<PAGE> 1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 12, 1998
INTRAV, INC.
(Exact name of registrant as specified in its charter)
MISSOURI 0-25990 43-1323155
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
organization) Number)
7711 BONHOMME AVENUE
ST. LOUIS, MISSOURI 63105
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (314) 727-0500
===============================================================================
<PAGE> 2
ITEM 2. ACQUISITION OF ASSETS
On November 12, 1998, Clipper Odyssey, Ltd., a Bahamian corporation and
wholly-owned subsidiary of the Registrant ("Clipper Odyssey"), completed the
acquisition (the "Vessel Purchase") of the 120-passenger luxury cruise ship
Oceanic Odyssey (the "Vessel"), from Spice Islands Cruises Ltd., a British
Virgin Islands corporation ("Spice Islands"). Prior to the Vessel Purchase,
Spice Islands used the Vessel to operate passenger cruises and Clipper
Odyssey will continue to do the same. At the time of signing the Vessel
Purchase Agreement on September 4, 1998, Clipper Odyssey deposited $2.0
million in escrow to secure its obligations under the Vessel Purchase
Agreement. At the closing of the Vessel Purchase, Clipper Odyssey made an
additional $6.8 million cash payment ($8.5 million less $1.7 million prepaid
charter hire from Spice Islands - see discussion below) and delivered a one-
year promissory note in the amount of $5.5 million. The promissory note is
guaranteed by the Registrant. The $16.0 million purchase price was
determined pursuant to negotiations between the parties. The Registrant
expects to spend up to $2.0 million renovating the Vessel.
The Registrant is funding the purchase of the Vessel through existing
working capital and by borrowings under its existing revolving credit
agreement with NationsBank, N.A. In connection with the Vessel purchase, on
November 12, 1998, the Registrant and NationsBank amended the revolving
credit agreement to increase the line of credit available to the Registrant
from $20.0 million to $30.0 million.
Until November 1, 1999, Clipper Odyssey will charter the Vessel, on a
bareboat basis (i.e., without crew or provisioning), to Spice Islands. Spice
Islands prepaid the full charter hire of $1.7 million to the Registrant on
the closing date of the Vessel Purchase. The charter arrangement will afford
the Registrant lead time to design and market travel programs for the Vessel
while permitting Spice Islands to fulfill its preexisting cruise obligations.
- 2 -
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: November 24, 1998
INTRAV, INC.
By: /s/ Wayne L. Smith II
-------------------------------------
Wayne L. Smith II, Executive Vice
President and Chief Financial Officer
- 3 -
<PAGE> 4
EXHIBIT INDEX
These exhibits are numbered in accordance with the Exhibit Table of Item 601
of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
2 Vessel Sale and Purchase Agreement, dated as of September 4, 1998,
between Clipper Odyssey, Ltd. and Spice Islands Cruises Ltd. (filed
without schedules or exhibits, which will be furnished supplementally
to the Commission upon request).
</TABLE>
<PAGE> 1
EXHIBIT NO. 2
-------------
VESSEL SALE AND PURCHASE AGREEMENT
----------------------------------
THIS VESSEL SALE AND PURCHASE AGREEMENT ("Agreement") made as of
this 4th day of September, 1998, by and between Clipper Odyssey, Ltd.,
organized under the laws of the Commonwealth of The Bahamas ("Buyer"), with
offices at 7711 Bonhomme Avenue, St. Louis, Missouri 63105 and Spice Islands
Cruises Ltd., organized under the laws of the British Virgin Islands
("Seller"), c/o 50 Cuscaden Road #08-01, HPL House, Singapore 249724.
WHEREAS, Seller is the owner of that certain passenger cruise ship
(the "Vessel") described as follows:
Name: Oceanic Odyssey
Registry: Bahamas
Port of Registry: Nassau
IMO No.: IMO 8800195
Official No.: C6023
Gross Tonnage: 5218; and
WHEREAS, Seller desires to sell and Buyer desires to purchase the
Vessel upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and other good and valuable consideration, the
receipt and adequacy of which hereby is acknowledged, and with the intent to
be legally bound hereby, the parties agree as follows:
1. Purchase and Sale of Vessel. Seller agrees to sell and Buyer
---------------------------
agrees to purchase the Vessel, together with its tackle, necessaries,
apparel, boats, tenders and all landing craft (including life boats and
inflatable boats), spare parts, radio and navigation equipment, crockery,
plate, cutlery, linen and other similar items, cordage, general outfit and
all other appurtenances and appliances belonging to the Vessel, whether
aboard the Vessel or on shore at the time of delivery of the Vessel to Buyer,
but excluding spares on order. In addition, the following items shall be
excluded from the sale:
a. crockery, plates, cutlery, linen and other articles bearing
the Seller's flag or name;
b. Library, forms, etc. exclusively for use on the Seller's
vessels;
c. Captain's, Officer's and Crew's personal belongings
including slop chest;
d. Art work, except the five Dutch paintings currently on
Deck 3 of the Vessel;
e. Musical instruments owned by contractors; and
f. stock inventory items for the spa and hairdressers,
excluding furniture and equipment, such as hair dryers,
massage table, etc.
<PAGE> 2
Buyer shall take over remaining bunkers on board on the Closing Date (as
defined in Section 8 hereof) and unused lubricating oil in unopened drums
and/or in storage tanks on board at the port of delivery on the Closing Date.
2. Purchase Price. The aggregate Purchase Price for the Vessel
--------------
shall be Sixteen Million United States Dollars only ($16,000,000) ("Purchase
Price"), payable as follows: (a) on the date hereof, $2,000,000 (the
"Deposit"), which shall be paid by wire transfer of immediately available
funds to the Escrow Agent (as defined below); (b) on the Closing Date (as
defined below) (i) $8,500,000, payable by transfer of immediately available
funds in Singapore (by transfer to such account or accounts as Seller shall
direct or by delivery of a banker's draft or drafts drawn on a bank with a
branch in Singapore) (the "Closing Cash Payment"); and (ii) delivery of
Buyer's Promissory Note in the principal amount of $5,500,000 in
substantially the form attached hereto as Exhibit A (the "Note"). The
---------
Deposit and the Closing Cash Payment herein are referred to as the "Cash
Portion". All interest or other earnings on the funds held by the Escrow
Agent shall, if the Closing occurs, be paid to Seller and credited against
the payment provided in clause (b)(i) above and, if the Closing does not
occur, shall be paid to Buyer. All payment made by the Buyer shall be paid
free of all bank charges from Buyer's bank.
The amount referred to in Clause 2(a) above shall constitute the
deposit by the Buyer as security for its fulfillment of its obligations under
this Agreement. The deposit will be made to the account opened with
NationsBank N.A. (the "Escrow Agent") on the date hereof, which deposit shall
be subject to the terms and conditions set out in the escrow agreement
(substantially in the form set out and attached hereto as Exhibit C and
---------
incorporated herein by reference) entered into between the Escrow Agent, the
Seller and the Buyer concurrently with the execution of this Agreement (the
"Escrow Agreement").
3. Buyer's Conditions. Buyer's obligation to purchase the Vessel is
------------------
expressly conditioned on:
a. Seller's representations and warranties set forth in
Section 5 below being true and correct in all material
respects on the Closing Date;
b. Receipt on the Closing Date of a bill of sale, in
duplicate, transferring title to the Vessel to the Buyer,
with full warranty of title, notarized and otherwise in
form acceptable for filing and recording with the Bahamas
Maritime Authority;
c. Receipt of a report by D. J. Catchpole or such other
independent marine surveyor as Buyer may select at the
Buyer's cost and expense, in form and substance reasonably
satisfactory to Buyer, of an inspection of the Vessel,
including its hull, machinery and equipment during dry-dock
at Singapore on or about November 1 - 12, 1998;
d. Receipt on the Closing Date of a Passenger Ship Safety
Certificate issued by Nippon Kaiji Kyokai under the
provisions of the International Convention for the Safety
of Life At Sea, 1974, as amended and specifically
including, but not limited to, the 1997 amendments
("SOLAS"), certifying that the Vessel complies in all
respects with the requirements under SOLAS for full ocean
operation of the Vessel, including by way of example and
not limitation, Chapters IV and IX thereof;
- 2 -
<PAGE> 3
e. Completion, during the dry-docking described in clause c.
above and at Buyer's sole cost and expense, of all work,
installation and equipment such that the Vessel on the
Closing Date complies in all respects with all functional
requirements of the SOLAS Global Marine Distress and Safety
System which becomes effective February 1, 1999 with
respect to radiocommunication equipment, facilities and
installation;
f. Receipt on the Closing Date, against payment of the Cash
Portion by the Buyer of a satisfaction, release or
discharge, suitable for recording, of that certain
Mortgage, dated October 13, 1997 (the "Mortgage"), from
Seller in favor of Standard Chartered Bank ("Mortgagee") of
Tampines Central 5, Singapore;
g. Receipt of an executed copy of the Bareboat Charter
Agreement, in substantially the form attached hereto as
Exhibit B (the "Charter") and an executed copy of the
---------
Charter Escrow Agreement (as defined in the Charter and in
substantially the form attached thereto as Exhibit 3);
---------
h. Receipt on the Closing Date on board the Vessel of an
original set of the Vessel's as-built drawings and
specifications, classification certificates and other
technical information in Seller's possession or under its
control;
i. The original Certificate of Registry and an original
Transcript of Register or Status of Register, as the case
may be;
j. Receipt, on or before the Closing Date, of (i) a legal
opinion from legal counsel in the State of Missouri, United
States of America, in form and substance reasonably
satisfactory to the Buyer, obtained at the sole cost and
expense of Buyer, confirming the authorization, execution,
legality, validity, delivery and enforceability of this
Agreement and the documents to be executed in connection
herewith, and on such matters of the law of United States
of America relevant to this Agreement as the Buyer
reasonably may request; and (ii) a legal opinion of
Seller's British Virgin Islands legal counsel, obtained at
the sole cost and expense of Buyer, with respect to the
organization and existence of Seller, the corporate power
of Seller and authorization and execution of this Agreement
and the documents executed in connection herewith and on
such matters of the law of the British Virgin Islands
relevant to this Agreement and the documents to be executed
and delivered in connection herewith as the Buyer
reasonably shall request; and
k. Copies (certified by the corporate secretary of Seller) of
Seller's constituent documents and the resolutions of the
Seller's Board of Directors authorizing the execution,
delivery and performance of this Agreement and the
transactions contemplated herein.
4. Seller's obligation to transfer and sell the Vessel to the Buyer
is expressly conditioned on:
- 3 -
<PAGE> 4
a. Buyer's representations and warranties set forth in Section
6 below, being true and correct in all material respects on
the Closing Date;
b. Receipt of the Cash Portion of the Purchase Price (the
Deposit from the Escrow Agent and the Closing Cash Payment
from the Buyer) and the executed Note in accordance with
Section 8.b hereof;
c. Receipt of the Charter executed by Buyer and an executed
copy of the Charter Escrow Agreement (as defined in the
Charter and in substantially the form attached thereto as
Exhibit 3);
---------
d. Receipt of a Guaranty, executed by Intrav, Inc., a Missouri
corporation ("Intrav"), sole shareholder of Buyer, in
substantially the form attached hereto as Exhibit D (the
---------
"Guaranty");
e. Receipt, on or before the Closing Date, of (i) a legal
opinion from legal counsel in the State of Missouri, United
States of America, obtained at the sole cost and expense of
Seller, in form and substance reasonably satisfactory to
the Seller confirming the authorization, execution,
delivery, validity, legality and enforceability of this
Agreement and the documents to be executed in connection
therewith, including but not limited to the Guaranty and on
such matters of the law of United States of America
relevant to this Agreement and the documents to be executed
in connection herewith as the Seller reasonably may
request; and (ii) a legal opinion of legal counsel in the
Bahamas, obtained at the sole cost and expense of Seller,
in form and substance reasonably satisfactory to the Seller
with respect to the organization and existence of Buyer the
corporate power of Buyer and the authorization and
execution of this Agreement and the documents to be
executed in connection herewith and on such matters of the
law of the Bahamas relevant to this Agreement and the
documents to be executed and delivered in connection
herewith as the Seller reasonably may request; and
f. Receipt of copies (certified by the corporate secretary of
Buyer or Intrav, as the case may be) of Buyer's and
Intrav's constituent documents and the resolutions of the
Buyer's and Intrav's respective Boards of Directors
authorizing the execution, delivery and performance of, in
the case of Buyer, this Agreement and the transactions and
documents contemplated herein and, in the case of Intrav,
the Guaranty.
5. Seller's Representations. Seller hereby represents and warrants
------------------------
the following:
a. That Seller has and on the Closing Date will have good and
lawful title to and possession of the whole of the Vessel;
b. That the Vessel shall be transferred to the Buyer free and
clear of all mortgages, pledges, liens, maritime liens,
conditional sales agreements, encumbrances, charters, or
charges of any type or kind, save for time or voyage
charters entered or to be entered into in respect of the
Vessel as may be disclosed in writing by the Seller to the
Buyer on or before the Closing Date, provided that no such
time or
- 4 -
<PAGE> 5
voyage charter shall extend beyond the end of the Charter
Period (as defined in the Charter);
c. That Seller is a corporation duly organized, validly
existing and in good standing under the laws of the British
Virgin Islands and in good standing in the jurisdictions in
which it conducts business and has all the corporate power
and authority necessary to sell the Vessel;
d. The Vessel meets all requirements to obtain, and has, a
valid and current International Load Line Certificate
issued by Nippon Kaiji Kyokai under the International
Convention on Load Lines, 1966, as amended; and
e. Seller has provided to Buyer true and correct copies of all
insurance policies currently in effect with respect to the
Vessel and its use and operation.
6. Buyer's Representations. Buyer hereby represents and warrants
-----------------------
that it is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of the Bahamas and in good
standing in the jurisdictions in which it conducts business and has all the
corporate power and authority necessary to purchase the Vessel and execute,
deliver and perform this Agreement, the Note, the Charter and the Escrow
Agreement.
7. Covenants of Seller. Seller hereby covenants and agrees that on
-------------------
or before the Closing Date it shall:
a. Make available to Buyer's representatives true and correct
originals or copies of all records relating to the Vessel
(with Buyer to bear the cost of any copying costs)
including as-built drawings and specifications, operating
expense records, damage, repair and maintenance records,
ship's logs, and information regarding customer service
(including any customer surveys, complaints and the like);
b. Fully disclose to Buyer all commitments and agreements with
respect to the chartering or other committed use of the
Vessel (i) between the date hereof and the Closing Date and
(ii) on or after the Closing Date;
c. Do and take all actions necessary to satisfy the conditions
to Buyer's obligation to purchase the Vessel set forth in
Section 3.d and .f hereof and to cooperate and permit
access to the Vessel in order to permit fulfillment of the
conditions described in Section 3.c and .e hereof;
d. Cause the Vessel to be insured through and including the
Closing Date with the same coverages, limits, policies and
underwriters as [in effect on the date hereof]. From and
after the Closing Date, Seller shall maintain the insurance
coverages required by the Charter.
8. Closing. The closing of the sale and purchase of the Vessel (the
-------
"Closing") shall occur on the date not later than six Business Days after the
Vessel is ready for delivery and written notice thereof has been given by the
Seller to the Buyer and all conditions to the Buyer and all conditions to
Buyer's obligation to purchase the Vessel have been met or provided for, but
in no event later than November 30, 1998, on which the Vessel is accepted by
Buyer (the "Closing Date") at the offices of Buyer or as otherwise agreed by
the parties.
- 5 -
<PAGE> 6
a. On Closing, the Seller shall deliver to the Buyer the
instruments, documents and agreements described in clauses
b, d, f, g, h, i and k of Section 3 hereof.
b. On Closing, the Buyer shall do or deliver to the Seller the
following:
(i) pay the Closing Cash Payment of the Purchase Price by
transfer of immediately available funds in Singapore
(by transfer to such account or accounts as Seller
shall direct or by delivery of a banker's draft or
drafts payable to such parties as Seller shall direct
in writing, including the Mortgagee under the
Mortgage, drawn on a bank with a branch in Singapore)
in the amount of the Closing Cash Payment portion of
the Purchase Price;
(ii) irrevocable written directions to the Escrow Agent to
deliver, by wire transfer of immediately available
funds, the Deposit (together with all interest earned
thereon) to such account or accounts as Seller shall
specify in writing at least 48 hours prior to the
Closing or by delivery of a banker's draft or drafts
drawn on a bank with a branch in Singapore; and
(iii) deliver to the Seller the instruments, documents and
agreements described in clauses c, d and f of
Section 4 hereof.
c. Each party shall on compliance by the other party with
clauses (a) and (b) above (as the case may be), execute the
Bareboat Charter Agreement in duplicate.
9. Drydock. Seller shall in connection with the delivery of the
-------
Vessel cause the Vessel to be drydocked at a port in Singapore on or about
November 1, 1998 (or such other date as shall be agreed to by Seller and
Buyer), with completion of inspection (as contemplated by Section 3(c)
hereof), repair and improvements (as contemplated by Section 3(e) hereof) to
be completed by or on behalf of the Buyer on or about November 11, 1998. The
Buyer shall instruct D. J. Catchpole or such other independent marine
surveyor to inspect the Vessel as aforesaid and shall pay such fees as may be
required for such purpose. The expenses in connection with putting the
Vessel in and taking her out of drydock, including drydock dues shall be paid
by the Seller. The independent marine surveyor's fees shall be paid by the
Buyer. The Buyer shall undertake the inspection without undue delay to the
Vessel. Should the Buyer cause such delay, the Buyer shall compensate the
Seller for losses thereby incurred. The Buyer shall inspect the Vessel
without significant cost to the Seller. During the inspection, the Vessel's
log books for engine and deck shall be made available for the Buyer's
examination. If the Vessel is accepted after such afloat inspection, the
purchase shall, save as set out in this Agreement, become definite provided
the Seller receives written or telexed notice from the Buyer within 48 hours
after completion of such inspection. Should notice of acceptance of the
Vessel not be received by the Seller as aforesaid, the Deposit shall
immediately be released, whereafter this Agreement shall ipso facto cease and
----------
determine and neither party shall have any claim against the other for costs,
damages, compensation or otherwise.
10. Condition of Vessel. Seller represents or warrants that the
-------------------
Vessel (on delivery of the Vessel) shall be in all material respects in the
same condition as when inspected by Buyer pursuant to Section 3(c) hereof,
and shall be fit and seaworthy, suitable for the service intended with no
deferred maintenance in excess of $200,000 in the aggregate.
- 6 -
<PAGE> 7
11. No Liens. Seller and Buyer each represent to the other that
--------
there are no valid claims against Seller or Buyer for brokerage commissions
or similar payments and Seller and Buyer each agree to indemnify, defend and
hold the other harmless for any claims arising or claim to have arisen
through them for brokerage commissions or similar payments.
12. Delivery. The Vessel shall be deemed delivered to Buyer
--------
hereunder at Singapore, simultaneous with the Closing. Seller shall be
responsible for any sale, use or similar taxes, fees and expense imposed in
Singapore or in the Bahamas upon or in connection with the sale of the Vessel
and Buyer also shall be responsible for any sales, use or similar taxes, fees
and expenses incurred in connection with the purchase of the Vessel and the
re-registration of the Vessel at Nassau, Bahamas.
13. Indemnification. Seller, on behalf of itself and its successors
---------------
and assigns, hereby agrees to indemnify and hold Buyer and its successors and
assigns, harmless from any and all claims, demands, causes of action,
judgments, awards, damages and/or suits which may be asserted against Buyer
as a result of Seller's ownership and/or operation of the Vessel and/or any
operation by any charterer of Seller. The indemnification provided herein
shall include all attorneys fees and costs of defense and shall survive the
Closing provided for herein.
14. Risk of Loss.
------------
a. All risk of loss, whether total loss, constructive total
loss or less than total loss or constructive total loss
shall be borne by Seller prior to the Closing and any
insurance proceeds for events occurring prior to the
Closing shall be for the Seller's account. Buyer shall
have no obligation to purchase the Vessel if it is damaged
after its inspection and survey and prior to Closing. All
insurance proceeds for such loss shall be paid to and
solely for the account of Seller. In the event that the
Vessel suffers damage which does not constitute a total
loss or constructive total loss, Buyer may, at its sole
option elect to purchase the Vessel, in which case any
insurance proceeds payable with respect to such accident
shall be used to repair the Vessel. In order to assist in
having such repairs accomplished, Seller shall assign to
Buyer all of its rights under the insurance policies
covering such loss.
b. All risk of loss, whether total loss, constructive total
loss or less than total loss or constructive total loss
shall, subject to the terms and conditions of the Charter,
be borne by Buyer subsequent to the Closing and any
insurance proceeds for events occurring subsequent to the
Closing shall be for the Buyer's account.
15. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws of the State of Missouri, and where
applicable, the federal laws of the United States.
16. Dispute Resolution. In the event any dispute shall arise in
------------------
connection with the interpretation of this Agreement or the respective rights
and obligations of the parties hereunder or under the Note, the Escrow
Agreement or the Guaranty, such dispute shall be submitted to arbitration in
New York, New York. If any of the appointed arbitrators refuses or is
incapable of acting, the party or parties who appointed him, shall appoint a
new arbitrator in his place. If one of the parties fails to appoint an
arbitrator - either originally or by way of substitution - for thirty (30)
days after the other party having appointed its arbitrator has sent the party
making default notice in
- 7 -
<PAGE> 8
writing to make the appointment, the other arbitrator shall be appointed by
the Society of Maritime Arbitrators Inc. on behalf of the party making a
default. One arbitrator shall be appointed by each of the parties hereto and
a third by the two so chosen. Their decision, or that of any two of them
shall be final, and for the purpose of enforcing any award, this Agreement may
be a rule of the court. The arbitrators shall be commercial persons,
conversant with shipping matters. The arbitration shall be conducted in
accordance with the rules of the Society of Maritime Arbitrators Inc. For
disputes where the total amount claimed by either party does not exceed US
$100,000, the arbitration shall be conducted in accordance with the Shortened
Arbitration Procedure of the Society of Maritime Arbitrators Inc.
17. Confidentiality. The parties hereto agree that no public
---------------
announcement or other disclosure of the existence and contents of this
Agreement shall be made by either party without the prior consent of the
other (which consent shall not be unreasonably withheld or delayed) except
for (a) their accountants or attorneys and other professional advisors, (b)
public authorities to whom disclosure is required, (c) the mortgagee under
the Mortgage, (d) in connection with the arbitration or litigation of any
dispute arising hereunder or (e) as required by any applicable law; provided,
however, that prior to any disclosure pursuant to the foregoing clauses (b)
or (e), the disclosing party shall use its commercially reasonable best
efforts to give prior written notice to the other party of such disclosure
and Buyer shall coordinate with Seller any public announcement required by
the United States federal securities laws applicable to Buyer or its parent
corporation, Intrav, Inc.
18. Notices. All notices or other communications required or
-------
permitted to be given under this Agreement shall be given in writing and
delivered personally or sent by registered mail (with postage prepaid) or
international courier or fax to the following address and fax number, or to
such other address as any party may from time to time designate in a notice
to the other.
If to Buyer:
Clipper Odyssey, Ltd.
7711 Bonhomme Avenue
St. Louis, Missouri 63105
Attention: Wayne L. Smith II
Telephone: 314/727-0500, Ext. 299
Facsimile: 314/727-2533
with a copy to:
Thompson Coburn
One Mercantile Center
St. Louis, Missouri 63101
Attention: William R. Bay, Esq.
Telephone: 314/552-6000
Facsimile: 314/552-7000
- 8 -
<PAGE> 9
If to Seller:
Spice Islands Cruises Ltd.
50 Cuscaden Road #08-01
HPL House
Singapore 249724
Attention: Prithpal Singh
Telephone: 011-65-734-5250
Facsimile: 011-65-732-0347
with a copy to:
Drew & Napier
20 Raffles Place #17-00
Ocean Towers
Singapore 048620
Republic of Singapore
Attention: Evelyn Wee
Telephone: 011-65-535-0733
Facsimile: 011-65-535-4864
Any such notice or communication shall be deemed to have been duly served (if
given or made personally) immediately or (if given or made by facsimile) upon
evidence of transmission or upon confirmed answerback or (if given or made by
international courier) once the return receipt for the served notice has been
signed by the party receiving the notice or (if given or made by letter) 48
hours after posting or (if made or given to or from an address outside
Singapore) ten days after posting and in proving the same it shall be
sufficient to show that the envelope containing the same was duly addressed,
stamped and posted. Each notice or communication made by telefax shall be
followed by a confirmation copy to be sent by post. Failure to send any
confirmation copy shall have no effect on the validity or deemed delivery of
the notice or communication.
19. Further Assurances. The Seller and Buyer shall do and perform
------------------
such other and further acts and execute and deliver any and all such other
and further instruments as may be required by law or reasonably requested by
the other (and at such other party's cost) to establish, maintain and protect
the respective rights and remedies of the other and to carry out and effect
the intent and purpose of this Agreement.
20. Failure of Conditions Precedent. If any condition set forth in
-------------------------------
Section 3, Section 4 or Section 8 hereof is not fulfilled by the Closing Date
and is not waived by the Buyer (in the case of the conditions specified in
Sections 3, 8.a and 8.c above) or the Seller (in the case of Sections 4, 8.b
and 8.c above), then the parties hereto shall have the following rights and
obligations:
a. In the case of Buyer, if any condition set forth in
Sections 3.a, 3.b, 3.d, 3.f, 3.g, 3.h, 3.i, 3.k, 8.a or
8.c above is not fulfilled, for any reason other than an
actual or constructive total loss of the Vessel after the
date hereof, Buyer shall be entitled to the return of the
Deposit (and all interest earned thereon), then Buyer shall
be entitled to rescind this Agreement and Buyer shall be
entitled to claim compensation for its actual losses and
expenses incurred, together with interest at eight per cent
(8%) per annum thereon; provided, that Buyer shall not be
entitled to consequential, incidental or
- 9 -
<PAGE> 10
exemplary damages and shall not be entitled to actual
damages and expenses incurred in an aggregate amount in
excess of $2,000,000. If there shall occur an actual or
constructive total loss of the Vessel after the date hereof
and prior to the Closing Date or if any condition specified
in Sections 3.c, 3.e or 3.j is not fulfilled, then Buyer
shall be entitled to the return of the Deposit (and all
interest earned thereon) and this Agreement shall terminate
and neither Seller nor Buyer shall have any further or
additional obligation or liability to the other with respect
to this Agreement or the transactions contemplated herein.
b. In the case of Seller, if any condition set forth in
Sections 4 (other than subsection e thereof), 8.b or 8.c
hereof is not fulfilled, then Seller shall be entitled to
rescind this Agreement, in which case the Deposit (and all
interest earned thereon) shall be forfeited to Seller as
its sole and exclusive remedy with respect thereto as
liquidated damages. In the event that this Agreement is
terminated for any reason whatsoever, the Buyer shall at
its own cost and expense, forthwith remove all such work,
installation and equipment in respect of the Vessel
effected by the Seller at the request of the Buyer and
ensure that the Vessel is placed in condition as if such
work, installation or equipment had not been effected;
provided, that any work, installation or equipment effected
pursuant to Section 3.e shall remain in place and Seller
shall pay to Buyer Buyer's actual cost therefor.
21. Survival. All representations and warranties contained herein or
--------
made in another writing by the Seller and Buyer in connection with the
transaction contemplated hereby shall be true and correct at the Closing and
shall survive the execution and delivery of this Agreement and the Closing of
the sale and transfer contemplated hereunder.
22. Entire Agreement; Counterparts. This Agreement constitutes the
------------------------------
entire understanding of the parties and supersedes any and all other
agreements, written or oral, with respect to the subject matter hereof. This
Agreement may only be modified or amended by written instruments signed by
both parties. This agreement may be executed in two or more counterparts
which together shall constitute a single agreement.
23. Binding Effect. This Agreement shall be binding on the parties
--------------
hereto and inure to the benefit of their respective successors and assigns.
IN WITNESS WHEREOF, this Vessel Sale and Purchase Agreement has been
entered into on the date first set forth above by and between Seller and
Buyer.
SPICE ISLANDS CRUISES LTD. CLIPPER ODYSSEY, LTD.
By /s/ Ong Beng Seng By /s/ Wayne L. Smith II
-------------------------------- ---------------------------------
Name: Ong Beng Seng Name: Wayne L. Smith II
Title: President Title: Executive Vice President
- 10 -
<PAGE> 11
EXHIBIT A
---------
FORM OF PROMISSORY NOTE
EXHIBIT B
---------
FORM OF BAREBOAT CHARTER AGREEMENT
EXHIBIT C
---------
FORM OF ESCROW AGREEMENT
EXHIBIT D
---------
FORM OF GUARANTY
