11
BUY - SELL AGREEMENT
CASINO MAGIC OF LOUISIANA, CORP. ("Seller") whose office address is 300
Riverside Drive, Bossier City, Louisiana 71111 and Carlo Corporation
("Buyer") whose office address is DelMar, Inc., 6001 Clubhouse Drive, Rancho
Santa Fe, California 92067, have and do hereby agree as follows:
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller,
the Vessel, Crescent City Queen, a description of which is attached hereto as
Schedule "A" ("Vessel"), on or before 5:00 p.m. Central Standard Time, July
30, 1997 (the "Closing'). Title to the Vessel shall not pass to Buyer until
payment of the Purchase Price (as hereinafter defined) is received by Seller
at Closing.
PURCHASE PRICE
The purchase price for the Vessel shall be TWELVE MILLION TWO HUNDRED
FIFTY THOUSAND AND 00/100($12,250,000) DOLLARS ("Purchase Price") and shall
include all her machinery, engines, equipment, appurtenances, stores and spare
parts. Upon execution of this Agreement, Buyer will pay to Seller ONE MILLION
AND 00/100 ($1,000,000) DOLLARS ("the Deposit"). At the time of Closing, all
of the Deposit will be credited against the Purchase Price. If Closing does
not occur on or before 5:00 p.m. Central Standard Time, July 30, 1997, Seller
may terminate this Agreement and shall retain the Deposit as liquidated
damages so long as each condition precedent to Closing has been satisfied and
so long as failure to close is not otherwise the fault of the Seller.
CONDITIONS PRECEDENT TO CLOSING
1. Seller shall deliver to Buyer good title to the Vessel which is free
from all encumbrances, leases, maritime liens and/or debts of any kind
whatsoever, including but not limited to any preferred ship mortgage.
2. Seller shall deliver to Buyer a valid bill of sale with warranty of
title to transfer ownership of the Vessel to Buyer.
3. Seller shall provide Buyer with a corporate officer's certificate
authorizing Seller to enter into and consummate the sale of the Vessel to
Buyer.
4. Receipt by Seller or Buyer, as the case may be, of any regulatory
approvals necessary to transfer the Vessel from Seller to Buyer, including but
not limited to the United States Coast Guard and the Louisiana Gaming Control
Board.
5. Buyer's acceptance of the Vessel "as is" following reasonable due
diligence which shall be limited to an inspection of the condition of the
Vessel together with any relevant documents pertaining thereto.
DELIVERY
Seller agrees to deliver possession of the Vessel to Buyer at Closing in
New Orleans, Louisiana. At or before the time of Delivery, Seller shall
provide to Buyer the Vessel's plans, as builts, schematics, wiring
specifications, low voltage wiring diagrams, certified evacuation and safety
plan, certified periodic test procedures and all other plans and blueprints
related to the Vessel that were provided to Seller at the time Seller acquired
the Vessel. Seller makes no representation or warranty as to the accuracy of
such documents or drawings.
Seller shall deliver the Vessel to Buyer "as is and where is". Except
with regard to title, Seller makes NO WARRANTY of any kind whatsoever, whether
expressed or implied, including without limitation, any implied warranty of
merchantability, quality, condition, fitness for any particular purpose,
seaworthiness, or against any redhibitory vices, or any other vices or
defects, hidden, latent or otherwise, all such warranties being expressly
WAIVED by Buyer.
At the time of Delivery, all risk of loss to the Vessel shall pass to
Buyer.
Seller will use all reasonable good faith efforts to assist Buyer in
obtaining any necessary certificates for the Vessel, including but not
limited to a Certificate of Inspection; however, this is not a condition for
Closing and all costs and expenses associated with obtaining any such
certificates shall be the responsibility of Buyer. Furthermore, Seller shall
not be required to provide at Delivery a Certificate of Documentation, FCC
License, Society Tonnage, Interim Class, Hull Classification and Machinery
Classification Certificate (if applicable) and/or their regulatory equivalent
(if applicable) at the time of Delivery; however, Seller shall provide such
certificates and documents that are in Seller's possession within a reasonable
time after Delivery, provided, however, the Seller's failure to deliver said
Certificates and Documents shall not constitute a breach of this Agreement by
Seller, nor shall such failure constitute grounds for Buyer not to close this
transaction.
MAINTENANCE AND OPERATION
The Vessel shall, during the Period, be in the full possession and, other
than sale to a third party, at the absolute disposal of Seller for all
purposes and under its complete control in every respect. Seller shall,
during said Period, take all reasonable steps to maintain the Vessel, her
machinery, engines, equipment, appurtenances and spare parts in a good state
of repair and in efficient operating condition in accordance with good
commercial maintenance practice, ordinary wear and tear excepted.
INSPECTION
During the Period, Buyer or its designee shall have the right at any
reasonable time to inspect or survey the Vessel to ascertain the condition of
the Vessel and to satisfy itself that the Vessel is being properly maintained.
Any and all costs or expenses associated with such inspection shall be the
responsibility of and be paid by Buyer and Buyer agrees to indemnify, defend
and hold harmless Seller any affiliate of Seller against any injuries, cost,
or expenses arising from such inspection or survey.
TERMINATION
Seller may terminate this Agreement:
1. In the event the Vessel is an actual or constructive total loss during
the Period;
2. In the event Buyer fails to pay the Deposit;
Buyer may terminate this Agreement if Buyer is not reasonably satisfied
with the condition of the Vessel.
TAXES
It is understood and agreed by Seller and Buyer that the sale of Vessel
by Seller constitutes an isolated and occasional sale by Seller, and that no
sale, use, transfer or other tax(es) should be payable in connection
therewith: however, if any such tax(es) is payable, Buyer shall pay such
tax(es) and shall indemnify and hold harmless Seller for any such tax(es).
Seller shall be responsible for any ad valorem property taxes applicable to
the Vessel prior to Delivery of the Vessel to Buyer, and Buyer will be
responsible for all ad valorem property taxes applicable to the Vessel after
Delivery.
NOTICES
Unless otherwise provided in this Agreement, all payments, notices and
communications with respect to this Agreement shall be made to Seller at 711
Casino Magic Drive, Bay St. Louis, Mississippi 39520 and to Buyer at DelMar,
Inc., 6001 Clubhouse Drive, Rancho Santa Fe, California 92067.
CONSIDERATION
Except as set forth in this Agreement, no consideration has been paid to
Seller by Buyer prior to the date hereof and no consideration will be paid to
Seller by Buyer until Closing.
GOVERNING LAW
This Agreement shall be governed by the laws of the United States of
America and the State of Mississippi and each party to this Agreement agrees
and acknowledges that they are subject to the jurisdiction of the courts in
Mississippi for the purpose in resolving any dispute arising under this
Agreement.
SPECIFIC PERFORMANCE
If either Seller or Buyer should default on any of its respective
obligations under this Agreement, the non-defaulting party, in addition to and
not in derogation of any other of its rights, may sue for specific performance
of this Agreement. Furthermore, if any legal action or other proceeding is
brought for the enforcement of this Agreement or any provision hereof, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees and other reasonable
costs incurred in such action or proceeding, in addition to any other relief
to which such party shall be entitled.
PRIOR AGREEMENTS
This Agreement supersedes all prior agreements and constitutes the entire
agreement between the parties concerning the subject matter hereof.
AMENDMENTS
During the Period, this Agreement may not by amended or modified except
by a written instrument executed by Seller and Buyer.
SEVERABILITY
The provisions of the Agreement are separate and severable. If any
provision, item or application of this Agreement shall be deemed invalid in
whole or in part, such invalidity shall not affect the other provisions,
items, or applications of this Agreement which can be given effect without the
invalid provision, item or application.
LICENSEE
Under no circumstance shall any term or condition of this Agreement be
construed to give Buyer any ownership, interest and/or control, either actual
or constructive, in the Seller, or any of its subsidiaries or its parent
corporation.
TIME OF THE ESSENCE
Time is expressly declared to be of the essence in this Agreement.
Except as provided below, if Closing does not occur on or before 5:00 p.m.
Central Standard Time, July 30, 1997, this will constitute an event of default
and the non-defaulting party may elect to terminate this Agreement if it so
desires and/or pursue any contractual or legal remedies it may have.
The date of Closing shall be extended if the Louisiana Gaming Control Board
has not rendered a decision by July 30, 1997 on any approvals relative to this
Agreement. In such an event, Closing will occur within ten (10) days
following receipt of any such approval so long as any such approval is given
by September 30, 1997. If such approval has not been given by September 30,
1997, either party may give notice to terminate the Agreement to the other and
Buyer's deposit shall be returned to Buyer with commercial interest.
CITIZENSHIP
Buyer warrants to Seller that it is now, and will remain until Closing, a
citizen of the United States of America as defined in 46 U.S.C. 802.
LOUISIANA GAMING CONTROL BOARD
The effectiveness of this Agreement may be subject to the approval by the
Louisiana Gaming Control Board.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on this _____ day of
_____________, 1997.
WITNESSES: CASINO MAGIC OF LOUISIANA, CORP.
(Seller)
BY:
TITLE:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on this _____ day of
_______________, 1997.
WITNESSES: CARLO CORPORATION
(Buyer)
BY:
TITLE:
EXHIBIT A
OFFICIAL NUMBER GROSS HAILING
NAME TONNAGE PORT
Crescent City Queen 1028319 10507 New Orleans, Louisiana