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Exhibit 10.3.1
AGREEMENT FOR PURCHASE AND SALE OF A VESSEL
THIS AGREEMENT FOR THE PURCHASE AND SALE OF A VESSEL (hereafter
"Agreement") is made and entered into as of the 30th day of October, 1999, by
and between EUROPA STARDANCER CORPORATION, a Delaware corporation (hereinafter
referred to as "Seller"), and Seven Star Charters, Inc., a Georgia corporation
(hereinafter referred to as the "Buyer").
WITNESSETH:
WHEREAS, the Seller and/or its parent company, Europa Cruises
Corporation, and/or its subsidiaries, own, inter alia, four vessels and other
property and operate gaming businesses in various locations in Florida; and
WHEREAS, the Seller desires to sell a single U. S. registered vessel,
registry number 658165, known as the M/V Stardancer (the "Vessel") which
currently operates out of Myrtle Beach, South Carolina, together with certain
equipment which is owned by Seller and used on said Vessel, subject to the
terms, conditions and provisions contained herein; and
WHEREAS, the Buyer has leased the Vessel since January 1, 1999 and
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 VESSEL
(a) 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
Stardancer and any equipment thereon owned by Seller on the Closing Date (as
hereinafter defined) for the consideration set forth in this Agreement.
(b) Casinos Austria Gaming Equipment
The parties acknowledge that Seller leases and does not hold title to
certain slot machines previously leased with the Vessel. The parties agree that
the slot machines leased with the Vessel are leased by Seller from Casinos
Austria Liegenschaftsverwaltung-Und Leasing, Gesmbh. ("Casinos Austria"). Upon
Closing, Seller shall use a portion of the proceeds of the Purchase Price paid
by Buyer to pay Casinos Austria for the purchase of slot machines from Casinos
Austria. Title to same shall be conveyed to Buyer as soon after Closing as is
reasonably possible, by execution and delivery of a Xxxx of Sale in the form
attached hereto as Exhibit B. Title may not be conveyed until the full sum due
from Seller to Casinos Austria is paid in full.
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(c) It is understood and agreed by the parties that other than as
is explicitly provided herein, 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.
4. ASSUMED LIABILITIES.
Assumption of Contracts by Buyer. Upon Closing, 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 with
respect to the Vessel, including:
(a) Contract for use and service of ComCheck and Smart Check
equipment, if any;
(b) Contract for placement and maintenance of ATM machine; if
any.
Assumption of Vessel and Business Liabilities. Upon Closing, Buyer
will assume all rights, obligations and liabilities arising out of or relating
to Buyer's ownership and/or operation of the Vessel since January 1, 1999
subject to (i) the Seller's agreement to indemnify the Buyer against
pre-leasing obligations and liabilities incurred prior to January 1, 1999, and
(ii) the Buyer's agreement to indemnify the Seller against post-leasing
obligations and liabilities incurred since January 1, 1999.
5. PURCHASE PRICE AND TERMS.
(a) The purchase shall be upon the following terms:
(i) TOTAL PURCHASE PRICE $ 1,800,000
(b) The purchase price will be allocated as follows:
(i) M/V Stardancer $ 1,750,000
(ii) Furniture, Fixtures, Equipment
and Inventory $ 50,000
TOTAL PURCHASE PRICE: $ 1,800,000
The parties agree to use the above allocation for purposes of filing their
local, state and federal income tax returns.
(c) 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 One Million, Eight Hundred Thousand Dollars ($1,800,000) in two
payments to be made by 5:00 eastern standard time on or before the following
dates:
November 5, 1999: $900,000.00
December 5, 1999: $900,000.00
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The $900,000 paid on or before November 5, 1999 will be deposited in escrow
with First Union National Bank of Florida to be held as a nonrefundable deposit
until Closing. Closing will take place on or before December 5, 1999, at which
time the remaining $900,000 will be paid by Purchaser to Seller.
The parties agree that the Purchaser remains indebted to the Seller for
insurance payments due to Seller under that Charter Agreement dated December
28, 1998 in the amount of $8,000 per month from January 1, 1999 through the
date of Closing. This amount is due and payable at Closing. The parties further
agree that in the event of any claim arising out of the operation of the Vessel
from January 1, 1999 through Closing, the Purchaser remains responsible for
payment of the lesser of the actual expenses or insurance-related deductibles
set forth under each insurance policy then in effect under that Charter
Agreement dated December 28, 1998.
The parties further agree that they are entitled to no offsets, credits or
refunds arising out of any prior transaction between the parties, including
that Charter Agreement dated December 28, 1998.
6. INSPECTION PERIOD
The parties agree that, inasmuch as the Purchaser has been operating
the Vessel since approximately January 1, 1999 and is in possession of the
Vessel and is aware of its condition, that there is no need for any pre-closing
inspection period prior to closing.
7. CLOSING.
(a) Financing. The Buyer has represented to Seller that it has
obtained financing on terms acceptable to Buyer in the amount of $1,800,000.
(b) Closing.
(i) Closing Date. The closing of this transaction (the
"Closing") shall occur on or before Sunday, December 5, 1999 (the "Closing
Date"), unless otherwise agreed by the parties in writing, at the office
of________________, at __________ , Florida. 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, subject to any
then-existing Purchaser's lease rights, to any other Purchaser 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, the $900,000 tendered towards the
purchase price on or before November 5, 1999 will be forfeited to Seller.
(iii) Deliveries at Closing.
A. Title. Seller shall, at Seller's expense,
convey title to the Vessel at Closing or as soon thereafter as is possible. 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
Florida Department of Revenue
Internal Revenue Service
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B. Closing 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:
1. a Xxxx of Sale for the Vessel in
the form of Exhibit A attached hereto
and such other documents and instruments as may be necessary or appropriate for
the consummation of the transaction contemplated herein.
(f) Title to and Delivery of Vessel and Acquired Assets: Risk of
Loss. Upon payment of the purchase price at closing, Buyer shall have title to
and possession of the Vessel and acquired assets. Any risk of loss or
destruction shall pass to Buyer at Closing. Buyer will take possession of the
Vessel as Owner of the Vessel at the Vessel's then location immediately
following Closing pursuant to this Agreement.
(e) Hired Employees. Prior to the Closing Date, Buyer agrees to
offer employment to at least two-thirds of Seller's employees (the "Hired
Employees") for a minimum of sixty (60) days commencing on the Closing Date,
during which period Buyer shall evaluate the feasibility of the continued
employment of the Hired Employees. Seller shall terminate the Hired Employees
as of the Closing Date. Seller shall pay the cost of any compensation,
severance or other benefits which may be payable through the Closing Date to
Seller's employees, including the Hired Employees, or to such other persons as
shall claim compensation, severance or other benefits in connection with the
consummation of the transactions contemplated hereunder. Buyer shall pay the
cost of any compensation, severance or other benefits which may be payable
after the Closing Date to the Hired Employees
9. POST-CLOSING OBLIGATIONS.
(a) Transfer of Licenses. Seller shall cooperate with Buyer and
take all reasonable steps necessary for the transfer to Buyer of 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.
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(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:
(i) The Seller has agreed to pay a commission equal to
three percent of the Purchase Price (3% of $1,800,000) or a commission in the
amount of Fifty Four Thousand Dollars ($54,000) upon receipt of the full
purchase price at closing 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.
10. 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 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 free from any
security interest, lien or encumbrance, other than those of First Union
National Bank of Florida, the Internal Revenue Service, and the Florida
Department of Revenue. The Seller has been informed that the foregoing liens
shall be released by the foregoing at Closing or within a reasonable period of
time following Closing upon payment of certain sums out of the proceeds of the
sale.
(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.
11. BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Buyer represents
and warrants to the Seller that:
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(a) Authority. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of ___________. 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 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, assets and inventory conveyed and has had the
opportunity to ascertain to its satisfaction the physical condition of the
Vessel and equipment thereon and the acquired assets.
13. 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 leasing the Vessel
to Seven Star Charters, Inc. on January 1, 1999.
(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 as of January 1,
1999.
13. 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." 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."
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(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:
As to Seller:
EuropaStardancer Corporation
c/o Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
and to:
Xxxxxxx X. Xxxxxx, President
Europa Stardancer Corporation
000-000xx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
As to Buyer:
Xxx Xxxx, President
Seven Star Charters, Inc.
0000 Xxxxxxx 00
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
Tel: 000-000-0000
Facsimile: 000-000-0000
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(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 herein contained and the agreement shall not be
modified in any respect except by an amendment in writing signed by all parties
hereto.
IN WITNESS WHEREOF the parties have caused this instrument to be
executed as of the date first above written.
SELLER:
EUROPA STARDANCER CORPORATION
By:
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Xxxxxxx X. Xxxxxx, President
Date:
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BUYER:
SEVEN STAR CHARTERS, INC.
By:
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Xxx Xxxx, President
Date:
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