EXHIBIT 10.2
Exhibit A
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Agreement
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THIS AGREEMENT dated as of March 30, 1998 is between New York Fast Ferry
Services, Inc., a corporation organized and existing under the laws of the State
of New York, with its principal place of business at 000 X. Xxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxx ("Fast Ferry") and Prospect Fast Ferry, Inc. a corporation
organized and existing under the laws of the State of Delaware with his
principal place of business at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx (the
"Marina").
WHEREAS, Fast Ferry and the Marina are desirous for Fast Ferry to operate a
high-speed ferry service between the Marina's property located at 0 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx and a terminal located in the borough of
Manhattan, New York, New York, on the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the material covenants set forth herein
and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions
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The following terms shall have the following respective meanings for all
purposes of this Agreement:
"BRAVEST" shall mean the high-speed catamaran, 38 meter vessel Bravest
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(official number 1044083) registered in the name of Fast Ferry II Corp., a
wholly-owned subsidiary of Fast Ferry.
"Commencement Date" shall mean the date on which Ferry Services first
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commence under the terms of this agreement.
"Facilities" shall mean each of the facilities identified in Sections 3 (a)
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(I) - (v) hereof.
"Ferry Services" shall mean the service of transporting Passengers aboard
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the Vessel between the Xxxxx Hook Terminal and the Manhattan Terminal.
"FINEST" shall mean the high-speed catamaran, 38 meter vessel Finest
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(official number 1044082) registered in the name of Fast Ferry I Corp., a
wholly-owned subsidiary of Fast Ferry.
"Manhattan Terminal" shall mean the Wall Street terminal located at Pier
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00, Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx or any other location selected by Fast Ferry
which is suitable for the berthing of Passengers and is located within the
borough of Manhattan, New York, New York.
"Passengers" shall mean any individual paying Fast Ferry a fee for Ferry
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Services and traveling in either direction aboard the Vessel between the Xxxxx
Hook Terminal and the Manhattan Terminal.
"Passenger Trip" shall mean any one-way trip in either direction by a
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Passenger aboard the Vessel between the Xxxxx Hook Terminal and the Manhattan
Terminal.
"Xxxxx Hook Terminal" shall mean the Marina's property located at 1 Willow
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Street, Highlands, New Jersey.
"Term" shall mean the period from and including the Commencement Date up to
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and including the date which occurs five (5) years after the Commencement Date.
"Vessel" shall mean either the Finest or the Bravest, or any other similar
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vessel acceptable to the Marina which is owned or operated by Fast Ferry, such
acceptance not to be unreasonably withheld.
Section 2. Agreement
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The Marina hereby agrees to provide Fast Ferry with access to the
Facilities and the exclusive right to operate Ferry Services between the Xxxxx
Hook Terminal and any location in the borough of Manhattan, New York, New York,
and Fast Ferry hereby agrees to provide Ferry Services between the Xxxxx Hook
Terminal and the Manhattan Terminal, on the terms of this Agreement.
Section 3. Facilities
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(a) The Marina shall construct, to the extent necessary, and provide Fast
Ferry with access to the following Facilities at least three (3) weeks prior to
the Commencement Date:
(i) landing facilities for the docking of, navigation of and safe,
efficient and comfortable loading and unloading of passengers from the
Vessel, which facilities shall include, but not be limited to,
adequate ramps, docks, stairs, awnings, piles, dolphins, fendering,
cleats and bollards as are reasonably necessary for the berthing of
the Vessel;
(ii) layover facilities suitable for the safe berthing and layover of
a Vessel during all reasonable weather conditions and the bunkering
of, and performance of light maintenance on a Vessel, which facilities
shall be equipped with access to 208 v. 3 phase power and shall
include, but not be limited to, adequate ramps, docks, stairs,
awnings, piles, dolphins, fendering, cleats and bollards as are
reasonably necessary for the berthing of a Vessel;
(iii) adequate shop space and office space for Fast Ferry employees;
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(iv) a suitable site (with electric power and phone lines) for a
ticket booth and;
(v) ample free parking, reserved for Passengers, with a capacity for
up to a minimum of two hundred fifty (250) cars per day, which
capacity shall be increased to three hundred (300) cars per day within
sixty (60) days after the first calendar month during which the number
of Passengers utilizing Ferry Services averages six hundred (600) or
more Passengers per day, (excluding weekends and public holidays) or
valet parking will be provided for 50 additional cars.
in each case, the suitability of the Facilities identified in this Section 3 (a)
shall be determined in the sole discretion of Fast Ferry after considering
input, if any, received from the Marina.
(b) The Marina shall be responsible for maintaining the Facilities and
ensuring that the Facilities remain suitable for the operation of Ferry Services
during the Term.
(c) If at any time, in the reasonable discretion of Fast Ferry after
considering input, if any, received from the Marina, the Facilities are either
unavailable or inadequate for the layover of the Vessel, until such time as Fast
Ferry deems the Facilities to be available and adequate for the layover berthing
of the Vessel, including but not limited to berthing fees, fuel and crewing
costs shall be deducted from any fees payable to the Marina under Section 5
hereof.
Section 4. Ferry Services: Charters and Excursions
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(a) Fast Ferry shall provide Ferry Services between the Xxxxx Hook terminal
and the Manhattan Terminal consisting of a minimum of two (2) morning departures
from the Xxxxx Hook Terminal and two (2) afternoon departures from the Manhattan
Terminal. All such departures shall be daily Monday through Friday (excluding
weekends and public holidays). Fast Ferry shall be entitled to offer additional
Ferry Services between the Xxxxx Hook Terminal and the Manhattan Terminal at its
sole discretion.
(b) Fast Ferry may, at its reasonable discretion, conduct charters or
excursions which originate from and terminate at the Xxxxx Hook Terminal.
(c) Fast Ferry shall not be obligated to conduct ferry services on any day
which:
(i) Fast Ferry, in its reasonable discretion after considering input,
if any, received from the Marina, determines that the Facilities are
not suitable for the operation of Ferry Services;
(ii) neither the Marina nor Fast Ferry possesses any permit,
permission or approval which may be required by any local, state or
other controlling authority for the operation of Ferry Services;
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(iii) weather conditions are such that, in the sole discretion of Fast
Ferry after considering input, if any, received from the Marina, it
would be unsafe to conduct Ferry Services; or
(iv) Fast Ferry is unable to conduct Ferry Services due to any of the
reasons set forth in Section 10 (b) hereof.
Section 5. Payment of Fees
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(a) On the tenth day of each calendar month during the Term and the first
calendar month after the expiration of the Term, Fast Ferry shall pay the Marina
a landing and layover fee equal to the sum of (i) $1.25 per Passenger Trip for
every Passenger trip which occurred during the calendar month, up to a maximum
of four hundred (400) Passenger Trips in any one (1) day, plus (ii) $1.50 per
Passenger Trip for every Passenger Trip which occurred in excess of four hundred
(400) Passenger Trips during any one (1) day of the preceding month.
(b) Fast Ferry shall pay the Marina ten percent (10%) of all gross
passenger revenues earned by Fast Ferry for any charters or excursions where
passengers load and unload at Xxxxx Hook Bay Marina.
Section 6. Representations and Warranties
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(a) The Marina hereby makes the following representations and warranties,
which representations and warranties shall survive the execution and delivery of
this Agreement:
(i) that Prospect Fast Ferry Inc. shall have a valid lease for the
property at 0 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx including the
marina and ferry landing facility for the entire term of this
agreement. Which lease shall give Prospect Fast Ferry the ability to
meet all its obligations under this agreement and be provided to Fast
Ferry upon request.
(ii) this Agreement has been duly entered into and delivered by the
Marina and constitutes the legal, valid and binding obligations of the
Marina.
(iii) the Marina has received prior to the date hereof, and has
provided Fast Ferry with copies of all permits, permissions and
approvals from local, state and any other applicable controlling
authorities presently necessary to allow Fast Ferry to provide Ferry
Services, as described herein, and shall obtain and provide Fast Ferry
with copies of any additional permits, permissions or approvals which
may from time to time be required during the Term to allow Fast Ferry
to provide Ferry Services, as described herein.
(b) Fast Ferry hereby makes the following representations and warranties,
which representations and warranties shall survive the execution and delivery of
this Agreement:
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(i) Fast Ferry is a corporation duly organized and validly existing in
good standing under the laws of the State of New York and has the
corporate power and authority to carry on its business as presently
conducted and to perform its obligations under this Agreement.
(ii) this Agreement has been duly entered into and delivered by Fast
Ferry and constitutes the legal, valid and binding obligations of Fast
Ferry.
(iii) Fast Ferry will obtain prior to the Commencement Date all
permits, permissions and approvals from local, state and any other
applicable controlling authorities presently necessary to allow Fast
Ferry to land the Vessel at the Manhattan Terminal.
Section 7. Termination
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(a) This Agreement shall terminate automatically upon the expiration of the
Term unless sooner terminated as set forth herein.
(b) The Xxxxxx xxx terminate this Agreement upon the giving of at least ten
(10) days written notice after the occurrence of any of the following:
(i) the failure of Fast Ferry to provide Ferry Services as required in
Section 4 for a period of thirty (30) consecutive days at any time
after the Commencement Date, which thirty (30) day period shall not
include any days during which Fast Ferry Services was not obligated to
perform hereunder; or
(ii) the deliberate failure of Fast Ferry to perform its obligations
hereunder for two separate periods of at least five (5) consecutive
days each, during any twelve (12) month period.
(c) Fast Ferry may terminate this Agreement upon the giving of at least ten
(10) days written notice after the occurrence of any of the following:
(i) the failure of the Marina to provide any of the Facilities
required in Section 3 prior to (April 30, 1998) or for a period of
thirty (30) consecutive days at any time after the Commencement Date;
(ii) the deliberate failure of the Marina to perform its obligations
hereunder for two separate periods of at least five (5) consecutive
days each during any twelve (12) month period;
(iii) the failure of the Marina to possess any permit, permission or
approval from any local, state, or other controlling authority
necessary to allow Fast Ferry to conduct Ferry Services for a period
of ten (10) days; or
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(iv) the inability of Fast Ferry to acquire any permit, permission or
approval from any local, state or other controlling authority
necessary to land the vessel at the Manhattan Terminal.
Section 8. Indemnification
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The Marina agrees to indemnify and hold harmless Fast Ferry, its
shareholders agents, representatives, employees, officers and directors from and
against any and all claims, losses damages, judgments, costs or expenses
(including without limitation attorneys' fees) arising out of (i) incidents
occurring at the Xxxxx Hook Terminal including, but not limited to, incidents
occurring on, at or in the Facilities or any and all parking areas, roads,
ramps, docks, platforms, etc. located at the Xxxxx Hook Terminal, (ii) any
breach by the Marina of its representations, warranties or covenants or (iii)
the negligence or misconduct of the Marina or the Marina's agents or employees.
Section 9. Taxes
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The Marina shall be liable for any local, state and/or federal sales, use
or other taxes (except for income and corporate excise taxes imposed upon the
Fast Ferry) resulting from the use and operation of the Vessel by Fast Ferry,
and Fast Ferry shall be entitled to request proof of payment by the Marina of
any applicable taxes.
Section 10. Miscellaneous
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(a) Quiet Enjoyment. The Marina covenants that Fast Ferry shall quietly
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enjoy, in accordance with the terms hereof, use of the Facilities, without
interference by the Marina or by any person lawfully claiming by or through the
Marina.
(b) Excusable Delays. The time for Fast Ferry or the Marina to perform any
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of their respective obligations hereunder shall be reasonable extended if and to
the extent that the performance thereof shall be prevented or delayed due to any
strikes, lockouts, civil commotions, warlike operations, invasions, rebellions,
hostilities, military or inability to obtain labor or materials despite due
diligence, acts of God or other causes beyond the reasonable control of the
party whose performance is required.
(c) Assignment. Neither party may assign or transfer any of its respective
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rights or obligations hereunder without the prior written consent of the other
party, which consent shall not be unreasonably withheld. This agreement shall
be binding on the heirs, successors and/or assignees of either party.
(d) Notices. All notices required under the terms and provisions hereof
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shall be in writing, shall be sent to Fast Ferry or the Marina at their
respective addresses set forth below (or such other addresses as the parties may
designate from time to time in writing) and, except as
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otherwise provided herein, such notice shall become effective upon the earlier
of actual receipt or the fifth day following the date such notice is sent:
If to Fast Ferry:
New York Fast Ferry Services, Inc.
000 X. Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
ph. (914) 698 5927
fax (000) 000 0000
If to the Marina:
Prospect Fast Ferry, Inc.
0 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
ph. (000) 000 0000
fax (000) 000 0000
(e) Time is of the Essence. Time and strict and punctual performance are
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the essence with respect to each provision of this Agreement.
(f) Best Efforts. The parties hereto agree to use their best efforts to
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comply with each and every term and condition contained in this agreement.
(g) Entire Agreement; Modification or Revision. This Agreement is intended
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to be a complete and exclusive statement of the terms of the agreement of the
parties hereto, and this Agreement supersedes any prior or contemporaneous
agreements, whether oral or in writing. Neither this Agreement nor any term of
this Agreement may be modified, rescinded, changed, waived, discharged or
terminated except by a writing signed by the xxxxx to be charged. The Marina
and Fast Ferry acknowledge their agreement to the provision of this Section 10
(f) by their signatures below.
(h) Article Headings and Captions. All section headings and captions used
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in this Agreement are for convenient reference and shall not affect the
interpretation of this Agreement.
(i) Jurisdiction; Governing Law. The rights and obligations of the parties
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under this Agreement shall be governed by and construed in accordance with the
laws of the state of New York. All disputes arising in connection with the
Agreement shall be finally settled under the Commercial Arbitration Rules of the
American Arbitration Association by three independent arbitrators appointed in
accordance with the said Rules. The place of arbitration shall be New York, New
York. Each party irrevocably consents to the service of process by the mailing
of copies thereof by registered or certified airmail, postage prepaid, to such
party at its address as such party may designate from time to time in writing.
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(j) Legality of Provisions. If any provision of this Agreement shall be
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held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF,
the parties hereto have executed this Agreement on the day and year first above
written.
New York Fast Ferry Services, Inc.
By /s/Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
Prospect Fast Ferry, Inc.
By /s/
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Name:
Title:
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