1
Exhibit 10.26
11/18/92
CONCESSION AGREEMENT
BY AND BETWEEN
CARNIVAL CRUISE LINES, INC.,
a Panamanian corporation
AND
GREYHOUND LEISURE SERVICES, INC.,
a Florida corporation
2
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DESCRIPTION AND TERM OF CONCESSION................................................................... 2
1.1. Grant of Concession............................................................................... 2
1.2. Term.............................................................................................. 2
1.3. Reimbursement for Cost of Merchandise and Equipment............................................... 3
ARTICLE 2. FACILITIES AND STORAGE TO BE FURNISHED BY CCL........................................................ 4
2.1. Facilities........................................................................................ 4
2.2. Storage and Utilities............................................................................. 5
2.3. Condition of Facilities........................................................................... 5
2.4. Communications.................................................................................... 5
ARTICLE 3. DETAILS AND QUALITIES OF SERVICES TO BE PERFORMED BY
CONCESSIONAIRE................................................................................................... 5
3.1. Representations and Warranties of Concessionaire.................................................. 5
3.2. Limitation on Marketing........................................................................... 6
3.3. Trained Employees................................................................................. 7
3.4. Performance Evaluation............................................................................ 7
3.5. Pricing of Merchandise............................................................................ 7
3.6. Discount to Crew.................................................................................. 7
3.7. Standards......................................................................................... 7
3.8. Prohibited Items.................................................................................. 8
3.9. Locks and Security................................................................................ 8
3.10. Risks to Merchandise............................................................................. 8
3.11. Credit Risks..................................................................................... 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF CCL................................................................ 9
4.1. Authority......................................................................................... 9
ARTICLE 5. COMMISSION........................................................................................... 9
5.1. Definitions....................................................................................... 9
ARTICLE 6. PAYMENTS............................................................................................. 11
6.1. Commission Due CCL................................................................................ 11
6.3. Per Diem Food Charges............................................................................. 11
6.4. Prizes and Gifts.................................................................................. 11
6.5. Payment Date...................................................................................... 12
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ARTICLE 7. TRADEMARKS........................................................................................... 12
7.1. Nonexclusive License.............................................................................. 12
7.2. Restrictions on Assignment of License............................................................. 13
7.3. Submission of Newly Designed Marks................................................................ 13
7.4. Purchase Orders................................................................................... 14
7.5. Use of Marks, Etc................................................................................. 15
7.6. Infringements. .................................................................................. 15
7.7. Infringements. .................................................................................. 16
7.8. Termination of License. ......................................................................... 16
7.9. Merchandise Bearing the CCL Marks. .............................................................. 16
7.10. CCL Marks. ..................................................................................... 17
ARTICLE 8. MATTERS RELATING TO CONCESSIONAIRE'S EMPLOYEES....................................................... 17
8.1. Concessionaire's Obligations...................................................................... 17
8.2. Responsibility for Payment of Certain Expenses.................................................... 18
8.3. No Maritime Liens................................................................................. 18
8.4. Xxxxx Act......................................................................................... 18
8.5. Employee Contracts................................................................................ 18
8.6. Ship's Articles................................................................................... 19
8.8. Health and Documentation.......................................................................... 19
8.9. Grooming.......................................................................................... 20
8.10. Shop Manager..................................................................................... 20
8.11. Supervisors...................................................................................... 20
8.13. Room and Board for Concessionaire's Employees.................................................... 21
8.14. Medical Care..................................................................................... 21
8.15. Prohibited Items................................................................................. 21
ARTICLE 9. CONCESSIONAIRE'S OTHER GENERAL OBLIGATIONS........................................................... 22
9.1. Safe Stowage...................................................................................... 22
9.2. Unseaworthiness................................................................................... 22
9.3. Careful Operations................................................................................ 22
9.4. Compliance with Laws.............................................................................. 23
9.5. Changes in Facilities and Utilities............................................................... 23
9.6. Damaged Property.................................................................................. 23
9.7. Interior Decorations.............................................................................. 23
ARTICLE 10. OTHER CCL OBLIGATIONS............................................................................... 23
10.1. Access........................................................................................... 23
10.2. Safe Deposit Boxes............................................................................... 23
10.3. Stevedoring...................................................................................... 24
10.4. Carrier's Release................................................................................ 24
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ARTICLE 11. COMPLAINTS.......................................................................................... 24
11.1. Complaints....................................................................................... 24
ARTICLE 12. INSURANCE........................................................................................... 25
12.1. Hull and Machinery Insurance..................................................................... 25
12.2. Protection and Indemnity Insurance............................................................... 25
12.3. Concessionaire's Property and Liability Insurance................................................ 26
12.4. Certificates..................................................................................... 26
ARTICLE 13. CRUISE SCHEDULING................................................................................... 27
13.1. Scheduling of Cruises............................................................................ 27
13.2. Reposition of Vessels............................................................................ 27
ARTICLE 14. PROMOTION LITERATURE................................................................................ 27
14.1. Photographs...................................................................................... 27
14.2. Publicity........................................................................................ 28
ARTICLE 15. INVENTORY........................................................................................... 28
ARTICLE 16. CHANGE OF STATUS.................................................................................... 28
16.1. Sale or Charter of Vessel........................................................................ 28
16.2. Registry Change.................................................................................. 28
16.3. Change of Name of Vessel......................................................................... 29
ARTICLE 17. ASSIGNMENT.......................................................................................... 29
17.1. Assignment by Concessionaire..................................................................... 29
17.2. Assignment by CCL................................................................................ 30
17.3. Obligations Upon Assignment...................................................................... 30
ARTICLE 18. FORCE MAJEURE....................................................................................... 30
18.1. Delay............................................................................................ 30
ARTICLE 19. GENERAL AVERAGE AND SALVAGE......................................................................... 31
19.1. General Average.................................................................................. 31
19.2. Salvage.......................................................................................... 31
19.3. Earned Salvage................................................................................... 31
ARTICLE 20. BOTH TO BLAME COLLISION CLAUSE...................................................................... 32
ARTICLE 21. RECORDS AND INSPECTION.............................................................................. 32
21.1. CCL's Right to Audit............................................................................. 32
21.2. Inspections...................................................................................... 32
21.3. Minimal Interference............................................................................. 33
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ARTICLE 22. INDEMNITY........................................................................................... 33
22.1. Indemnity by Concessionaire...................................................................... 33
22.2. Indemnity by CCL................................................................................. 34
ARTICLE 23. TERMINATION BY WITHDRAWAL, REQUISITION OR LABOR
DISPUTE.......................................................................................................... 35
23.1. Withdrawal of a Vessel From Trade................................................................ 35
23.2. Requisition of a Vessel.......................................................................... 36
23.3. Strikes.......................................................................................... 37
ARTICLE 24. DEFAULT AND REMEDIES................................................................................ 37
24.1. Events of Default................................................................................ 37
24.2. Remedies Upon Default............................................................................ 38
ARTICLE 25. RIGHT TO REMEDY DEFAULT............................................................................ 39
ARTICLE 26. ARBITRATION AND CHOICE-OF-LAW....................................................................... 39
26.1. Arbitration...................................................................................... 39
26.2. Applicable Law................................................................................... 39
ARTICLE 27. AMENDMENTS AND MISCELLANEOUS........................................................................ 40
27.1. Entire Amendment................................................................................. 40
27.2. Binding Nature and Assignment.................................................................... 40
27.3. Headings......................................................................................... 40
27.4. Severability..................................................................................... 40
27.5. Notices.......................................................................................... 40
27.6. Brokers.......................................................................................... 41
27.7. Confidentiality.................................................................................. 41
27.8. Cooperation...................................................................................... 42
27.9. Independent Contractors.......................................................................... 42
27.10. Advertising..................................................................................... 42
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EXHIBITS
Exhibit 2.1 Storage Facilities
Exhibit 2.1(a) Premises and Shopfittings
Exhibit 6.2 Letter of Guaranty of Performance
Exhibit 7.1 Trademarks, Service Marks, Design Marks and Patents
Exhibit 8.8 Medical Examination List of Services
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11/18/92
CONCESSION AGREEMENT
This Concession Agreement ("Agreement") made and concluded on the 23rd
day of November, 1992, by and between CARNIVAL CRUISE LINES, INC., a Panamanian
corporation, hereinafter sometimes referred to as "CCL", and GREYHOUND LEISURE
SERVICES, INC., a Florida corporation (hereinafter referred to as
"Concessionaire") and THE DIAL CORP, a Delaware corporation (hereinafter
referred to as "Guarantor").
W I T N E S S E T H:
WHEREAS, CCL is the owner and/or operator of the TSS CARNIVALE, TSS
MARDI GRAS, TSS FESTIVALE, MS TROPICALE, MS HOLIDAY, MS JUBILEE, MS CELEBRATION,
MS FANTASY, MS ECSTASY, MS SENSATION (upon commissioning in or around October
1993), MS FASCINATION (upon commissioning in or around October 1994), and the MS
IMAGINATION (upon commissioning in or around October 1994), and the MS
IMAGINATION (upon commissioning in or around October 1995), hereinafter referred
to individually as "Vessel" or collectively as the "Vessels;
WHEREAS, CCL has the right to grant the Concession, which is the
subject of this Agreement for the Vessels;
WHEREAS, CCL wishes to grant to Concessionaire a concession for the
operation of shops aboard each of the Vessels to purchase, sell and supply
certain merchandise and sundries on an exclusive basis, and Concessionaire
wishes to accept and to perform such concession, for the consideration set forth
in, and subject to all the terms and conditions of, this Agreement.
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NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein, and for other good and valuable consideration, CCL, Guarantor
and Concessionaire agree as follows:
ARTICLE 1. DESCRIPTION AND TERM OF CONCESSION.
1.1. Grant of Concession.
(a) CCL hereby grants to Concessionaire the exclusive
concession for the sale aboard the Vessels' retail shops for all of the
following merchandise and sundries (collectively, "Merchandise"):
(i) Purchasing, supplying and selling watches,
jewelry, fragrances, cosmetics, T-shirts, logo souvenir,
merchandise, candies, packed food and sundries; and
(ii) Purchasing, supplying and selling of duty-free
liquor.
(b) CCL shall not engage, directly or indirectly, aboard any
of the Vessels in the same or similar business as that of the
Concessionaire, except for preexisting situations such as the Xxxxxx'x
office and beauty salon, nor shall CCL allow any other person or entity
to do so.
(c) At times during a cruise when the Vessel is in port,
Concessionaire shall also have the right to sell aboard the Vessel all
tax paid and duty paid Merchandise, provided that Concessionaire
obtains all prior approvals and permits from local U.S. Customs and
other local foreign governmental authorities to sell same.
1.2. Term. The term of this Agreement shall commence for the respective
Vessels as follows, and unless terminated earlier or later shall expire on March
10, 1998:
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(a) With respect to the MS SENSATION, this Agreement shall
apply on the date of its arrival in Miami commencing in or around
October 1993; the MS FASCINATION on the date of its arrival in Miami
commencing in or around October 1994; and the MS IMAGINATION on the
date of its arrival in Miami commencing in or around October 1995;
subject to the present concessionaire exercising its right to service
the on board concession, which if exercised, then Section 1.2(b) below
shall apply to the MS SENSATION, MS FASCINATION and MS IMAGINATION
commencement dates. CCL shall advise Concessionaire in writing sixty
(60) days in advance of the respective dates of the MS SENSATION, MS
FASCINATION and MS IMAGINATION arrivals in Miami, Florida.
(b) With respect to the remaining Vessels, on the date the
respective Vessels depart their home port during the week following
March 10, 1993.
(c) CCL, at its option, may change the expiration date of
March 10, 1998, for the respective Vessels, plus or minus up to 15
days, provided that CCL gives Concessionaire written notice of its
election at least 60 days prior to March 10, 1998.
1.3. Reimbursement for Cost of Merchandise and Equipment. In addition
to any other consequences of termination or expiration separately set forth in
this Agreement, in the event of expiration or termination of this Agreement as
it relates to the respective Vessels, CCL shall purchase, or shall cause its
designee to purchase, from Concessionaire, and Concessionaire shall sell
(subject to appropriate security instruments until payment in full) to CCL or
its designee, as the case may be, within ten (10) days of such expiration or
termination date of a Vessel, with payment due in full to be made within sixty
(60) days of such expiration to termination date of a Vessel:
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(a) The inventory of Merchandise held by Concessionaire on the
subject Vessel as of the date of termination or expiration at a price
equal to the "laid in" cost plus any applicable tax of the Merchandise;
(b) All reasonable inventory of the Merchandise which bear the
CCL logo and/or trademark(s) which are not aboard the subject Vessel at
a price equal to Concessionaire's acquisition costs plus any applicable
tax;
(c) All Merchandise in the process of manufacture which bear
the CCL logo and/or trademark(s) at the cost plus any applicable tax to
Concessionaire; and
(d) All Concessionaire's equipment aboard the subject Vessel
utilized by Concessionaire in the operation of the concession granted
hereunder at a price equal to Concessionaire's depreciated book value
(using a five (5) year straight line depreciation). For purposes of
this Section 1.3, the "laid-in" cost of an item shall be equal to
Concessionaire's acquisition cost, plus any applicable tax, and plus
all transportation costs from Concessionaire's warehouse.
(e) Notwithstanding anything herein to the contrary, if a
license or lease agreement with a third party in respect of any
equipment or software prohibits an assignment of such equipment and/or
software from Concessionaire to CCL or its designee, then
Concessionaire shall not sell the same to CCL or its designee.
ARTICLE 2. FACILITIES AND STORAGE TO BE FURNISHED BY CCL.
2.1. Facilities. CCL hereby grants, during the term of the Agreement,
Concessionaire the right to use:
(a) The shop premises ("Premises") described in Exhibit 2.1(a)
attached hereto and made a part hereof; and
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(b) The furnishings and fixtures located within the Premises
and described in Exhibit 2.1(a) ("Shopfittings"); and
(c) Existing storage facilities as described in Exhibit 2.1.
2.2. Storage and Utilities. CCL shall, during the term of this
Agreement and at its own cost and expense, furnish Concessionaire with existing
storage facilities, as well as reasonably adequate supplies of water, electric,
air conditioning and other utility services necessarily incident to
Concessionaire's operations on the Vessels. CCL shall not be liable to
Concessionaire for any loss or damage caused by or resulting from any variation,
interruption or any failure of said utility services, except that CCL shall
promptly take such corrective measures as are feasible and diligently restore or
repair such utility services.
2.3. Condition of Facilities. Concessionaire has inspected and fully
familiarized itself with all of the existing facilities and plans for facilities
on the Vessels not yet commissioned on the date of execution of this Agreement.
Provided, however, Concessionaire's acceptance of the Premises in an "as is"
condition for each Vessel is specifically conditioned upon the takeover of each
Vessel and Concessionaire's physical inspection of the existing facilities of
the respective Vessels.
2.4. Communications. CCL shall furnish Concessionaire with reasonable
shipboard radio, telephone and telex communications for business purposes at
cost.
ARTICLE 3. DETAILS AND QUALITIES OF SERVICES TO BE PERFORMED BY CONCESSIONAIRE.
3.1. Representations and Warranties of Concessionaire. Concessionaire
covenants, warrants, and represents that:
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(a) Concessionaire is an experiences concessionaire, fully
qualified to operate, supervise and/or perform the purchase and sale of
sundries and merchandise in the Vessels' shops, and that it has
employed or has available and will furnish a sufficient, capable, and
trained staff to operate the shops and facilities.
(b) If requested by CCL, Concessionaire will engage the
services of a professional window dresser to display the merchandise
for sale in a Vessel's shop. Concessionaire will maintain the highest
standards when changing showcase and window displays.
(c) (i) Concessionaire will sell high quality internationally
recognized brands of retail Merchandise. The Concessionaire
may sell bottled liquor during the cruise at a price which
shall not materially affect bar sales by CCL for liquor for
consumption during the cruise, but may deliver bottled liquor
at the duty-free market price to the passengers only on the
last day of the voyage.
(i) The Xxxxxx will operate vending machines on board
for the sale of individual packs of cigarettes and shall
purchase all of the cigarettes by the case at the wholesale
market price from Concessionaire. As provided in Section 5(a)
below, these cigarette sales are excluded from Gross Receipts.
3.2. Limitation on Marketing. Subject to the exclusive concession
rights aboard the Vessels granted herein, CCL may prohibit Concessionaire from
marketing any specific goods or services aboard a Vessel if in CCL's good faith,
reasonable opinion such marketing is undesirable or is likely to be prejudicial
to the business of CCL's either directly or indirectly; provided, however, such
right to prohibition shall not relate or apply to those products normally sold
on a duty-free basis, except where such products shall be reasonably deemed
pornographic, obscene or likely to impair the safety of the Vessel. During any
voyage, a
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Vessel's Master may exercise this right on behalf of CCL, but on termination of
any such voyage, the matter may be referred to CCL by Concessionaire.
3.3. Trained Employees. Concessionaire will engage in its services
aboard a Vessel an adequate number of employees, sufficiently trained in their
duties and conversant in English, who will perform Concessionaire's obligations
hereunder in a courteous and efficient manner so as to meet high standards of
retail merchandising.
3.4. Performance Evaluation. Within 60 days after signing this
Agreement, Concessionaire will establish, to the reasonable satisfaction of CCL,
a system for evaluating the performance of Concessionaire's employees so as to
assure continuous maintenance of the quality standards required of them.
3.5. Pricing of Merchandise. Prices charged on goods for resale to
passengers in the Premises are to be fixed by Concessionaire, subject to the
rights of CCL to question any such prices if CCL regards them to be
unreasonable, acting in good faith.
3.6. Discount to Crew. Concessionaire will sell sundries to officers,
staff and crew of each Vessel and CCL's employees at a [* ] discount
off the list prices. For all such purchases, Concessionaire may require the
purchaser to furnish a signed receipt identifying the items purchased, the price
paid, the amount of the discount, and the purchaser's status and crew number. As
provided in Section 5(a) below, the discounted amount agreed upon will be
excluded from Gross Receipts.
3.7. Standards. Concessionaire will implement and maintain high
standards of presentation, service and product selection.
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* This confidential portion has been omitted and filed separately with
the Commission.
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3.8. Prohibited Items. Concessionaire will comply, and cause its
employees to comply, with the terms of any agreement and/or policy now existing,
or hereafter entered into or adopted by CCL, with respect to the carrying on
board the Vessels and/or use on board the Vessels of any narcotics or other
controlled substances that CCL may deem necessary in view of the laws,
regulations and policies of any governmental jurisdiction including, without
limitation, the zero tolerance policy of the government of the United States of
America.
3.9. Locks and Security. Concessionaire shall provide adequate locks,
seals and security to the Vessel's Premises and storage facilities, and CCL
shall cooperate in all efforts to provide security to Concessionaire's property.
CCL, however, acknowledges that Concessionaire has no enforcement or
disciplinary rights with respect to personnel of the Vessel other than
Concessionaire's employees, and CCL agrees that it will cause the Vessel,
through the Master, to cooperate with Concessionaire to maintain the security of
Concessionaire's property by such disciplinary measures as are reasonably
necessary.
3.10. Risks to Merchandise. Concessionaire assumes all risk of loss
caused by theft or unexplained disappearance of its Merchandise from the
Premises or the storage facilities.
3.11. Credit Risks. Concessionaire may at its own risk accept credit
cards (except American Express), travelers checks or personal checks from its
customers (including officers, staff and crew of the Vessel). All cash sales
will be made in United States currency for any of its customers. All requests
for exchange of foreign currency will be referred to the Vessel's Xxxxxx.
Subject to the last sentence, Concessionaire shall bear the risk that it may
receive counterfeit money and invalid credit card charges from its customers,
which amounts, however, shall be excluded from Gross Receipts as provided in
Section 5(a) below at such time as such status can be documented to CCL.
Adjustments to monies owed are to be made as soon as practical to reflect the
proper account balance between the parties. CCL shall bear all collection risks
associated with changes made to the shipboard accounts pursuant to the Sail &
Sign Program.
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Upon implementation of the Sail & Sign Program in the Premises, CCL
shall collect from Concessionaire [* %] (which amount shall be
excluded from Gross Receipts as provided in Section 5(a) below. [*
] and is subject to an annual
adjustment. The processing fee will be adjusted upward or downward in an amount
equal to any changes in CCL's annual adjustments (made on or around May 1 of
each year) to its current shipboard account discount fee. Any such adjustments
will be consistent with the discount fee charged for shipboard accounts on
luxury ships of similar size.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF CCL.
4.1. Authority. CCL represents and warrants that it is a corporation
duly organized, validly existing and in good standing under the laws of the
Country of Panama, is duly qualified to do business and in good standing in each
jurisdiction where the nature of its business requires it, and has full legal
and corporate power and authority to execute and deliver this Agreement and
grant the rights and perform the obligations described in this Agreement.
ARTICLE 5. COMMISSION.
5.1. Definitions. The following terms used in the Agreement shall have
the following meanings:
(a) "Gross Revenue" shall mean all receipts, money or things
of value received, receivable, or payable from sales of Merchandise in
or from each Vessel, whether such sales are evidenced by cash, check,
credit, charge account, credit card, exchange or otherwise. All such
sales, whether cash or credit, shall be considered part of Gross
Receipts at the time such sale is made. The following shall be excluded
from Gross
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* This confidential portion has been omitted and filed separately with
the Commission.
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Receipts: (i) the amount of any sales, use, transaction privilege,
excise or gross receipts, tax imposed by any governmental authority
collected from customers and paid by, or on behalf of, Concessionaire
to such governmental authority; (ii) amounts received or receivable
from sales of assets, including goodwill, in connection with the
liquidation, reorganization or transfer of all or any part of
Concessionaire's business; (iii) sale of trade fixtures and capital
equipment used in the operation of the business; (iv) amounts received
from the sale, transfer or exchange of the entire business of
Concessionaire; (v) credits, payments or refunds received from
insurers, shippers or manufacturers resulting from Concessionaire's
claim for loss or damage to Merchandise in transit; (vi) refunds,
credits or payments by Concessionaire to customers for returned
Merchandise in an amount not exceeding the actual selling price of the
returned Merchandise; (vii) amounts attributable to counterfeit money
and invalid, unauthorized or stolen credit card charges pursuant to
Section 3.11; (viii) the total dollar amount of discounts granted to
crew members pursuant to Section 3.6; (ix) amounts received pursuant to
Section 1.3, 3.1(c)(ii), and 6.4; and (x) [* ] as
described in Section 3.11 above (subject to changes as described
therein) in respect of the Sail & Sign Program.
(b) "Revenue Passenger" shall mean any person listed on the
Vessel's passenger manifest, except for persons traveling for the
business purposes of the Vessel, CCL or Concessionaire.
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* This confidential portion has been omitted and filed separately with
the Commission.
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ARTICLE 6. PAYMENTS.
6.1. Commission Due CCL. Concessionaire shall pay to CCL the greater
of:
(a) [*
] or
(b) [* ] of the Gross Revenue from
Concessionaire's sale of all Merchandise from the Vessel on each
cruise.
6.2. Letter of Guaranty. Upon execution of the Agreement,
Concessionaire shall provide a Letter of Guaranty of Performance from The Dial
Group, as Guarantor, in form and substance identical to Exhibit 6.2 attached
hereto and made a part hereof. Guarantor agrees and acknowledges it has read
this Agreement and fully understand the nature of this guaranty obligations
herein.
6.3. Per Diem Food Charges. CCL shall provide meals for
Concessionaire's employees while on board each Vessel in the appropriate staff
dining room of the Vessel. Concessionaire agrees to pay CCL a per xxxx xxxxxxx
charge of [*
] per employee for each night that each of Concessionaire's
employees is on board a Vessel until March 10, 1998. CCL may, at its option,
annually increase the messing charges on March 1 of each year thereafter, but no
such annual increase shall exceed [* ] of the per diem charges for the previous
year.
6.4. Prizes and Gifts. CCL will pay Concessionaire for the Merchandise
(other than sundries) which CCL purchases from the Premises for use as prizes or
gifts to passengers or
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* This confidential portion has been omitted and filed separately with
the Commission.
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other personnel aboard the Vessel, at prices [*
] the prices at which Concessionaire regularly sells
the same items of Merchandise to passengers aboard the Vessel. Such discounted
sales shall be excluded from Gross Receipts as provided in Section 5.1 above.
6.5. Payment Date. At the end of each voyage of a Vessel, the Xxxxxx
shall furnish to Concessionaire's shop manager, in writing, the total Revenue
Passenger cruise days during the voyage, and the Concessionaire's shop manager
shall furnish the Xxxxxx, in writing, the Concessionaire's Gross Receipts from
the voyage. Pursers shall also be given copies of all Z-readings from such
register to verify sales. Concessionaire shall pay the amounts due herein as
rental fees for each Vessel (pursuant to Section 6.1 above) to CCL within nine
(9) calendar days after the conclusion of each voyage for the subject Vessel
together with a payment for food/messing charges per Section 6.3 above less
amounts due Concessionaire per Section 6.4 for the subject Vessel.
Concessionaire shall receive a credit against any amounts due herein as a rental
fee equal to any charges to shipboard accounts established by CCL for the
purchase of Merchandise. CCL shall pay to Concessionaire the remaining balance
in respect of Merchandise sales charged to the shipboard accounts established by
CCL within nine (9) calendar days after the conclusion of each voyage for the
subject Vessel. Payments made by either party hereto shall be made by their
company check in U.S. Dollars, and CCL shall be solely responsible for
collecting all sums due on account of Merchandise sales charged to shipboard
accounts.
ARTICLE 7. TRADEMARKS.
7.1. Nonexclusive License. CCL hereby represents that it is the owner
of the trademarks, service marks, design marks, names, design and patents
described on Exhibit 7.1 attached hereto, as may be amended in writing by CCL
from time to time hereafter, and such other logos and marks as may be utilized
by CCL anywhere in the world of which
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*This confidential portion has been omitted and filed separately with
the Commission.
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Concessionaire shall have received information (collectively, the "CCL Marks").
CCL hereby grants to Concessionaire, and Concessionaire hereby accepts, for the
term of this Agreement and for the fee set forth in Article 6 hereof, a limited,
nonexclusive license to use the CCL Marks on and in connection with the
manufacture and sale of the Merchandise in respect of Concessionaire's
performance hereunder.
7.2. Restrictions on Assignment of License. Concessionaire shall not
sell, assign or transfer the license granted hereunder without CCL's express
written consent authorized by a duly elected corporate officer of CCL, which
consent shall not be unreasonably withheld or delayed.
7.3. Submission of Newly Designed Marks.
(a) Concessionaire shall submit to CCL (as set forth in
subsection 7.3(b) of this Section) for approval prior to use, all
artwork or photostats of artwork, indicating colors and processes of
manufacture, of newly designed and not previously approved uses of the
CCL Marks. CCL shall have the right, in its sole and absolute
discretion, to forbid the use thereof. Samples of literature,
advertising, catalogs and packaging relating to the souvenirs will be
provided on a timely basis by Concessionaire to CCL following printing
or production. When using the CCL Marks, the Concessionaire agrees to
undertake to comply with the requirements of all laws pertaining to
trademarks, including marking requirements. Before using any of the CCL
Marks, Concessionaire shall inform CCL of the nature and quality of the
souvenirs and shall thereafter promptly furnish samples thereof to CCL.
(b) Prior to placing any orders for the manufacture of
Merchandise on which newly designed and not previously approved uses of
the CCL Xxxx(s) are intended to be imprinted, Concessionaire shall
submit for approval the name, address, phone number and telefax number
of each manufacturer therefor and, should the manufacturer be
satisfactory to CCL, Concessionaire shall subsequently submit to CCL
the artwork,
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styles, designs, contents, workmanship and quality of such merchandise,
in the form requested by CCL, to the attention of Xxxx Xxxxxxxx or her
designee in CCL's Marketing Department, 3655 N.W. 87 Avenue, Miami,
Florida.
(c) All materials and information submitted pursuant to this
Section shall be deemed automatically approved if notification of
rejection is not received by Concessionaire within forty-five (45) days
of CCL's receipt of such materials and/or information.
7.4. Purchase Orders. Concessionaire shall ensure that all orders for
Merchandise to be imprinted with the CCL Xxxx(s) have been approved by CCL as
provided in Section 7.3; are paid and delivered to, or otherwise obtained by,
Concessionaire on a timely basis; and shall use its reasonable best efforts to
ensure that the following language is inserted into or delivered for signature
with all purchase orders and/or agreements for the manufacture of merchandise to
be imprinted with the CCL Xxxx(s):
Manufacturer agrees to notify Carnival Cruise Lines, Inc. ("Carnival"),
attention Legal Department, 0000 X.X. 00 Xxxxxx, Xxxxx, Xxxxxxx 00000
(Telefax: 305-471-4788), by telefax and by certified mail, return
receipt requested, in the event Greyhound Leisure Services fails to pay
for and/or take delivery of any goods and/or merchandise imprinted with
the trademarks, service marks, design logos and/or artwork of Carnival
(the "Carnival Marks") within forty-five (45) days after receipt of
invoice for same; and Carnival shall have the right of first refusal to
purchase such merchandise upon the terms thereof.
Any merchandise which is not in compliance with the quality and
graphics standards issued by Carnival regarding the Carnival Marks of
which manufacturer has been informed prior to manufacture shall,
wherever possible, be corrected by manufacturer to the specifications
of such standards or, if not possible, shall be offered to Carnival at
the direct cost of production and, if Carnival does not agree to
purchase such merchandise at the direct cost of production, shall be
destroyed by manufacturer.
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7.5. Use of Marks, Etc.
(a) Concessionaire shall cause to appear with each use of the
CCL Xxxx(s) such trademark notice symbols and/or copyright and trade
dress notices as shall be instructed by CCL. Upon receipt by
Concessionaire, it agrees to follow CCL's written policy, as may be
amended from time to time, regarding the proper usage of the CCL Marks
on printed material and on goods and merchandise.
(b) Concessionaire will in no way represent that it has any
right, title and/or interest in and to the CCL Marks, except as
expressly granted under the terms of this Agreement, nor shall
Concessionaire contest CCL's title register and the registrations of
the CCL Marks, nor shall Concessionaire acquire any rights in the CCL
Marks by virtue of any use it may make thereof.
(c) Concessionaire agrees that CCL is and will be the owner of
all goodwill that may in the future attach to the CCL Marks as a result
of Concessionaire's use thereof.
(d) Concessionaire further agrees that it shall not at any
time register or apply to register the CCL Xxxx(s) or any trademark,
logo or design similar thereto anywhere in the world. Upon termination
of this Agreement, Concessionaire agrees to cease all use of the CCL
Marks or any confusingly similar trademarks or trade names; and
Concessionaire shall at no time adopt for use any trademarks or trade
names confusingly similar to any of the CCL Marks.
7.6. Infringements. CCL shall have the sole right to determine whether
or not any action shall be taken on account of any infringement or imitation;
and Concessionaire shall reasonably cooperate with CCL in protecting and
defending the CCL Marks and the Merchandise bearing the CCL Marks. With respect
to infringements of the CCL Marks, CCL shall be entitled to receive and retain
all amounts awarded as damages, profits or otherwise in connection with such
suits.
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7.7. Infringements.
(a) CCL shall indemnify, defend, and hold Concessionaire
harmless from, for and against any and all claims (and any and all
costs and expenses associated therewith) that the CCL Marks infringe a
copyright, patent, or violate a proprietary right, of any third party.
This subsection shall survive termination of this Agreement.
(b) Subject to subsection 7.7(a) above, Concessionaire shall
indemnify Carnival and hold Carnival harmless from and against any and
all costs and expenses, charges, fees, claims, actions, demands and
damages (including court costs, reasonable attorneys' and experts' fees
and expenses, through appeal) in connection with or arising out of any
infringement or alleged infringement of the CCL Marks by reason of the
sale or delivery by the manufacturer (used by Concessionaire) of the
merchandise on which the CCL Marks have been imprinted due to
Concessionaire's negligent failure to comply with Section 7.4 above, or
Concessionaire's negligence to ensure and accept delivery of
merchandise ordered by Concessionaire on which the CCL Xxxx(s) have
been imprinted, except as otherwise provided herein. Concessionaire
covenants and agrees that CCL shall be entitled to any and all rights
and remedies available at law or in equity, including reasonable
attorneys' fees, costs and expenses involved in obtaining an injunction
against a manufacturer to prevent the sale or distribution of such
merchandise to third parties.
7.8. Termination of License. The license in the CCL Marks granted
hereunder shall terminate upon the expiration, suspension or the termination of
this Agreement by either party and in accordance with the provisions herein.
7.9. Merchandise Bearing the CCL Marks. Articles of merchandise bearing
the CCL Xxxx(s) may become available to CCL from time to time from other
licensees and sublicensees. CCL may advise Concessionaire of such situations,
and Concessionaire will
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consider in its good business judgment whether or not to purchase, supply and
sell such articles of merchandise in its inventory of stock to be sold on the
Vessels under the terms and conditions of this Agreement.
7.10. CCL Marks. For the term of this Agreement, CCL represents,
warrants, and covenants in respect of the CCL Marks the following:
(a) Third Party Merchandise (defined below) will not be
purchased, supplied or sold at any souvenir establishment, gift shop,
duty free shop or like vendors in or around any ports where any of the
Vessel's may dock.
(b) CCL will restrict all third party licensees from selling
or supplying any Third Party Merchandise on or at a Vessel, except to
Concessionaire.
For purposes of this Section 7.10, "Third Party Merchandise" shall mean any
sundries or merchandise identical or similar to the Merchandise which bears the
CCL Marks and is purchased, supplied or sold by any third party.
ARTICLE 8. MATTERS RELATING TO CONCESSIONAIRE'S EMPLOYEES.
8.1. Concessionaire's Obligations.
(a) Concessionaire's status under this Agreement is solely
that of an independent contractor, and Concessionaire at all times has
the obligation and right to control all of the employees engaged by
Concessionaire to perform its obligations hereunder, and such persons
are solely the responsibility of Concessionaire. Concessionaire is
solely responsible for the payment of all wages, vacation pay, benefits
and repatriation expenses to each of its employees. Except in
connection with Supervisors, Concessionaire shall furnish CCL with
copies of the contract forms used for engaging the services of on board
Concessionaire employees.
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(b) Concessionaire may in its sole discretion, at its own
expense and without interfering with Vessel's operations, replace its
employees or transfer them between the Vessels, at reasonable
intervals.
8.2. Responsibility for Payment of Certain Expenses. Concessionaire is
solely responsible for the payment of any medical and subsistence expenses or
damages to Concessionaire's employees arising from accident or illness. Except
as provided in Section 8.8(b), Concessionaire shall indemnify CCL for any such
expenses or damages incurred by CCL.
8.3. No Maritime Liens. Concessionaire's employees do not have maritime
liens on a Vessel for any payments due to them in connection with their services
for Concessionaire.
8.4. Xxxxx Act. Concessionaire's employees are not entitled to assert
claims against CCL under Xxxxx Xxx, 00 X.X.X. 000.
8.5. Employee Contracts. In each of its contracts with its employees,
Concessionaire will insert the following notice:
"Your employer is a concessionaire of Carnival Cruise Lines, Inc., the
owner of the Vessel. You are subject to the control of your employer.
You are also subject to the authority of the Master for purposes of
health, safety, and discipline. In your dealings with passengers, you
will refer to yourself as a member of the Vessel's shops. However, your
employer is solely responsible for you, and neither the Vessel nor
Carnival Cruise Lines, Inc., are obligated to you for any payments. You
are required to comply with the terms of any agreement and/or policy
now existing, or hereafter entered into or adopted by Carnival Cruise
Lines, Inc., with respect to the carrying on board the Vessel and/or
use on board the Vessel of any narcotics or other controlled substances
that Carnival Cruise Lines, Inc., may deem necessary or desirable in
view of the laws, regulations and policies of any governmental
jurisdiction including, without limitation, the zero tolerance policy
of the government of the United States of America."
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8.6. Ship's Articles.
(a) Concessionaire irrevocably appoints the Master of a Vessel
as its agent with the power of overall supervision of Concessionaire's
employees on board the Vessel for purposes of health, safety, and
discipline. The Master may delegate this supervisory power to the
Vessel's Staff Captain and/or Xxxxxx.
(b) Only for purposes of health, safety and discipline and to
facilitate compliance with the immigration laws applicable in a
Vessel's base port and other ports of call, Concessionaire's employees
will sign on ship's articles; but such adherence to ship's articles
will not in any way detract from or modify the Concessionaire's status
as an independent contractor, and its relationship or its right and
obligation to control its employees, as described in Sections 8.1
through 8.4, above. CCL agrees to make all arrangements for
Concessionaire's employees to sign on and off ship's articles, provided
that all reasonable costs in connection therewith shall be for the
Concessionaire's account.
8.7. Concessionaire will not intentionally advertise or otherwise cause
to become known amongst the passengers that Concessionaire is a concessionaire.
In their dealings with passengers, Concessionaire's employees will refer to
themselves as member of the Vessel's gift shop, but such references for purposes
of passenger relations will not in any way detract from or modify
Concessionaire's status as an independent contractor, and its relationship or
its right and obligation to control its employees as described in Sections 8.1
through 8.4 above.
8.8. Health and Documentation.
(a) Concessionaire will employ on board the Vessel only
persons who are of good moral character as well as good health, who
hold valid passports, visas, and all other permits required by any
governmental authority having jurisdiction, in order that they may
enter and leave the base port and other ports where the Vessel may
call. CCL agrees to arrange for all on board immigration formalities
and to accept responsibility
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for safekeeping of all passports or other immigration documents turned
over to it by Concessionaire's employees.
(b) Concessionaire will at its own expense arrange for each of
its employees to receive and pass a complete medical examination, as
per the attached list of services, attached hereto as Exhibit 8.8, and
including a chest x-ray and blood test, immediately prior to serving on
board a Vessel and periodically thereafter. The report of such
examination shall be forwarded to the Vessel's doctor indicating that
the employee is medically fit for service on board the Vessel in
accordance with standards established by CCL.
8.9. Grooming. Concessionaire's employees will at all times keep
themselves neatly groomed, well spoken, and suitably attired in uniforms to be
provided at Concessionaire's expense.
8.10. Shop Manager. Concessionaire will designate for a Vessel a shop
manager ("Shop Manager") of suitable experience and caliber to supervise the
work of Concessionaire's other employees, subject to the overall supervision of
the Master as provided in Section 8.6(a) above.
8.11. Supervisors. From time to time, when deemed necessary by
Concessionaire or reasonably requested by CCL, Concessionaire will furnish a
reasonable number of executive or surveillance employees to travel on a Vessel
for purposes of inspecting Concessionaire's operations. Suitable accommodations
for such executive or surveillance employees of Concessionaire will be provided
by CCL, if available, without charge, to Concessionaire; except that
Concessionaire will pay the charge described in Section 6.3 for such persons at
the same rate Concessionaire is then being charged for its shop personnel. When
Concessionaire's executives or surveillance employees are traveling on board the
Vessel, they shall be bound by and subject to all terms and conditions of their
passenger ticket, and shall be entitled to the
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same access, if any, to the public rooms of the Vessel as may be allowed from
time to time by CCL to its on board employees of equal rank.
8.12. In his/her discretion, the Master may require, when he/she
determines it necessary in his/her sole discretion to preserve health, safety or
discipline on board the Vessel, that any employee of Concessionaire to remove
himself/herself and his/her belongings from a Vessel at any time when the Vessel
is in port, and all repatriation expenses, if any, will be for Concessionaire's
account. Concessionaire shall be entitled to appeal such removal by referring
the matter to CCL for final determination, which determination shall be made in
good faith.
8.13. Room and Board for Concessionaire's Employees. CCL shall provide
reasonably, adequate clean and sanitary quarters of staff or crew grade on board
each Vessel and clean bed linen and towels at normal intervals for
Concessionaire's employees employed on board each Vessel without additional
charge to Concessionaire or its employees. The assignment of cabins and berths
to Concessionaire's employees shall be at the sole discretion of CCL, provided
that such assignments shall be made in good faith to minimize any interference
with the ability of employees to perform hereunder, and provided further the
Shop Manager is assigned a single cabin and no more than two (2) employees be
housed per cabin (except for the TSS CARNIVALE).
8.14. Medical Care. At Concessionaire's request, and except as
otherwise provided in Article Section 8.8(b), CCL will furnish without charge,
regular and reasonable on board medical care by a Vessel's doctor, as well as
medicines, for illness and injury suffered by Concessionaire's personnel while
aboard the Vessel.
8.15. Prohibited Items. Concessionaire's personnel are not permitted:
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(a) To carry or consume aboard a Vessel any firearms or
weapons, narcotics, or other drugs which are prohibited in the Vessel's
ports, except pursuant to a program of medical care under the direct
supervision of the Vessel's doctor;
(b) To consume alcoholic beverages aboard a Vessel to the
point of intoxication or to the point where, during the subsequent
performance of their duties, such consumption could become apparent to
the passengers;
(c) To board a Vessel in an intoxicated state without the
consent of the Master;
(d) To engage in gambling aboard a Vessel in the Vessel's
casino or amongst themselves, or engage in any other illegal activity;
(e) To sell any merchandise to passengers (except in the
course of their duties), or to purchase merchandise from Vessel's shop
for resale.
ARTICLE 9. CONCESSIONAIRE'S OTHER GENERAL OBLIGATIONS.
9.1. Safe Stowage. Subject to the approval of the Master, which
approval shall not be unreasonably withheld or delayed, Concessionaire will
safely stow for sea and will maintain such safe stowage for sea of all
Merchandise and its other property, as well as all property belonging to CCL
which Concessionaire uses to perform its obligations hereunder.
9.2. Unseaworthiness. Concessionaire will not knowingly or recklessly
create an unseaworthy conditions in the performance of its obligations
hereunder.
9.3. Careful Operations. Concessionaire will care for the property of a
Vessel utilized by Concessionaire in performance of its obligations hereunder in
a careful, efficient and businesslike manner.
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9.4. Compliance with Laws. Concessionaire will comply with all laws and
regulations (including but not limited to tax laws and regulations) of all
governmental authorities having jurisdiction, relating to immigration,
repatriation and its operations hereunder. CCL shall likewise reasonably assist
and fully cooperate with Concessionaire so as to enable Concessionaire to obtain
such licenses, permits, approvals and consents.
9.5. Changes in Facilities and Utilities. Concessionaire may request
structural, electrical, plumbing or other utility changes on the Vessel; except
as otherwise provided in Sections 2.1 and 2.2 above, such changes will be timely
made by CCL in its reasonable discretion and for the account of Concessionaire.
9.6. Damaged Property. Concessionaire will, at its own expense, repair
or replace CCL's property which is damaged by the negligent acts of
Concessionaire's employees, over and above normal wear and tear.
9.7. Interior Decorations. Concessionaire shall be responsible for
maintenance at its own expense of tasteful interior decoration of Premises, but
all plans for altering the interior decorations of those areas, including but
not limited to the existing interior decorations, shall be submitted to CCL for
its approval prior to implementation. Such approval shall not be unreasonably
withheld or delayed.
ARTICLE 10. OTHER CCL OBLIGATIONS.
10.1. Access. CCL will permit access to those portions of each Vessel
and to each Vessel's equipment which may reasonably be required by
Concessionaire to perform its obligations hereunder. CCL agrees to fully
cooperate with Concessionaire for the purpose of promoting Concessionaire's
shops and services aboard the Vessels.
10.2. Safe Deposit Boxes. CCL shall furnish Concessionaire with one or
two safe deposit boxes in the office of the Xxxxxx on a Vessel.
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10.3. Stevedoring. CCL shall coordinate and program the stevedoring
services for Concessionaire with such services required by CCL and other
concessionaires. CCL shall pay for the cost of such stevedoring services;
provided, however, if Concessionaire's property cannot be loaded or unloaded
with other ship's stores of the Vessel using labor normally employed for
handling of ship's stores, then Concessionaire shall pay its proportion of the
costs for the loading and unloading of Concessionaire's property.
10.4. Carrier's Release. Upon expiration or termination of this
Agreement for any reason as it relates to a specific Vessel, CCL shall provide
Concessionaire with a properly executed carrier's release, releasing all
Concessionaire's goods, equipment and wares for off-loading at any one of CCL's
regularly scheduled ports selected by Concessionaire, provided all sums due from
Concessionaire to CCL relating to such Vessel have been paid, placed in escrow
(which escrow shall be subject to CCL's reasonable approval), or bonded by
Concessionaire (which bonding shall be subject to CCL's reasonable approval).
CCL covenants that, if Concessionaire is entitled to a carrier's release under
the preceding sentence, it will in no way inhibit or hamper Concessionaire's
right to take possession of the goods, equipment and wares and to remove them
from the Vessel. Any expenses related to the off-loading of Concessionaire's
goods, equipment and wares upon carrier's release which are outside of ordinary
expenses as described in Section 10.3 shall be paid for by Concessionaire.
ARTICLE 11. COMPLAINTS.
11.1. Complaints. All complaints by passengers, officers, staff and
crew arising from Concessionaire's sales and services will be referred by CCL to
Concessionaire's Shop Manager on the Vessel involved; with a copy to District
Manager on shore. If any such complaint cannot be amicably resolved within 21
days, Concessionaire agrees to propose to the complainant that the matter may be
referred to arbitration, and if the complainant consents to the proposal,
Concessionaire will submit the complaint to arbitration under the Florida
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Consumer Arbitrations Rules of the American Arbitration Association, with the
arbitration hearings and other proceedings to be held in Miami, Florida.
ARTICLE 12. INSURANCE.
12.1. Hull and Machinery Insurance.
(a) CCL agrees at its sole expense to provide and maintain
throughout the term of this Agreement marine hull and machinery
insurance and war risk hull and machinery insurance covering the Vessel
with first class marine underwriters, and this insurance shall be
endorsed to designate CCL as the sole loss payee. The deductible for
such coverage shall not exceed $300,000.00 and upon renewal shall not
exceed $500,000.
(b) In the event that Concessionaire or its personnel cause in
whole or in part any loss or damage covered by this insurance, or which
would have been covered by this insurance but for a commercially
reasonable deductible (not to exceed $300,000 and upon renewal shall
not exceed $500,000) in the insurance policy, Concessionaire agrees to
reimburse CCL for the amount of the deductible applicable in such loss
or damage.
(c) Neither CCL, the Owner of the Vessel, nor the underwriters
of the insurance shall have any further right of recovery or
subrogation in excess of said deductible against Concessionaire on
account of loss or damage to the extent covered by such insurance, and
the policies of insurance shall be endorsed to reflect this limitation
and waiver.
12.2. Protection and Indemnity Insurance. CCL agrees that it shall, at
its sole expense, provide and maintain throughout the term of this Agreement
protection and indemnity
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insurance underwritten by first class marine underwriters. Concessionaire agrees
to obtain and maintain at its own expense insurance to defend and cover its
liability, if any, for:
(a) Maintenance and cure as well as personal injury or death
claims asserted by Concessionaire's employees or their estates;
(b) Claims of passengers or other third parties arising out of
or in connection with Concessionaire's operations or the actions of
Concessionaire's employees; and
(c) Repatriation, loss of personal effects and other costs to
employees (including, without limitation, burial costs) in the event of
death, casualty or termination of a voyage.
(d) Such insurance shall be in form, in amounts, with carriers
and on terms reasonably satisfactory to CCL's Manger of Insurance;
shall name CCL as an additional insured subject to the misdirected
arrow clause. Concessionaire shall provide CCL's Manager of Insurance
with a Certificate of Insurance evidencing such coverage.
12.3. Concessionaire's Property and Liability Insurance. Concessionaire
agrees to obtain and maintain throughout the full term of this Agreement, at its
own expense, insurance on the full value of all its property aboard the Vessel
with deductibles for its own account. Concessionaire shall not have any right of
recovery against CCL on account of loss or any damage to its property whether or
not covered by such insurance. Said insurance shall waive subrogation against
CCL and the Vessels. Additionally, Concessionaire shall, at its sole expense,
maintain public product liability insurance with limits of liability of at least
five million dollars ($5,000,000).
12.4. Certificates. On or before the commencement of the term of this
Agreement, CCL shall, upon Concessionaire's written request, provide to
Concessionaire certificates of
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insurance evidencing the coverages required pursuant to Sections 12.1 and 12.2,
and Concessionaire shall, upon CCL's written request, provide to CCL
certificates of insurance evidencing the coverages required pursuant to Section
12.2.
ARTICLE 13. CRUISE SCHEDULING.
13.1. Scheduling of Cruises. Sailing and other cruise periods shall be
scheduled at the sole discretion of CCL, who will promptly furnish
Concessionaire with an initial cruise and overhaul schedule of the Vessels as
well as all changes to a previously delivered schedule within ten (10) days
after such schedule is established or changed. If notice as required herein is
given by CCL to Concessionaire, then Concessionaire shall have no claim against
CCL for any loss or damage arising from delay, lay up or schedule change of a
Vessel.
13.2. Reposition of Vessels. If CCL desires to reposition one or more
of its Vessels to another continent or commence one-day cruises, it shall notify
Concessionaire in writing at least thirty (30) days in advance of such change.
The parties shall then negotiate in good faith with respect to the level of
commission that will be applicable in connection with such changed operations.
If the parties are unable to reach an agreement within ten (10) days of CCL
giving the Concessionaire notice of the new itinerary, Concessionaire shall have
the option either to terminate this Agreement in connection with the
repositioned Vessel(s) or to continue operating the concession granted hereunder
at the commission level currently set out in Section 6.1 If Concessionaire
elects to terminate in respect to the repositioned Vessel(s), CCL shall
reimburse Concessionaire as provided in Section 1.3 above.
ARTICLE 14. PROMOTION LITERATURE.
14.1. Photographs. Concessionaire shall not circulate any photographs
of its operations aboard a Vessel for promotional purposes without the prior
written consent of the persons who are the subject of the photographs and the
prior written or oral consent of CCL, which consent shall not be unreasonably
withheld or delayed.
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14.2. Publicity. Concessionaire shall not issue any publicity or press
release identifying CCL or a Vessel without the prior written consent of CCL,
which approval shall not be unreasonably withheld or delayed.
ARTICLE 15. INVENTORY.
15.1. At every drydocking of a Vessel, Concessionaire and CCL shall
inventory all of CCL's property which Concessionaire is using in the performance
of its obligation on such Vessel.
ARTICLE 16. CHANGE OF STATUS.
16.1. Sale or Charter of Vessel.
(a) CCL may sell or charter a Vessel during the term of this
Agreement to bona fide third parties not affiliated with CCL. Upon
ninety (90) days prior written notice to Concessionaire of the
anticipated closing date, the concession granted hereunder in respect
of such Vessel shall terminate, effective on the date CCL has
reimbursed Concessionaire pursuant to Section 1.3 and, or such
anticipated closing date, whichever shall occur last.
(b) Upon sixty (60) days prior written notice to
Concessionaire, CCL may sell or charter a Vessel during the term of
this Agreement to a corporation which it controls, is controlled by or
is under common control with CCL ("CCL Affiliate"), provided that CCL
Affiliate (i) has the authority to operate such Vessel and (ii)
assumes, in full, immediately following the closing date, the
obligations of CCL under this Agreement in respect of such Vessel and
fully recognizes Concessionaire's rights thereunder.
16.2. Registry Change. In its sole discretion, CCL may change the
registry of a Vessel at anytime upon sixty (60) days prior written notice to
Concessionaire of the anticipated registry change date of such Vessel. If such
change in the reasonable opinion of
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Concessionaire makes this Agreement in respect of such Vessel commercially
unattractive, then this Agreement only in respect of such Vessel may be
terminated by Concessionaire, and CCL shall reimburse Concessionaire upon such
termination pursuant to Section 1.3 herein.
16.3. Change of Name of Vessel. In its sole discretion, CCL may change
its own name or the name of a Vessel at any time. In the event CCL or any person
or entity who becomes the owner of the Vessel (the "Owner") changes the name of
the Vessel, or the name of the cruise line operating the Vessel changes, and CCL
fails to provide at least ninety (90) days prior written notice to
Concessionaire of such name change, CCL shall reimburse Concessionaire for any
and all expenses reasonably incurred by Concessionaire as a result of the name
change, including but not limited to the cost of printing new price lists,
changing labels on the uniforms of Concessionaire's employees, and
Concessionaire's costs of Merchandise bearing the name or logo of the Vessel or
the cruise line which was on order and not cancelable (without penalty) or in
stock on the date of Concessionaire's receipt of notice from CCL of the name
change and which is still in stock on the effective date of the name change.
Provided, however, if the payment of a penalty is required for the cancellation
of any order for Merchandise, Concessionaire shall notify CCL of such penalty
and, if CCL timely pays to Concessionaire such penalty so that the order can be
canceled without any further liability, CCL shall not be required to reimburse
Concessionaire for that order of merchandise. Payment of such reimbursement
shall be due within thirty (30) days after CCL receives detailed written
evidence of the amounts due, but in no event prior to the effective date of the
name change.
ARTICLE 17. ASSIGNMENT.
17.1. Assignment by Concessionaire. Concessionaire shall not assign or
subcontract this Agreement without the prior written consent of CCL, except to a
subsidiary corporation of Concessionaire, Concessionaire's parent corporation, a
subsidiary corporation of Concessionaire's parent corporation, or an entity
under common ownership with Concessionaire.
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17.2. Assignment by CCL. CCL shall not assign this Agreement without
the prior written consent of Concessionaire, which consent shall not be
unreasonably withheld, except to a party which succeeds to CCL's authority to
operate the Vessel or to a subsidiary corporation of CCL, CCL's parent
corporation, a subsidiary corporation of CCL's parent corporation or an entity
under common ownership with the CCL. Upon assignment to a party which succeeds
to CCL's authority to operate the Vessel, and the full assumption by such party
of CCL's obligations hereunder, CCL shall be released of and from all
obligations or liabilities accruing under this Agreement from and after the
effective date of such assignment.
17.3. Obligations Upon Assignment. Notwithstanding anything herein to
the contrary, the party to whom either Concessionaire or CCL, as the case may
be, assigns this Agreement must agree to assume fully the obligations of
Concessionaire or CCL, as the case may be, under the terms of this Agreement and
fully recognize Concessionaire's or CCL's rights thereunder, as the case may be,
before such assignment becomes effective.
ARTICLE 18. FORCE MAJEURE.
18.1. Delay. Neither Concessionaire nor CCL shall be liable for delay
or other failure in the performance of its obligations hereunder, occasioned by
any of the following causes to the extent that such cause is beyond the control
of Concessionaire or CCL, as the case may be: an Act of God, Act of War, public
enemies, government restrictions, perils of the sea, quarantine, fire, strikes,
lockouts, labor disputes, civil commotions, seizure or arrest of the Vessel,
robbers, riots, thieves, barratry, collision, negligence in the navigation or
management of a Vessel, explosions, torts of third parties, unseaworthiness,
delay in sailing, prolongation of voyage, deviation, any act, omission, fault of
negligence of any passenger, officer, staff member or crew member of any cause
whatsoever beyond the control of CCL or Concessionaire, as the case may be,
whether of the kind therein above enumerated or not. Notwithstanding anything
herein to the contrary, any such delay occurring during the term of this
Agreement shall cause the term hereof to be extended by an equivalent period (up
to a
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maximum extension of twelve (12) months) at the sole election of Concessionaire.
Further, if a voyage is prolonged by any of the circumstances set forth above or
normal ship routine is interrupted thereby, the minimum guaranteed rental fee
(Section 6.1 (a)) shall be waived during the prolongation or interruption and
only the percentage of the Gross Revenue (Section 6.1(b)) shall apply for the
cruise in question.
ARTICLE 19. GENERAL AVERAGE AND SALVAGE.
19.1. General Average. General Average shall be adjusted at New York
according to York-Antwerp Rules 1974, and as to matters not therein contained,
according to the law and usages of the Port of New York. In case a general
average statement be required, the same shall be adjusted by an Adjuster to be
selected and appointed by CCL and said Adjuster shall attend to the settlement
and collection of the average, subject to the customary charges. Notwithstanding
anything herein to the contrary, the property of Concessionaire shall not be
required to contribute to general average adjustment and shall not be subject to
any lien for general average adjustment.
19.2. Salvage. In the event of accident, danger, casualty, damage or
disaster before or after commencement of a voyage resulting from any cause
whatsoever, whether due to negligence or not, for which, or for the consequences
of which, the Vessel is not responsible, by statute or contract or otherwise,
Concessionaire shall only be required to contribute with the Vessel to pay
salvage in respect to Concessionaire's property; and Concessionaire shall not be
required to contribute to pay salvage awarded with respect to any other
property.
19.3. Earned Salvage. Concessionaire shall not be entitled to
participate in earned salvage.
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ARTICLE 20. BOTH TO BLAME COLLISION CLAUSE.
20.1. If a Vessel comes into collision with another ship as a result of
the negligence of the other ship, and consequences of which, CCL is not
responsible to Concessionaire, by statute or contract or otherwise,
Concessionaire shall indemnify CCL against all loss or liability to the other
ship or her owners insofar as such loss or liability represents loss of or
damage to or any claim whatsoever of Concessionaire, paid or payable by the
other ship or her owners to Concessionaire and set off, recouped or recovered by
the other ship or her owners as part of their claim against the Vessel or CCL.
The foregoing provisions shall also apply where the owners, operators or those
in charge of any ship or ships or objects other than or in addition to, the
colliding ships or objects are at fault in respect of collision or contact.
However, in the event Concessionaire is unable to operate due to such collision,
no concession fee (Article 6) shall be payable during that period in which
Concessionaire is unable to operate.
ARTICLE 21. RECORDS AND INSPECTION.
21.1. CCL's Right to Audit. CCL or its duly authorized representative
shall be entitled to inspect Concessionaire's records relating to Gross Revenue
for a given sailing or other cruise period at any reasonable time or times
within one (1) year after the date of payment for such sailing or other cruise
period, upon written notice to Concessionaire, in order to verify the amounts
due hereunder. Concessionaire or its duly authorized representative shall be
entitled to inspect at any reasonable time or times a Vessel's log books and, at
its own expense, to have any audit performed with respect to passenger days on
the Vessels, in order to verify amounts due under Article 6. Concessionaire and
CCL shall have no obligation to preserve such records for any period longer than
one (1) year after the date of payment for any sailing or other cruise period.
21.2. Inspections.
(a) CCL or its duly authorized representative shall be
entitled to inspect Concessionaire's inventories and equipment on a
Vessel at any reasonable time or times
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upon reasonable advance notice to Concessionaire's Shop Manager in
order to verify the adherence by Concessionaire to the quality
standards required by Article 3.
(b) In addition, CCL or its duly authorized representative
shall be entitle to inspect Concessionaire's operations on a Vessel at
any reasonable time or times without notice and with identification of
the inspect in order to verify the adherence by Concessionaire to the
quality standards required by Article 3.
21.3. Minimal Interference. CCL or its duly authorized representative
in conducting any investigation described in Section 21.2 shall do so in such a
fashion as to have the least amount of interference with Concessionaire's
performance hereunder.
ARTICLE 22. INDEMNITY.
22.1. Indemnity by Concessionaire. Concessionaire shall indemnify,
defend, and hold harmless CCL and its officers, directors and employees for,
from and against any claims, costs, expenses, suits, liabilities, losses, and
liens of any nature, including reasonable attorneys' fees incurred in the
defense thereof, asserted against the CCL, or the Vessel, which arise out of the
Concessionaire's operations and services and (A) which are caused by any
negligent act or omission or Concessionaire or Concessionaire's employees or (B)
arise out of an obligation to provide maintenance and cure for Concessionaire's
employees, except to the extent caused or contributed to by (i) the negligent
act, or willful act or omission of CCL, its officers, directors, employees or
agents or (ii) the failure of CCL to perform in accordance with the terms,
conditions and specifications of this Agreement. If a suit or proceeding is
brought against the Vessel, or if the Vessel is otherwise levied against or
taken into custody by virtue of any claim or lien to which Concessionaire's
indemnity applies, Concessionaire shall within three (3) business days of
receiving notice of same, thereafter cause the Vessel to be released on bond or
otherwise. If Concessionaire fails to obtain the release of the Vessel as
required, CCL shall have the right to secure release of the Vessel, and
Concessionaire shall reimburse and indemnify CCL or the Owner for all reasonable
costs of obtaining the Vessel's
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release, including but not limited to bond premiums and reasonable legal fees.
Notwithstanding anything herein to the contrary, if a bond has been secured by
CCL, Concessionaire's reimbursement of premiums shall not exceed what is
reasonable and customary for the industry or the actual premiums paid by CCL,
whichever is less, and Concessionaire shall in its sole discretion be permitted
to replace the bond.
22.2. Indemnity by CCL. CCL shall indemnify, defend, and hold harmless
Concessionaire for, from and against any claims, costs, expenses, suits,
liabilities, losses, and liens of any nature, including reasonable attorneys'
fees incurred in the defense thereof, asserted against Concessionaire which
arise out of the condition of the Vessel or the operations and services of CCL,
or other concessionaires aboard the Vessel and which are caused by any negligent
act or omission of CCL, Owner, or such other concessionaires. Without limiting
the foregoing, CCL hereby further indemnifies and holds harmless Concessionaire
and its officers, directors, employees, attorneys and agents from and against
any and all liabilities, losses, obligations, claims, damages, penalties, causes
of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses, consultant fees, investigation and laboratory
fees) imposed upon or insured by or asserted against them, or any of them, by
reason of (A) the actual, alleged of threatened presence or release of any
Hazardous Materials on, from, affecting or caused by any Vessel; (B) any
personal injury (including wrongful death) or property damage (real or person)
arising out of or related to such Hazardous Materials; (C) any Environmental
Claim brought or threatened, or settlement reached, relating to such Hazardous
Materials, or (D) any violation of laws, orders, regulations, requirements or
demands of government authorities relating to Hazardous Materials at, or
discharged from any Vessel. For purposes of this section, "Hazardous Materials"
shall include, but shall not be limited to any petroleum or petroleum products,
natural gasses, explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances or related materials, asbestos
or any material containing asbestos or any substances which are hazardous by
virtue of the manner of their use, or any activity involving any of the
foregoing or any other substance or material or activity defined as hazardous in
words or substance by any present or
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future Federal, state or local environmental law, ordinance, rule, regulation or
rule of common law including, without limitation, the Oil Pollution Act of 1990
(33 U.S.C. Section2701 et seq.), the Comprehensive Environmental Response,
Compensation and Liabilities Act of 1980 (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 et seq.), the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sections 6901 et
seq.), the Clean Air Act (42 U.S.C. Sections 7401 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. Sections 1251 et seq.), and the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.) (all of the foregoing as
amended) (collectively, the "Environmental Laws") and in the regulations adopted
and publications promulgated pursuant to each of the foregoing or any of the
foregoing. For purposes of this section, "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law (hereafter "Claims") or
any permit issued under any such law, including without limitation, (a) any and
all Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment. For purposes of
this section "Release" means disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like, into or upon any land or water or air, or otherwise entering into the
environment.
ARTICLE 23. TERMINATION BY WITHDRAWAL, REQUISITION OR LABOR DISPUTE.
23.1. Withdrawal of a Vessel From Trade. Upon at least 90 days prior
written notice to Concessionaire (advising Concessionaire of the effective date
of the withdrawal and the expected period of the withdrawal), CCL may in its
sole discretion withdraw a Vessel from the cruise trade ("Withdrawal") and, upon
Withdrawal, this Agreement shall terminate as to such
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Vessel; provided, however, as to Withdrawals for a duration that will not extend
beyond the term of this Agreement, Concessionaire shall have the right to cause
this Agreement to merely be suspended as to such Vessel for the duration of the
Withdrawal, rather than terminated, upon written notice to CCL. If CCL and/or
any entity owning such Vessel fails to provide at least ninety (90) days prior
written notice to Concessionaire of such Withdrawal and if the Merchandise
cannot be used for sale on another Vessel covered by this Agreement in
Concessionaire's reasonable opinion, then CCL shall reimburse Concessionaire for
its costs of merchandise bearing the name or logo of such Vessel or the cruise
line which was (i) on order and not cancelable without penalty and/or (ii) in
stock on the date of Concessionaire's receipt of notice from CCL of the
Withdrawal and which is still in stock on the effective date of the Withdrawal.
Provided, however, if the payment of a penalty is required for the cancellation
of any order for Merchandise, Concessionaire shall notify CCL of such penalty
and, if CCL timely pays to Concessionaire such penalty so that the order can be
canceled without any further liability, CCL shall not be required to reimburse
Concessionaire for that order of Merchandise. Payment of such reimbursement
shall be due within thirty (30) days after CCL receives a detailed, written
statement of the amounts due, but in no event prior to the effective date of
Withdrawal.
23.2. Requisition of a Vessel. If any Vessel is requisitioned by any
government (including, but not limited to the United States of America) for
title or use and the requisition remains in effect for thirty (30) calendar
days, then this Agreement shall automatically terminate upon the thirtieth
(30th) calendar day after the effective date of any such requisition. CCL shall
have no liability to Concessionaire in regards to the requisition, except that
CCL shall pay to Concessionaire the portion, if any, of the amount of any award
allocated to CCL as a consequence of such requisition which is attributable to
CCL the value of any requisitioned Merchandise, cash registers, or decorations,
alterations, improvements, fixtures, or furnishings installed by Concessionaire.
Provided, however, if CCL takes possession of the Merchandise, cash registers,
or furnishings, it shall remain liable to Concessionaire for the same, which
liability shall not exceed the depreciated book value of the respective items.
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23.3. Strikes. If a Vessel shall be prevented from sailing with or
without passengers by a strike, lockout or labor dispute arising from
Concessionaire's operations, upon the request of CCL, Concessionaire will remove
its personnel and Merchandise from such Vessel, and take all lawful action
necessary to effect removal of the picket line. If the lawful strike, lockout or
labor dispute prevents a Vessel from sailing for more than three (3) days, then
CCL may thereafter give Concessionaire four (4) days written notice of an
intention to terminate this Agreement as to such Vessel. If after that four-day
period the lawful strike, lockout or labor dispute continues to prevent such
Vessel from sailing, then this Agreement shall so terminate as to such Vessel;
provided, however, if at the end of the four-day period the strike lockout or
labor dispute does not prevent such Vessel from sailing, this Agreement shall
remain in full force and effect.
ARTICLE 24. DEFAULT AND REMEDIES
24.1. Events of Default. The occurrence of any one of the following
events shall constitute and "Event of Default:"
(a) Either party shall fail to perform or comply with any of
its covenants, duties or obligations hereunder, or shall violate any of
the prohibitions imposed under this Agreement, or shall breach of any
of such parties' warranties made in this Agreement, and such failure,
violation or breach shall continue for a period of thirty (30) days
after the other party has given written notice thereof in accordance
with Section 27.5, below; or
(b) Any statement, representation or warranty by either party
contained in this Agreement or in any document furnished in connection
herewith or hereafter pursuant hereto, shall prove to be knowingly or
reckless untrue or incorrect in any material respect when made; or
(c) Either party shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of all or a
substantial part of its assets; (ii) by unable, or admit in writing its
inability, to pay its debts as they mature; (iii) make a general
assignment for
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the benefit of creditors; or (iv) be adjudicated bankruptcy or
insolvent; or (v) be dissolved; or (vi) file a petition in bankruptcy
or for reorganization or for an agreement pursuant to a bankruptcy act
or any insolvency law providing for the relief of debtors, now or
hereafter in effect; or (vii) file an answer admitting the material
allegations of, or consent to, or default in answering, a petition
filed against it in any bankruptcy, reorganization or insolvency
proceedings; or (viii) take corporate action for the purpose of
effecting any of the foregoing.
24.2. Remedies Upon Default. Upon the occurrence of an Event of
Default, the non-defaulting party may: (i) terminate this Agreement; (ii)
exercise any other right or remedy which may be available to it under applicable
law; (iii) proceed by appropriate arbitration to enforce the terms hereof or to
recover damages for the breach hereof; and/or (iv) place Guarantor on notice of
its obligations contained in the Letter of Guaranty attached as Exhibit 6.2. No
remedy or power referred to or given to the non-defaulting party in this
Agreement or otherwise existing is intended to be exclusive, but each shall be
cumulative and is in addition to, and may be exercised concurrently with, any
other remedy referred to herein or which may otherwise be available to that
party in law, equity or admiralty. Each and every power and remedy, whether
herein so given or otherwise existing, may be exercised from time to time and as
often and in such order as may be deemed expedient. No express or implied waiver
of any ground for exercising rights in connection with this Agreement shall be,
or construed to be, a waiver of any further or subsequent ground. No delay or
omission in the exercise of any right or power in the pursuit of any remedy
shall impair any such right or be construed a waiver of any default or as an
acquiescence thereto.
24.3. Any termination of this Agreement shall be without prejudice to
the rights and obligations of either party accruing prior to such termination.
Any rights and obligations that would apply to a party were this Agreement to
have been terminated at the expiration of the term stated in Article 1 shall
apply in respect of any early termination.
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ARTICLE 25. RIGHT TO REMEDY DEFAULT.
25.1. If either CCL or Concessionaire shall fail to perform or observe
any of the terms of this Agreement, the other party may in its discretion, after
providing fourteen (14) days' written notice to the party failing to perform, do
all acts and make all expenditures necessary to remedy such failure, and the
party failing to perform shall promptly reimburse the other party for any and
all expenditures so incurred. However, neither party shall be under any
obligation to do any act or make any such expenditure on behalf of the party
failing to perform, nor shall the doing or making thereof relieve the party
failing to perform from any such failure.
ARTICLE 26. ARBITRATION AND CHOICE-OF-LAW.
26.1. Arbitration. Any and all differences and disputes of whatsoever
nature arising out of this Agreement shall be arbitrated in Miami, Florida,
before a board of three commercial persons, consisting of one arbitrator to be
appointed by each party and the third by the two so chosen; provided that if
both parties appoint the same person to be an arbitrator for a particular
dispute, then that person shall act as a sole arbitrator for that dispute.
Arbitration shall be the exclusive method of resolving differences and disputes
between the parties. The decision of any two of the arbitrators (or the sole
arbitrator) shall be final and binding and any relief deemed just and suitable
may be granted, including but not limited to attorneys' fees and specific
performance. Judgment may be entered upon any award in any court of competent
jurisdiction.
26.2. Applicable Law. This Agreement shall be governed by the federal
statutory and general maritime law of the United States, as well as, where
appropriate, the law of the State of Florida; excluding, however, all federal
and Florida statutes applying to common carriage of passengers and cargo, such
as but not limited to the Xxxxxx Act, Carriage Goods by Sea Act and Florida
conflict of law principles. In all instances the federal law shall take
precedence over Florida law. The parties expressly choose the above-described
laws to the exclusion of all choice of law rules which might otherwise be
applicable in any particular forum, except to
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the extent that circumstances would reasonably require application of the laws
of some other jurisdiction to resolve specific issues pertaining solely to
health and safety or to the mandatory requirements imposed by the laws of the
state of a Vessel's registry.
ARTICLE 27. AMENDMENTS AND MISCELLANEOUS.
27.1. Entire Amendment. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. All prior
negotiations, agreements and communications are merged herein and superseded
hereby; there are no representations, warranties or obligations by either party
to the other concerning the subjects of this Agreement except those herein set
forth. The terms of this Agreement shall be not waived, altered, modified,
amended, or supplemented, in any manner whatsoever, except by a written document
duly executed by the party to be charged with such waiver, amendment or
supplement.
27.2. Binding Nature and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns who are authorized herein to succeed to the rights and
duties of the parties by assignment or otherwise.
27.3. Headings. Article headings are for convenience of reference only
and shall not be construed as part of this Agreement.
27.4. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, except one, the absence of which
would make this Agreement unfair or impossible of performance, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
27.5. Notices. Any notice, demand, request, consent, approval, or
communication that either party desires or is required to give to the other
party shall be in writing and either served personally, sent by telegraphic
means, or sent by prepaid overnight express courier service or registered or
certified mail, addressed to the other party at the address set forth below.
Either party may change its address by notifying the other party of the change
of
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47
address. Notice shall be deemed communicated when received. Any such notice to
each party and other correspondence or communication shall be addressed:
If to CCL:
Carnival Cruise Lines, Inc.
Attn: Operations Department
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Telefax: (000) 000-0000
With copies to:
Carnival Cruise Lines, Inc.
Attn: Legal Department
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Telefax: (000) 000-0000
If to Concessionaire:
Greyhound Leisure Services, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: X.X. Xxxxxx, President
Facsimile: (000) 000-0000
or to such other address as either party may from time to time designate by
notice to the other.
27.6. Brokers. CCL and Concessionaire each warrant to the other that no
brokers, agents or any third parties were involved in or played any part in the
negotiations of this Agreement and no commissions, finders fees or compensation
of any type is payable to any third party in connection with this Agreement.
27.7. Confidentiality. The parties hereto agree that they shall use
reasonable efforts to maintain the confidentiality of all information, records,
reports and other data as to the activities of the parties under this Agreement.
Provided, however, nothing contained herein shall preclude disclosures (i) on a
confidential basis, to affiliated entities; (ii) to their respective
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officers, agents, employees or consultants and then only to the extent necessary
to perform their obligations under this Agreement; (iii) in connection with a
dispute arising under this Agreement; or (iv) if otherwise required by a court
of competent jurisdiction or other governmental agency, body, or authority. Each
party acknowledges that confidentiality may be difficult to maintain given the
large number of people with access to such information, records, reports and
other data and that neither party shall have any liability to the other so long
as reasonable efforts were utilized to maintain confidentiality.
27.8. Cooperation. The parties hereto further agree to xxxxxx and
maintain the maximum amount of cooperation possible between themselves to
effectuate the provisions of this Agreement.
27.9. Independent Contractors. Concessionaire is acting as an
independent contractor in performing its obligations under this Agreement.
27.10. Advertising. Concessionaire, upon CCL's written request, shall
make available to CCL on a quarterly basis information pertaining to advertising
revenues received during the previous quarter from advertisers' advertising in
respect of the Merchandise aboard any of the Vessels.
IN WITNESS WHEREOF, CCL and Concessionaire have executed this Agreement
the day and year first above written.
CARNIVAL CRUISE LINES, INC. GREYHOUND LEISURE SERVICES,
INC.
By: /s/ By: /s/X.X. Xxxxxx
--------------------------------- -------------------------------
Title: SR VP Operation Title: President
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THE DIAL CORP, as Guarantor
By: /s/
---------------------------------
Title: VP
------------------------------
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[Carnival Cruise Lines Letterhead]
X.X. Xxxxxx
President
Greyhound Leisure Services, Inc.
c/o THE DIAL CORP
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
RE: Concession Agreement by and between Carnival Cruise Lines,
Inc. ("CCL") and Greyhound Leisure Services, Inc.
("Concessionaire"), dated as of November 23, 1992
Dear Xx. Xxxxxx:
This letter, when executed on behalf of Greyhound Leisure Services,
Inc., sets forth the agreement of the parties which has been reached with
respect to matters arising under Section 3.11, 5.1(a)(x), 6.1, 12.1(a), 12.1(b),
12.1(c) and 16.2 of the above-referenced Agreement. For purposes of this letter
agreement, any capitalized term which is not separately defined herein shall
have the meaning ascribed to such term in the Agreement. CCL and Concessionaire
hereby agree as follows:
1. It is agreed that Section 3.11 and 5.1(a) is accordingly
modified by the following:
Upon CCL's implementation of the Sail & Sign Program in the
Premises, Concessionaire shall deduct the processing fee (as
provided in Section 3.11 of the Agreement) from Gross
Receipts. However, if CCL permits Concessionaire to accept
cash, then Gross Receipts shall not be deducted by any such
processing fee.
2. Clause (x) of Section 5.1(a) of the Agreement is hereby
modified by adding the following:
"[* ] shall not be deducted
if CCL permits Concessionaire to accept cash from its
customers."
--------
* This confidential portion has been omitted and filed separately with
the Commission.
51
3. Section 6.1 of the Agreement is hereby amended by adding the
following new subsection:
"(c) On March 10 of each calendar year, commencing in 1994,
Concessionaire shall reconcile its records to determine
whether clause (a) or (b) above is the greater amount. If, and
only if, the aggregate payments made during the period in
question by Concessionaire pursuant to clause (b) are not the
greater amount, Concessionaire shall pay the difference
between the amount paid and the amount due pursuant to clause
(a) on or before April 1 of each calendar year (commencing in
1994); provided, however, Concessionaire shall receive a
credit against any amounts due herein as a rental fee equal to
any charges to shipboard accounts established by CCL for the
purchase of Merchandise."
4. Section 12.1(a) of the Agreement is hereby amended by deleting
the last sentence thereto and substituting therefor the
following:
"The deductible for such coverage shall not exceed $300,000,
and upon renewal, there shall be no limits on the deductible."
5. Sections 12.1(b) and 12.1(c) of the Agreement shall be amended
so that they now read as follows:
"(b) In the event that Concessionaire or its personnel cause
in whole or in part any loss or damage covered by this
insurance, or which would have been covered by this insurance
but for a commercially reasonable deductible in the insurance
policy, Concessionaire agrees to reimburse CCL only for the
amount of the deductible applicable in such loss or damage;
provided, however, in no event shall such reimbursement exceed
$500,000. (CCL assumes the risk of loss if the deductible
exceeds $500,000.)"
"(c) Neither CCL, the Owner of the Vessel, nor the
underwriters of the insurance shall have any further right of
recovery or subrogation in excess of said deductible or
$500,000, whichever is the lesser amount, against
Concessionaire on account of loss or damage to the extent
covered by such insurance, and the policies of insurance shall
be endorsed to reflect this limitation and waiver."
6. Section 16.2 of Agreement shall be amended so that it now
reads as follows:
"16.2 Registry Change. In its sole discretion, CCL may change
the registry of a Vessel at any time upon thirty (30) days
prior written notice to Concessionaire of the anticipated
registry change date of such Vessel. If such change, in the
joint reasonable opinion of CCL and Concessionaire, has a
material, negative
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52
impact on hours of employment, compensation rates, wages,
commissions and other labor employment matters, in respect of
such Vessel, then this Agreement only in respect of such
Vessel may be terminated by Concessionaire, and CCL shall
reimburse Concessionaire upon such termination pursuant to
Section 1.3 herein."
7. Except as specifically modified hereby, the Agreement is
hereby ratified and affirmed by CCL and Concessionaire. All
references to the Agreement contained in any documents shall
hereafter refer to the Agreement as hereby amended.
Please sign the enclosed copy of this letter where provided below to
indicate your agreement and acceptance of the foregoing amendment to our
Agreement.
Very truly yours,
CARNIVAL CRUISE LINES, INC.
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Xxxxxxxx Xxxxx
Xx. Vice President, Operations
Accepted and agreed to on this
12th day of January, 1993
GREYHOUND LEISURE SERVICES, INC.
By: /s/ X.X. Xxxxxx
------------------------------------
X.X. Xxxxxx, President
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53
ADDENDUM #1
TO THE CONCESSION AGREEMENT
BETWEEN
CARNIVAL CORPORATION
AND
GREYHOUND LEISURE SERVICES, INC. (GLSI)
The parties hereto agree that the Concession Agreement dated November 23, 1992,
as modified by the letter agreement January 12, 1993 is hereby amended,
effective immediately, as follows:
1. Article 6.1(a) and (b) are hereby amended in their entirety to read as
follows:
ARTICLE 6.1
For the following vessels, the FANTASY, ECSTASY, SENSATION, FASCINATION,
IMAGINATION, INSPIRATION, UNNAMED (Fantasy class), UNNAMED (Fantasy Class),
CARNIVAL DESTINY and UNNAMED (Destiny class) (collectively, the "Larger Ships").
Concessionaire shall pay to Carnival Cruise Line the greater of:
a) a minimum of
[* ] from signature of addendum
[* ] from March 10, 1996
[* ] from March 10, 1997
[* ] from March 10, 1998
[* ] from March 10, 1999
[* ] from March 10, 2000
[* ] from March 10, 2001
[* ] from March 10, 2002
OR
b) [* ] of the gross revenue.
For the following vessels, the FESTIVALE, TROPICALE, HOLIDAY, JUBILEE
and CELEBRATION (collectively, the "Smaller Ships"), Concessionaire shall pay to
Carnival Cruise Line the greater of (a) a minimum guarantee of [* ] per revenue
passenger per cruise night, which amount shall increase at midnight on March 10
of each year
--------
* This confidential portion has been omitted and filed separately with
the Commission.
54
by [* ] cents per revenue per cruise night, commencing on
March 10, 1994 or (b) [* ] of the Gross Revenue from
Concessionaire's sale of all merchandise from the vessel on each cruise.
Notwithstanding the foregoing, the minimum guarantee set forth in subparagraph
(a) of this paragraph for each of the Smaller Ships shall be adjusted to the
same levels as the Larger Ships when any of the Smaller Ships achieve the
monthly average per diem per passenger set forth below, except that the rent
percentage shall remain [* ] of gross revenues for the Smaller Ships.
PER DIEM
YEARS PER PAX
----- -------
1995-1996 [* ]
1996-1997 [* ]
1997-1998 [* ]
1998-1999 [* ]
1999-2000 [* ]
2000-2001 [* ]
2001-2001 [* ]
2. Article 1.2 is hereby amended in its entirety to read as follows:
ARTICLE 1.2
The term of the contract is extended to the date of March 10, 2002.
3. The following vessels are added to the list of vessels in the first
recital paragraph:
MS Inspiration
MS Carnival Destiny
Name to be announced (Fantasy class)
Name to be announced (Destiny class)
Name to be announced (Fantasy class).
4. Except as specifically modified hereby the Concession Agreement is
ratified and affirmed by Carnival Corporation and Concessionaire.
--------
* This confidential portion has been omitted and filed separately with
the Commission.
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55
IN WITNESS WHEREOF, the parties hereby indicate their agreement and
acceptance of the foregoing:
CARNIVAL CORPORATION
WITNESSED BY:
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxx
-------------------------------- ------------------------------------
Xxxxxxx Xxxxx Xxxxxxxx Xxxxx
Xx. Vice President, Operations
GREYHOUND LEISURE SERVICES, INC.
WITNESSED BY:
/s/ Xxxxxxx Xxxxx By: /s/ X.X. Xxxxxx
-------------------------------- ------------------------------------
Xxxxxxx Xxxxx X.X. Xxxxxx, President
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ADDENDUM NO. 2 TO
CONCESSION AGREEMENT
BETWEEN
CARNIVAL CORPORATION
AND
STARBOARD HOLDINGS, LTD. (BARBADOS)
This Addendum No. 2 to Concession Agreement (the "Addendum") is entered
into on this 3rd day of March, 1999, by and between CARNIVAL CRUISE LINES, a
division of CARNIVAL CORPORATION, a Panamanian corporation ("Carnival"), and
STARBOARD HOLDINGS LTD. (BARBADOS) ("Concessionaire"), successor to GREYHOUND
LEISURE SERVICES, INC. ("Greyhound").
RECITALS
A. Carnival and Greyhound entered into that certain Concession
Agreement dated November 23, 1992, as modified by letter agreement dated January
12, 1993 and by Addendum No. 1 to Concession Agreement dated October 1, 1995
(collectively, the "Agreement").
B. Greyhound assigned its rights as a concessionaire under the
Agreement to Starboard Holdings Ltd. (Barbados) and Starboard assumed all of
Greyhound's obligations as a concessionaire as evidenced by the letter dated
February 3, 1999 from Greyhound to Carnival.
B. Carnival and Concessionaire desire to amend certain terms and
conditions of the Agreement, as provided in this Addendum, effective as of the
above date.
C. Unless otherwise stated, all defined terms herein shall have the
meanings set forth in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. ARTICLE 1.2. TERM
Article 1.2 is deleted in its entirety and amended to read a
follows:
The term of this Agreement shall expire on November 30, 2002.
2. ARTICLE 24.1 EVENTS OF DEFAULT
57
Article 24.1 is hereby amended by adding the following as a
new subparagraph (d):
(d) Concessionaire shall be in default under that certain
letter agreement dated March 3, 1999 between Concessionaire
and Carnival Corporation, as such letter agreement may be
amended from time to time.
3. ARTICLE 27.7 CONFIDENTIALITY:
Article 27.7 is hereby amended by adding the following
paragraph:
Concessionaire acknowledges that lists of Carnival passengers,
purchasers of auctioned art on the Vessels, and lists of
Vessel passengers, whether past, present, future or
prospective, or any information of whatever nature derived by
Concessionaire in connection with the concession services
(collectively, "Customer Lists") are and shall remain at all
times the exclusive property of Carnival. The Customer Lists
represent a special, valuable and unique asset of Carnival
that has been developed at considerable expense to Carnival.
Accordingly, Concessionaire agrees that it shall not disclose
or furnish to any third party any Customer Lists during or
after the term of this Agreement, other than with Carnival's
express written consent, which may be withheld in Carnival's
sole discretion. Concessionaire further agrees to use the
Customer List information solely for the purpose of fulfilling
orders and completing transactions arising under this
Agreement and will not use the Customer List information for
any other business operated by it or its affiliates. Upon
termination of this Agreement, or at such other times upon
Carnival's request, Concessionaire will return to Carnival all
Customer Lists or any information related thereto.
Concessionaire recognizes that any violation of this section
shall cause Carnival substantial and irreparable harm and
shall entitle Carnival to seek immediate injunction relief, in
addition to such other remedies afforded by law or equity. The
obligations of this section shall survive the expiration or
termination of this Agreement.
4. VALIDITY OF AGREEMENT.
Except as provided in this Addendum, the Agreement shall
remain in full force and effect in accordance with its terms.
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58
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
day and year first written above.
STARBOARD CARNIVAL CRUISE LINES, A DIVISION
HOLDINGS LTD. (BARBADOS) OF CARNIVAL CORPORATION
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------- ----------------------------------
Name: X.X. Xxxxxx Name: Xxxxxxx Xxxxxxxx
Title: President Title: V.P. Operations
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