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EXHIBIT 10(jj)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made this ___ day of October, 1996 between ▇▇▇▇▇ ▇▇▇▇
and CARS, INC., of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, of P.0. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, and Jim's TRUCK AND EQUIPMENT, INC., of ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ all of whom are citizens of the United
States of America and/or are wholly owned by citizens of the United States, as
applicable, (hereinafter jointly and severally, referred to as the "Seller") and
CREATIVE GAMING INTERNATIONAL, INC., a New Jersey corporation, with offices
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the "Purchaser").
WHEREAS, the Seller is the owner of M/V Cone ▇▇▇▇▇▇▇ (hereinafter
sometimes referred to as the "Vessel") which is described as follows:
BUILT: 1950
PLACE BUILT: Galveston, Texas USA
FLAG: United States of America
HOME PORT: Galveston, Texas USA
OFFICIAL No: 259819
GROSS/NET TONS: 797/542
LENGTH/BEAM/DRAFT: 237' 6"/6' '0"/13" 0"
CLASSIFICATION SOCIETY: American Bureau of Shipping
AI River Service (AMS)
(vessel is presently out
of class)
WHEREAS, the Seller is desirous of selling M/V Cone ▇▇▇▇▇▇▇ and the
Purchaser is desirous of purchasing M/V Cone ▇▇▇▇▇▇▇;
IT IS THEREFORE AGREED as follows:
1. PURCHASE PRICE. The Seller hereby agrees to sell M/Y Cone
▇▇▇▇▇▇▇ to the Purchaser for the Purchase Price of FOUR HUNDRED SIXTY FIVE
THOUSAND AND 00/100 ($465,000.00) DOLLARS. The Purchase Price shall be paid as
follows:
a. $25,000.00 cash presently being held in the
Goldring & Goldring, P.A. Attorney Trust Account,
subject to the terms and conditions of Term Sheet
previously executed between Seller and Purchaser and
this Agreement; and,
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b. $440,000.00 in certified or wire transferred
funds subject to the terms of this Agreement.
2. PAYMENT. The Purchase Price shall be paid to the ▇▇▇ ▇▇▇▇▇
Attorney Trust Account contemporaneously with the delivery of the Vessel to the
Purchaser. The Purchase Price shall, however, be held and remain in escrow until
the Vessel has left the waters of the State of Texas; with the Purchaser
obligated to remove the Vessel from said waters with all due diligence and
dispatch. If, however, the Purchaser is reasonably able to remove the Vessel
from said waters, but fails to do so within forty eight (48) hours of the
delivery of the Vessel to it, the escrowed funds shall be released to the
Seller; provided, however, that the Seller, its agents, employees,
representatives and/or principals have done nothing to prevent, hinder or
otherwise delay the Purchaser's removal of the Vessel from said waters
(including the Seller's failure to remove any and all liens of any kind from the
Vessel and/or any claims of such a lien).
3. REPRESENTATIONS. a. The Seller represents that the Vessel
includes all tackle, apparel. furniture and equipment, bunkers and lubricating
oils, wherever same may be, including, but not limited to:
Two ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ JS-6-T Diesel Electric Propulsion Engines
All generators
All pumps
All electrical equipment
All propellers
Two magnetic compasses
Two Raytheon 6410 radars
Life saving equipment
Firefighting equipment
All spares
b. The Seller further expressly represents and warrants
that M/Y Cone ▇▇▇▇▇▇▇ was constructed in the United States of America and that
neither its present or any prior ownership is of such character as to jeopardize
or prohibit the vessel from operating as a United States documented vessel with
coastwise trade endorsement. The Seller shall, in that regard, provide the
Purchaser with a complete, current and up-to-date: Certificate of Documentation
and Certificate of Ownership with General Index of Abstract of Title within ten
(10) days of the full execution of this Agreement or as soon as possible
thereafter; same shall reflect the ultimate title holder of the Vessel such that
all interim title holders since the Vessel was owned by the State of Texas
(whether they be including within the definition of the Seller herein or not)
are reflected on the subject documents.
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c. The Seller further represents that:
i. It, and each individual and entity
which is included within the definition of the Seller, has the full power and
legal authority to execute and fully perform this Agreement;
ii. It has good and marketable title to
the Vessel;
iii. It has or will obtain permission
from any required authority to sell the vessel;
iv. The Vessel will be sold free and
clear of any and all mortgages, liens, bills, encumbrances or claims whatsoever-
(Any such items in relation to M/Y Cone ▇▇▇▇▇▇▇ may be paid off from the
proceeds from this sale.);
v. It shall deliver the Vessel and its
inventory at the time of the closing;
vi. It shall pay any and all taxes,
fees, or other charges assessed against the Vessel or this transaction by any
governmental authority prior to or at the closing, shall hold the Purchaser
harmless against any claims for same and shall provided proof of the payment of
same, upon the request of the Purchaser, no later than ten (10) days after the
closing;
vii. It shall hold the Purchaser and the
Vessel harmless and defend same against any and all claims incurred prior to, or
regarding the period prior to, the closing that may impair or adversely affect
the Purchaser's receipt, use and possession of the Vessel, including its good
and absolute title thereto, and to indemnify the Purchaser and the Vessel and to
assume all costs incident to defending them against any and all such claims,
including their reasonable attorneys fees and costs;
viii. It shall pay all sales and/or use
taxes previously, now or hereafter imposed or assessed upon the Vessel as a
result of this sale, or a prior transfer/sale and/or operations of said Vessel
and to indemnify and hold the Purchaser and the Vessel harmless from any
obligation to pay any such taxes; and,
ix. It shall not claim any ownership or
possessory interest in the Vessel after the completion of the closing.
d. The Seller makes no representations whatsoever as to
the Vessel's quality, condition, seaworthiness, or fitness for any particular
purpose except as expressly set forth herein.
e. This Paragraph and the representations, warranties
and covenants shall survive the closing.
4. SURVEYS AND TRIALS. a. The Purchaser shall have the right to
perform whatever tests and inspections it deems necessary or appropriate to
determine both the quality of the Vessel, its tackle, apparel, and equipment and
its fitness of the Purchaser's specific intended purpose (which generally is as
an offshore gaming vessel).
a. The Purchaser agrees that the surveyor(s) it selects
shall be employed and/or retained by it and that as a condition of said
employment/retention all work performed
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shall be for the its account and not, under any circumstances, for the account
of the Vessel or the Seller.
b. All trials shall be at the expense of the Purchaser.
The Vessel shall, however, at all times during the sea trial be under the care
and control of the owner or owner's captain, or such other qualified person
which the Seller may require to be present, who shall accommodate any and all
reasonable and customary requests by the Purchaser and/or its agents.
c. All inspections and trials shall be completed within
no later than OCTOBER 29, 1996.
d. The party making the survey and/or trial shall
indemnify and hold the Seller and the Vessel harmless from any and all damages
or claims made as a result of same.
e. The parties shall fully cooperate with each other
both as to the surveying and trialing of the Vessel.
5. ACCEPTANCE OF VESSEL. If the Purchaser, in its sole and
absolute discretion, determines by OCTOBER 29, 1996 that the Vessel, its
tackle, apparel, or equipment is not of the quality it desires or is not fit for
its specific intended purpose, the Purchaser shall have the option to terminate
the transaction without having any further obligation or liability to Seller. If
the Purchaser does not so notify the Seller of its rejection of the Vessel then
it shall been deemed to have accepted same.
b. If the Purchaser elects to terminate this transaction
on or before OCTOBER 29, 1996 the Purchaser have returned to it the $25,000.00
being held in escrow, this Agreement shall terminate and neither party shall
have any further obligation to the other.
c. The Purchaser's acceptance or rejection of the Vessel
shall be made in its sole and absolute discretion.
6. DELIVERY OF VESSEL. The Vessel shall be delivered at the time
of the closing, with all of its tackle, apparel, furniture and equipment,
bunkers and lubricating oils on board, at the dock where it is was located at
the time of the execution of the Term Sheet-, provided however that it shall be
safely afloat, fully accessible, and with free, clear and readily navigable
access to the open waters of the Gulf of Mexico.
7. CLOSING. The closing shall take place on or before NOVEMBER
14, 1996 at a time and place to be agreed upon by the parties. The closing shall
be deemed completed upon the following having occurred:
a. All documents necessary to transfer good and absolute
title to the Vessel have been received by the Purchaser, including, but not
necessarily limited to:
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i. Coast Guard ▇▇▇▇ of Sale;
ii. Original Coast Guard Document,
Certificate of Inspection and Abstract;
iii. Quit Claim Bills of Sale from each
individual or entity defined as a Seller herein-, and,
iv. Such other documents and things
which are customarily provided by a Seller to a Buyer in such a transaction.
b. The Seller's attorney, ▇▇▇ ▇▇▇▇▇, Esquire, has
received into his trust account $465,000.00 in certified or wire transferred
funds.
8. RISK OF LOSS. Except as otherwise provided for herein the
Seller shall bear all risk of loss or damage to the Vessel, or to any person or
property on the Vessel, until the closing. Any damage to the, Vessel subsequent
to the acceptance of the Vessel by the Purchaser shall be repaired by the Seller
at the Seller's sole and absolute expense or Seller shall credit Purchaser
against the Purchase Price an amount equal to the cost of the repairs, subject
however to the reasonable approval by the Purchaser. If the cost to reasonably
repair any such damage exceeds $50,000.00 the Purchaser shall have the right to
terminate this Agreement in accordance with Paragraph 5 hereof. If the Vessel
becomes an actual, constructive or compromised total loss before delivery, the
monies held in escrow shall be returned to the Buyer and this Agreement shall be
terminated without cost to either party.
9. DEFAULT. If either party fails or refuses to perform in
accordance with the terms and conditions of this Agreement it shall be liable to
the other party for, among other things, all of the other party's costs
associated with the surveying and trialing of the Vessel, actual and
consequential damages and attorneys fees and costs. The defaulting party shall
also indemnify and hold the other party harmless for any and all claims for
brokerage commissions, whether actually due and payable or not. Due to the
unique characteristics of each of the Vessel which is the subject of this
Agreement, the parties hereto agree that they would not be fully compensated by
a monetary award and therefore enforcing this Agreement by way of specific
performance is an appropriate remedy.
10. BROKERAGE. The parties hereto acknowledge that the only
brokers they have utilized in relation to this transaction are:
▇▇▇▇▇▇▇ ▇▇▇, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Lockel
Jim's Truck and Equipment, Inc.
Marcon International
The Seller is solely and exclusively obligated to pay it a commission as is set
forth in a separate agreement; same to be paid out of the escrowed funds which
are to be held by the Seller's attorney
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after same are released from escrow as set forth herein. The Seller indemnifies
and holds the Buyer and the Vessel harmless for any commissions which may be due
in relation to this transaction. Each party agrees to indemnify and hold the
other party harmless for any claims for a commission, fee or other compensation
in relation to, or in connection with, this transaction. by any undisclosed
broker it utilized, as well as for reasonable attorneys fees and costs.
11. NO ASSIGNMENT. This Agreement may not be assigned without the
express written consent of the other party.
12. NOTICES. All notices required by, or otherwise given under,
this Agreement must be in writing and transmitted to the other party overnight
or same day via a nationally recognized courier service such as Federal Express
or United Parcel Service and to their respective attorneys as follows:
As to the Seller:
Mr. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Esquire
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
As to the Purchaser:
▇▇▇▇▇ ▇▇▇▇▇, C.E.O.
Creative Gaming International, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Goldring & Goldring, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
and, simultaneously via facsimile transmission to the respective facsimile
numbers noted below:
Seller: (▇▇▇) ▇▇▇-▇▇▇▇
Seller's Attorney: (▇▇▇) ▇▇▇-▇▇▇▇
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Purchaser: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser's Attorney: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed effective upon actual receipt and, as such,
confirmation that a notice has been sent via facsimile is not conclusive that
the transmission has, in fact, been received or that it has been received in
sufficiently legible and complete condition. In the event that a party, or its
attorney, does not receive either the written notice and/or the facsimile
transmission because it either is not available to accept or receive, or does
not accept or receive, same, notice shall be deemed effective upon depositing
same with the nationally recognized courier service and a documented attempt to
transmit the facsimile copy of same.
13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties. Each party agrees that it has not relied upon any
representations made to it other than as is set forth in this Agreement and the
exhibits attached hereto.
14. NO MODIFICATION. This Agreement may only be modified in
writing signed by each of the parties. No purported oral modification of this
Agreement shall be of any force or effect.
IN WITNESS WHEREOF the parties hereto set their hand and seal on the
date first written above.
CREATIVE GAMING INTERNATIONAL, INC., PURCHASER
By:__________________________________ ________________________________________
▇▇▇▇▇ ▇▇▇▇▇, C.E.O. ▇▇▇▇▇ ▇▇▇▇, Seller
CARS, INC., Seller
By:_____________________________________
▇▇▇▇▇ ▇▇▇▇, President
JIM'S TRUCK AND EQUIPMENT, INC., SELLER
By:_____________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, President
________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, Seller
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