Bareboat charter and option to purchase++++
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Transcript of Bareboat charter and option to purchase++++
BAREBOAT CHARTER AND OPTION TO PURCHASE of the Casino Cruise Ship EMPRESS II THIS BAREBOAT CHARTER and Option to Purchase (hereinafter "Charter") madeand entered into as of July 6, 2004 by and between Cruise Holdings II, LLC, aNevada limited liability company (hereinafter Owner), with an office and placeof business at 6171 McLeod Drive, Las Vegas, Nevada 89120, owner of the casinocruise ship EMPRESS II, United States Official Number 998517 (hereinafter the"Vessel"), and Palm Beach Empress Inc., a Delaware corporation ("PBE"), with anoffice and place of business at One East 11th Street, Suite 500, Riviera Beach,Florida 33404 and Palm Beach Maritime Corporation, formerly named MJQCorporation, a Delaware corporation ("MJQ"), with an office and place ofbusiness at One East 11th Street, Suite 500, Riviera Beach, Florida 33404,jointly and severally as Charterer (PBE and MJQ are hereinafter individually andcollectively referred to as, the "Charterer"). The Owner, as Lessor, andCharterer, as Lessee, are also parties to that certain Master Lease ("MasterLease") of even date herewith, wherein Owner agrees to lease the Vessel toCharterer and Charterer agrees to lease the Vessel from Owner. The terms andprovisions of the Master Lease are hereby incorporated herein by reference;provided, however, in the event of any conflict between any provisions of theMaster Lease and this Charter, the provisions of this Charter shall control. W I T N E S S E T H: NOW THEREFORE, upon the terms and conditions hereinafter set forth, Owneragrees to charter and Charterer agrees to accept under charter the Vessel. ARTICLE 1 DESCRIPTION OF VESSEL The Vessel is a United States registered vessel (official number 998517),more particularly <PAGE> described in Appendix A attached hereto. ARTICLE 2 PERIOD OF CHARTER
A. The period of this Charter shall be for five (5) years (hereinafter the"Original Period") from the date of delivery as hereinafter provided. ThisCharter shall automatically supercede and terminate any existing bareboatcharter of the Vessel, including without limitation that certain bareboatcharter between Charterer and ITG Vegas, Inc., a Nevada corporation ("ITGVegas"). B. At the end of the Charter Period, provided no payment default byCharterer exists hereunder, Owner agrees to deliver title to the Vessel toCharterer pursuant to the terms and conditions set out in Article 19 hereof. ARTICLE 3 MONTHLY CHARTER HIRE A. The Charterer shall pay charter hire("Charter Hire") monthly in arrearson or before the first day of each calendar month commencing on the first day ofthe first month following the date of delivery and continuing thereafter for aperiod of twelve (12) months at the rate of Eighty-Two Thousand Six HundredNinety-Five Dollars (US$82,695.00) per month, and the first day of each calendarmonth thereafter for forty-eight (48) consecutive months until termination ofthe Charter as provided herein at the rate of One Hundred Seventy-One ThousandSeven Hundred Two and 54/100ths Dollars (US$171,702.54) per month or pro ratafor any part of a month. Any Charter Hire paid in advance and not earned shallbe promptly refunded to the Charterer by Owner, including any unearned CharterHire paid in advance during the month in which the Vessel may be sold to theCharterer. Payment of Charter Hire shall be made to the Owner by electronicfunds transfer as directed by Owner or, if no directions are given by Owner, tothe Owner at 6171 McLeod Drive, Las Vegas, Nevada 89120, and shall be deemedpaid when it is received by the Owner. The first monthly Charter Hire paymentshall be made, pro rata, on the first day of the first month following the dateof delivery and all subsequent payments shall be made on or before the first dayof each calendar month thereafter. The amounts of Charter Hire set forth in the first paragraph of thisArticle 3A is derived from an 2<PAGE> amortization table set forth in Schedule A-1 to the Master Lease I ("Schedule"),incorporated herein by reference, which is and, insofar as it may be modified inaccordance herewith shall be, determined based upon an original principal amount
of $6 million with interest at 16.54%, payable initially in sixty (60)consecutive installments, payable monthly in arrears on the first day of eachcalendar month, in level payments the first twelve (12) of which shall be in theamount of $82,695 and the next forty-eight (48) of which shall be in the amountof $171,702.54; provided, however, that the first payment shall be adjusted prorata based upon the number of days from the date hereof through and includingJuly 31, 2004. Beginning July 15, 2005, Charterer shall have the right to prepaythe Charter Hire hereunder by paying the Casualty Value as set forth in theSchedule, representing a premium of seven percent (7%) if prepaid on or afterJuly 15, 2005 and before July 15, 2006, five percent (5%) if prepaid on or afterJuly 15, 2006 and before July 15, 2007, three (3%) if prepaid on or after July15, 2007 and before July 15, 2008, and without premium if prepaid on or afterJuly 15, 2008. Ninety-Seven percent (97%) of all Cash Flow Sweep (as defined inArticle 3B below) payments made before July 15, 2008, and one hundred percent(100%) of such payments made thereafter, shall be applied to the principalportion of the Casualty Value and to the principal portion of installments ofCharter Hire in the inverse order of the maturities thereof. The level amount ofeach installment of Charter Hire set forth herein shall continue notwithstandingany prepayment or Cash Flow Sweep payment, with the result that the number ofpayments required to pay the entire Casualty Value or Charter Hire shall bereduced. With each prepayment and each Cash Flow Sweep payment, the Scheduleshall be modified to reflect a new amortization schedule reflecting the adjustedCasualty Value and the portion thereof representing principal. Owner shall,within five (5) business days after the date of any partial prepayment or CashFlow Sweep payment, provide to Charterer a new amortization schedule withCasualty Values and showing the principal portion thereof in the form of aproposed amendment to the Schedule. Charterer shall have five (5) business daysfrom the date of receipt thereof to notify Owner, in writing, of itsdisagreement with any amounts shown therein. If Charterer fails to notify Ownerof its disagreement as to the amendment to the Schedule, then the amendment tothe Schedule submitted by Owner shall be deemed correct and binding upon theparties hereto. If Charterer notifies Owner within such five (5) business dayperiod that it disagrees with the amended Schedule provided by Owner, and theparties are not able to resolve such disagreement, at the request of eitherparty, 3<PAGE> the parties shall retain a mutually agreed upon independent certified publicaccounting firm to recalculate the amortization schedule and Casualty Values(and showing the principal portion thereof) to be attached as the amendment tothe Schedule, which shall be final, conclusive and binding upon the parties.Once the Casualty Value in effect hereunder is reduced to zero, no further
payments of Charter Hire shall be payable hereunder. Any amendment to theSchedule approved by the parties in accordance with this Section 3.A shallsupercede any previous schedule, and in the event the provisions of anyamendment to the Schedule conflict with the provisions of any prior Schedule,the provisions of the amended Schedule shall control. Owner is on this date depositing $6 million into blocked bank account no.35012862 with Silver State Bank (the "Blocked Account"), the funds from whichare to be released from time to time to PBE for purposes of paying expensesincurred in refurbishing the Vessel and preparing the Vessel for its inauguralvoyage, all subject to the terms of that certain Blocked Account Agreement ofeven date herewith among PBE, Owner, Silver State Bank, PDS-Funding 2004-A LLCand others. To the extent less than $6 million is released from the BlockedAccount to PBE pursuant to such Blocked Account Agreement, such deficiency shallbe applied to reduce the principal portion of the Casualty Value and theinstallments of Charter Hire in the inverse order of their maturities, with thesame effect (including but not limited to the need for an amendment to ScheduleI hereto) as set forth in the immediately preceding paragraph. B. In addition to the monthly Charter Hire, Charterer shall make an annualpayment that will be credited against the Purchase Option Exercise Price andalso against installments of Charter Hire, as set forth in this Article 3.B("Cash Flow Sweep"). The amount of the annual Cash Flow Sweep payment shall bedetermined by multiplying the Cash Flow Sweep Percentage, defined below, to anamount equal to the combined annual EBITDA (earnings before interest, tax,depreciation and amortization) with respect to the Vessel and a second vessel,the PALM BEACH PRINCESS (Panama No. 14348-84-E and IMO No. 8402937)(the "SecondVessel"), operated by Charterer or, by way of a sub-demise charter(s), ITGVegas, or ITG Palm Beach, LLC, a Delaware limited liability company ("ITG PalmBeach"), for the prior fiscal year less Capital Expenditures, as defined herein,and less, to the extent not otherwise expensed or deducted, any "AdditionalPayments" under and as defined in Articles 3.B and 19.B of the two Sub-Chartersof even date herewith between Charterer, ITG Palm Beach and ITG Vegas, butwithout regard to any Cash Flow Sweep payments. The initial fiscal year shallcommence on July 1, 2004. The Cash Flow 4<PAGE> Sweep calculation shall be based upon the annual audited financial statementsprovided by each Charterer or ITG Vegas or other operator of the Vessel and theSecond Vessel to Owner within ninety (90) days of fiscal year-end. Owner shallsubmit to Charterer the calculation of the amount of Cash Flow Sweep payment dueto Owner within five (5) days of Owner's receipt of annual audited financial
statements from each Charterer or ITG Vegas. "Capital Expenditures" means anamount equal to four percent (4%) of the net operating revenue resulting fromthe operations of the Vessel and the Second Vessel. The Cash Flow SweepPercentage will be determined based on the annual EBITDAR (earnings beforeinterest, taxes, depreciation, amortization and rents) generated by and from theVessel and the Second Vessel, as reflected in accordance with generally acceptedaccounting principles then in effect in the United States, in the financialstatements provided to Owner by Charterer or ITG Vegas, as follows (all amountsin millions of dollars): ------------------------------ -------------------------------------------------EBITDAR Cash Flow Sweep Percentage of EBITDA less Capital Expenditures------------------------------ -------------------------------------------------More than $10.0 None------------------------------ -------------------------------------------------Between $8.0 and $10.0 15% (fifteen percent)------------------------------ -------------------------------------------------Less than $8.0 30% (thirty percent)------------------------------ ------------------------------------------------- The Cash Flow Sweep payment shall be due to Owner on the later of the fifteenth(15th) day after the end of the first quarter of the following fiscal year orfifteen (15) days after the submission by Owner to Charterer of the statement ofthe amount of Cash Flow Sweep payment due to Owner. C. At the end of each quarter of the current fiscal year, Charterer shallprovide a year-to-date calculation of EBITDAR, annualized based on seasonalityfactors provided by Owner and attached as Exhibit A ("Annualized EBITDAR").Based upon the product of Annualized EBITDAR and 10/12ths ("YTD Result"),Charterer agrees to deposit the following percentage of year-to-date EBITDA("YTD EBITDA" and such percentage, the "Escrow Amount") into an account (the"Cashflow Account") for the benefit of Owner, in accordance with that certainAccount Agreement of even date herewith among Charterer, Owner, Cruise HoldingsI, LLC, a Nevada limited liability company and SILVER STATE BANK, a Nevada Statechartered banking corporation ("Silver State"): 5<PAGE> -------------------------------------------------- --------------------------- YTD RESULT ESCROW AMOUNT-------------------------------------------------- ---------------------------YTD Result is less than $10 Million, but greater 50% of YTD EBITDA
than $8 Million-------------------------------------------------- ---------------------------YTD Result is less than $8 Million 100% of YTD EBITDA-------------------------------------------------- ---------------------------YTD Result is greater than $10 Million NONE-------------------------------------------------- --------------------------- The applicable Escrow Amount shall be paid to the Cashflow Account on or beforethe fifteenth (15th) day after the end of the respective quarter of the thencurrent fiscal year. At the end of each subsequent quarter of the applicablefiscal year, if the YTD Result is greater than $10,000,000.00, all funds in theCashflow Account, if any, shall be remitted to ITG Vegas for the account ofCharterer; and if the YTD Result is between $8,000,000.00 and $10,000,000.00,any amount previously deposited in the Cashflow Account in excess of 50% of YTDEBITDA will be remitted to ITG Vegas for the account of Charterer. At the end ofeach fiscal year, any funds held in the Cashflow Account pursuant to thisparagraph 3.C. shall be applied to any Cash Flow Sweep payment due underparagraph 3.B., above. Owner and Charterer acknowledge and agree that the EscrowAmount shall be determined for each fiscal quarter and fiscal year by Owner andpayment in full by Charterer of the Escrow Amounts hereunder shall satisfy theCharterer's obligations under this Paragraph 3.C for both the Vessel and theSecond Vessel. D. Charterer shall not make any deductions from the Charter Hire, exceptwith respect to the following: (1)Time actually lost by reasons of action or failure to act of Owneror Owner's creditors or claimants other than the Charterer or its affiliates,except to the extent such delays were caused or contributed to by Charterer. (2) Any disbursements for Owner's account, provided Owner agrees inwriting. (3) Any previous overpayments of Charter Hire, excluding anyoverpayments of Charter Hire concerning which a bonafide dispute may exist, butin the latter event the Owner shall furnish an adequate bank guarantee or othergood and sufficient security on request of the Charterer. (4) Any sums to which Charterer is entitled under Article 12 herein. ARTICLE 4 ON-HIRE SURVEY A. Charterer has made its own independent assessment of the Vessel andaccepts the Vessel As-Is And Where-Is and the parties agree not to require an
on-hire survey. Any damage or deficiencies in either 6<PAGE> the hull, equipment and/or machinery affecting either the seaworthiness of theVessel or its capability to operate in its intended service or the maintenanceof the Vessel's classification society certificates or U. S. Coast Guardrequired documents, certificates, or certifications required to operate in U.S.waters, if any, discovered at any time prior to or during this Charter shall bethe sole responsibility of Charterer and any such damage or deficiency shall notin any way alter, amend or excuse Charterer's obligations under this Charter. B. Charterer's acceptance of the Vessel under this Charter shall constitutean admission by the Charterer of full performance by the Owner of itsobligations with respect to the condition of the Vessel on Delivery per Article5. Thereafter, the Charterer shall not be entitled to make or assert any claimagainst the Owner on account of agreement, representation or warranty, eitherexpress or implied, with respect to the condition, seaworthiness or fitness ofthe Vessel. Failure of the Charterer to make an inspection of the Vessel and itsappurtenances shall be entirely at its own risk. ARTICLE 5 DELIVERY OF THE VESSEL A. The Vessel will be delivered by Owner hereunder to Charterer at a safeand accessible berth or anchorage at Joliet, Illinois on the date hereof("Delivery"). B. Representatives of Owner and Charterer shall jointly execute aCertificate of Delivery and Acceptance, in the form attached hereto and markedas Appendix B, acknowledging the delivery and receipt of the Vessel. C. Due to the planned modification of the Vessel, the Vessel shall beaccepted As Is and Where Is, not in class and without any required United StatesCoast Guard Certificate of Inspection. Charterer will obtain, independent fromOwner, all classification and Coast Guard certificates for the Vessel and if anyof the Vessel's classification or Coast Guard certificates require renewal atthe time of Delivery, such renewals shall be paid for by Charterer and Chartereraccepts full responsibility for obtaining any classification or certificatesrequired for the Vessel. The Charterer shall keep the Vessel's documentation andclassification certificates in full force and effect during the term of thisCharter or any extensions thereof, providing copies of such certificates to
Owner when issued, and shall renew all such certificates at the time of anyRedelivery under Article 13 whether or not due for renewal, unless otherwiseagreed to by the parties. 7<PAGE> D. Concurrently with the Delivery of the Vessel hereunder, the Owner shallassign to the Charterer all of its rights, title and interest in and to anywarranties and guaranties which the Owner may have, provided that the same, ifstill in effect, shall be reassigned to Owner upon Redelivery of the Vessel. Ifany such warranty or guaranty is not fully assignable to the Charterer, theOwner shall cooperate with Charterer to enforce its rights thereunder. ARTICLE 6 USE AND OPERATION OF THE VESSEL A. The Charterer shall have the full use of the Vessel and, subject to thetrading limits of Article 24 hereof, may employ the Vessel in any lawful tradeor trades in accordance with the laws and regulations of the Vessel's flag stateand any country where the Vessel may be operated, as the Charterer may from timeto time elect, and it agrees to comply with all local, state, and federalregulations pertaining to the operation of the Vessel in the United States. B. During the Charter Period the Vessel shall be under the complete controlof the Charterer, who shall have exclusive possession, control, and command ofthe Vessel, subject to the terms hereof, and assumes full responsibilitytherefor, including port charges, agencies, fines, assessments and penaltiesincurred due to Charterer's use and operation of the Vessel. Nothing hereincontained shall be construed as constituting any implied restriction onCharterer's right, during the Charter Period, consistent with this Charter, toemploy the Vessel for its own account or for the account of others, either on avoyage or time charter basis, as the Charterer may from time to time determine,provided however, Charterer must first obtain written consent of Owner, whichshall not be unreasonably withheld, before entering into any voyage or timecharter. C. This Charter is a full and complete demise of the Vessel to theCharterer. From the time of delivery to the termination of the Charter, at itsown expense, the Charterer shall either itself or through a maritime managementor agency contract, man, victual, navigate, including engaging other vessels andpilots, operate, maintain in a good state of repair and in efficient operatingcondition, insure and supply the Vessel. The Charterer shall be responsible for
all charges and expenses of every kind and nature whatsoever incidental toCharterer's use and operation of the Vessel under the Charter including withoutlimitation fuel, lubricating oil, and water. Charterer shall return the Vesselto Owner at the expiration of 8<PAGE> this Charter in the event Charterer does not elect to purchase the Vesselpursuant to Article 19 hereof, in the same good order and condition as whenreceived, reasonable wear and tear excepted, in accordance with Article 13herein. D. (1) Except for a lien for wages of a stevedore, wages for the crew ofthe vessel, general average or salvage including contract salvage, and exceptfor maritime tort liens covered (subject to a reasonable deductible) byinsurance or protection and indemnity entry, Charterer will not create or sufferto be continued any security interest, lien, encumbrance or charge on the Vesselor any income therefrom. In due course, and in any event within thirty (30) daysafter the same becomes due and payable, the Charterer will pay or cause to bedischarged or make adequate provision for the payment or discharge of all claimsor demands which, if not paid or discharged, might result in the creation of asecurity interest, lien, encumbrance or charge against the Vessel or any incometherefrom, and will cause the Vessel to be released or discharged from each suchsecurity interest, lien, encumbrance or charge therefor. (2) If a complaint shall be filed against the Vessel or if the Vesselshall be seized, arrested and/or taken into custody or sequestered by virtue ofany legal proceedings in any court, the Charterer shall within ten (10) daysthereafter cause the Vessel to be released and discharged. Charterer shallremain liable for the payment of Charter Hire throughout any of the foregoingevents. E. Charterer agrees, at its expense, to drydock the Vessel for the purposeof cleaning and painting the Vessel's bottom when necessary and making anyrequired repairs, inspections or surveys, but not less than twice in every sixtymonths unless Owner otherwise agrees or as required by applicable ClassificationSociety rules, and when drydocking is due, Charterer agrees to send the Vesselto a port where the Vessel can so drydock, clean and paint. All expensesincidental to such drydocking and all charges incurred in connection therewithshall be for the Charterer's account, regardless of whether Owner's repairs, ifany, are concurrently made, provided that the Owner's repairs do not delay theoperation of the Vessel or increase the cost to Charterer.
F. Charterer will pay and discharge when and as due and payable, all taxes,assessments, excises, levies, documentation and registration fees, duties, finesand penalties and other governmental charges including without limitation,sales, use, franchise, property, gross receipts and occupation taxes lawfullyimposed upon the Vessel or the ownership, use, operation, registration,documentation or maintenance 9<PAGE> thereof during the term of the Charter or on any Charter Hire or other amountspayable hereunder, other than taxes and other charges imposed on or measured bythe net income or capital of the Owner. ARTICLE 7 CONTINUED REGISTRATION OF VESSEL The Vessel shall be kept documented under the laws and flag of the UnitedStates during the period of this Charter. Charterer warrants it is a citizen ofthe United States and entitled to own and operate vessels documented under thelaws of the United States with the privilege of engaging in the Coastwise trade. ARTICLE 8 EQUIPMENT, OUTFIT AND FURNISHINGS The Charterer shall have the use, without extra cost, of all equipment(which shall include equipment for cabin, crew, and galley, navigational aids,and technical equipment, furnishings, furniture, and fittings) outfit,appliance
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