains in place to secure the payment of the
Purchase Price and the cost of vessel repairs and drydock expenses and provided
the assignment is made to a person, partnership or entity controlled by or
under common control of Stardancer Casino, Inc. or a subsidiary, parent or
affiliate thereof. The Buyer may also assign this Agreement provided the
irrevocable Letter of Intent remains in place to any other Purchaser approved
by Seller.
It is understood that the Seller will have the absolute right to assign this
Agreement.
19. 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.
20. 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 and equipment thereon for all purposes after the
Time of Transfer of Possession.
21. 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
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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.
22. INSURANCE
The parties agree that Europa 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 Buyer takes
possession of the Vessel. The Purchaser shall name Europa Cruises of Florida 1,
Inc. 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 and any amount due for drydock has been paid in full.
23. MISCELLANEOUS
(a) Time is of the Essence. Time is of the essence of this
agreement.
(b) Condition of the Vessel. The Buyer acknowledges that Seller
has made no representations or claims as to the condition of the Vessel or
equipment or acquired assets 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."
(c) Expenses of Sale. Each party shall be responsible for its own
closing costs. Seller's expenses shall include preparation of the bills of
sale, preparation of Seller's instruments for the transfer of the Vessel and
attorney's fees. Buyer's expenses shall include all financing and closing
costs, all costs of registering the Xxxx of Sale with the United States Coast
Guard, preparation of any notes and liens hereunder, preparation of Buyer's
instruments for the transfer of the Vessel and Buyer's attorney's fees.
(d) Default. If either the Buyer or Seller refuses to complete
the transaction at the time and place set for Closing, the aggrieved party
shall be entitled to all remedies provided under this Agreement and to seek all
relief available to it in law or equity or both.
(e) Notice. Any and all notices required or contemplated
hereunder shall be provided by delivery via Federal Express and via facsimile
to the following:
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AS TO SELLER:
Europa Cruises of Florida 1, Inc.
Xxxxxxx X. Xxxxxx, President
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
AND to:
Xxxxxxx X. Xxxxxx, President
Europa Cruises of Florida 1, Inc.
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
Facsimile: 000-000-0000
(f) 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.
(g) Severance. The invalidity or unenforceability of any portion
of this Agreement shall in nowise affect the remaining provisions and portions
hereof.
(h) Binding Effect. This agreement shall bind the successors,
heirs and assigns of the parties hereto.
(i) 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.
(j) Entire Agreement. This Agreement supersedes all prior
agreements and oral discussions and constitutes the entire agreement between
the parties as to the matters contained herein and the agreement shall not be
modified in any respect except by an amendment in writing signed by all parties
hereto.
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(k) 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 in
international waters at 78.30 degrees longitude and 36.47 degrees latitude.
SELLER:
EUROPA CRUISES OF FLORIDA 1, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
Date: August 2, 2000
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BUYER:
STARDANCER CASINO, INC.
By: /s/ Xxx Xxxx
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Xxx Xxxx, President
Date: August 2, 2000
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