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Exhibit 10.28
CONCESSION AGREEMENT
This Concession Agreement made and concluded as of the 25th day of February,
1998, by and between HOLLAND AMERICA LINE-WESTOURS INC., a Washington
corporation d/b/a Windstar Cruises, hereinafter sometimes referred to as "Agent"
or "HAL" which is the duly authorized agent of WIND SPIRIT LIMITED, the Bahamian
corporation that currently anticipates purchasing the vessel Club Med I, to be
renamed the m/v Wind Surf (hereafter referred to as the "Vessel"), and THE
INTERNATIONAL CRUISE SHOPS DIVISION OF GREYHOUND LEISURE SERVICES, INC., a
Florida corporation (hereinafter referred to as "Concessionaire"). As used in
this Agreement, the term "Owners" includes Wind Spirit Limited together with all
other entities that are affiliated with HAL and that hereafter acquire an
interest in the Vessel either as an owner or charterer.
WITNESSETH:
HAL agrees to grant and Concessionaire agrees to accept the below
described concession on the following terms and conditions:
Description and Term of Concession
1. Definitions and Interpretation.
A. In this Agreement, the following words and expressions shall have
the meanings set opposite them respectively, unless the context otherwise
requires:
(i) Affiliate: means any person or entity controlled by,
controlling or under common control with another person or entity.
(ii) Annual Periods: means the period commencing on the
Effective Date and continuing until April 30, 1999 and thereafter means
the periods beginning on May 1st of each year and ending on April 30th
of the following year.
(iii) Annual PCDs: means the total passenger cruise days
(excluding day of disembarkation) for the Vessel during the applicable
Annual Period.
(iv) Caribbean Voyages: means all voyages of the Vessel that
include one or more port calls in the Caribbean.
(v) COB System: means the passenger rating system established
by HAL for the Vessel whereby most aspects of the Vessel's operations
and passenger services are rated by passengers on a 1-9 scale with 9
being the highest rating.
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(vi) Effective Date: means the date on which this Agreement
takes effect in relation to the Vessel, as provided for in Section 3.
(vii) Excluded Voyage: has the meaning provided in Section 10.
(viii) Late Sales: means those sales on board the Vessel or
after a voyage which cannot be charged to a passenger's shipboard
account due to the lateness of the sale.
(ix) Non-Duty Free Voyages: means all voyages of the Vessel in
which the ports of call make it not feasible for Concessionaire to sell
duty-free merchandise on the Vessel.
(x) Other Voyages: means all voyages of the Vessel other than
Caribbean Voyages and Non-Duty Free Voyages.
(xi) Quarterly Periods: means, as to each Annual Period, the
periods May 1 - July 31, August 1 - October 31, November 1 - January
31, and February 1 - April 30.
(xii) Quarterly PCDs: means the total passenger cruise days
(excluding day of disembarkation) for the Vessel during the applicable
Quarterly Period.
(xiii) Retail Services: means the sale of retail items by
Concessionaire in accordance with this Agreement.
(xiv) Revenue Amount: has the meaning specified in Section
6(C) below.
(xv) Specified Amount: has the meaning specified in Section
6(A) below.
B. Interpretation: All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine, neuter, singular or plural, as the
identity of the person or persons may require. The term "may" shall refer to the
right of a party to do an act or omit to do an act. The term "shall" or "will"
shall refer to an obligation of a party to do an act or omit to do an act.
2. Scope of Concession/Right of First Refusal: A. This Agreement confers on
Concessionaire an exclusive concession onboard the Vessel to:
(i) supply and sell merchandise and sundry in the Vessel's
retail shops including specifically the following items: greeting
cards, post cards, gifts, novelties, perfumes, personal care (excluding
beauty) products, toys, jewelry, ceramics, shoes, hats, beachwear,
leather goods, handicrafts, radios, phonographs, electronic equipment,
musical instruments, logo of Windstar Cruises or m/v Wind Surf,
souvenirs, sunglasses, watches, clocks, textiles, silverware, bric a
brac, notions, books, sundries, snack foods and candy (excluding snack
foods and candies provided to passengers in the normal
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course of Vessel food service), tobacco products, playing cards and
games (excluding bingo, casino games, decks of cards and other games
provided for passengers in the normal course of Vessel operations), and
reading material (excluding reading material in the Vessel's library),
and other merchandise hereafter sold by Concessionaire on board the
Vessel with the prior written approval of HAL; and
(ii) supply and sell duty free liquor in bottles for
consumption on board or take home.
Concessionaire acknowledges that nothing contained in this Section 2(A) is
intended to grant it a concession to sell the products listed in Schedule 2A to
this Agreement. Concessionaire further acknowledges that the concession granted
by this Agreement is limited to sales to passengers.
B. It is acknowledged that another concessionaire will hold the
concession on board the Vessel for the operation of the Vessel's beauty parlors,
hairdressing salons, Turkish baths and massage facilities (the "Beauty/Fitness
Concessionaire") and that another concessionaire will hold the concession on
board the Vessel for photography and video services (the "Photo
Concessionaire"). The Beauty/Fitness Concessionaire will be offering for sale in
the facilities used by it various beauty and barbering supplies, cosmetics,
liniments, bath oils and similar consumable items. The Photo Concessionaire will
be offering for sale in the facilities used by it various film and camera
products. If Concessionaire notifies HAL that it objects to any products being
sold by the Beauty/Fitness Concessionaire or the Photo Concessionaire, HAL will
attempt to mediate the dispute failing which HAL shall, in its sole discretion
and notwithstanding Section 2(A) above, determine which concessionaire(s) can
sell which products. Concessionaire acknowledges previously being advised that
both it and the Photo Concessionaire will be selling film and cameras.
Concessionaire further acknowledges previously being advised that both it and
the Beauty/Fitness Concessionaire will be selling the merchandise listed in
Schedule 2B to this Agreement. Concessionaire further acknowledges that HAL
reserves the right to enter into an agreement pursuant to which HAL or another
company will offer passengers the ability to rent tuxedos either prior to or
during voyages; any such agreement shall not extend to the onboard sale of
tuxedos.
C. If Owner or an affiliate shall, during the term of this Agreement,
place any additional vessel that will be operated under the Windstar Cruises
name into passenger service, Concessionaire shall have a right of first refusal
to operate the same concession on that additional vessel as it is operating on
the Vessel. The mechanics of this right of first refusal shall be:
(i) HAL shall notify Concessionaire as to the terms and
conditions under which another qualified concessionaire is prepared to
operate the concession on the additional vessel;
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(ii) Concessionaire shall have fifteen (15) days after receipt
of such notice within which to notify HAL as to whether it is prepared
to offer the concession on the additional vessel on the same terms and
conditions as specified in the notice from HAL;
(iii) if Concessionaire timely notifies HAL that it will offer
the concession on the additional vessel, then Concessionaire and HAL
shall enter into a Concession Agreement embodying the terms and
conditions specified in the original notice from HAL with all other
provisions of the Concession Agreement to be the same as those provided
in this Agreement (other than changes necessary to conform with the new
terms and conditions); and
(iv) if Concessionaire fails to timely notify HAL that it will
offer the concession on the additional vessel, then Concessionaire's
right of first refusal as to that vessel shall terminate.
It is specifically agreed that this right of first refusal does not extend to
the three existing Windstar Cruises vessels (i.e., the Wind Star, Wind Song and
Wind Spirit).
3. Unless hereafter otherwise agreed to by the parties, the Effective Date of
this Agreement shall be the later of May 2, 1998 or the first date on which the
Vessel enters passenger service after being purchased by Owners provided,
however, if Wind Spirit Limited or one of its affiliates fails, for any reason
whatsoever, to purchase the Vessel on or before December 31, 1998, this
Agreement shall terminate on such date and the parties shall have no further
rights or obligations hereunder. Unless terminated earlier in accordance with
the provisions herein, the term of this Agreement shall continue until April 30,
2001, plus or minus up to 30 days at HAL's option. This Agreement shall be
applicable to all voyages ending during the term of Agreement. The termination
of the term of this Agreement shall not diminish the rights or obligations of
the parties in respect of the period prior to termination including, without
limitation, as to any liabilities or obligations arising as a consequence of
events that occurred prior to termination. Except as otherwise provided in this
Agreement (including, without limitation, Sections 65, 66, 67 and 68), HAL shall
give Concessionaire at least 90 days' written notice of the exact termination
date of the term of this Agreement.
Basic Storage and Physical Facilities to be Furnished by HAL
4. A. HAL shall, during the term of this Agreement, furnish Concessionaire with
suitable space on the Vessel for the operation of retail shops (including
storage facilities) as well as all reasonable hot and cold running water,
electricity, air conditioning and other utility services necessarily incident
thereto. HAL 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 HAL shall promptly take such corrective measures as are
feasible to restore or repair such utility services, provided, however, that if
any such variation, interruption or failure makes it impossible for
Concessionaire to maintain operations on board the Vessel for 48
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or more consecutive hours during any voyage, then for purposes of calculating
amounts due HAL pursuant to Section 7 of this Agreement, the Specified Amount
for that voyage shall be $0.00.
B. HAL shall, at its expense, install slat walls in the shops.
Concessionaire has inspected and fully familiarized itself with all of the
existing and planned facilities to be utilized by Concessionaire onboard the
Vessel as well as utility services aboard the Vessel, and Concessionaire
acknowledges that they are or will be adequate, sufficient and fit for their
intended use by Concessionaire (assuming installation by HAL of the slat walls).
Details and Qualities of Operations to be Performed by Concessionaire
5. Concessionaire covenants, warrants and represents that:
A. Experience: Concessionaire is an experienced concessionaire, fully
qualified to supervise and perform the purchase and sale of sundries and
merchandise in the Vessel's retail shops as well as the purchase and sale of
cosmetics, and that it has contracted for or has available and will furnish a
sufficient, capable and trained staff to work onboard the Vessel.
B. Goods to be Sold: Concessionaire will purchase, supply and sell in
the Vessel's shops adequate quantities of high quality internationally
recognized brands of retail merchandise, including but not limited to jewelry,
perfume, souvenirs, apparel, gifts, sundries, cosmetics, tobacco products, toys,
sporting goods, sunglasses, lotions, books, magazines, toiletries and bottled
liquor for consumption on board or take home. HAL may prohibit Concessionaire
from marketing any specific goods aboard the Vessel if in HAL's opinion such
marketing is undesirable or likely to be prejudicial to the business of HAL
either directly or indirectly or HAL otherwise reasonably objects to the type or
quality of the goods.
C. Staff: Concessionaire will engage in its service aboard the Vessel
no less than two, nor more than three, staff, 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 the highest
standards of retail merchandising generally adhered to in the luxury resort
industry. Concessionaire will engage the services of a professional window
dresser to display the merchandise for sale in the Vessel's shops.
Concessionaire will maintain the highest standards when changing showcase and
window displays.
D. Staff Evaluation: Concessionaire will establish, to the reasonable
satisfaction of HAL, a system for evaluating the performance of Concessionaire's
staff so as to assure continuous maintenance of the quality standards required
of them. Such system shall provide for the prompt replacement of staff that do
not adhere to the required quality standards.
E. Services: In addition to providing the Retail Services,
Concessionaire shall make its staff available to work at the Vessel's Reception
Desk providing services customarily
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provided by Reception Desk staff, up to an aggregate amount of 20 hours per
week, with exact times to be specified by the Vessel's Hotel Manager.
Concessionaire will perform no other services and make no other sales on board
the Vessel without the prior written approval of HAL.
F. Hours: Concessionaire will operate the Vessel's shops during
reasonable and customary hours as directed by HAL.
G. Sanitary Conditions: Concessionaire will at all times establish and
maintain on the Vessel high standards of sanitary conditions and cleanliness in
the storerooms, shops and other spaces where it performs its obligations; and
its employees will at all times maintain high standards of personal cleanliness.
Such sanitary and cleanliness standards shall include but not necessarily be
limited to the requirements imposed by the United States Public Health Service.
H. Pricing: Prices charged on goods for resale to passengers in the
Vessel's shops are to be fixed by Concessionaire subject to the rights of HAL to
require changes therein if HAL reasonably determines that the prices are
commercially unacceptable. Concessionaire shall ensure that bar codes (UPC) are
included on all merchandise sold on board the Vessel, that Concessionaire's
employees have the equipment and training to enable them to process sales by
scanning the bar codes, and that Concessionaire's employees do, in fact, process
sales by such method. All pricing shall be in U.S. Dollars.
I. Crew Sales: Unless otherwise hereafter agreed by the parties,
Concessionaire shall not sell any products to officers or other crew members.
J. Sales: Except as hereinafter provided as to late Sales,
Concessionaire will not accept cash, credit cards, traveler's checks, or
personal checks from its customers and all sales must be charged to customers'
shipboard accounts. Concessionaire shall make its best efforts to encourage
passengers to complete all purchases prior to date of disembarkation. For any
sales exceeding $500.00, prior authorization has to be obtained by the
Concessionaire from the Vessel's Xxxxxx; in no event shall Concessionaire
deliver merchandise to the purchaser unless and until such authorization has
been obtained. Concessionaire may only undertake Late Sales on a cash basis and
subject to the issue of numbered receipts, copies of which must be retained for
inspection by HAL.
K. Alcohol/Drugs: Concessionaire will comply, and cause its staff to
comply, with the terms of any lawful agreement and/or policy now existing, or
hereafter entered into or adopted by HAL, with respect to the carrying on board
the Vessel and/or use on board the Vessel of alcoholic beverages, any narcotics
or other controlled substances that HAL may deem necessary or desirable in view
of health and safety considerations and/or 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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L. Environmental Matters: Concessionaire acknowledges that HAL is, and
will be, implementing programs designed to minimize the waste products generated
by the Vessel and further to control the types of waste products in order to
reduce disposal costs and address environmental concerns. Concessionaire shall
comply with such reasonable rules as HAL may, from time to time, establish with
respect to such matters. In no event shall Concessionaire place any waste
materials or other substances into the Vessel's waste disposal or garbage
systems that are considered "hazardous substances," "hazardous wastes," "toxic
substances" or "toxic wastes" under applicable law or the generation or disposal
of which in the normal course of garbage handling by the Vessel could result in
the violation of any law, rule or regulation promulgated by any governmental
authority having jurisdiction over the Vessel.
M. Improper Conduct: In its performance under this Agreement, neither
Concessionaire nor any of its employees or representatives shall engage in any
conduct that would be construed under the laws of the United States of America
as constituting discrimination or harassment on the basis of race, sex,
religion, age, national origin, creed, color, marital status or sexual
orientation.
N. Communications: Concessionaire will work with HAL to develop and
utilize an "e-mail" system that will improve communications between
Concessionaire, HAL and the Vessel.
Payments
6. For purposes of this Agreement, the following definitions and interpretative
guidelines apply:
A. The "Specified Amount" shall be as follows:
Non-Duty Free Caribbean
Period Voyages Voyages Other Voyages
------ ------- ------- -------------
Effective Date-4/30/99 [* ]
5/1/99 - 4/30/00 [* ]
5/1/00 - 4/30/01 [* ]
For purposes of calculating rental payments for a particular voyage, the
Specified Amount to be used shall be the amount in effect on the last day of the
voyage.
B. All persons occupying passengers' cabins on board the Vessel, as
certified by the Xxxxxx onboard the Vessel, shall be included for purposes of
computing passenger cruise days.
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*This confidential portion has been omitted and filed separately with
the Commission.
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C. Rental fees calculated on a percentage basis (hereinafter referred
to as the "Revenue Amount") in respect of any calculation period (voyage,
Quarterly Period or Annual Period, as the case may be) shall equal the sum of:
[*
].
D. Credit card service charges for on-board sales shall be for the
account of HAL. concessionaire shall not accept credit cards for Late Sales.
7. A. Concessionaire will pay HAL in U.S. Dollars a rental fee for each
Annual period equal to the greater of: (i) the product of the Specified Amount
times the Annual PCDs for the Annual Period (to be computed separately for
Non-Duty Free Voyages, Caribbean Voyages and Other Voyages and the amounts so
computed added together); or (ii) the Revenue Amount for the Annual Period. If
the termination date of the term of this Agreement is other than the last day of
an Annual Period, the Annual Period shall be deemed to end as of the termination
date and all calculations shall be made on the basis of the shortened Annual
Period.
B. The Xxxxxx on the Vessel shall furnish the Concessionaire's on-board
manager, in writing, a breakdown of Concessionaire's revenues by category on a
daily basis, and at the end of each voyage, with the total passenger cruise days
(excluding day of disembarkation) for the voyage. At the end of each voyage of
the Vessel, the Concessionaire's on-board manager shall furnish the Xxxxxx, in
writing, with:
(i) the total revenues from all sales for the voyage,
separately stating the total for Late Sales; and
(ii) a breakdown of revenues by category (i.e., revenues that
are and are not included in Retail Services revenues).
Based on the information furnished to him and on the Vessel's records, the
Xxxxxx shall then calculate the Revenue Amount for that voyage.
C. HAL under its "no cash" policy shall collect and hold all revenues
generated by Concessionaire on board the Vessel other than revenues generated by
Concessionaire from Late Sales. At the end of each voyage, HAL shall retain an
amount equal to:
(i) the Revenue Amount for that voyage (determined, for these
purposes, by including revenues from Late Sales); plus
(ii) messing charges and other unpaid amounts due to HAL for
that voyage.
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*This confidential portion has been omitted and filed separately with
the Commission.
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The balance of monies collected by HAL as to that voyage shall be paid to
Concessionaire by check on the date on which that voyage ends, or at such other
time and in such other manner as may be agreed between the parties.
8. Concessionaire shall pay HAL a per xxxx xxxxxxx charge of USD [* ] per
employee per day for their personnel on the Vessel until November 30, 1998. HAL
may, at its option, annually increase the messing charges as of December 1 of
each year (beginning with December 1, 1998), but no such annual increase shall
result in messing charges higher than those generally being charged other
concessionaires on board the Vessel. None of the Concessionaire's employees
shall order from the passenger menus. Concessionaire shall also be responsible
for amounts due HAL under Section 39 with respect to radio and telephone
communications.
9. A. At the end of each Quarterly Period beginning with the Quarterly Period
ending July 31, 1998, HAL shall determine whether the monies retained by it
pursuant to Section 7(C) above for said Quarterly Period are sufficient to
provide HAL with:
(i) the rental due it pursuant to Section 7(A) (determined for
these purposes as if the Annual period ended on the last day of the
Quarterly Period);
(ii) messing charges for the Quarterly Period;
(iii) amounts, if any, due HAL for that Quarterly Period
pursuant to Section 10; plus
(iv) any other amounts due HAL under this Agreement for that
Quarterly Period.
If there shall be a deficiency, such shall, in the absence of manifest error, be
paid by Concessionaire within ten (10) days after HAL shall notify
Concessionaire of the amount thereof and the calculations relevant thereto. If
HAL shall have retained monies in excess of what it is entitled to, the excess
shall be paid to Concessionaire within ten (10) days after HAL shall have
notified Concessionaire of the amount thereof. Such notice shall be given within
thirty (30) days after the end of the Quarterly Period.
B. At the end of each Annual Period, HAL shall determine whether the
monies retained by it pursuant to Section 7(C) above for said Annual period plus
any amounts paid to it pursuant to Section 9(A) above are sufficient to provide
HAL with:
(i) the rental due it pursuant to Section 7(A) for that Annual
Period;
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*This confidential portion has been omitted and filed separately with
the Commission.
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(ii) messing charges for the Annual Period;
(iii) amounts, if any, due HAL for that Annual Period pursuant
to Section 10; plus
(iv) any other amounts due HAL under this Agreement for the
Annual Period.
If there shall be a deficiency, such shall, in the absence of manifest error, be
paid by Concessionaire within ten (10) days after HAL shall notify
Concessionaire of the amount thereof and the calculations relevant thereto. If
there shall have been an excess payment, such shall be paid by HAL to
Concessionaire within ten (10) days after HAL shall notify Concessionaire of the
amount thereof and the calculations relevant thereto. Such notice shall be given
within thirty (30) days after the end of the Annual Period.
10. The parties agree that as to each aspect of the Retail Services,
Concessionaire is expected to maintain a rating at or above what is considered
an acceptable rating under the COB System; i.e., [* ] as to Shop Staff and [* ]
as to Shop Selection. If there shall occur two or more consecutive voyages of a
Vessel (determined without regard to Excluded Voyages, as that term is defined
below) as to which Concessionaire is unable to maintain ratings that are equal
to or greater than the applicable acceptable rating specified above for each
aspect of the Retail Services, then as to each such consecutive deficient voyage
of the Vessel (other than the first one and not including Excluded Voyages),
Concessionaire shall pay HAL the sum of [* ] per day of the voyage, excluding
day of disembarkation, but in no event more than [* ] as to any voyage. For
purposes of this Agreement, "Excluded Voyages" are all voyages as to which a
rating for any aspect of the Retail Services is less than the applicable
acceptable rating specified above and the Vessel's Overall Experience Rating is
less than [* ]. HAL will provide Concessionaire's on-board manager with each
sailing's Retail Services ratings and Overall Experience Rating promptly
following the conclusion of the voyage. Amounts due under this Section shall be
collected by HAL pursuant to Sections 7 and 9 above. An example of the foregoing
is as follows:
Shop Staff Shop Selection Overall
Voyage Rating Rating Experience Rating
------ ------ ------ -----------------
1 [* ]
2 [* ]
3 [* ]
4 [* ]
5 [* ]
6 [* ]
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*This confidential portion has been omitted and filed separately with
the Commission.
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Voyage 1: Both Retail Services ratings are above the applicable acceptable
rating - no payment.
Voyage 2: The Shop Staff rating is below [* ], not an Excluded Voyage because
Overall Experience Rating is at or above [* ] - no payment because of Voyage 1
rating.
Voyage 3: Excluded Voyage because the Shop Staff rating was below [* ] and
Overall Experience Rating below [* ] - no payment.
Voyage 4: The Shop Selection rating was below [* ], not an Excluded Voyage
because Overall Experience Rating is at or above [* ] - payment is due since
there have been two or more consecutive voyages where a Retail Services rating
was below the applicable acceptable rating (for these purposes, Voyage 3 is
ignored).
Voyage 5: Both Retail Services ratings at or above the applicable acceptable
ratings; not an Excluded Voyage even though Overall Experience Rating is below
[* ] because both Retail Services ratings at or above applicable acceptable
ratings - no payment.
Voyage 6: The Shop Staff rating below [* ], not an Excluded Voyage because
Overall Experience Rating is at or above [* ] - no payment because of Voyage 5
rating.
Notwithstanding the above provisions, Concessionaire shall have the right to
request HAL review as to any voyage in which Concessionaire was unable to
maintain the required ratings on the basis of mitigating circumstances. If HAL
agrees there were mitigating circumstances, then such voyage will be considered
an Excluded Voyage for all purposes of this Section; otherwise, the above
provisions of this Section shall apply. The decision of HAL as to whether there
were mitigating circumstances shall be final and binding upon the parties.
Trademarks
11. HAL hereby grants Concessionaire the right to imprint the Windstar Cruises
logo and, in HAL's discretion, other Windstar Cruises trademarks (the Windstar
Cruises logo and other trademarks are herein referred to as the "Trademarks") on
merchandise sold by Concessionaire on board the Vessel.
12. A. All right, title and interest in and to the Trademarks and the goodwill
associated therewith is owned by HAL and/or one of its Affiliates.
Concessionaire recognizes such ownership in HAL and its Affiliates and agrees
never to contest their title thereto or the validity of the trademark
applications or registrations therefore filed or obtained by HAL or its
Affiliates.
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*This confidential portion has been omitted and filed separately with
the Commission.
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B. Concessionaire agrees that HAL and/or its Affiliates are and will be
the owner of all goodwill that may in the future attach to the Trademarks as a
result of Concessionaire's use of the Trademarks.
C. Concessionaire acknowledges that by entering into this Agreement,
Concessionaire acquires no rights to any trademarks pertaining to any of HAL's
products or services which rights remain solely in HAL and/or its Affiliates,
except for such rights specifically granted in this Agreement.
D. Concessionaire shall not, without HAL's prior written consent, file
any applications or obtain any registrations of the Trademarks anywhere in the
world. If requested by HAL, Concessionaire agrees, at the expense of HAL, to
assist and join in any application HAL and/or its Affiliates may make to
register the Trademarks including the execution of any documents as may be
necessary to implement such application.
E. HAL shall have the right to determine the existence of infringement
of the Trademarks, and in the event of infringement by a third party, HAL and
its Affiliates shall have the exclusive right, at their discretion, to file and
maintain a suit for infringement.
F. Concessionaire agrees to make only proper usage of the Trademarks
and specifically to include the appropriate indication (TM) or (R) adjacent to
the Trademarks at all reasonable times.
G. Concessionaire agrees upon termination of the term of this Agreement
to cease all use of the Trademarks or any confusingly similar trademark or trade
name. After termination of the term of this Agreement, Concessionaire shall not
adopt for use any trademark or trade name confusingly similar to the Trademarks.
H. If HAL, on less than 90 days advance notice, shall terminate this
Agreement for any reason whatsoever before the expiration date specified in
Section 3, HAL shall purchase from Concessionaire all of Concessionaire's
remaining inventory which includes the Trademarks (other than inventory first
ordered after HAL's notice of termination), at Concessionaire's cost.
13. Concessionaire shall provide HAL with artwork, or photostats of artwork,
indicating colors and process of manufacture, of all newly-designed and not
previously approved uses of the Trademarks for HAL's approval prior to their
use. HAL shall have the right, at its discretion, to forbid the use thereof.
Samples of literature, advertising, catalogs and packaging relating to the new
uses will be provided on a timely basis by Concessionaire to HAL following
printing or production. When using the Trademarks, Concessionaire agrees to
undertake to comply with the requirements of all laws pertaining to trademarks,
including marking requirements. Before using any Trademarks, Concessionaire
shall inform HAL of the nature and quality of the products or services to which
the use relates and shall thereafter promptly furnish samples thereof to HAL.
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Concessionaire's Employees
14. 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. Concessionaire shall xxxxxxx XXX with copies of the contract forms
used for engaging the services of Concessionaire employees.
15. Concessionaire is solely responsible for satisfying all maintenance and cure
obligations, and for the payment of any medical and subsistence expenses or
damages, to Concessionaire's employees arising from accident, injury or illness.
Except as provided in Section 28, Concessionaire shall indemnify and defend HAL
and the Owners and hold them harmless for and from any such obligations,
expenses or damages they may incur together with all expenses incident thereto
including, without limitation, legal fees.
16. Concessionaire's employees shall not have maritime liens on the Vessel for
any payments or amounts due to them in connection with their services for
Concessionaire. Concessionaire shall indemnify and defend HAL and the Owners and
hold them harmless for and from any such lien discharged by them together with
all expenses incident thereto including, without limitation, legal fees.
17. Concessionaire's employees are not entitled to assert claims against HAL or
the Owners under Xxxxx Act, 46 U.S.C. Section 688 or any successor statute.
Concessionaire shall indemnify and defend HAL and the Owners and hold them
harmless for and from and such Xxxxx Act damages incurred by them together with
all expenses incident thereto including, without limitation, legal fees.
18. In each of its contracts with its employees employed onboard the Vessel,
Concessionaire will insert the following notice:
"Your employer is a concessionaire of Holland America Line-Westours
Inc. ("HALW") d/b/a Windstar Cruises, agent of the owner or charterer
of the Windstar Cruises Vessel to which you will be assigned. 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 an
employee in the Vessel's Shops. However, your employer is solely
responsible for you, and neither the Vessel nor HALW nor the Vessel's
owner or charterer are obligated to you for any payments of any nature
whatsoever including, without limitation, maintenance and cure or other
amounts to which you might otherwise be entitled as a result of any
injury, illness or accident. In view of the laws, regulations and
policies of governmental jurisdictions and/or the safety of the Vessel,
its passengers and crewmembers, HALW and/or its Affiliates may deem it
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necessary or desirable to enter into agreements or adopt policies with
respect to the carrying on board the Vessel and/or use on board the
Vessel of narcotics, other controlled substances and/or alcoholic
beverages including, without limitation, random drug and/or alcohol
testing policies. You are required to comply with the terms of any such
agreement and/or policy now existing, or hereafter entered into or
adopted by HALW or its Affiliates. Without limiting the generality of
the foregoing, your entering into of this contract constitutes your
consent to submit to drug and/or alcohol testing if and when required
by HALW or its representatives."
19. A. Concessionaire irrevocably appoints the Master of the 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 Hotel Manager and/or Xxxxxx.
B. Only for purposes of health, safety and discipline and to facilitate
compliance with the immigration laws applicable in the 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
14-18. HAL agrees to make all arrangements for the Concessionaire's employees to
sign on and off ship's articles; provided that all disbursements in connection
therewith shall be for the Concessionaire's account.
20. 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
employees of the Vessel's Shops; but such reference 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 14-18.
21. Concessionaire will employ on board the Vessel only persons who are of good
moral character and who are in 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. HAL agrees to arrange for all on board immigration formalities
and to accept responsibility for safekeeping of all passports or other
immigration documents turned over to it by Concessionaire's employees.
22. Concessionaire will at its own expense arrange for each of its employees to
receive a complete medical examination immediately prior to serving aboard the
Vessel and periodically thereafter. The examination must be performed by the
Vessel's physician or another physician acceptable to HAL, must include such
tests and procedures as may be required by HAL (including, without limitation, a
chest x-ray), and must show the employee to be in good health, fit for
performance of shipboard duties and otherwise to have satisfied such health
criteria as may
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be established by HAL. If performed other than by the Vessel's doctor, the
report of such examination shall be forwarded to the Vessel's doctor. If the
physical examination is conducted by the Vessel's doctor on board the Vessel,
Concessionaire shall pay the Vessel's Xxxxxx the cost thereof prior to
conclusion of the voyage during which the examination occurs.
23. 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. Uniform design is subject to prior HAL approval, which approval shall
not be unreasonably withheld.
24. Concessionaire will designate for the Vessel an on-board 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 19. The on-board manager will be entitled to the same privileges as a
hotel officer of the Vessel.
25. From time to time, when deemed necessary by Concessionaire or reasonably
requested by HAL, Concessionaire will furnish a reasonable number of executive
or supervisory employees to travel on the Vessel for purposes of inspecting
Concessionaire's operations. Suitable accommodations for such executive or
supervisory employees of Concessionaire will be provided by HAL if available,
without charge to Concessionaire; except that Concessionaire will pay the charge
described in Section 8 for such persons at the same rate Concessionaire is then
being charged for its on-board staff and will also pay port charges and taxes
for such persons based on amounts stated in HAL's brochures. If an employee is
on the Vessel for less than the entire voyage, the port charges and taxes amount
will be prorated based on the number of ports during which the employee was on
the Vessel relative to the total number of ports scheduled for the voyage
(including, for these purposes, the port of embarkation and disembarkation).
26. In his discretion, the Master may require any employee of Concessionaire to
remove himself and his belongings from the Vessel at any time when the Vessel is
in port, and all repatriation expenses, if any, will be for Concessionaire's
account; provided that if HAL determines that the Master acted reasonably, HAL
will reimburse Concessionaire for any such repatriation expenses.
27. HAL will furnish without charge applicable accommodations of officer or crew
grade including clean bed linen and towels at normal intervals, for the number
of Concessionaire's personnel as described in Section 5(C), as well as Sections
24 and 25.
28. At Concessionaire's request, and except as otherwise provided in Section 22,
HAL will furnish for Concessionaire's employees during the period they are
onboard the Vessel, without charge, regular and reasonable on board medical care
by the Vessel's doctor, as well as medicines, for accident, illness and injury
suffered by Concessionaire's personnel while onboard the Vessel. The obligations
of HAL under this Section only extend to the period while the employees are
onboard the Vessel. HAL's obligations under this Section shall end as soon as an
employee departs the Vessel (including a departure required by HAL or the
Vessel's physician).
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In addition, HAL's obligations under this Section are not intended to reduce
Concessionaire's obligations under Sections 15-17 of this Agreement.
29. Concessionaire's personnel are not permitted to:
(a) carry or consume aboard the Vessel any 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) consume alcoholic beverages aboard the 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) board the Vessel in an intoxicated state without the consent of the
Master;
(d) engage in gambling aboard the Vessel in the Vessel's casino or
amongst themselves;
(e) sell any merchandise to passengers (except in the course of their
duties), or to purchase merchandise from the Vessel's shops for resale; or
(f) bring any firearm or other weapon onto the Vessel.
Concessionaire's Other General Obligations
30. Subject to the approval of the Master, Concessionaire will safely stow for
sea and will maintain such safe stowage for sea of all of its equipment,
supplies and other property, as well as all property belonging to HAL or the
Owners which Concessionaire uses to perform its obligations hereunder. Upon
expiration or termination of the term of this Agreement for any reason and
provided that all sums due from Concessionaire to HAL have been paid, placed in
escrow or bonded by Concessionaire: (i) HAL shall provide Concessionaire with a
properly executed carrier's release, releasing all Concessionaire's goods,
equipment and wares for off-loading at the regularly scheduled port or ports
selected by Concessionaire; and (ii) HAL covenants that 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.
31. Concessionaire will create no unseaworthy conditions in the performance of
its obligations hereunder.
32. Concessionaire will care for the property of the Vessel utilized by
Concessionaire in performance of its obligations hereunder in a careful,
efficient and businesslike manner. Concessionaire will not contract directly
with other concessionaires for bar, catering or other services.
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33. 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.
34. Concessionaire may request structural, electrical, plumbing or other utility
changes on the Vessel but such changes will be made by HAL only at its
discretion and for the account of Concessionaire.
35. A. Concessionaire will, at its own expense, repair or replace as
appropriate, all of HAL's and any Owner's property which is damaged by
Concessionaire's employees, over and above normal wear and tear.
B. Following receipt of fully completed flooring, lighting, wall
covering and display equipment. Concessionaire shall be responsible for
installation and maintenance at its own expense of tasteful interior fittings
and fixtures in all areas used by passengers in availing themselves of goods
marketed by Concessionaire aboard the Vessel, but all plans for altering the
interior fittings shall be submitted to HAL for its approval prior to
implementation. Such approval shall not be unreasonably withheld or delayed. The
obligations of Concessionaire under this Section shall not extend to structural
or alterations to the Vessel other than those required as a result of the acts
or omissions of Concessionaire.
Other HAL Obligations
36. HAL will permit access to those portions of the Vessel and to the Vessel's
equipment which may reasonably be required by Concessionaire to perform its
obligations hereunder. HAL agrees to cooperate with Concessionaire for the
purpose of promoting Concessionaire's services aboard the Vessel.
37. HAL shall finish Concessionaire with one or two safe deposit boxes in the
office of the Xxxxxx on the Vessel.
38. HAL shall coordinate stevedoring services for Concessionaire with such
services required by HAL and other concessionaires, but Concessionaire shall be
responsible for its own stevedoring costs, save to the extent that HAL is able
to provide loading and unloading facilities in the normal course of its
operations.
39. HAL shall furnish Concessionaire with reasonable radio and telephone
communications at cost.
40. HAL will furnish at its own expense on board laundry services (but not dry
cleaning) for Concessionaire's employees. Concessionaire assumes all risk of
loss or damages as to any laundry and dry cleaning services.
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Complaints
41. All complaints by passengers, officers, staff and crew arising from
Concessionaire's sales and service will be referred by HAL to Concessionaire's
on-board manager on the Vessel involved. If any such complaint cannot be
amicably resolved within 21 days, Concessionaire agrees to propose to the
complainant that the matter be referred to arbitration, and if the complainant
consents to the proposal, Concessionaire will submit the complaint to
arbitration under the Consumer Arbitration Rules of the American Arbitration
Association, with the arbitration hearings and other proceedings to be held in
Miami, Tampa, Los Angeles, San Francisco, Seattle or New York, at the
complainant's option.
Finance
42. A. HAL agrees at its own expense to provide and maintain marine hull
and machinery and war risk hull and machinery insurance covering the Vessel with
first class marine underwriters, and this insurance shall be endorsed to
designate HAL as the loss payee.
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 $5,000,000) in the insurance policy, Concessionaire agrees to reimburse
HAL, to the extent attributable to Concessionaire's negligence, for the amount
of the deductible applicable in such loss or damage.
C. HAL and the Owners shall have no further right of recovery from
Concessionaire for loss or damage covered by such insurance, or on account of
payments made to discharge claims against or liabilities of the Vessel, HAL or
the Owners covered by such insurance.
43. A. HAL and the Owners shall have no obligation to provide protection and
indemnity insurance coverage for Concessionaire. Concessionaire agrees to obtain
and maintain at its own expense insurance to defend and cover its liability, if
any, and HAL's and the Owner's liabilities, if any, for:
(i) maintenance and cure as well as personal injury or death
claims asserted by Concessionaire's employees or their estates; and
(ii) claims of passengers or other third parties arising out
of or in connection with Concessionaire's operations or the actions of
Concessionaire's employees except that as to claims of passenger or
other third parties, such insurance need not cover the liabilities of
HAL or Owners to the extent attributable to the negligence or willful
fault of HAL or Owners.
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Such insurance shall be in form, in amounts, with carriers and on terms
satisfactory to HAL's Risk Management Department, shall name HAL as an
additional insured and shall waive subrogation against HAL, the Vessel and the
Owners. Concessionaire shall provide HAL's Risk Management Department with a
Certificate of Insurance evidencing such coverage.
B. Concessionaire shall be solely responsible for the costs and
expenses of repatriation, loss of personal effects and other costs to
Concessionaire's employees (including, without limitation, burial costs) in the
event of death, casualty or termination of a voyage, and shall indemnify, defend
and hold harmless HAL and the Owners from and against any and all such costs and
expenses.
44. Concessionaire agrees to obtain and maintain, at its own expense, insurance
on the full value of all of its property aboard the Vessel with deductibles for
its own account. Concessionaire shall not have any right of recovery against HAL
or the Owners on account of loss or any damage to its property whether or not
covered by such insurance. Said insurance shall waive subrogation against HAL,
the Vessel and the Owners.
Liens
45. Neither Concessionaire nor any of its employees, agents or representatives
shall have any right, power, or authority to create, incur or permit to be
imposed upon the Vessel any lien whatsoever. Concessionaire agrees to set forth
in all of its purchase orders a notice with this information.
46. Except as otherwise provided in Section 30 of this Agreement, HAL shall have
a lien upon all Concessionaire's property aboard the Vessel for all sums due
hereunder, which lien shall continue after delivery of said property ashore
wherever found.
Voyage Scheduling
47. Voyages shall be scheduled at the sole discretion of HAL who will promptly
furnish Concessionaire with an initial voyage and drydock/wetdock schedule as
well as changes therein. Concessionaire shall have claim against HAL for loss or
damage arising from delay, lay up or schedule change of the Vessel.
Promotional Literature
48. Concessionaire shall not circulate any photographs for promotional purposes
without prior written consent of the persons or owners of the property which are
the subject of the photographs.
49. Concessionaire shall not issue any publicity or press releases identifying
HAL or the Vessel without the prior written consent of HAL.
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Inventory
50. At every drydocking of the Vessel, Concessionaire and HAL shall inventory
all of HAL's property which Concessionaire is using in the performance of its
obligations on such Vessel.
Change of Status
51. Upon 90 days written notice to Concessionaire, Owners may sell or charter
the Vessel, and upon such sale or charter, the term of this Agreement shall
terminate, provided that if the sale or charter of the Vessel is to one of HAL's
Affiliates, the term of this Agreement shall continue in full force and effect
between Concessionaire and such HAL Affiliate and further provided, however, as
to charters to non-Affiliates for a duration that will not extend beyond the
term of this Agreement, Concessionaire shall have the right to cause the term of
this Agreement to merely be suspended for the duration of the charter, rather
than terminated.
52. In its sole discretion, Owners may, at any time: (i) change registry of
Vessel; (ii) transfer ownership of the Vessel to any Affiliate of HAL; or (iii)
bareboat charter the Vessel to any Affiliate of HAL. Any such occurrence shall
not terminate the term of this Agreement or otherwise modify the rights and
obligations of the parties under this Agreement.
53. In its sole discretion, HAL may change its own name or the name of the
Vessel at any time. If such change shall occur with less than 90 days advance
notice, HAL shall purchase from Concessionaire all of Concessionaire's remaining
inventory which includes the old name (other than inventory first ordered after
HAL's notice of termination), at Concessionaire's cost.
54. Without the prior written consent of HAL, Concessionaire may not assign or
delegate any of its right or obligations under this Agreement, whether by
operation of law or otherwise.
Force Majeure
55. Except as otherwise provided herein, neither party shall be liable to the
other party for delay, destruction, loss or damage occasioned by an Act of God,
Act of War, public enemies, government restrictions, perils of the sea,
quarantine, fire, civil commotions, robbers, riots, thieves, barratry,
collision, explosions, torts of third parties, or any cause whatsoever beyond
the relevant party's control, whether of the kind hereinabove enumerated or not.
General Average and Salvage
56. General Average shall be adjusted at New York according to York-Antwerp
Rules 1974, as amended, 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
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Adjuster to be selected and appointed by HAL and said Adjuster shall attend to
the settlement and collection of the average, subject to the customary charges.
57. 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, HAL and the
Owners are not responsible, by statute or contract or otherwise, Concessionaire
shall contribute with HAL in general average to the payment of any sacrifices,
losses or expenses of a general average nature that may be made or incurred and
shall pay salvage in respect to Concessionaire's property.
58. Concessionaire shall not be entitled to participate in earned salvage.
Both to Blame Collision Clause
59. If the Vessel comes into collision with another ship as a result of the
negligence of the other ship, and any act, neglect or default for which, or for
the consequences of which, HAL and the Owners are not responsible to
Concessionaire, by Statute or contract or otherwise, Concessionaire shall
indemnify and defend HAL and the Owners and hold them harmless from and 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 HAL or the Owners. 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.
Records and Inspections
60. HAL or its duly authorized representative shall be entitled to inspect
Concessionaire's records of sales onboard the Vessel and other relevant records
in order to verify the adherence by Concessionaire to the quality standards
required by Section 5 and to safeguard HAL's rights hereunder, at any reasonable
time or times upon written notice to Concessionaire. Concessionaire or its duly
authorized representative shall be entitled to inspect the Vessel's log books
and, at its own expense, to have an audit performed with respect to passenger
days on the Vessel, in order to verify amounts due under Section 7.
61. A. HAL or its duly authorized representative shall be entitled to
inspect Concessionaire's inventories and equipment on the Vessel at any
reasonable time or times upon notice to Concessionaire's on-board manager in
order to verify the adherence by Concessionaire to its obligations under this
Agreement.
B. In addition, HAL or its duly authorized representative shall be
entitled to inspect Concessionaire's operations on the Vessel at any reasonable
time or times without notice and
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without advance identification of the inspector in order to verify the adherence
by Concessionaire to its obligations under this Agreement.
Indemnity
62. A. Concessionaire shall indemnify, defend and hold harmless HAL and the
owners from any claims, suits, fines, damages, losses and liens of whatsoever
nature imposed upon the Vessel or asserted against or incurred by HAL or the
Owners arising out of or in connection with the negligence or willful fault of
Concessionaire or Concessionaire's employees, including, without limitation,
legal fees incurred in relation to such claims, suits, fines and liens. If a
suit or proceeding should be begun against the Vessel, or if the Vessel is
otherwise levied against or taken into custody by virtue of legal proceedings in
any court because of such lien or claim, Concessionaire shall within 24 hours
thereafter cause such Vessel to be released on bond or otherwise. In HAL's or an
Owner's discretion, HAL or the Owner may act to secure release of such Vessel on
bond or otherwise and Concessionaire shall reimburse and indemnify HAL and the
Owner for the cost of obtaining the Vessel's release, including, without
limitation, bond premiums as well as HAL's and the Owner's legal fees in
arranging such release.
B. HAL shall indemnify, defend and hold harmless Concessionaire from
any claims, suits, fines, damages, losses and liens of whatsoever nature
asserted against or incurred by Concessionaire arising out of or in connection
with the negligence or willful fault of HAL or HAL's employees, and which are
not directly attributable to or caused by, Concessionaire itself. Such indemnity
shall include, without limitation, legal fees incurred in relation to such
claims, suits and fines. Nothing contained in this Section 62(B) shall relieve
Concessionaire of its liabilities and obligations under Sections 5(B), 14(A), 15
- 19, 21, 22, 29, 42, 43 and 44.
Termination by Withdrawal, Requisition or Labor Dispute
63. Upon 90 days written notice to Concessionaire, HAL may in its sole
discretion withdraw the Vessel from the cruise trades covered by this Agreement
and upon such withdrawal, the term of this Agreement shall terminate 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 the term of this
Agreement to merely be suspended for the duration of the withdrawal, rather than
terminated.
64. Upon requisition for title or use of the Vessel by any government, including
but not limited to the United States of America, the term of this Agreement
shall terminate immediately as to such Vessel provided, however, as to
requisitions for a duration that will not extend beyond the term of this
Agreement, Concessionaire shall have the right to cause the term of this
Agreement to merely be suspended as to such Vessel for the duration of the
requisition, rather than terminated.
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65. If the 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 HAL, Concessionaire will close down its operations, remove
its personnel and property from the Vessel, and take all similar action
necessary to effect removal of the picket line. If the strike, lockout or labor
dispute persists for more than 3 days, then HAL may thereafter give
Concessionaire 4 days written notice of an intention to terminate the term of
this Agreement and if the strike, lockout, or labor dispute is not resolved
within that 4 days period, the term of this Agreement shall so terminate;
provided that if the strike, lockout or labor dispute is resolved within that 4
days period, the term of this Agreement shall not be terminated.
Default/Failure to Maintain COB System Rating
66. Each of the following events shall constitute an Event of Default under this
Agreement:
(a) A party shall fail to perform or comply with any one or more of its
covenants, duties or obligations hereunder or shall violate any one or more of
the prohibitions imposed upon it under this Agreement or one or more of the
warranties shall be breached, and the failure, violation or breach shall
continue, after written or telegraphic notice of the failure, violation or
breach is given by the other party for an additional fourteen (14) days or, in
exigent circumstances, a reasonable period of time, whichever is shorter.
(b) Any statement, representation or warranty made by a party in this
Agreement or in any document furnished by a party in connection herewith or
hereafter pursuant hereto, shall prove to have been knowingly or recklessly
untrue or incorrect in any material respect when made.
(c) A 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) be unable, or admit in writing its inability, to pay its
debts as they mature;
(iii) make a general assignment for the benefit of creditors;
(iv) be adjudicated bankrupt or insolvent;
(v) be dissolved;
(vi) file a petition in bankruptcy or for re-organization or
for an agreement pursuant to a bankruptcy act or any insolvency law providing
for the relief of debtors, now or hereafter in effect;
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(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 proceeding; or
(viii) take a corporate action for the purpose of effecting
any of the foregoing.
(d) Without the application, approval or consent of the other party, an
order, judgment or decree shall be entered against a party by any court of
competent jurisdiction, approving a petition seeking reorganization of the party
or appointing a receiver, trustee or liquidator of it or of all or a substantial
part of the party's assets.
67. If an Event of Default shall occur as to a party, then without prejudice to
any other rights and claims for damages suffered or to be suffered by reason of
such Event of Default which the other party may have in law, equity or admiralty
or under this Agreement, that other party may:
(a) terminate the term of this Agreement;
(b) exercise any other right or remedy which may be available to it
under applicable law; and/or
(c) proceed by appropriate court action to enforce the terms hereof or
to recover damages for the breach hereof.
68. If under the COB System, Concessionaire is unable to maintain an average
Retail Services ratings that are equal to or better than [* ] on the Vessel
(with averages to be determined on a calendar month basis giving consideration
to all voyages ending during the month other than Excluded Voyages), HAL may
notify Concessionaire of the deficiency (a "Deficiency Notice"). Upon receipt of
a Deficiency Notice, Concessionaire shall promptly implement such changes as may
be necessary to improve the deficient ratings. If the Retail Services ratings
are not improved to an average equal to or greater than [* ] within 90 days
after the Deficiency Notice from HAL or, having been improved, are not
thereafter maintained at or above an average equal to or greater than [* ], HAL
may terminate the term of this Agreement by notice to Concessionaire. The
determination of whether Concessionaire has improved the ratings sufficiently to
preclude HAL from exercising this right of termination shall be made with
reference to the average Retail Shop Staff ratings for all voyages of the Vessel
(other than Excluded Voyages) ending during any calender month selected by HAL
so long as the month selected is not earlier than the month during which the
90-day period referred to above in this Section 68 ends. In the event HAL
exercises this right of termination, the term of this Agreement shall, on the
termination date specified in such notice, terminate.
--------
*This confidential portion has been omitted and filed separately with
the Commission.
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69. No remedy or power referred to or given to a 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 my be deemed expedient. No express or implied waiver of any ground for
exercising rights in connection with this Agreement shall be, or be construed to
be, a waiver of any further or subsequent ground. No delay or omission in the
exercise of any right or power or in the pursuit of any remedy shall impair any
such right or be construed to be a waiver of any further or subsequent ground or
of any default or as in acquiescence thereto.
70. Any termination of the term of this Agreement shall be without prejudice to
the rights and obligations of the parties 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 Section 3 shall
apply in respect of any early termination.
HAL May Cure; Expenses
71. Except as otherwise provided in Section 62, if Concessionaire shall fail to
perform or observe any of the terms of this Agreement, HAL or Owners may, in its
discretion and upon seven (7) day's notice to Concessionaire, do all acts and
make all expenditures necessary to remedy such failure, and Concessionaire shall
promptly reimburse HAL and the Owner for any and all expenditures so incurred;
provided that HAL shall be under no obligation to do any act or make any such
expenditure nor shall the doing or making thereof relieve Concessionaire of any
such failure and default in that respect.
Arbitration and Choice-of-Law
72. Any and all differences and disputes of whatsoever nature arising out of
this Agreement shall be arbitrated in Seattle, Washington before a single
arbitrator selected by the parties or, if the parties are unable to agree on an
arbitrator, by a court of competent jurisdiction. Without limiting the right of
either party to obtain injunctive relief when necessary or appropriate to
protect its rights under this Agreement, arbitration shall be the exclusive
method of resolving differences and disputes between the parties. The decision
of the arbitrator shall be final and binding and any relief deemed just and
equitable may be granted, including but not limited to attorneys fees and
specific performance. Judgement may be entered upon any award in any court of
competent jurisdiction.
73. This Agreement shall be governed by the Federal statutory and general
maritime law of the United States, as well as, where appropriate, the laws of
the State of Washington; excluding, however, all Federal and Washington statutes
applying to common carriage of passengers and cargo, such as but not limited to
the Xxxxxx Act and Carriage of Goods by Sea Act. In all instances the Federal
law shall take precedence over Washington law. The parties expressly
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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 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 Vessel's
registry.
Amendments and Miscellaneous
74. This written Agreement constitutes the entire agreement between the parties;
all prior negotiations, agreements and communications are merged herein and
superseded hereby; and there are not 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 not be waived,
altered, modified, amended, or supplemented, in any manner whatsoever, except by
a written document duly executed by both parties hereto.
75. In the event HAL shall at any time act as an agent of Concessionaire, HAL
shall have no liability in respect of such acts or omissions nor shall there
arise from such acts by HAL any express or implied warranties of any nature
whatsoever.
76. 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.
77. Nothing in this Agreement shall operate to deprive HAL, in whole or in part,
of any right to limit liability on the theory of personal contract or otherwise.
78. Section headings are for convenience of reference only and shall not be
construed as party of this Agreement.
79. 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
80. All notices required under the terms and provisions hereof (excluding
Section 61) shall be in writing, or by fax or telegraphic means, and any such
notices and other correspondence or communications shall be addressed.
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If to HAL:
Holland America Line - Westours Inc.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Marine Hotel Department
Director, Hotel Operations
Fax: (000) 000-0000
If to Concessionaire:
International Cruise Shops Division
Greyhound Leisure Services, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
or to such other (or additional) address as either party may from time to time
designate by notice to the other.
81. HAL 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.
82. The parties hereto agree that, during the term of this Agreement, 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, that:
(a) nothing contained herein shall preclude disclosures, on a
confidential basis, to affiliated entities; and
(b) 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.
83. Concessionaire represents, warrants, covenants and agrees that it has not
offered or made, nor will it offer or make, any payment (in cash, in kind or
otherwise) to any employee, officer or director of HAL or any of its Affiliates
(including officers or crewmembers of any Vessel) that could be construed as
being a bribe or inducement to act or refrain from acting. If any such
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person shall solicit such a payment from Concessionaire, Concessionaire shall
promptly notify the President of HAL, by telefax, fax No. (000) 000-0000.
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IN WITNESS WHEREOF, HAL and Concessionaire have executed this Agreement
the day and year first above written.
HOLLAND AMERICA LINE - WESTOURS INC.
As Agent for the Owners and Charterers
of the Vessel m/v WIND SURF
By /s/
---------------------------------------------
President
GREYHOUND LEISURE SERVICES, INC.
By: /s/
---------------------------------------------
Its: Sr. VP - Corp. Dev.
---------------------------------------------
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AMENDMENT TO
WIND SURF CONCESSION AGREEMENT
AMENDMENT, dated and effective as of the 1st day of July, 1999, by and
between Holland America Line-Westours Inc., a Washington corporation d/b/a
Windstar Cruises ("HAL"), and Starboard Holdings Ltd., a Barbados corporation
("Starboard").
R E C I T A L S:
1. HAL and The International Cruise Shops Division of Greyhound Leisure
Services, Inc. ("Greyhound"), entered into that certain Concession Agreement,
dated as of February 25, 1998, with respect to the vessel m/v Wind Surf (the
"Concession Agreement"), the terms of which are incorporated herein by this
reference. All terms defined in the Concession Agreement shall have the same
meaning herein as therein specified.
2. Greyhound assigned its rights and obligations under the Concession
Agreement to Starboard, which assignment was consented to by HAL pursuant to
that certain Consent to Assignment signed by HAL on February 19, 1999 and by
Starboard on February 22, 1999. As a result, Starboard is now the Concessionaire
under the Concession Agreement.
3. HAL and Starboard desire to amend the Concession Agreement.
4. The parties intend that this Amendment shall be effective as to all
sailings ending after the date first above written.
A G R E E M E N T S :
1. Section 5(I). Section 5(I) of the Concession Agreement is amended to
read in its entirety as follows:
I. Crew Sales: Concessionaire will, from time to time and as
requested by HAL, prepare a list of merchandise then being offered in
the Vessel's stores that will be available for purchase at a discount
to Vessel officers and crew. Discount amounts and policies for officers
and crew will be determined by HAL.
2. Sections 6(C). Section 6(C) of the Concession Agreement is amended
to read in its entirety as follows.
C. As used in this Agreement, the term "Sales Revenue" refers
to the gross revenues earned from sales by Concessionaire under this
Agreement determined without regard to any crew discounts requested by
HAL pursuant to Section 5(I). The "Crew
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Amount" shall equal: (i) [* ] of crew Sales Revenue from the Vessels [*
] for Caribbean Voyages; minus (ii) the aggregate reduction in revenues
as a result off crew discounts requested by HAL pursuant to Section
5(I). Rental fees calculated on a percentage basis (hereinafter
referred to as the "Revenue Amount") in respect of any calculation
period (voyage, Quarterly Period or Annual Period, as the case may be)
shall equal the sum of: (i) [* ] of Retail Services passenger revenues
for Caribbean Voyages; plus (ii) [* ] of Retail Services passenger
revenues for Non-Duty Free Voyages; plus (iii) [* ] Retail Services
passenger revenues for Other Voyages.
3. Section 7. Section 7 of the Concession Agreement is amended to read
in its entirely as follows:
A. Concessionaire will pay HAL in U.S. Dollars a rental fee
for each Annual Period equal to the Crew Amount plus the greater of:
(i) the product of the Specified Amount times the Annual PCDs for the
Annual Period (to be computed separately for Non-Duty Free Voyages,
Caribbean Voyages and Other Voyages and the amounts so computed added
together); or (ii) the Revenue Amount for the Annual Period. If the
termination date of the term of this Agreement is other than the last
day of an Annual Period, the Annual Period shall be deemed to end as of
the termination date and all calculations shall be made on the basis of
the shortened Annual Period.
B. The Xxxxxx on the Vessel shall furnish the Concessionaire's
on-board manager, in writing, a breakdown of Concessionaire's revenues
by category on a daily basis, and at the end of each voyage, with the
total passenger cruise days (excluding day of disembarkation) for the
voyage. At the end of each voyage of the Vessel, the Concessionaire's
on-board manager shall furnish the Xxxxxx, in writing, with:
(i) the total revenues from all sales for the voyage,
separately stating the total for Late Sales; and
(ii) a breakdown of revenues by category (i.e., the
Crew Amount and the revenues that are and are not included in
Retail Services revenues).
Based on the information furnished to him and on the Vessel's records,
the Xxxxxx shall then calculate the Crew Amount and the Revenue Amount
for that voyage.
C. HAL under its "no cash" policy shall collect and hold all
revenues generated by Concessionaire on board the Vessel other than
revenues generated by Concessionaire from Late Sales. At the end of
each voyage, HAL shall retain an amount equal to:
(i) the Crew Amount plus the Revenue Amount for that
voyage (determined, for these purposes, by including revenues
form Late Sales); plus
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(ii) messing charges and other unpaid amounts due to
HAL for that voyage.
The balance of monies collected by HAL as to that voyage shall be paid
to Concessionaire by check on the date on which that voyage ends, or at
such other time and in such other manner as may be agreed between the
parties.
4. Section 31. Section 31 of the Agreement is amended by adding the
following to the end thereof:
Concessionaire acknowledges that lists of HAL's customers and lists of
Vessel passengers, whether past, present, future or prospective, or any
information of whatever nature relating to the names, addresses,
telephone numbers or other information regarding Vessel passengers
derived by Concessionaire in connection with its performance under this
Agreement (collectively, "Customer Lists") are and shall remain at all
times the exclusive property of HAL. The Customer lists represent a
special, valuable and unique asset of HAL that has been developed at
considerable expense to HAL. 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 HAL's
express written consent, which may be withheld in HAL'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 HAL's request, Concessionaire will return to HAL all Customer
lists or any information related thereto. Concessionaire recognizes
that any violation of this Section shall cause HAL substantial and
irreparable harm and shall entitle HAL to seek immediate injunctive
relief, in addition to such other remedies afforded by law or equity.
The obligations under this Section shall survive the expiration or
termination of this Agreement.
5. No Other Amendments. Except as above provided, the Concession
Agreement shall remain in full force and effect in accordance with its original
terms.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
STARBOARD HOLDINGS LTD. HOLLAND AMERICA LINE-WESTOURS INC.
By: /s/ X.X. Xxxxxx By: /s/
------------------------------ ------------------------------
Its President Its VP
---------------------------- ----------------------------
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