EXECUTION COPY
CONCESSION AGREEMENT
THIS CONCESSION AGREEMENT ("Agreement"), made and entered into as of the
7th day of June, 2005, between NCL (BAHAMAS) LTD., d/b/a NCL, a Bermuda company
with offices at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, (hereinafter
referred to as "NCL") and Fine Art Wholesalers Inc., a Florida corporation with
offices at 0000 X.X. 00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "CONCESSIONAIRE").
W I T N E S S E T H:
WHEREAS, NCL is engaged in the cruise trade, and owns, manages and
operates passenger cruise vessels; and
WHEREAS, NCL desires to obtain the services of a concessionaire to conduct
art auctions and art related sales onboard certain vessels identified and
defined on Schedule A attached hereto and incorporated herein by reference
(hereinafter individually referred to as the "Vessel" and collectively referred
to as the "Vessels); and
WHEREAS, CONCESSIONAIRE represents that it is an experienced art
concessionaire fully qualified to supervise and provide the services herein, and
to otherwise undertake the duties hereinafter set forth, and that it has
employed by it, or available to it, sufficient, suitable and trained staff to
perform its duties hereinafter set forth; and
WHEREAS, NCL desires to engage CONCESSIONAIRE and CONCESSIONAIRE desires
to be so engaged to provide the art concession services on the Vessel, all upon
the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other valuable consideration acknowledged by each of
the parties to be satisfactory and adequate, the parties hereto covenant and
agree as follows:
1. GRANT OF CONCESSION
NCL hereby grants an exclusive concession to CONCESSIONAIRE to sell fine
art and conduct auctions of art owned by CONCESSIONAIRE onboard the Vessels.
CONCESSIONAIRE agrees to conduct such auctions and to employ sufficient,
suitable and trained staff to perform its duties under this Agreement.
CONCESSIONAIRE agrees to hold the art auctions and otherwise display the art at
such times and in such locations onboard the Vessels as determined by NCL in its
sole discretion. CONCESSIONAIRE further agrees that, with respect to each
Vessel, CONCESSIONAIRE shall make only one art auction announcement per day
using the onboard intercom system, except as otherwise agreed by NCL in it sole
discretion. NCL shall provide two (2) utility staff personnel for approximately
six (6) hours per day per cruise on each Vessel. CONCESSIONAIRE shall reimburse
NCL for all wages for the hours worked by NCL's utility personnel.
2. AUCTIONS
CONCESSIONAIRE will conduct auctions in a public room to be assigned at
the time of sailing by NCL. The precise time of the auction shall be agreed to
by NCL and CONCESSIONAIRE with the scheduling at all times subject to NCL's
final agreement in its sole discretion. All transactions are between the
buyer/passenger and CONCESSIONAIRE as seller and NCL will not be responsible for
any disputes or liability in connection therewith. CONCESSIONAIRE will
prominently display notices to passengers at the auction which provide that the
auction and sale of art is being conducted solely by CONCESSIONAIRE, and that
the art work and all sales transactions are solely between buyer/passenger and
CONCESSIONAIRE as seller in such form as is reasonably required by NCL.
CONCESSIONAIRE also agrees to display notices which describe the parties'
responsibilities to passengers or limitations on NCL's responsibility to
passengers in connection with the auction or purchase of art, as is reasonably
required by NCL. CONCESSIONAIRE will be responsible for any uncollected or
uncollectable amounts including those disputed or charged back by any credit
card company.
3. CONCESSIONAIRE'S REPRESENTATIONS AND PLEDGES
(A) CONCESSIONAIRE warrants and represents that it is fully familiar
with the physical facilities, plans and specifications of each of the Vessel,
including the space allocations required to perform its obligations hereunder;
and
(B) CONCESSIONAIRE warrants and represents that it is fully
qualified to supervise and provide the services herein, and to otherwise
undertake the duties hereinafter set forth, and that it has employed by it, or
available to it, sufficient, suitable and trained staff to perform its duties
and obligations set forth herein.
(C) CONCESSIONAIRE understands that the utmost cooperation is
required between the various concessionaires and crewmembers onboard the Vessel
to enable NCL to properly comply with its obligations hereunder. Accordingly,
CONCESSIONAIRE agrees to good faith efforts to xxxxxx and maintain maximum
cooperation among the concessionaires and crewmembers. Failure to comply with
this provision shall constitute a material breach for which NCL may immediately
terminate this Agreement.
(D) CONCESSIONAIRE shall not make any payments, whether described as
compensation or otherwise, to any NCL employee, employees of other
concessionaires, or crew, officers or Masters onboard the Vessel during the term
of this Agreement, unless prior written approval thereof has been given by NCL.
Failure to comply with this provision shall constitute a material breach for
which NCL may immediately terminate this Agreement.
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(E) CONCESSIONAIRE recognizes that control of pollution of the
oceans is important to the continuation of the cruise ship industry, and in
particular the business of NCL. CONCESSIONAIRE therefore agrees to comply with
such pollution control orders as NCL shall from time to time establish and
promulgate, which orders are hereby made an integral part hereof. CONCESSIONAIRE
agrees to utilize such pollution control equipment as NCL shall provide or
otherwise prescribe in the event that CONCESSIONAIRE's operations onboard the
Vessel require it. CONCESSIONAIRE agrees to comply with all of NCL's applicable
policies and plans, including any relevant provisions relating to shipboard
processes that may have a potential to impact the environment, including, but
not limited to, those contained in NCL's Safety and Environmental Management
System. CONCESSIONAIRE shall cause its employees and any of its personnel who
may be responsible for handling and disposing of any hazardous wastes or
materials, to successfully complete and provide written evidence of completion,
of certain mandatory environmental training courses, as NCL may require in its
sole discretion, from time to time. CONCESSIONAIRE's failure to comply with this
provision shall constitute a material breach for which NCL may immediately
terminate this Agreement.
(F) CONCESSIONAIRE warrants and represents that neither it nor any
of its subcontractors is listed on the list of parties excluded from federal
procurement or non-procurement programs maintained by the United States
Government (the "Exclusion List"). CONCESSIONAIRE pledges that it will notify
NCL if CONCESSIONAIRE no later than thirty (30) days after either it listed on
the Exclusion List or it becomes aware that any of its subcontractors has been
listed on the Exclusion List.
(G) CONCESSIONAIRE warrants and represents that it shall comply with
all applicable international, federal, state and local laws, regulations and
rules of all governmental authorities, having or claiming jurisdiction of the
Vessel, its owner, the CONCESSIONAIRE, its employees or operations and services,
or otherwise, relating to any and all licensing requirements or certifications,
qualifications, compensation or otherwise of CONCESSIONAIRE or CONCESSIONAIRE's
employees, as may be applicable in connection with the performance of any acts
or the services it undertakes under the terms of this Agreement.
(H) CONCESSIONAIRE pledges to treat passengers onboard the Vessel,
crew, officers, Masters, agents and employees of NCL courteously at all times.
(I) CONCESSIONAIRE agrees and acknowledges that partial
consideration for the concession granted by this Agreement is CONCESSIONAIRE's
commitment to execute an agreement with NCL America Inc. ("NCLA"), an affiliate
of NCL, for the operation of the art concessions aboard the NCLA Vessels listed
in Schedule A, should NCLA in its sole and absolute discretion agree and consent
to enter into such an agreement. It is expressly understood that the agreement
between NCLA and CONCESSIONAIRE will be subject to the Revenue Management terms
set forth in Section 6 of this Agreement.
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(J) CONCESSIONAIRE warrants and represents that before the execution
of this Agreement, an Eight Million and 00/100 United States Dollars
($8,000,000.00) irrevocable Letter of Credit in a form attached hereto as
Schedule F and satisfactory to NCL, will be posted by Image Innovations
Holdings, Inc., in favor of NCL: (i) to guarantee the payment of the sums that
are due and payable to NCL in accordance with Section 6 of this Agreement, or
(ii) to guarantee the payment to NCL of such amount in the event of a sale,
transfer or other disposition by Image Innovations Holdings, Inc. of
CONCESSIONAIRE's business to any third party as set forth in Section 13 of this
Agreement. CONCESSIONAIRE and Image Innovations Holdings, Inc. hereby agree and
acknowledge that the posting of such Letter of Credit by Image Innovations
Holdings, Inc. is a condition of NCL entering into this Agreement and is a
material inducement to NCL to enter into this Agreement.
(K) CONCESSIONAIRE warrants and represents that it has been provided
NCL's Code of Conduct for Concessionaires attached hereto and incorporated
herein by reference as Schedule B and executed the Code of Conduct for
Concessionaires Certification attached hereto and incorporated herein by
reference as Schedule C.
(L) CONCESSIONAIRE warrants and represents that it will provide
proof that each piece of art work sold on any Vessel is authentic.
CONCESSIONAIRE also warrants and represents that all prices quoted as "retail"
price for any art work are actual retail prices or value of the art work capable
of appropriate documentation directly from published price lists or from
independent third party experts.
(M) CONCESSIONAIRE agrees to make the following contributions to be
used, at the discretion of the Parties hereto, for the development and
improvement of the art auction program: (i) Thirty Thousand and 00/000 Xxxxxx
Xxxxxx Dollars ($30,000.00) per Vessel payable to NCL within thirty (30) days of
execution of this Agreement; and (ii) Fifty Thousand and 00/100 United States
Dollars ($50,000.00) for each New Vessel payable within thirty (30) days of the
addition of each New Vessel to this Agreement.
(N) CONCESSIONAIRE agrees that it will not offer any promotional
items and/or gifts to any passenger without NCL's prior written approval.
4. TERM AND TERMINATION
This Agreement shall commence on June 15, 2005 and shall continue through
June 13, 2007 ("Initial Term"). Unless otherwise terminated in accordance with
the provisions of this Section 2, NCL may extend the Initial Term for two terms
of two (2) years each, the last two (2) year term of which shall expire on June
15, 2011. Upon the termination of this Agreement, CONCESSIONAIRE, at its
expense, shall remove all equipment, artwork and materials it has brought upon
or installed on the Vessel.
Notwithstanding the foregoing, NCL shall have the right to immediately
terminate this Agreement at any time and may exclude CONCESSIONAIRE and all
persons attempting to enter the Vessel in connection with this Agreement from
the Vessel by written notice to CONCESSIONAIRE upon the occurrence of any of the
following:
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a. In the event CONCESSIONAIRE is declared insolvent or bankrupt,
or makes an assignment for the benefit of creditors or in the
event a receiver is appointed, or any proceeding for the
appointment of receiver or to adjudge CONCESSIONAIRE a
bankrupt, or take advantage of the insolvency laws of any
jurisdiction is demanded by, for or against CONCESSIONAIRE
under any provisions of the laws of any country;
b. In the event CONCESSIONAIRE defaults in the performance of any
of its obligations under this Agreement and CONCESSIONAIRE
shall have failed to cure such default or breach within thirty
(30) days after delivery of a written notice to CONCESSIONAIRE
specifying the default or breach of this Agreement or if such
cure requires more than thirty (30) days, promptly initiates
steps which are sufficient to cure the default or breach and
thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as
reasonably practical (such a determination shall take into
account the Vessel's itinerary and that such cure may require
the Vessel to have returned to its home port); or
c. In the event NCL determines, in its reasonable discretion,
that CONCESSIONAIRE has sold or attempted to sell any art work
that is not authentic or does not conform to the description
provided by CONCESSIONAIRE to a passenger and CONCESSIONAIRE
fails to substantiate the art works authenticity or
conformance to the relevant description within 15 days from
NCL's written notice of the alleged problem.
The effective date of termination hereunder as to each Vessel shall be the
day such Vessel arrives at the port where passengers are to be disembarked.
Breach by CONCESSIONAIRE as to its activities onboard any Vessel constitutes a
breach as to all Vessels covered by this Agreement and also constitutes a breach
under any other agreement or contract between the parties relating to a
concession on any other vessel now or hereafter owned or operated by NCL.
Termination shall be without prejudice to the rights and obligations of
the parties which have accrued prior to the effective dates of termination.
Additionally, notwithstanding the termination of this Agreement for any reason,
the provisions of this Agreement which are intended to continue and survive the
termination of this Agreement shall continue and survive.
Notwithstanding the foregoing, NCL may terminate this Agreement for any
reason at anytime, upon ninety (90) days prior written notice of termination to
CONCESSIONAIRE.
During the period prior to the expiration or termination of this
Agreement, CONCESSIONAIRE shall assist NCL in making a smooth and orderly
transition for the provision of art concession services by any replacement
concessionaire.
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5. VESSEL OPERATIONS AND MANAGEMENT
(A) Cruises, itineraries and dry docks for the Vessel shall be
scheduled and carried out at the sole discretion of NCL.
(B) NCL and/or any entity operating the Vessel shall have the
absolute right during the term hereof to sell, charter, and lease, withdraw,
transfer, reposition or otherwise dispose of each and every Vessel subject to
this Agreement. All rights of CONCESSIONAIRE hereunder shall terminate as to
each such Vessel sold, chartered, leased, withdrawn, transferred, repositioned
or other disposed of by NCL.
(C) Any New Vessel, as defined below, which is a part of NCL's
fleet, not contained within the definition of "Vessels" or "Vessel" nor
otherwise specifically identified in this Agreement, may be added to and subject
to the terms of this Agreement if, NCL, in its sole and absolute discretion,
agrees and provides its written consent to same. "New Vessel" shall mean any
vessels joining the NCL fleet either by acquisition or new construction as well
as any vessels which are currently part of the NCL fleet, but have art
concessions that are currently operated by other concessionaires. It is
expressly understood that each New Vessel shall be a cruise ship that is at
least 75000 gross tons, 260 meters in length and with accommodations for at
least 2000 passengers. In the event that the specifications for a vessel joining
the NCL fleet do not meet the requirements of a New Vessel, as set forth in the
previous sentence, then the parties agree to make good faith efforts to
negotiate an amendment to this Agreement that provides for the satisfactory
operation of the art concession on such vessel by CONCESSIONAIRE.
6. REVENUE MANAGEMENT
(A) In connection with the operation of the concession,
CONCESSIONAIRE agrees that all purchases of art work onboard the Vessel and
sales generated from the custom framing of all art work sold on the Vessels
shall be made through the passenger's ship board account or through NCL's
private label credit card. CONCESSIONAIRE hereby agrees that it will not offer
its own private label credit card onboard any of the Vessels.
All sales of art work, custom framing, sculptures, and appraisals
made onboard the Vessel through the passenger's ship board account shall be made
via NCL's cashless system. CONCESSIONAIRE further agrees to record all receipts
using pads having pages which are serially numbered, in triplicate. The ship's
xxxxxx will receive a copy of all receipts which are given to the passengers
after each auction. NCL shall have the right to inspect and review all of
CONCESSIONAIRE's records with respect to sales made onboard the Vessel.
(B) In consideration of NCL granting CONCESSIONAIRE the rights set
forth herein, CONCESSIONAIRE agrees to pay NCL, and NCL shall be entitled to
receive and/or retain, the following sums in United States Dollars equal to the
greater of the Percentage-Based Amount (defined below) or the Minimum Guarantee
Amount(s) (defined below), plus all applicable sales, use, transaction, excise
or VAT taxes imposed by any governmental authorities.
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(i) Percentage Based Amount means that amount which is equal to
the applicable percentage of all revenues generated from the
sale of art work and sculptures, custom framing of artwork,
and appraisals of art work and sculptures as set forth below:
(a) thirty-five percent (35%) of the total revenues generated
from art auction sales onboard the Vessel or otherwise
generated from the sale of art work and sculptures by
CONCESSIONAIRE not onboard the Vessel to an individual who
previously sailed on an NCL vessel or to any entity owned or
operated by such individual; plus
(b) thirty-five percent (35%) of the total revenues generated
from the custom framing of all art work and titles of art work
and sculptures onboard the Vessel or otherwise sold by
CONCESSIONAIRE to an individual who previously sailed on an
NCL vessel or to any entity owned or operated by such
individual.
(ii) Minimum Guarantee Amount means for each calendar month during
the term of this Agreement, that amount which shall be
calculated for each group of Vessels set forth in Schedule D
attached hereto and incorporated herein by reference, and
shall equal the product of: (a) the Minimum Guarantee Amounts
set forth in Schedule D, per Revenue Passenger Days for any
group of Vessels set forth in Schedule D, multiplied by the
actual aggregate number of Revenue Passenger Days for such
group of Vessels for any given calendar month.
(C) "Revenue Passenger" shall mean any person listed on each Vessel
passenger manifest, excluding children under two (2) years of age, NCL employees
on business and contractors. "Operating Day" is defined as any day that the
Vessel is in service with the passengers onboard. "Revenue Passenger Day" shall
mean the product of Revenue Passenger multiplied by Operating Day for any given
Vessel.
(D) It is expressly understood that the Guaranteed Minimum Amount is
only a minimum acceptable sum and CONCESSIONAIRE agrees to undertake its best
efforts to exceed this minimum sum. It is further expressly understood that
either the Percentage Based Amount or the Minimum Guarantee Amount, whichever is
greater, for each group of Vessels set forth in Schedule D, will be payable to
NCL each calendar month during the term of this Agreement.
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(E) In the event that NCL receives a charge back for reasons
stemming from, including but not limited to, poor quality, defective, or
fraudulent merchandise, NCL shall retain a sum equal to the amount of the charge
back less the commission previously received thereon by NCL pursuant to this
Section 6.
(F) CONCESSIONAIRE shall not solicit any passengers, or provide any
promotional, marketing or advertising materials to any passengers onboard any of
the Vessel, or to otherwise promote, market or advertise that CONCESSIONAIRE may
sell art work or provide custom art framing to passengers elsewhere than onboard
the Vessel.
(G) NCL shall not receive compensation with respect to any shipping
charges collected onboard the Vessel for the delivery of any art work sold.
(H) CONCESSIONAIRE agrees to pay NCL a Two Percent (2%) transaction
fee on each credit card transaction generated from sales or services hereunder.
(I) All gross sales receipts for sales onboard any of the Vessels
will be paid to and collected by the chief xxxxxx aboard each Vessel. The
parties agree that NCL may alter its regular disbursement schedule at any time
but in no event shall the payments to be made to CONCESSIONAIRE hereunder be
less than on a monthly basis. In the event a dispute should arise between the
parties relating to the sums due and owing in accordance with this Agreement,
the designated representatives of both parties shall attempt to resolve the
controversy or dispute within ten (10) business days after receipt of such
notice. If those designated representatives cannot resolve the controversy or
dispute, the parties shall meet at NCL's offices and describe the controversy or
dispute and their respective proposals for resolution to NCL's designated person
who shall act in good faith to resolve the controversy or dispute.
(J) Either NCL or CONCESSIONAIRE may decide not to conduct art
auctions onboard any sailing of any of the Vessels in the event of a full ship
charter by a single entity or group.
(K) All gross sales receipts for sales not onboard the Vessel will
be paid to and collected by CONCESSIONAIRE. CONCESSIONAIRE will, by the tenth
day of each month, provide NCL with an accounting reflecting the total gross
receipts received by CONCESSIONAIRE during the immediately preceding month for
all sales not onboard the Vessel in which NCL is to receive a Percentage Based
Amount or Minimum Guarantee Amount. CONCESSIONAIRE will also simultaneously pay
such Percentage Based Amount or Minimum Guarantee Amount from the total gross
receipts described above. CONCESSIONAIRE hereby grants NCL, its agents,
attorneys and accountants, the right to inspect, audit and copy CONCESSIONAIRE's
books, accounts and records relating to the sales not onboard the Vessel for the
purpose of determining the sufficiency and accuracy thereof and the correctness
of the statements and payments made by CONCESSIONAIRE to NCL. Such inspection,
and/or audit of such books, accounts and records shall take place during normal
business hours upon reasonable advance notice by NCL. Notwithstanding the
foregoing, NCL shall only have the right to inspect, copy and audit
CONCESSIONAIRE's books, accounts and records one (1) time during each calendar
year during the term of this Agreement and one (1) additional time following the
expiration or termination of this Agreement.
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(L) In addition to the other amounts due or payable hereunder, and
in consideration of NCL's granting CONCESSIONAIRE the commercial privilege to
conduct auctions onboard the Vessel, CONCESSIONAIRE also agrees to arrange and
provide the following:
(i) CONCESSIONAIRE shall arrange for a minimum of four (4)
internationally renowned artists to sail onboard any Vessel of
NCL's choosing each year during the term of this Agreement in
order to conduct a minimum of two (2) art enrichment programs
for sailings of seven (7) days or more and at least one (1)
art enrichment program for sailings of three (3) or four (4)
days. NCL shall provide and be responsible for the cabin
accommodations for the artist and his or her companion. NCL
will not be responsible, and CONCESSIONAIRE will assure that
either itself or third parties will be responsible, for paying
all other costs and expenses incurred by the artist and his or
her companion in connection with the cruise including, but not
limited to, the payment of port charges and gratuities, air
and ground transportation, alcoholic beverages, tuxedo
rentals, flowers, onboard purchases and other items of a
personal nature; and
(iii) CONCESSIONAIRE shall provide NCL, at the beginning of
each cruise on each ship one (1) work of art having, at a
minimum, a retail value of Two Hundred Dollars ($200) for
NCL's use as a promotional item for passengers.
(M) NCL and the Vessel reserve their right to exercise any liens
that either may have against such goods, wares and merchandise of CONCESSIONAIRE
for any sum due and owing therefrom to NCL or the Vessel pursuant to this
Agreement
7. CONCESSIONAIRE'S EMPLOYEES
(A) CONCESSIONAIRE will maintain one (1) auctioneer (which may
include an auctioneer and his or her spouse) onboard the Vessel and which staff
members shall be sufficiently trained and licensed in his/her duties and fully
conversant in English, and will perform CONCESSIONAIRE's obligations in a
courteous and efficient manner. CONCESSIONAIRE personnel shall give prompt
obedience to the instructions and orders of the ships' masters or NCL's
designees with regard to the operation of the art concession.
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(B) NCL reserves the right to approve or disapprove of the
employment of CONCESSIONAIRE staff and to request a replacement at any time of
any members of CONCESSIONAIRE's staff.
(C) CONCESSIONAIRE shall pay all wages including overtime and
vacation pay and all benefits which it is required to provide each of its
employees, including, but not limited to, unearned wages to the end of the
employee's employment contract or voyage, as applicable. CONCESSIONAIRE will
comply with all applicable laws, governmental regulations or other governmental
requirements relating to wages and benefits paid to employees and governing
CONCESSIONAIRE's conduct in connection therewith.
(D) CONCESSIONAIRE agrees to pay all expenses incident to any
required repatriation for any and all of its employees without limitation
thereon. Furthermore, CONCESSIONAIRE will pay for all travel expenses and costs
associated with or that may be incurred by its employees in the performance of
this Agreement.
(E) CONCESSIONAIRE hereby represents to NCL that it will, pursuant
to United States General Maritime Law, be responsible to its employees and shall
be deemed the exclusive employer hereunder for all obligations or liabilities,
including, but not limited to, those arising from Xxxxx Act negligence claims or
the doctrine of "Maintenance & Cure," said doctrine generally requiring the
payment of medical expenses incurred because of instances of accident or illness
to its employees onboard the Vessel, as well as, the payment of living expenses
and unearned wages to said employees arising from said instances. CONCESSIONAIRE
shall be responsible and required to pay, without right of subrogation,
contribution or indemnity, any and all maintenance and cure under the general
maritime law. For the avoidance of doubt and except as otherwise provided in
herein, CONCESSIONAIRE hereby assumes all liability for payment of medical
expenses incurred because of accident or illness to its employees onboard or
while on shore or otherwise while its employees are in the service of the
Vessel, and agrees to reimburse NCL for any payments advanced by it for such
medical expenses. NCL shall have no obligation to advance or liability for
payment of medical expenses relating to the employees of CONCESSIONAIRE.
(F) NCL agrees to provide one (1) cabin per auctioneer (or one (1)
cabin for the auctioneer and his or her spouse, if applicable) onboard each
Vessel. It is understood that the assignment of cabins and berths shall be at
the sole discretion of NCL.
(G) NCL agrees to provide three adequate meals per day to the
CONCESSIONAIRE'S auctioneer employed on board the Vessel at the cost of $10.00
per day per employee. CONCESSIONAIRE'S auctioneer will be served his/her meals
in the Vessel's passenger or staff dining rooms.
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(H) CONCESSIONAIRE shall arrange for each of its employees working
onboard the Vessel, including, without limitation, the auctioneer's spouse, to
submit to a physical examination by ships' doctors or other NCL approved
physicians prior to employment. CONCESSIONAIRE's employees shall be shown to be
medically fit for service aboard the Vessel in accordance with standards
established by NCL. It shall be the sole responsibility of CONCESSIONAIRE to
absorb and pay the costs of such pre-employment physical examinations and to
employ persons who have valid passports, visas, and all other permits required
by any governmental authority, whether United States or foreign, so that they
may enter and leave the ports of call of the Vessel on which they are employed.
Annual physicals shall be required of all CONCESSIONAIRE employees.
(I) NCL may in its sole discretion maintain a qualified medical
doctor onboard the Vessel during the time the Vessel is at sea, and where
applicable, such doctor may be available to render medical attention to
employees of CONCESSIONAIRE. All costs or expenses relating to medical services
or attention rendered to CONCESSIONAIRE's employees advanced or incurred by NCL
shall be charged to the account of CONCESSIONAIRE. Nothing contained in this
Section 7(I) shall be deemed a limitation or waiver of the parties respective
rights and obligations set forth in Section 7(E) above or otherwise herein.
(J) For the avoidance of doubt, and for all purposes of this
Agreement, the auctioneer, his or her spouse, CONCESSIONAIRE's staff and
CONCESSIONAIRE's personnel shall be considered employees of CONCESSIONAIRE and
such terms may be used interchangeably with the term employees.
(K) CONCESSIONAIRE agrees that its employees will attend and
participate in boat drills held onboard the Vessel until such time as the Master
of the Vessel considers CONCESSIONAIRE's employees to be competent in such
activity. Thereafter, the employees need only participate in boat drills, as the
Master of the Vessel shall require maintaining the requisite level of competency
therein. All of CONCESSIONAIRE's employees shall attend Coast Guard inspections
and, if required by NCL, will have, or earn, lifeboat efficiency certificates.
Any costs that may be incurred in connection with the foregoing training shall
be borne by CONCESSIONAIRE. CONCESSIONAIRE's employees will be subject to the
same random drug testing performed upon NCL employees. CONCESSIONAIRE's
employees will also be subject to NCL's employee drug and alcohol policies, a
copy of which is attached hereto and incorporated herein by reference as
Schedule E and identified as "SEMS - Drug and Alcohol Policy for Shipboard
Personnel."
(L) CONCESSIONAIRE agrees that its executive personnel will travel
on the Vessel from time to time upon NCL's request or upon NCL's written
approval of CONCESSIONAIRE'S request. When CONCESSIONAIRE'S executive personnel
travel on board the Vessel, NCL will make available passenger-type cabins to
such executive personnel unless all passenger facilities have been utilized by
paying passengers. When such executive personnel are traveling on board the
Vessel for the purpose of meeting CONCESSIONAIRE'S obligations hereunder, they
shall travel alone, not with their families or others. CONCESSIONAIRE further
agrees that its personnel who travel hereunder shall be responsible for and pay
all gratuities due to NCL employees onboard the Vessel.
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8. CUSTOMER COMPLAINTS
CONCESSIONAIRE shall provide a toll free "800" telephone number to be
displayed at all auctions and included on all customer receipts for the handling
of any customer complaints. CONCESSIONAIRE shall employ an adequate number of
persons to handle all complaints in a prompt and efficient manner. In the event
that a passenger remains unsatisfied with the handling of his or her complaint,
CONCESSIONAIRE agrees that NCL shall be the sole arbitrator of any such dispute
and that CONCESSIONAIRE will take any action deemed necessary by NCL including
full reimbursement of the purchase price of any art work if determined
appropriate by NCL in NCL's sole discretion. If CONCESSIONAIRE fails to make
such reimbursement, NCL may deduct any amounts necessary for reimbursement of
passengers from CONCESSIONAIRE's share of auction revenue and provide the
reimbursement directly to the passengers.
9. INSURANCE
CONCESSIONAIRE agrees to obtain insurance on the full value of its
property onboard the Vessel including all art work, and insurance covering
employers and public liability for off vessel activities. Said insurance shall
name NCL as an additional insured in such amounts that shall be satisfactory to
NCL. CONCESSIONAIRE shall provide NCL with certificates of such insurance which
certificate shall provide that said insurance shall not be canceled without
thirty (30) days prior written notice to NCL.
Additionally and in connection with the services it is required to render
hereunder, CONCESSIONAIRE shall procure from SKULD, Steamship Mutual, West of
England or such other company NCL may specify, liability insurance fully
covering CONCESSIONAIRE for liability to its own employees as well as liability
to third parties. Such policy shall further protect NCL as set forth below. The
policy shall be maintained in full force and effect during the term of this
Agreement and shall protect (regardless of which party is at fault) NCL and
CONCESSIONAIRE, their directors, officers, employees and agents, as their
respective interests may appear, and the Vessel against any loss, liability, or
expenses whatsoever from personal injury, sickness, death, property damage,
pollution risk/liability or otherwise, arising or occurring upon or in
connection with the services provided or to be provided by CONCESSIONAIRE or by
reason of CONCESSIONAIRE's operation upon or occupancy of space on board the
Vessel, whether the same occurs or the cause arises on or off such Vessel. NCL
shall be an additional named insured on such policy or policies. CONCESSIONAIRE
shall pay the premiums for such liability insurance procured pursuant to the
terms of this paragraph.
The insurance afforded by such policy or policies shall not be limited in
any way by reason of insurance maintained by NCL. Upon the signing of this
Agreement, certificates of insurance and complete insurance policies showing
compliance with the foregoing requirements shall be furnished NCL by
CONCESSIONAIRE for approval. Certificates shall state that the policy or
policies shall not be canceled or altered without at least ten (10) days' prior
written notice to NCL. Such certificates and notices shall be sent to NCL at its
offices at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 or such other
address as NCL may designate from time to time pursuant to the provisions of
this paragraph. Maintenance of such insurance and the performance by
CONCESSIONAIRE of its obligations under this section shall not relieve
CONCESSIONAIRE's liabilities under any indemnity provision set forth elsewhere
herein.
-12-
10. INDEMNIFICATION
CONCESSIONAIRE agrees to indemnify, defend and hold NCL, its officers,
employees and the Vessel, harmless from and against any claims, liabilities,
costs, damages or expenses of any kind arising directly or indirectly out of or
in connection with:
a. transportation of art on, to or from the Vessel or the action of
CONCESSIONAIRE's employees;
b. claim of any persons that the art sold by CONCESSIONAIRE on board
the Vessel is not the authentic work of the artist whose work it purports to be;
c. the claim of any artist whose works have been sold by
CONCESSIONAIRE aboard the ship that CONCESSIONAIRE did not have the authority to
sell the works of such artist; and
d. any other action arising out of or related to CONCESSIONAIRE's
business, operations and services including, without limitation, those arising
out of any act, omission or neglect of CONCESSIONAIRE or CONCESSIONAIRE's
employees, agents or representatives alleged to have occurred during the term of
this Agreement or any renewal thereof.
11. CONFIDENTIALITY
(A) CONCESSIONAIRE agrees to keep the terms of this Agreement and
any and all confidential and proprietary information of NCL in strict
confidence. Such information shall include, but not be limited to the methods of
operation, pricing of services and financial information of NCL. Notwithstanding
the foregoing, disclosure by CONCESSIONAIRE is permitted: (a) on a confidential
basis to its principals, auditors, attorneys, investors, lenders, and insurance
agents; (b) to comply with applicable law; and (c) as the parties may otherwise
agree in advance in writing. This provision shall survive the expiration or
termination of this Agreement. Under no circumstance shall CONCESSIONAIRE use,
sell, trade or otherwise disseminate any information regarding any of NCL's
passengers, including, but not limited to, their names or addresses, except in
accordance with applicable law.
(B) CONCESSIONAIRE further agrees that monetary damages would not be
a sufficient remedy for any breach of this Section 11 by CONCESSIONAIRE or any
of its agents, representatives or employees, and that in addition to all other
remedies NCL shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach.
-13-
12. CORPORATE EXISTENCE
CONCESSIONAIRE will at all times maintain its corporate existence in good
standing with corporate powers adequate to enter into this Agreement and will
fully comply with all statutes and regulations of governmental agencies having
or claiming jurisdiction. CONCESSIONAIRE agrees to display evidence of its
complete compliance hereunder to NCL upon request.
13. SALE OF BUSINESS
With the exception of Image Innovations Holdings, Inc., CONCESSIONAIRE
shall not sell, transfer or otherwise dispose of its business or any part
thereof during the term hereof without in each instance first obtaining the
written consent thereto of NCL, which shall not be unreasonably withheld.
Notwithstanding the foregoing, if CONCESSIONAIRE sells, transfers or otherwise
disposes of its business or any part thereof during the term hereof to any third
party other than Image Innovations Holdings, Inc., CONCESSIONAIRE hereby agrees
and acknowledges that NCL shall be entitled to forty percent (40%) of the gross
proceeds of such sale, transfer or other disposition, or up to Eight Million and
00/100 United States Dollars ($8,000,000.00), whichever amount is greater,
payable immediately upon closing of such sale, transfer or other disposition.
Notwithstanding anything to the contrary in this Agreement, if Image
Innovations Holdings, Inc. buys CONCESSIONAIRE's business and thereafter sells,
transfer or otherwise disposes CONCESSIONAIRE's business or any part thereof
during the term hereof, and provided that NCL has not given notice of
termination under this Agreement, NCL will be entitled to draw immediately, as
liquidated damages, from the irrevocable Letter of Credit attached hereto as
Schedule F, Eight Million and 00/100 United States Dollars ($8,000,000.00) in
one lump sum. The parties and Image Innovations Holdings, Inc. acknowledge and
agree that damages to NCL which may result from such sale, transfer or other
disposition shall be extremely difficult or impossible to establish or prove,
and agree that NCL shall be entitled to such liquidated damages not as a
penalty, but rather as reimbursement to NCL for its expenses and losses incurred
in connection with such sale, transfer or other disposition.
14. UNSATISFACTORY CONDITIONS
NCL shall have the right to bring to CONCESSIONAIRE's attention any person
or persons, equipment or any other material connected with the concession
granted hereunder which in the judgment of NCL is for any reason unsatisfactory.
Within a reasonable time thereafter, the parties shall meet and discuss such
unsatisfactory condition and attempt to resolve the same amicably. If the
parties are unable to agree on a course of action to correct the unsatisfactory
condition, NCL may cause to be removed from the Vessel at CONCESSIONAIRE's
expense such person or persons, equipment or any other material connected with
the concession granted hereunder. The opinion of NCL in this regard shall be
final and conclusive.
-14-
15. LIMITATION OF LIABILITY
(A) If NCL has exercised due diligence to make the Vessel seaworthy,
and have them properly manned, equipped, and supplied, in the event of accident,
danger, damage or disaster before or after commencement of any voyage resulting
from any cause whatsoever, whether due to negligence or not, for which or for
the consequences of which NCL is not responsible by statute, contract or
otherwise, the equipment, wares and supplies of CONCESSIONAIRE shall contribute
with any Vessel or Vessel (as the case may be) in general average in payment of
any sacrifices, losses or expenses of a general average nature that may be made
or incurred and shall pay salvage and such charges incurred in respect to the
property of CONCESSIONAIRE.
(B) NCL and/or the Vessel shall not be liable for delay, or for the
destruction, loss or damage to the property of CONCESSIONAIRE occasioned by any
of the following: an act of God; act of war; public enemies; government
restrictions; perils of the sea or rivers; quarantine; fire; strike; lockout;
labor dispute; civil commotion; seizure or arrest of the Vessel; robbers; riots;
thieves; barratry; collision; explosions and accidents due to or because of
engines or machinery and appurtenances of the Vessel at whatever time existing,
and unseaworthiness; nor shall NCL be responsible for any loss or damage caused
by the failure to sail or any delay in sailing, including, but not limited to, a
delay for any reason whatsoever of the commencement of the Vessel's cruise
operations; prolongation of voyage; deviation; any act, omission, fault or
negligence of any passenger, officer, staff member or crewmember of the Vessel;
or any cause whatsoever beyond the control of NCL or the Vessel, whether of the
kind hereinabove enumerated or not. CONCESSIONAIRE assumes the obligation to
care for, safeguard and preserve its property on board the Vessel, and NCL and
the Vessel are relieved from any obligation to safeguard such property.
(C) NCL shall have no liability for any consequential, special,
contingent or incidental damages or losses whatsoever, including, without
limitation, loss of profit, revenue or bargain, arising out of or in connection
with this Agreement. CONCESSIONAIRE hereby waives (to the fullest extent
permitted by law) any claim, lien, encumbrance or charge it may have over NCL's
vessels, and all rights to arrest the Vessel, in connection with any claim
arising hereunder against NCL (without prejudice to any other rights it may have
to pursue any other remedies against NCL).
16. CARRIAGE OF GOODS BY SEA ACT
This Agreement shall have effect subject to the provisions of the CARRIAGE
OF GOODS BY SEA ACT, of the United States, approved on April 16, 1936, as
amended, which shall be deemed to be incorporated herein, and nothing herein
contained shall be deemed a surrender by any Vessel of any of its rights or
immunities or an increase of any of its responsibilities or liabilities under
said Act. If any provision of this Agreement is repugnant to said Act to any
extent, such terms shall be void to that extent, but no further. If incompatible
with the present insurance coverage of the Vessel, then this section shall be
null and void to that extent.
-15-
17. SIGNS
CONCESSIONAIRE agrees that it will not place any signs upon or in any
portion of any Vessel without the prior written consent of NCL.
18. WAIVER OF LIENS
CONCESSIONAIRE and its employees waive any and all rights they possess or
hereinafter acquire to assert, impose, exercise or foreclose upon any lien or
lien right against NCL or the Vessel.
19. SEVERABILITY
If any covenant or other provision of this Agreement is invalid, illegal
or incapable of being enforced, by reason of any rule, law or public policy, all
other conditions and provisions of this Agreement shall, nevertheless, remain in
full force and effect and no covenant or provision shall be deemed dependent
upon any other covenant or provision unless so expressed herein.
20. REQUISITION OF VESSEL
Upon the effective date of any requisition of any Vessel by any government
for title or use, this Agreement shall terminate immediately as to such Vessel
and, in that event, NCL shall have no liability whatsoever to CONCESSIONAIRE
hereunder in connection with such Vessel.
21. RIGHT TO SET-OFF
In the event any amount is due NCL under the terms of this Agreement, NCL
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to CONCESSIONAIRE or to any other
person, to set off and to appropriate and apply any and all receivables and any
other indebtedness at any time held or owing by NCL to CONCESSIONAIRE against
the liabilities of CONCESSIONAIRE to NCL under this Agreement and all other
claims of any nature or description arising out of or connected with this
Agreement, irrespective of whether or not NCL shall have made any demand
hereunder and although said liabilities or claims shall be contingent or
unmatured. This section is in addition to any rights nor or hereafter granted
under applicable law or otherwise, and does not in any way limit any such
rights.
-16-
22. GOVERNING LAW/VENUE
This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida, without regard to the conflict of laws provisions
thereof. The parties hereby irrevocably submit in any suit, action or proceeding
arising out of or relating to this Agreement or any transactions contemplated
hereby (whether during the term hereof, after its termination or expiration or
in connection with its negotiation), to the exclusive jurisdiction of the United
State District Court for the Southern District of Florida or, if jurisdiction is
not available therein, the jurisdiction of any court located in Miami-Dade
County, Florida, and waive any and all objections to such jurisdiction or venue
that they may have under the laws of any state or country, including, without
limitation, any argument that jurisdiction, situs and/or venue are inconvenient
or otherwise improper. Each party further agrees that process may be served upon
such party in any manner authorized under the laws of the United States or
Florida, and waives any objections that such party may otherwise have to such
process.
23. ASSIGNMENT
With the exception of any transaction permitted pursuant Section 13
hereof, neither this Agreement nor any right conferred hereby is assignable by
any party in whole or in part, without the prior written consent of the other
parties; provided, however, that NCL shall have the right to assign this
Agreement, in whole or in part, to any of its subsidiaries or affiliates.
CONCESSIONAIRE's duties hereunder are non-delegable and may not be subcontracted
or otherwise delegated without the prior written consent of NCL. In addition to
the foregoing, in the event any cruise line (other than NCL) acquires a legal or
beneficial ownership interest (direct or indirect) in CONCESSIONAIRE or its
parent or ultimate parent company (which includes the issuance of stock or
warrants in CONCESSIONAIRE or its parent or ultimate parent company), or is able
to exercise influence over the management of CONCESSIONAIRE or its parent or
ultimate parent company by electing any officer or director, or CONCESSIONAIRE
or its parent or ultimate parent company is merged or consolidated with or into
any such cruise line, then CONCESSIONAIRE shall immediately notify NCL of any
such event and NCL shall have the right, in addition to any other rights it may
have under this Agreement, to terminate this Agreement by providing
CONCESSIONAIRE 30 days prior written notice.
24. SURVIVAL
All terms and conditions which are intended to continue and survive the
termination of this Agreement shall continue and survive.
25. NOTICES
Any notice, demand, request consent, approval or communication that either
party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by telegraphic means or
prepaid, first-class mail. Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to the other
shall be addressed to the other party at the address set forth below. Either
party may change its address by notifying the other party of the change of
address. Notice shall be deemed communicated within seventy-two (72) hours from
the time of mailing, if mailed as provided in this section, and shall be deemed
given on the same day by telegraphic means or personally delivered. Any such
notices to each party and other correspondence or communications shall be
addressed:
-17-
If to NCL: NCL (BAHAMAS) LTD. d/b/a NCL
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Vice President of Onboard Revenue and
Land Services
with a copy to: General Counsel
NCL (BAHAMAS) LTD. d/b/a NCL
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
If to CONCESSIONAIRE: Fine Art Wholesalers, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Ilan Shachr, President
with a copy to
Image Innovations Holdings, Inc.: (appropriate information)
26. ENTIRE AGREEMENT
This written Agreement constitutes the entire agreement between the
parties and all prior negotiations, agreements and communications with respect
to such matters are merged herein and superseded hereby. There are no
representations, warranties or obligations by either party to the other except
those set forth herein. The terms of this Agreement may not be waived, altered,
modified, amended or supplemented in any manner whatsoever, except by a written
document duly executed by both parties hereto.
27. INDEPENDENT CONTRACTOR
Neither this Agreement nor the relationship between the parties thereby
created constitutes a partnership or a joint venture. CONCESSIONAIRE understands
and agrees that it is not the agent of NCL, but is an independent contractor and
has no right to pledge the credit of NCL in any manner or sum whatsoever, and
that persons contracting with CONCESSIONAIRE are not authorized to deliver
equipment or supplies to NCL, for or on its account, in any port.
-18-
28. MISCELLANEOUS
(A) Nothing herein contained shall require any party to take action
contrary to law or an order or regulation of any governmental authority or
governmental body or officer thereof having apparent jurisdiction of the
parties, or contrary to any permit or authorization granted to the parties.
(B) Any specific remedies set forth in this Agreement, legal,
equitable or otherwise, shall not be exclusive, but shall be cumulative upon all
other rights set forth herein or allowed or allowable by this Agreement or by
law.
(C) In the event a party shall retain or engage an attorney or
attorneys to collect or enforce or protect its interests with respect to this
Agreement, the prevailing parties shall be entitled to receive payment of all
costs and expenses of such collections, enforcement or protection, including
reasonable attorneys' fees.
(D) The provisions of this Agreement are for the exclusive benefit
of the parties and their permitted successors and assigns and shall not confer
any rights or remedies upon any other persons or entities.
(E) The headings used herein are for convenience only. The headings
do not purport to define, limit, or extend the scope or intent of the language
of the sections and the paragraphs to which they pertain.
(F) This Agreement may be executed in any number of counterparts.
All such counterparts shall be deemed to be originals, and shall together
constitute but one and the same instrument.
-19-
(G) The parties agree that facsimile signatures for this Agreement
shall be deemed valid and binding upon the parties and shall have the same force
and effect as original signatures on the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day first written above.
FINE ART WHOLESALERS INC. NCL (BAHAMAS) LTD. d/b/a NCL
By:________________________ By:_____________________________
Name:______________________ Name:___________________________
Title:_______________________ Title:____________________________
Agreed to, accepted and acknowledged by Image Innovations Holdings, Inc., with
it principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
only with respect to its obligations set forth in Sections 3(J) and 13 of this
Agreement.
By:________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
-20-
SCHEDULE A
Vessels and Commencement Dates
Vessels Commencing
Group 1
Norwegian Jewel [TBD]
Norwegian Xxxx [TBD]
Norwegian Spirit [TBD]
Norwegian Star [TBD]
Norwegian Sun [TBD]
Group 2
Norwegian Wind [TBD]
Norwegian Sea [TBD]
Norwegian Majesty [TBD]
Norwegian Crown [TBD]
Norwegian Dream [TBD]
Xxxxx Xxxx [TBD]
[Group 3 - The Vessels hereunder shall be added to this Schedule and
are subject to the terms of this Agreement only in the event NCL
decides to so include them under the terms and conditions of this
Agreement.
Pride of Aloha
Pride of America
Pride of Hawaii]
-21-
SCHEDULE B
CODE OF CONDUCT FOR CONCESSIONAIRES POLICY
Code of Conduct for Concessionaires
I. Policy
It is the policy of NCL (Bahamas) Ltd. and NCL America Inc. (collectively,
"NCL") that each concessionaire thoroughly review this Code of Conduct and
implement procedures to ensure compliance with its requirements.
II. Purpose
The purpose of this policy is to define NCL's Code of Conduct for
Concessionaires (the "Code of Conduct").
III. Scope
The policy applies to all vendors operating concessions on board any vessel
operated by NCL, its affiliates or subsidiaries.
IV. Responsibility
a. Concessionaire is a qualified and experienced concessionaire, fully
qualified to supervise and operate the concession contracted for
with NCL with a capable and properly trained staff of sufficient
size to operate such concession and sell merchandise and services in
a professional and efficient manner.
b. Each concessionaire is responsible for informing its employees of
this Code of Conduct.
c. Each concessionaire is responsible for implementing procedures that
ensure the concessionaire and all of its employees comply with the
requirements of this Code of Conduct.
d. Violation of this Code of Conduct by an employee of concessionaire
should subject such employee to disciplinary action by
concessionaire.
e. Violation of this Code of Conduct may be considered a breach of
concessionaire's obligations to NCL under the contract that grants
concessionaire the right to operate on board NCL's vessels.
-22-
V. Guidelines
a. All merchandise and services offered for sale by concessionaire is
what it purports to be, including the brand name or trademark of
such merchandise, if applicable.
b. Concessionaire's employees will treat passengers, crew, officers,
Masters, agents, subcontractors and employees of NCL courteously at
all times.
c. Concessionaire shall not solicit any passengers, or provide any
promotional, marketing or advertising materials to any passengers on
board any NCL vessel, or to otherwise promote, market or advertise
that concessionaire's activities or business, if any, at any
location other than on board NCL's vessels, without the prior
written permission of NCL.
d. Concessionaire shall obtain the prior written consent of NCL for any
advertising, promotion, marketing or publicity employed by
concessionaire that uses the name, logos, trademarks or servicemarks
of NCL, or its parent or affiliates.
e. Concessionaire shall not make any explicit or implicit statements or
representations that any merchandise sold by concessionaire is
endorsed, certified or guaranteed in any manner by NCL, or its
parent or affiliates.
VI. Ethical Business Conduct
a. All concessionaires are expected to observe the highest standards of
ethics and integrity in their conduct. Conduct that may raise
questions as to concessionaire's or NCL's honesty, integrity,
impartiality, reputation or activities that could cause
embarrassment to the NCL or damage its reputation, are prohibited.
Any activity of unethical, illegal or improper business conduct must
be avoided, and any activity or any business conduct with known
criminals or unethical organizations or individuals is strictly
prohibited.
b. Concessionaire and its employees are expected to deal honestly,
ethically and fairly with NCL and its employees, the passengers and
customers on board each NCL vessel and the general public. The
highest possible standards of ethical and business conduct are
required of concessionaire employees in the performance of their
duties and responsibilities.
VII. Procedure
a. It is essential that all of concessionaire's employees be familiar
with all aspects of this policy.
b. Concessionaire is encouraged to require each employee receive and
review this policy, complete and sign a Code of Conduct
Certification and return it to the concessionaire before they join
any NCL vessel.
-23-
c. Concessionaire is encouraged to require that each of its shipboard
employees periodically certify that they have read this policy.
d. Any concessionaire employee who violates this Code of Conduct shall
be removed by concessionaire from the NCL vessel on which the
employee was working and the employee shall be prohibited from
working on any other NCL vessels.
-24-
SCHEDULE C
CODE OF CONDUCT FOR CONCESSIONAIRES
CERTIFICATION
I hereby acknowledge that I have received the Code of Conduct for
Concessionaires Policy (the "Code") and understand my obligations there under
and I agree to abide by and follow both the letter and the spirit of the Code.
I certify that I am not engaged in activity, interest or relationship that would
not be in compliance with or appears not to be in compliance with this Code.
I further acknowledge that if I fail to comply with this policy, I shall be
removed from the NCL vessel that I am working on and prohibited from working on
any other NCL vessel and may be subject to disciplinary action up to and
including termination, for cause.
I also understand the Company may seek retribution for any losses it may have
suffered as a result of my breach of this Code and failure to comply with this
policy.
---------------------------- --------------------------
Employee Name (PLEASE PRINT) Employee Signature
---------------------------- ----------------------------
Company Date
-25-
SCHEDULE D
Minimum Guarantee Amounts
Vessels May 1, 2005 to May 1, 2007 to May 1, 2009 to
April 30, 2007 April 30, 2009 April 30, 2011
----------------------------------------------------------------------------------------------------------------
Group 1
Norwegian Jewel $2.25 $2.43 $2.62
Norwegian Xxxx $2.25 $2.43 $2.62
Norwegian Spirit $2.25 $2.43 $2.62
Norwegian Sun $2.25 $2.43 $2.62
Norwegian Star $2.25 $2.43 $2.62
Group 2
Norwegian Dream $1.35 $1.45 $1.57
Norwegian Majesty $1.35 $1.45 $1.57
Norwegian Crown $1.35 $1.45 $1.57
Norwegian Wind $1.35 $1.45 $1.57
Norwegian Sea $1.35 $1.45 $1.57
Xxxxx Xxxx $1.35 $1.45 $1.57
Group 3 (applicable only if added to
this Agreement pursuant to Section 3
(I))
Pride of Aloha $1.35 $1.45 $1.57
Pride of America $1.35 $1.45 $1.57
Pride of Hawaii $1.35 $1.45 $1.57
New Vessels (applicable only if added $2.25 $2.43 $2.62
to this Agreement pursuant to Section
5(C))
-26-
SCHEDULE E
Drug and Alcohol Policy
-27-
SCHEDULE F
Letter of Credit
-28-
[Xxxxxx United Bank Logo]
Application and Agreement Form for Irrevocable Standby Letter of Credit
To: Xxxxxx United Bank Date: __________________________
0000 Xxxxxxx Xxxxxxxx, 0xx Xxxxx
Xxxxx, XX 00000 L/C Number: ____________________
(For International Dept use only)
Please issue an Irrevocable Standby Letter of Credit as set forth in this
application by:
|_| Courier |_| Telex |_| Other (Please specify): _________________________
ALL INFORMATION MUST BE TYPED
---------------------------------------- ---------------------------------------
Advising Bank For Account of (Applicant)
---------------------------------------- ---------------------------------------
---------------------------------------- ---------------------------------------
---------------------------------------- ---------------------------------------
---------------------------------------- ---------------------------------------
In Favor of (Beneficiary)
Amount: USD 8,000,000.00
-----------------------
NCL (BAHAMAS) LTD. D/B/A NCL Expiration Date: [MAY 31,] 2011
---------------------------------------- ---------------
0000 XXXXXXXXX XXXXXX XXXXX No later than 3:00 PM at our counters
----------------------------------------
XXXXX, XXXXXXX 00000
----------------------------------------
---------------------------------------- ---------------------------------------
Available by draft(s) at SIGHT drawn on XXXXXX UNITED BANK, 0000 Xxxxxxx
Xxxxxxxx, 0xx Xxxxx Xxxxx, XX 00000 when accompanied by the following
document(s):
1. A statement purportedly signed by an authorized representative of
(Beneficiary) indicating name and title of signer and stating as follows:
"The amount of this drawing USD 8,000,000.00 under Xxxxxx United Bank
Credit Number represents funds due to Beneficiary pursuant to
Section 3(J) of the Concession Agreement dated June __, 2005 (the
"Concession Agreement") between Beneficiary and Fine Art Wholesalers
Inc. ("Concessionaire") under which Applicant agreed to post this
Letter of Credit. This Letter of Credit may be drawn by Beneficiary
upon:
(i) Concessionaire's default in the performance of its obligations
under Section 6 of the Concession Agreement for sixty (60)
days and Concessionaire's failure to cure such default within
thirty (30) days after delivery of a written notice to
Concessionaire of such default; or
(ii) the sale, transfer, or other disposal by Image Innovations
Holdings, Inc. of Concessionaire's business in the
circumstances described and as set forth in Section 13 of the
Concession Agreement.
--------------------------------------------------------------------------------
."
--------------------------------------------------------------------------------
2.
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
-29-
3. Original of this Letter of Credit and any Amendment(s) thereto.
Special Condition: Notwithstanding any reference in this Letter of Credit to
other documents, instruments or agreements, or references in such other
documents, instruments or agreements to this credit, this Irrevocable Letter of
Credit contains the entire agreement among the account party, beneficiary and
the issuer hereunder relating to the obligation of the issuer hereunder.
All banking charges other than ours are for the account of the beneficiary.
|_| Please include and Automatic Renewal Clause in your Letter of Credit as
follows:
"Special Condition: It is a condition of this Irrevocable Standby Letter
of Credit that is shall be automatically extended for an additional period
of one (1) year from the Expiration Date, unless at 90 days prior to such
Expiration Date, we notify you in least writing via registered mail,
certified mail or courier that we elect not to renew this letter of
credit. Upon receipt of such notice by you and without limiting your right
to draw on us at any time as allowed in the Irrevocable Standby Letter of
Credit, you may draw on us hereunder prior to the expiration date,
submitting only a sight draft on us, and a copy of our letter advising you
that we elected not to renew this Credit."
Note to Applicant: If the Letter of Credit is to be issued in accordance with
a specific specimen, please check the box below.
|_| Please issue your Letter of Credit in accordance with the attached
format which is an integral part of this application.
AGREEMENT
In consideration of your issuing, at the request of the Applicant(s), your
Irrevocable Letter of Credit (hereinafter the "Credit") substantially in
accordance with the foregoing application, the Applicant(s) by its/ their
signature below hereby acknowledge(s) and agree(s):
1. To jointly and severally to be bound by the terms and conditions on
the reverse side hereof.
2. To pay Xxxxxx United Bank on demand, with respect to the Credit, a
nonrefundable issuance fee and a commission (payable in advance) -
one quarter of which is also nonrefundable. We further agree to pay
Xxxxxx United Bank, for each additional year or any part thereof
during which the Credit is available, the agreed upon commission, or
your minimum fee then in effect for similar types of Credit,
whichever is higher plus such additional amount as may be required
by applicable federal law of the rules and/or regulations of the
Board of Governors of the Federal Reserve and/or the Comptroller of
the Currency and if so demanded by you, to pay you in advance the
amounts to be paid by you pursuant thereto.
-------------------------------------------------------
Date
-------------------------------------------------------
Applicant Name
-------------------------------------------------------
Authorized Signature and Title
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-30-
For Commercial Lending Use Only:
Commission: % p.a. minimum $ p.a. or part thereof
--------------- ------------
Collateral:
|_| Unsecured
Amount:
|_| Line of Credit
------------------
Expires:
------------------
|_| Other (Please specify):
------------------------------------------
--------------------------------------------------------------------------------
DDA A/C No.:
-----------------------------------
Contact Officer & Dept: Phone Number:
--------------------------- --------------
Standby Letter of Credit Agreement
In consideration of the issuance by XXXXXX UNITED BANK (hereinafter called "the
BANK" or "you" or "yours") of a standby letter of credit as requested in the
attached Application (such letter of credit as from time to time amended or
modified with consent of the Applicant being hereinafter referred to as the
"Credit") the Applicant agrees with the Bank as follows with respect to the
Credit:
1. To pay the Bank on demand, at the office shown on the attached
Application and in lawful currency of the United States of America,
the amount of each draft which may be drawn in United States
currency under the Credit or purported to be so drawn. It is
understood that any amount which may become due and payable to you
under this agreement may, in your discretion and if not otherwise
paid, be charged by you to any available funds then held by you for
the account of the undersigned.
2. To pay the Bank on demand any and all charges and expenses which may
be paid or incurred by you or your agents in connection with the
preparation and execution of this agreement and the Credit,
including, without limitation, the reasonable fees and disbursements
of your attorneys and any and all charges and expenses which may be
incurred or paid by your correspondents or agents in connection with
the Credit. All such payments shall be made to you in the same
manner as settlements for drafts and simultaneously therewith or on
demand by you.
3. If any change in any law, regulation or guideline or in the
interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof shall
either (a) impose, modify or deem applicable any reserve, capital,
special deposit or similar requirement against letters of credit
issued by, or on assets held by, or deposits in or for the account
of Xxxxxx United Bank or (b) impose on you any other condition
regarding this agreement or the Credit, and the result of any event
referred to in clause (a) or (b) above shall be to increase your
cost of issuing or maintaining the Credit (which increased cost
shall be the result of your reasonable allocation of the aggregate
of such sot increases resulting from such events), then upon demand
by you, the undersigned shall pay to you additional amounts
sufficient to compensate you for such increased cost relating to the
Credit from the date of such change, and thereafter such similar
payments requested by you on the basis set forth above. A
certificate setting forth in reasonable detail such increased cost
incurred by you as a result of any event mentioned in clause (a) or
(b) above, submitted by you to the undersigned, shall be conclusive,
absent manifest error, as to the amount thereof.
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4. The undersigned assume(s) all risk of the misuse of the Credit;
however arising. Neither you nor your agents or your correspondents
shall be responsible for (a) the use which may be made of the Credit
or for any acts or omissions of any beneficiary in connection
therewith; (b) the form, correctness, validity, sufficiency,
genuineness or legal effect of documents, or of any endorsements
thereon, even if such documents or endorsements should in fact prove
to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) problems arising from any laws, customs or regulations
which may be effective in countries of negotiation and/or payment of
the Credit; (d) failure of any draft to bear any reference or
adequate reference to the Credit; (e) errors, omission, mutilations,
interruptions or delays in transmission or delivery of any message,
by mail, cable, telegraph, wire- less or otherwise, whether or not
they be in cipher; (f) errors in translation or errors in
interpretation of technical terms; or (g) any consequences arising
from causes beyond your control. You shall not be responsible for
any act, error, neglect, default, omission, insolvency or failure in
business of any of your correspondents. The happening of any one or
more of the contingencies referred to above shall not affect, impair
or prevent the vesting of any of your rights or powers hereunder.
The undersigned agree(s) that if, upon receipt of advice by cable,
or otherwise, of the issuance of the Credit, but prior to its actual
receipt, the beneficiary shall negotiate drafts by virtue of such
advice, such negotiations shall be considered properly effectuated
under the Credit and shall be included under the terms and subject
to all conditions hereof. If the Credit provides that payment is to
be made by your correspondent, neither you nor such correspondent
shall be responsible for the failure of any of the documents
specified in the Credit to come into your hands of for any delay in
connection therewith, and the obligation of the undersigned to make
reimbursement shall not be affected by such failure of delay or the
receipt by you of any such documents. The undersigned agree(s) to
indemnify you and hold you harmless from any liability, loss or
damage arising out of the payment or acceptance by you of any draft,
the signature of which is not that of an authorized Person or is not
genuine, unless, prior to presentation to you of any such draft for
payment or acceptance, the undersigned shall have filed with you the
specimen signatures of the persons Authorized to sign drafts under
the Credit. In furtherance an extension and not in limitation of the
specific provisions hereinbefore set forth, it is further agreed
that any action, inaction or omission taken or suffered by you, or
by any of your agents or correspondents or in connection with the
Credit or the related drafts or documents, if taken or suffered in
good faith on behalf of or for the protection of either you or the
undersigned, and in conformity with such foreign or domestic laws,
customs or regulations as you or any of your correspondents may deem
applicable thereto, shall be binding upon the undersigned and shall
not place you, your agents, or correspondents under and resulting
liability to the undersigned, and the undersigned further agree,
except as may otherwise be provided herein to hold you and your
agents and correspondents indemnified and harmless against any
liability.
5. Each of the undersigned agree that all property belonging to the
undersigned or any of the under- signed, or in which any of the
undersigned may have an interest, of any name and nature whatso-
ever, now held by you or at any time hereafter delivered, conveyed,
transferred, assigned or paid to you, or conveyed into your
possession or control, or into the possession or control of any
third party acting in your behalf, in any manner whatsoever, whether
for the express purpose of being used by you as collateral security
of for or for any other or different purpose, including any items
received for collection or transmission and the proceeds thereof,
and including such property as may be in transit by mail or carrier
to or from you are hereby pledged to you as security for any and all
of the obligations and/or liabilities of the undersigned or any of
the undersigned under this agreement and all other liabilities
and/or obligations, absolute or contingent, due or become due, which
are now, or may at any time hereafter be, owing by the undersigned
or any of the under- signed to you, and a lien is hereby given to
you upon any and all such property for the aggregate amount of any
and all such obligations and/or liabilities; and the undersigned
hereby authorize you, at you option, at any time, whether or not the
property then held by you as security hereunder is deemed by you to
be adequate, to appropriate and apply to any and all of such
obligations and/or liabilities, whether or not they are due, any and
all moneys now and hereafter with you on deposit or otherwise to the
credit of or belonging to the undersigned or any of the undersigned
and/or, in your discretion, to hold any such moneys as security for
any obligations or liabilities until the exact amount thereof, if
any, shall have been definitely ascertained by you. Your rights and
liens here- under shall continue unimpaired, and the undersigned
shall be and remain obligated hereunder at any time or of any rights
or interest therein, or the release or substitution of any party
liable for any of the aforementioned obligations and/or liabilities,
or any promissory note, draft, xxxx of exchange or other instrument
given you in connection with any of the aforementioned obligations
and/or liabilities, the undersigned hereby waiving notice of any
such delay, extension, release, substitution, renewal, compromise or
other indulgence and hereby consenting to be bound thereby as fully
and effectually as if the undersigned had expressly agreed thereto
in advance.
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6. At any time and from time to time, on demand, to deliver, convey,
transfer or assign to you, as security for any and all of the
obligations and/or liabilities of the undersigned or any of the
under- signed hereunder, and also for any and all other obligations
and/or liabilities, absolute or contingent, due or to become due,
which are now or may at any time hereafter, be owing by all or any
of the undersigned to you, additional security of a value and
character satisfactory to you, or to make such cash payments as you
may require.
7. You are hereby authorized, at your option and without any obligation
to do so, transfer to and/or register in your name or the name of
your nominee all or any part of the property which may be held by
you as security at any time hereunder and to receive any or all
payments made in connection with such property whether in the form
of interest, principal, dividends or otherwise, and, at your option,
to apply such payment upon any and all obligations and/or
liabilities referred to you in this agreement or to hold any such
payments until the exact amount of such obligations and/or
liabilities shall be definitely ascertained by you. You are
authorized to take any of the foregoing actions either before or
after the maturity of any of the obligations and/or liabilities
referred to in this agreement and with or without notice to the
undersigned.
8. Upon the failure of the undersigned at any time to deliver security
to you as demanded by you and to keep a margin of security with you
satisfactory to you; or upon the nonperformance of or default with
respect to any promise, agreement, obligation or condition herein
contained or contained in any agreement made with you by the
undersigned, or any of the undersigned; or upon the failure of the
undersigned forthwith, with or without notice, to furnish
satisfactory additional collateral or to make payments as
hereinbefore agreed; or upon discovery by you of any
misrepresentation by the under- signed to you for the purpose of
obtaining credit or any extension thereof or in connection with the
Credit; or upon nonpayment by the undersigned at maturity of any
draft accepted by the under- signed or any of the undersigned in
which or as to which you an interest as principal or agent; or upon
any failure to pay, according to the terms thereof, and indebtedness
due to you from the undersigned or any of the undersigned; or in
case any petition in bankruptcy shall be filed by or against the
undersigned, or any proceedings in bankruptcy (or under laws or
regulations of any jurisdiction relating to the relief of debtors)
should be commenced for the relief or readjustment of any
indebtedness of the undersigned, either through reorganization,
composition, extension or otherwise; or if the undersigned should
make an assignment for the benefit of creditors or take advantage of
any insolvency law; or if a receiver for any property of the
undersigned should be appointed at any time; or in the event of any
seizure, vesting or intervention by or under authority of a
government by which the management of the undersigned is displaced
or its authority in the control of its business is curtailed; of if
any funds or other property of the undersigned which may be in, or
come into, your possession or control, or that any third party
acting in your behalf, should be attached or distrained or should be
or become subject to any mandatory order of court or other legal
process; or upon any other act or occurrence indicating in your sole
judgement that the prospect of payment of any obligation and/or
liability referred to in this agreement is impaired; then, or at any
time after the happening of such event, any and all of the
obligations and/or liabilities of the under- signed referred to
herein shall thereupon at your option, being such obligations and/or
liabilities or otherwise; and each of the undersigned, as to all or
any such property, including property arrived or to arrive, at
private sale or public auction or at any exchange, broker's board or
otherwise, at your option, in such parcel or parcels and at such
time or times and at such place or places and upon such terms and
conditions as you may deem proper, either for cash or credit or for
future delivery, without assumption of any credit risk, and without
either demand, advertisement or notice of any kind, all of which are
hereby expressly waived. The undersigned hereby appoint you as agent
and attorney-in-fact, with respect to any sale or other disposition
of the property, after deducting all costs or expenses of every kind
for care, safekeeping, collection, sale, delivery or otherwise
(including expenses incurred in the protection of your title to or
lien upon or right in any such property, expenses for legal services
of any kind in connection therewith in making such sale or sales,
in- surance commission for sale and guaranty), you may apply the
residue of the proceeds of such sale or sales or other disposition
thereof, together with any balance of deposits and any sums shall
determine in your sole discretion (without being required to marshal
assets) wither in while or in part, of any or all the obligations
and/or liabilities of the undersigned or any of them to you, however
arising, whether or not then due, making proper allowance for
interest on obligations or liabilities not then due, and return the
surplus, if any, to the undersigned; all without prejudice to your
rights as against the undersigned with respect to any and all
amounts which may be or remain unpaid on any and all amounts which
may be or remain unpaid on any of the aforementioned obligations
and/or liabilities at any time.
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9. You may assign or transfer this agreement, or any instrument
evidencing all or any of the aforemen- tioned obligations and/or
liabilities, and may deliver all or any of the property then held as
security therefor, to the transferees who shall thereupon become
vested with all the powers and rights in respect thereto given or in
the instruments transferred, and you shall thereafter be forever
relieved and fully discharged from any liability or responsibility
with respect thereof, but you shall retain all rights and powers
hereby given with respect to any and all instrument, rights or
property not so transferred.
10. In addition to sums mentioned herein, the undersigned will pay to
you, on demand, on account of Attorney's fees in event of a default
hereunder and/or the non-payment of any sums hereunder, a sum equal
to twenty (20%) percent of the face amount of the Credit and all
other fees permitted by law and, we agree, such fee is reasonable.
11. If any sum due hereunder is not paid when due or after demand, as
the case may be, the under- signed will pay interest on such sum
from the due date or the date of demand until paid at the greater of
your Prime Rate, as it may change from time to time or sixteen (16%)
percent. The Prime Rate, which is determined periodically, is the
interest rate which forms the basis for the Interest rate charged on
the commercial loans of Xxxxxx United Bank.
12. No delay on your part in exercising any power of sale or any other
rights or options hereunder, and no notice or demand, which may be
given to or made upon the undersigned by you with respect to any
power of sale or other right or option hereunder, shall constitute a
waiver thereof, or limit or impair your right to take action or to
exercise any power of sale, or any other rights or options here-
under, without notice or demand, or prejudice your rights as against
the undersigned in any respect. You shall not be deemed to have
waived any of your rights hereunder, unless you or your authorized
agent shall have signed such waiver in writing. No such waiver,
unless expressly so stated therein, shall be effective as to any
transaction which occurs subsequent to the date of such waiver, nor
as to any continuance of a breach after such waiver. The obligations
hereof shall continue in force and apply, not withstanding any
change in the membership of any partnership undersigned, whether
arising from the death or retirement of one or more partners or the
accession of one or more new partners, and the obligation hereof
shall be binding upon the undersigned, the heirs, executors,
administrators, successors and assigns of the undersigned, and all
rights, benefits and privileges hereby conferred shall inure to the
benefit of, and be enforceable by you, your successors, transferees
and assignees. If this agreement should be terminated or revoked by
operations of law as to the undersigned, the undersigned will
indemnify and save you harmless from any loss which may be suffered
or incurred by you in acting hereunder prior to the receipt by you,
or your successors, transferees, or assignees, of notice in writing
of such termination or revocation.
13. To the extent not inconsistent with the express terms hereof, the
Credit shall be governed by, and construed in accordance with the
terms of the Uniform Customs and Practice for Documentary Credits of
the International Chamber of Commerce currently in effect.
14. This agreement and all rights, obligations and liabilities arising
hereunder shall be construed according to the laws of the State of
New Jersey.
15. The word "property" as used herein include goods and merchandise, as
well as any and all documents pertaining thereto; also securities,
funds, choices in action and any and all other forms of property,
whether real , personal or mixed, and any right or interest of the
undersigned therein and thereto.
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16. If this agreement is executed by two or more parties, it shall be
the joint and several agreement of such parties. When used herein
the singular shall include the plural and vice versa where
appropriate.
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Individual or Company Name (Typed)
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Authorized Signature
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