Exhibit 10(c)
PROTOCOL OF DELIVERY AND ACCEPTANCE
This protocol confirms that today, 23 April 2004 at 2pm (hours (London time),
Crown Wind Limited (the "OWNERS") delivered and NCL (Bahamas) Ltd (the
"CHARTERERS") accepted the Vessel described below under the Bareboat Charter
dated 20 April 2004.
NAME: m.v. Norwegian Wind
FLAG/PORT OF REGISTRY: Bahamas, Nassau
OFFICIAL NUMBER: 723124
This Protocol has been signed on behalf of the Owners and the Charterers in two
(2) original counterparts.
CROWN WIND LIMITED NCL (BAHAMAS) LTD.
By: By:
First issued by The Baltic and Copyright, published by The Baltic and
International Maritime Council International Maritime Council (BIMCO),
(BIMCO), Copenhagen in 1974 as Copenhagen, Issued November 2001
"Barecon 'A'" and "Barecon 'B'".
Revised and amalgamated 1989.
Revised 2001
1. Shipbroker BIMCO STANDARD BAREBOAT
NOT APPLICABLE CHARTER [LOGO]
CODE NAME: "BARECON 2001" PART 1
2. Place and date
LONDON 20 APRIL, 2004
3. Owners/Place of business (Cl.1) 4. Bareboat Charterers/Place of
CROWN WIND LIMITED/BERMUDA business (Cl.1) NCL (BAHAMAS) LTD.
/BERMUDA
5. Vessel's name, call sign and flag
(Cl.1 and 3)NORWEGIAN WIND, C6LG6,
BAHAMAS
6. Type of Vessel 7. GT/NT
PASSENGER SHIP 50,760/28,639
8. When/Where built 9. Total DWT (abt.)in metric tons on
1993/FRANCE summer freeboard
6,731
10. Classification Society (Cl.3) 11. Date of last special survey by the
DET NORSKE VERITAS Vessel's classification society
N/A
12. Further particulars of Vessel
(also indicate minimum number of
months'validity of class
certificates agreed acc. to
(Cl.3) N/A
13. Port or Place of delivery (Cl.3) 14. Time for delivery (Cl.4) 15. Cancelling
AS AGREED BY THE PARTIES SEE CLAUSE 4 date (Cl.5)
N/A
16. Port or Place of redelivery 17. No. of months' validity of trading and
(Cl.15) class certificates upon redelivery (Cl.15)
PORT OR PLACE IN NORTH AMERICA THREE MONTHS
SELECTED BY CHARTERERS.
18. Running days' notice if other 19. Frequency of dry-docking (Cl.10(g))
than stated in Cl.4 N/A
N/A
20. Trading limits (Cl.6)
N/A
21. Charter period (Cl.2) 22. Charter hire (Cl.11)
[***] [Confidential Treatment] [***] [Confidential Treatment]
23. New class and other safety
requirements (state percentage of
Vessel's insurance value acc. to
Box 29 (Cl.10(a)(ii))
N/A
24. Rate of interest payable acc. to 25. Currency and method of payment
(Cl.11) and, if applicable,acc. (Cl.11)
to PART IV US$, BY TELEGRAPHIC TRANSFER
SEE CLAUSE 11(f)
This document is a computer generated BARECON 2001 form printed by authority of
BIMCO. Any insertion or deletion to the form must be clearly visible in the
event of any modification made to the pre-printed text of this document which is
not clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or expense as a
result of discrepancies between the original BIMCO approved document and this
computer generated document.
2
"BARECON 2001" STANDARD BAREBOAT CHARTER PART I
26. Place of payment, also state beneficiary 27. Bank guarantee/bond (sum and place)
and bank account (Cl.11) (Cl.24) (optional)
AS ADVISED BY OWNERS FROM TIME TO TIME SEE CLAUSE 24
28. Mortgage(s), if any (state whether 12(a) 29. Insurance (hull and machinery and war
or (b) applies; if 12(b) applies state date risks) (state value acc. to Cl.13(f) or, if
of Financial instrument and name of applicable, acc. to Cl.14(k)) (also state if
Mortgagee(s)/Place of business) (Cl.12) Cl.14 applies)
12(b) APPLIES. THE MORGAGEE IS DNB NOR BANK ASA. N/A
30. Additional insurance cover, if any, for 31. Additional insurance cover, if any, for
Owners' account limited to (Cl.13(b) or, Charterers' account limited to (Cl.13(b) or,
if applicable, Cl.14(g)) if applicable, Cl.14(g))
N/A AS APPROVED BY OWNERS
32. Latent defects (only to be filled in if 33. Brokerage commission and to whom
period other than stated in Cl.3) payable (Cl.27)
N/A N/A
34. Grace period (state number of clear 35. Dispute Resolution (state 30(a), 30(b) or
banking days) (Cl.28) 30(c); if 30(c) agreed Place of Arbitration
N/A must be stated (Cl.30)
30(a) APPLIES. LONDON.
36. War cancellation (indicate countries agreed)
(Cl.26(f))
N/A
37. Newbuilding Vessel (indicate with "yes" 38. Name and place of Builders (only to be
or "no" whether PART III applies) filled in if PART III applies)
(optional) N/A
NO
39. Vessel's Yard Building No. (only to be 40. Date of Building Contract (only to be filled
filled in if PART III applies) in if PART III applies)
N/A N/A
41. Liquidated damages and costs shall accrue to
(state party acc. C.1)
a) N/A
b) N/A
c) N/A
42. Hire/Purchase agreement (indicate with 43. Bareboat Charter Registry (indicate with
"yes" or "no" whether PART IV applies) "yes" or "no" whether PART IV applies)
(optional) (optional)
NO NO
44. Flag and Country of the Bareboat Charter 45. Country of the Underlying Registry (only to
Registry (only to be filled in if PART V be filled in if PART V applies)
applies) N/A
N/A
46. Number of additional clauses covering special
provisions, if agreed
NONE
PREAMBLE - It is mutually agreed that this Contract shall be performed subject
to the conditions contained in this Charter which shall include PART I and PART
II. In the event of a conflict of conditions, the provisions of PART I shall
prevail over those of PART II to the extent of such conflict but no further. It
is further mutually agreed that PART III and/or PART IV and/or PART V shall only
apply and only form part of this Charter if expressly agreed and stated in Boxes
37, 42 and 43. If PART III and/or PART IV and/or PART V apply, it is further
agreed that in the event of a conflict of conditions, the provisions of PART I
and PART II shall prevail over those of PART III and/or PART IV and/or PART V to
the extent of such conflict but no further.
3
Signature (Owners) Signature (Charterers)
This document is a computer generated BARECON 2001 form printed by authority of
BIMCO. Any insertion or deletion to the form must be clearly visible. In the
event of any modification made to the pre-printed text of this document which is
not clearly visible, the text of the original BIMCO approved document shall
apply. BIMCO assumes no responsibility for any loss, damage or expense as a
result of discrepancies between the original BIMCO approved document and this
computer generated document.
4
PART II
"BARECON 2001" STANDARD BAREBOAT CHARTER
1. DEFINITIONS
In this Charter, the following terms shall have the meanings hereby
assigned to them:
"The Owners" shall mean the party identified in Box 3;
"The Charterers" shall mean the party identified in Box 4;
"The Vessel" shall mean the vessel named in Box 5 and with particulars as
stated in Boxes 6 to 12.
"Financial Instrument" means the mortgage, deed of covenant or other such
financial security instrument as annexed to this Charter and stated in Box
28.
2. CHARTER PERIOD
In consideration of the hire detailed in Box 22, the Owners have agreed to
let and the Charterers have agreed to hire the Vessel for the period
stated in Box 21 ("The Charter Period"). Either party may by not less than
21 days prior written notice to the other propose a reduction or extension
in the length of the Charter Period. Following delivery of any such notice
the parties will negotiate in good faith with a view to agreeing a
mutually acceptable adjustment of the Charter Period provided always that
the Charterers will not unreasonably withhold their consent to any such
proposal made by the Owner which does not require the Charterers to
redeliver the Vessel on less than 9 months notice.
3. DELIVERY
(not applicable when Part III applies, as indicated in Box 37)
(a) The Vessel shall be delivered by the Owners and taken over by the
Charterers at the port or place indicated in Box 13.
(b) The Vessel shall be properly documented on delivery in accordance with
the laws of the flag State indicated in Box 5 and the requirements of the
classification society stated in Box 10. The Vessel upon delivery shall have her
survey cycles up to date and trading and class certificates valid.
(c) The delivery of the Vessel by the Owners and the taking over of the
Vessel by the Charterers shall constitute a full performance by the Owners of
all the Owners' obligations under Clause 3, and thereafter the Charterers shall
not be entitled to make or assert any claim against the Owners on account of any
conditions, representations or warranties expressed or implied with respect to
the Vessel.
4. TIME FOR DELIVERY
(not applicable when Part III applies, as indicated in Box 37)
The Owners' obligations to charter the Vessel to the Charterers and the
Charterers' obligations to charter the Vessel from the Owners are subject
to and conditional upon the Vessel being delivered to the Owners by Star
Cruises Ship Holding Limited under the Memorandum of Agreement (the "MOA")
of even date for the sale and purchase of the Vessel. The Vessel shall be
deemed delivered and taken over by the Charterers as and where she is,
immediately following her delivery and acceptance under the MOA. If the
Vessel is not delivered to the Owners under the MOA, this Charter shall
automatically be cancelled at the time at which the MOA is cancelled,
whereupon neither party shall have any further obligations or liabilities
hereunder.
5. CANCELLING
(not applicable when Part III applies, as indicated in Box 37)
6. TRADING RESTRICTIONS
The Vessel shall be employed in lawful trades for the carriage of
passengers and lawful merchandise.
The Charterers undertake not to employ the Vessel or suffer the Vessel to
be employed otherwise than in conformity with the terms of the contracts
of insurance (including any warranties expressed or implied therein)
without first obtaining the consent of the insurers to such employment and
complying with such requirements as to extra premium or otherwise as the
insurers may prescribe.
The Charterers also undertake not to employ the Vessel or suffer her
employment in any trade or business which is forbidden by the law of any
country to which the Vessel may sail or is otherwise illicit or in
carrying illicit or prohibited goods or in any manner whatsoever which may
render her liable to condemnation, destruction, seizure or confiscation.
Notwithstanding any other provisions contained in this Charter it is
agreed that nuclear fuels or radioactive products or waste are
specifically excluded from the cargo permitted to be loaded or carried
under this Charter. This exclusion does not apply to radio-isotopes used
or intended to be used for any industrial, commercial, agricultural,
medical or scientific purposes provided the Owners' prior approval has
been obtained to loading thereof.
7. SURVEYS ON DELIVERY AND REDELIVERY
(not applicable when Part III applies, as indicated in Box 37)
The Owners and Charterers shall each authorise designated representatives
for the purpose of determining and agreeing in writing the condition of
the Vessel at the time of delivery and redelivery hereunder. The Owners
shall bear all expenses of the On-hire Survey and the Charterers shall
bear all expenses of the Off-hire Survey. The scope of the On hire survey
and as to whether it shall involve in-water or dry dock inspection of the
Vessel's bottom and other underwater parts below the deepest loadline
shall be determined by the Owners. The scope of the Off hire survey shall
mirror the scope of the On hire survey.
8. INSPECTION
The Owners shall have the right at any time after giving reasonable notice
to the Charterers to inspect or survey the Vessel or instruct a duly
authorised surveyor to carry out such survey on their behalf:
(a) To ascertain the condition of the Vessel and satisfy themselves that
the Vessel is being properly repaired and maintained. The costs and fees for
such inspection or survey shall be paid by the Owners unless the Vessel is found
to require repairs or maintenance in order to achieve the condition so provided;
(b) In dry-dock if the Charterers have not dry-docked her in accordance
with Clause 10(g). The costs and fees for such inspection or survey shall be
paid by the Charterers; and
(c) For any other commercial reason they consider necessary (provided it
does not unduly interfere with the commercial operation of the Vessel). The
costs and fees for such inspection and survey shall be paid by the Owners.
All time used in respect of inspection, survey or repairs shall be for the
Charterers' account and form part of the Charter Period.
The Charterers shall also permit the Owners to inspect the Vessel's log
books whenever requested and shall whenever required by the Owners furnish
them with full information regarding any casualties or other accidents or
damage to the Vessel.
9. INVENTORIES, OIL AND STORES
A complete inventory of the Vessel's entire equipment, outfit including
spare parts, appliances and of all consumable stores on board the Vessel
shall be made by the Charterers in conjunction with the Owners on delivery
and again on redelivery of the Vessel. The Charterers and the Owners,
respectively, shall at the time of delivery and redelivery take over and
pay for all bunkers, lubricating oil, unbroached provisions, paints, ropes
and other consumable stores (excluding spare parts) in the said Vessel at
the then current market prices at the ports of delivery and redelivery,
respectively. The Charterers shall ensure that all spare parts listed in
the inventory and used during the Charter Period are replaced at their
expense prior to redelivery of the Vessel.
10. MAINTENANCE AND OPERATION
(a) (i) Maintenance and Repairs - During the Charter Period the Vessel
shall be in the full possession and at the absolute disposal for all purposes of
the Charterers and under their complete control in every respect. The Charterers
shall maintain the Vessel, her machinery, boilers, appurtenances and spare parts
in good state of repair, in efficient operating condition and in accordance with
good commercial maintenance practice and, except as provided for in Clause
14(l), if applicable, at their own expense they shall at all times keep the
Vessel's Class fully up to date with the Classification Society indicated in Box
10 and maintain all other necessary certificates in force at all times.
(ii) New Class and Other Safety Requirements - In the event of any
improvement, structural changes, new equipment or other capital expenditures (a)
becoming necessary for the continued operation of the Vessel by reason of new
class requirements or by compulsory legislation or (b) being deemed necessary by
the Charterers in light of their service requirements for the Vessel the
Charterers shall pay for the necessary improvements, structural changes, new
equipment and/or other capital items subject to their right to claim full cash
reimbursement from Owners when the Vessel is redelivered of the unamortized book
value of all such capital expenditures and dry-docking expenses incurred by
Charterers after 31 December 2003.
6
(iii) Financial Security - The Charterers shall maintain financial
security or responsibility in respect of third party liabilities as required by
any government, including federal, state or municipal or other division or
authority thereof, to enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or contiguous waters of
any country, state or municipality in performance of this Charter without any
delay. This obligation shall apply whether or not such requirements have been
lawfully imposed by such government or division or authority thereof. The
Charterers shall make and maintain all arrangements by bond or otherwise as may
be necessary to satisfy such requirements at the Charterers' sole expense and
the Charterers shall indemnify the Owners against all consequences whatsoever
(including loss of time) for any failure or inability to do so.
(b) Operation of the Vessel - The Charterers shall at their own expense
and by their own procurement man, victual, navigate, operate, supply, fuel and,
whenever required, repair the Vessel during the Charter Period and they shall
pay all charges and expenses of every kind and nature whatsoever incidental to
their use and operation of the Vessel under this Charter, including annual flag
State fees and any foreign general municipality and/or state taxes. The Master,
officers and crew of the Vessel shall be the servants of the Charterers for all
purposes whatsoever, even if for any reason appointed by Owners.
Charterers shall comply with the regulations regarding officers and crew
in force in the country of the Vessel's flag or any other applicable law.
(c) The Charterers shall keep the Owners and the mortgagee(s) advised of
the intended employment, planned dry-docking and major repairs of the Vessel, as
reasonably required.
(d) Flag and Name of Vessel - During the Charter Period, the Charterers
shall have the liberty to paint the Vessel in their own colours, install and
display their funnel insignia and fly their own house flag. The Charterers shall
also have the liberty, with the Owners' consent, which shall not be unreasonably
withheld, to change the flag and/or the name of the Vessel during the Charter
Period. Painting and re-painting, installment and re-installment, registration
and re-registration, if required by the Owners, shall be at the Charterers'
expense and time.
(e) Changes to the Vessel - Subject to Clause 10(a)(ii), the Charterers
shall make no structural changes in the Vessel or changes in the machinery,
boilers, appurtenances or spare parts thereof without in each instance first
securing the Owners' approval thereof. If the Owners so agree, the Charterers
shall, if the Owners so require, restore the Vessel to its former condition
before the termination of the Charter.
(f) Use of the Vessel's Outfit, Equipment and Appliances - The Charterers
shall have the use of all outfit, equipment, and appliances on board the Vessel
at the time of delivery, provided the same or their substantial equivalent shall
be returned to the Owners on redelivery in the same good order and condition as
when received, ordinary wear and tear excepted. The Charterers shall from time
to time during the Charter Period replace such items of equipment as shall be so
damaged or worn as to be unfit for use. The Charterers are to procure that all
repairs to or replacement of any damaged, worn or lost parts or equipment be
effected in such manner (both as regards workmanship and quality of materials)
as not to diminish the value of the Vessel. The Charterers have the right to fit
additional equipment at their expense and risk but the Charterers shall remove
such equipment at the end of the period if requested by Owners. Any equipment
including radio equipment on hire on the Vessel at time of delivery shall be
kept and maintained by the Charterers and the Charterers shall assume the
obligations and liabilities of the Owners under any lease contracts in
connection therewith and shall reimburse the Owners for all expenses incurred in
connection therewith, also for any new equipment required in order to comply
with radio regulations.
(g) Periodical Dry-Docking - The Charterers shall dry-dock the Vessel and
clean and paint her underwater parts whenever the same may be necessary, but not
less than once every sixty (60) calendar months after delivery or such other
period as may be required by the Classification Society or flag State.
11. HIRE
(a) The Charterers shall pay hire due to the Owners punctually in
accordance with the terms of this Charter in respect of which time shall be of
the essence.
(b) The Charterers shall pay to the Owners for the hire of the Vessel at
the day rate indicated in Box 22 which shall be payable not later than every
thirty (30) running days in advance, the first hire amount being payable on the
date and hour of the Vessel's delivery to the Charterers. Hire shall be paid
continuously throughout the Charter Period.
(c) Payment of hire shall be made in cash without discount in the currency
and in the manner indicated in Box 25 and at the place mentioned in Box 26.
(d) Final payment of hire, if for a period of less than thirty (30)
running days, shall be calculated proportionally according to the number of days
and hours remaining before redelivery and advance payment to be effected
accordingly.
(e) Should the Vessel be lost or missing, hire shall cease from the date
and time when she was lost or last heard of. The date upon which the Vessel is
to be treated as lost or missing shall be ten (10) days after the Vessel was
last reported or when the Vessel is posted as missing by Lloyd's, whichever
occurs first. Any hire paid in advance to be adjusted accordingly.
(f) Any delay in payment of hire shall entitle the Owners to interest at
the rate per annum, determined by them to be the three months Interbank offered
rate in London (LIBOR or its successor) for the currency stated in Box 25, as
quoted by the British Bankers' Association (BBA) on the date when the hire fell
due, increased by 2 per cent.
(g) Payment of interest due under sub-clause 11(f) shall be made within
seven (7) running days of the date of the Owners' invoice specifying the amount
payable or, in the absence of an invoice, at the time of the next hire payment
date.
12. MORTGAGE
(only to apply if Box 28 has been appropriately filled in)
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*) (b) The Vessel chartered under this Charter is financed by a mortgage
according to the Financial Instrument. The Charterers undertake to
comply, and provide such information and documents to enable the
Owners to comply, with all such instructions or directions in regard
to the employment, insurances, operation, repairs and maintenance of
the Vessel as laid down in the Financial Instrument or as may be
directed from time to time during The currency of the Charter by the
mortgagee(s) in conformity with the Financial Instrument. The
Charterers confirm that, for this purpose, they have acquainted
themselves with all relevant terms, conditions and provisions of the
Financial Instrument and agree to acknowledge this in writing in any
form that may be required by the mortgagee(s). The Owners warrant
that they have not effected any mortgage(s) other than stated in Box
28 and that they shall not agree to any amendment of the mortgage(s)
referred to in Box 28 or effect any other mortgage(s) without the
prior consent of the Charterers, which shall not be unreasonably
withheld.
*) (Optional, Clauses 12(a) and 12(b) are alternatives; indicate
alternative agreed in Box 28).
13. INSURANCE AND REPAIRS
(a) During the Charter Period the Vessel shall be kept insured by the
Charterers at their expense against hull and machinery, war and Protection and
Indemnity risks (and any risks against which it is compulsory to insure for the
operation of the Vessel, including maintaining financial security in accordance
with sub-clause 10(a)(iii) in such form as the Owners shall in writing approve,
which approval shall not be unreasonably withheld. Such insurances shall be
arranged by the Charterers to protect the interests of both the Owners and the
Charterers and the mortgagee(s) (if any), and the Charterers shall be at liberty
to protect under such insurances the interests of any managers they may appoint.
Insurance policies shall cover the Owners and the Charterers according to their
respective interests. Subject to the provisions of the Financial Instrument, if
any, and the approval of the Owners and their insurers, the Charterers shall
effect all insured repairs and shall undertake settlement and reimbursement from
the insurers of all costs in connection with such repairs as well as insured
charges, expenses and liabilities to the extent of coverage under the insurance
herein provided for.
The Charterers also to remain responsible for and to effect repairs and
settlement of costs and expenses incurred thereby in respect of all other
repairs not covered by the insurances and/or not exceeding any possible
franchise(s) or deductibles provided for in the insurances.
All time used for repairs under the provisions of sub-clause 13(a) and for
repairs of latent defects according to Clause 3(c) above, including any
deviation, shall be for the Charterers' account.
(b) If the conditions of the above insurances permit additional insurances
may be placed by the parties. The Owners or the Charterers as the case may be
shall immediately furnish the other party with particulars of any additional
insurance effected, including copies of any cover notes or policies and the
written consent of the insurers of any such required insurance in any case where
the consent of such insurers is necessary.
(c) The Charterers shall upon the request of the Owners, provide
information and promptly execute such documents as may be required to enable the
Owners to comply with the insurance provisions of the Financial Instrument.
(d) Subject to the provisions of the Financial Instrument, if any, should
the Vessel become an actual, constructive, compromised or agreed total loss
under the insurances required under sub-clause 13(a), all insurance payments for
such loss shall be paid to the Owners who shall distribute the moneys between
the Owners and the Charterers according to their respective interests. The
Charterers undertake to notify the Owners and the mortgagee(s), if any, of any
occurrences in consequence of which the Vessel is likely to become a total loss
as defined in this Clause.
(e) The Owners shall upon the request of the Charterers, promptly execute
such documents as may be required to enable the Charterers to abandon the Vessel
to insurers and claim a constructive total loss.
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15. REDELIVERY
At the expiration of the Charter Period the Vessel shall be redelivered by
the Charterers to the Owners at a safe and ice-free port or place as
indicated in Box 16, in such ready safe berth as the Owners may direct.
The Charterers shall give the Owners not less than thirty (30) running
days' preliminary notice of expected date, range of ports of redelivery or
port or place of redelivery and not less than fourteen (14) running days'
definite notice of expected date and port or place of redelivery. Any
changes thereafter in the Vessel's portion shall be notified immediately
to the Owners.
The Charterers warrant that they will not permit the Vessel to commence a
voyage (including any preceding ballast voyage) which cannot reasonably be
expected to be completed in time to allow redelivery of the vessel within
the Charter Period. Notwithstanding the above, should the Charterers fail
to redeliver the Vessel within the Charter Period, the Charterers shall
pay the daily equivalent to the rate of hire stated in Box 22 plus 10 per
cent. or to the market rate, whichever is the higher, for the number of
days by which the Charter Period is exceeded. All other terms, conditions
and provisions of this Charter shall continue to apply.
Subject to the provisions of Clause 10, the Vessel shall be redelivered to
the Owners in the same or as good structure, state, condition and class as
that in which she was delivered, fair wear and tear not affecting class
excepted.
The Vessel upon redelivery shall have her survey cycles up to date and
trading and class certificates valid for at least the number of months
agreed in Box 17.
16. NON-LIEN
The Charterers will not suffer, nor permit to be continued, any lien or
encumbrance incurred by them or their agents, which might have priority
over the title and interest of the Owners in the Vessel. The Charterers
further agree to fasten to the Vessel in a conspicuous place and to keep
so fastened during the Charter Period a notice reading as follows:
"This Vessel is the property of (name of Owners). It is under charter to
(name of Charterers) and by the terms of the Charter Party neither the
Charterers nor the Master have any right, power or authority to create,
incur or permit to be imposed on the Vessel any lien whatsoever."
17. INDEMNITY
(a) The Charterers shall indemnify the Owners against any loss, damage or
expense incurred by the Owners arising out of or in relation to the operation of
the Vessel by the Charterers and against any lien of whatsoever nature arising
out of an event occurring during the Charter Period. If the Vessel be arrested
or otherwise detained by reason of claims or liens arising out of her operation
hereunder by the Charterers, the Charterers shall at their own expense take all
reasonable steps to secure that within a reasonable time the Vessel is released,
including the provision of bail.
Without prejudice to the generality of the foregoing, the Charterers agree
to indemnify the Owners against all consequences or liabilities arising from the
Master, officers or agents signing Bills of Lading or other documents.
(b) If the Vessel be arrested or otherwise detained by reason of a claim
or claims against the Owners, the Owners shall at their own expense take all
reasonable steps to secure that within a reasonable time the Vessel is released,
including the provision of bail.
9
In such circumstances the Owners shall indemnify the Charterers against
any loss, damage or expense incurred by the Charterers (including hire paid
under this Charter) as a direct consequence of such arrest or detention.
(c) Neither party shall be liable to the other under or in connection with
any provision of this Charter for any loss of use, loss of business opportunity,
loss of goodwill or profits or for any other consequential or indirect loss or
damage of any nature whatsoever.
18. LIEN
19. SALVAGE
All salvage and towage performed by the Vessel shall be for the
Charterers' benefit and the cost of repairing damage occasioned thereby
shall be borne by the Charterers.
20. WRECK REMOVAL
In the event of the Vessel becoming a wreck or obstruction to navigation
the Charterers shall indemnify the Owners against any sums whatsoever
which the Owners shall become liable to pay and shall pay in consequence
of the Vessel becoming a wreck or obstruction to navigation.
21. GENERAL AVERAGE
The owners shall not contribute to General Average.
22. ASSIGNMENT, SUB-CHARTER AND SALE
(a) The Charterers shall not assign this Charter nor sub-charter the
Vessel on a bareboat basis except with the prior consent in writing of the
Owners and subject to such terms and conditions as the Owners shall approve.
(b) The Owners shall not sell the Vessel during the currency of this
Charter except with the prior written consent of the Charterers, which shall not
be unreasonably withheld, and subject to the buyer accepting an assignment of
this Charter.
(c) The Owners may assign this Charter to the mortgagee(s).
23. CONTRACTS OF CARRIAGE
(b) The Charterers are to procure that all passenger tickets issued *)
during the Charter Period for the carriage of passengers and their luggage under
this Charter shall contain a paramount clause incorporating any legislation
relating to carrier's liability for passengers and their luggage compulsorily
applicable in the trade; if no such legislation exists, the passenger tickets
shall incorporate The Athens Convention Relating to the Carriage of Passengers
and their Luggage by Sea, 1974, and any protocol thereto.
*) Delete as applicable.
24. GUARANTEE
The Charterers undertake to furnish, before delivery of the Vessel, a
guarantee for full performance of their obligations under this
Charter. This guarantee shall be issued by NCL Corporation Ltd.
in terms acceptable to the Owners and shall be freely assignable by them
to the mortgagee(s).
25. REQUISITION/ACQUISITION
(a) In the event of the Requisition for Hire of the Vessel by any
governmental or other competent authority (hereinafter referred to as
"Requisition for Hire") irrespective of the date during the Charter Period when
"Requisition for Hire" may occur and irrespective of the length thereof and
whether or not it be for an indefinite or a limited period of time, and
irrespective of whether it may or will remain in force for the remainder of the
Charter Period, this Charter shall not be deemed thereby or thereupon to be
frustrated or otherwise terminated and the Charterers shall continue to pay the
stipulated hire in the manner provided by this Charter until the time when the
Charter would have terminated pursuant to any of the provisions hereof always
provided however that in the event of "Requisition for Hire" any Requisition
Hire or compensation received or receivable by the Owners shall be payable to
the Charterers during the remainder of the Charter Period or the period of the
"Requisition for Hire" whichever be the shorter.
(b) In the event of the Owners being deprived of their ownership in the
Vessel by any Compulsory Acquisition of the Vessel or requisition for title by
any governmental or other competent authority (hereinafter referred to as
"Compulsory Acquisition"), then, irrespective of the date during the Charter
Period when "Compulsory Acquisition" may occur, this Charter shall be deemed
terminated as of the date of such "Compulsory Acquisition." In such event
Charter Hire to be considered as earned and to be paid up to the date and time
as "Compulsory Acquisition".
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26. WAR
(a) For the purpose of this Clause, the words "War Risks" shall include
any war (whether actual or threatened), act of war, civil war, hostilities,
revolution, rebellion, civil commotion, warlike operations, the laying of mines
(whether actual or reported), acts of piracy, acts of terrorists, acts of
hostility or malicious damage, blockades (whether imposed against all vessels or
imposed selectively against vessels of certain flags or ownership, or against
certain cargoes or crews or otherwise howsoever), by any person, body, terrorist
or political group, or the Government of any state whatsoever, which may be
dangerous or are likely to be or to become dangerous to the Vessel, her cargo,
crew or other persons on board the Vessel.
(b) The Vessel, unless the written consent of the Owners be first
obtained, shall not continue to or go through any port, place, area or zone
(whether of land or sea), or any waterway or canal, where it reasonably appears
that the Vessel, her cargo, crew or other persons on board the Vessel, in the
reasonable judgment of the Owners, may be, or are likely to be, exposed to War
Risks. Should the Vessel be within any such place as aforesaid, which only
becomes dangerous, or is likely to be or to become dangerous, after her entry
into it, the Owners shall have the right to require the Vessel to leave such
area.
(c) The Vessel shall not load contraband cargo, or to pass through any
blockade, whether such blockade be imposed on all vessels, or is imposed
selectively in any way whatsoever against vessels of certain flags or ownership,
or against certain cargoes or crews or otherwise howsoever, or to proceed to an
area where she shall be subject, or is likely to be subject to a belligerent's
right of search and/or confiscation.
(d) If the insurers of the war risks insurance, when Clause 14 is
applicable, should require payment of premiums and/or calls because, pursuant to
the Charterers' orders, the Vessel is within, or is due to enter and remain
within, any area or areas which are specified by such insurers as being subject
to additional premiums because of War Risks, then such premiums and/or calls
shall be reimbursed by the Charterers to the Owners at the same time as the next
payment of hire is due.
(e) The Charterers shall have the liberty:
(i) to comply with all orders, directions, recommendations or advice as
to departure, arrival, routes, sailing in convoy, ports of call,
stoppages, destinations, discharge of cargo, delivery, or in any other
way whatsoever, which are given by the Government of the Nation under
whose flag the Vessel sails, or any other Government, body or group
whatsoever acting with the power to compel compliance with their orders
or directions;
(ii) to comply with the orders, directions or recommendations of any
war risks underwriters who have the authority to give the same under
the terms of the war risks insurance;
(iii) to comply with the terms of any resolution of the Security
Council of the United Nations, any directives of the European
Community, the effective orders of any other Supranational body which
has the right to issue and give the same, and with national laws aimed
at enforcing the same to which the Owners are subject, and to obey the
orders and directions of those who are charged with their enforcement.
(f) In the event of outbreak of war (whether there be a declaration of war
or not) between any two or more of the following countries: the United States of
America; Russia, the United Kingdom; France; and the People's Republic of China,
both the Owners and the Charterers shall have the right to cancel this Charter,
whereupon the Charterers shall redeliver the vessel to the Owners in accordance
with Clause 15, if the Vessel has passengers on board after disembarkation
thereof at Destination, or if debarred under this Clause from reaching or
entering it at a near, open and safe port as directed by the Owners, or if the
Vessel had no passengers on board, at the port at which the Vessel then is or if
at sea at a near, open and safe port as directed by the Owners. In all cases
hire shall continue to be paid in accordance with Clause 11 and except as
aforesaid all other provisions of this Charter shall apply until redelivery.
28. TERMINATION
(a) Charterers' Default
The Owners shall be entitled to withdraw the Vessel from the service of
the Charterers and terminate the Charter with immediate effect by written
notice to the Charterers if:
(i) the Charterers fail to pay hire in accordance with Clause 11 and
such failure continues unremedied for ten (10) clear banking days
following Charterers' receipt of written notice from the Owners
notifying the Charterers of such failure and requesting remedial
action. However, where there is a failure to make punctual payment
of hire due to oversight, negligence, errors or omissions on the
part of the Charterers or their bankers, the Owners shall give the
Charterers five (5) clear banking days (as recognized at the agreed
place of payment) in which to rectify the failure, and when so
rectified within such number of days following the Owners' notice,
the payment shall stand as regular and punctual. Failure by the
Charterers to pay hire within the number of days stated above,
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shall entitle the Owners to withdraw the Vessel from the service of
the Charterers and terminate the Charter without further notice:
(ii) The Charterers fail to comply with the requirements of:
(1) Clause 6 (Trading Restrictions)
(2) Clause 13(a) (Insurance and Repairs)
provided that the Owners shall have the option, by written notice to
the Charterers, to give the Charterers a specified number of days
grace within which the rectify the failure without prejudice to the
Owners' right to withdraw and terminate under this Clause if the
Charterers fail to comply with such notice:
(iii) The Charterers fail to rectify any failure to comply with the
requirements of sub-clause 10(a)(i) (Maintenance and Repairs) as
soon as practically possible after the Owners have requested them in
writing to do so and in any event so that the Vessel's insurance
cover is not prejudiced.
(b) Owners' Default
If the Owners shall by any act or omission be in breach of their
obligations under this Charter to the extent that the Charterers are
deprived of the use of the Vessel and such breach continues for a period
of fourteen (14) running days after written notice thereof has been given
by the Charterers to the Owners, the Charterers shall be entitled to
terminate this Charter with immediate effect by written notice to the
Owners.
(c) Loss of Vessel
This Charter shall be deemed to be terminated if the Vessel becomes a
total loss or is declared as a constructive or compromised or arranged
total loss. For the purpose of this sub-clause, the Vessel shall not be
deemed to be lost unless she has either become an actual total loss or
agreement has been reached with her underwriters in respect of her
constructive, compromised or arranged total loss or if such agreement with
her underwriters is not reached it is adjudged by a competent tribunal
that a constructive loss of the Vessel has occurred.
(d) Either party shall be entitled to terminate this Charter with
immediate effect by written notice to the other party in the event of an order
being made or resolution passed for the winging up, dissolution, liquidation or
bankruptcy of the other party (otherwise than for the purpose of reconstruction
or amalgamation) or if a receiver is appointed, or if it suspends payment,
ceases to carry on business or makes any special arrangement or composition with
its creditors.
(e) The termination of this Charter shall be without prejudice to all
nights accrued due between the parties prior to the date of termination and to
any claim that either party might have.
29. REPOSSESSION
In the event of the termination of this Charter in accordance with the
application provisions of Clause 28, the Owners shall have the right to
repossess the Vessel from the Charterers at her current or next port of
call, or at a port or place convenient to them without hindrance or
interference by the Charterers, courts or local authorities. Pending
physical repossession of the Vessel in accordance with this Clause 29, the
Charterers shall hold the Vessel as gratuitous bailee only to the Owners.
The Owners shall arrange for an authorized representative to board the
Vessel as soon as reasonably practicable following the termination of the
Charter. The Vessel shall be deemed to be repossessed by the Owners from
the Charterers upon the boarding of the Vessel by the Owners'
representative. All arrangements and expenses relating to the settling of
wages, disembarkation and repatriation of the Charterers' Master, officers
and crew, and the disembarkation of passengers, shall be the sole
responsibility of the charterers.
30. DISPUTE RESOLUTION
*) (a) This contract shall be governed by and construed in accordance with
English law and any dispute arising out of or in connection with
this Contract shall be referred to arbitration in London in
accordance with the Arbitration Act 1996 or any statutory
modification or re-enactment thereof save to the extent necessary to
give effect to the provisions of this clause.
The arbitration shall be conducted in accordance with the London
Maritime Arbitrators Association (LMAA). Terms current at the time
when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing to
refer a dispute to arbitration shall appoint its arbitrator and send
notice of such appointment in writing to the other party requiring
the other party to appoint its own arbitrator within 14 calendar
days of that notice and stating that it will appoint its arbitrator
as the sole arbitrator unless the other party appoints its own
arbitrator and gives notice that it has done so within the 14 days
specified. If the other party does not appoint its own arbitrator
and give notice that it has done so within the 14 days specified,
the party referring a dispute to arbitration may, without the
requirement of any further prior notice to the other party, appoint
its arbitrator as sole arbitrator and shall advise the other party
accordingly. The award of a sole arbitrator shall be binding on both
parties as if he had been appointed by agreement.
Nothing herein shall prevent the parties agreeing in writing to vary
these provisions to provide for the appointment of a sole
arbitrator.
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In cases where neither the claim nor any counterclaim exceeds the
sum of US$50,000 (or such other sum as the parties may agree) the
arbitration shall be conducted in accordance with the LMAA Small
Claims Procedure current at the time when the arbitration
proceedings are commenced.
(d) Notwithstanding (a), (b) or (c) above, the parties may agree at any
time to refer to mediation any difference and/or dispute arising out
of or in connection with this Contract.
In the case of a dispute in respect of which arbitration has been
commenced under (a), (b) or (c) above, the following shall apply:-
(i) Either party may at any time and from time to time elect to
refer the dispute or part of the dispute to mediation by service on
the other party of a written notice (the "Mediation Notice") calling
on the other party to agree to mediation.
(ii) The other party shall thereupon within 14 calendar days of
receipt of the Mediation Notice confirm that they agree to
mediation, in which case the parties shall thereafter agree a
mediator within a further 14 calendar days, failing which on the
application of either party a mediator will be appointed promptly by
the Arbitration Tribunal ("the Tribunal") or such person as the
Tribunal may designate for that purpose. The mediation shall be
conducted in such place and in accordance with such procedure and on
such terms as the parties may agree or, in the event of
disagreement, as may be set by the mediator.
(iii) If the other party does not agree to mediate, that fact may be
brought to the attention of the Tribunal and may be taken into
account by the Tribunal when allocating the costs of the arbitration
as between the parties.
(iv) The mediation shall not affect the right of either party to
seek such relief or to take such steps as it considers necessary to
protect its interest.
(v) Either party may advise the Tribunal that they have agreed to
mediation. The arbitration procedure shall continue during the
conduct of the mediation but the Tribunal may take the mediation
timetable into account when setting the timetable for steps in the
arbitration.
(vi) Unless otherwise agreed or specified in the mediation terms,
each party shall bear its own costs incurred in the mediation and
the parties shall share equally the mediator's costs and expenses.
(vii) The mediation process shall be without prejudice and
confidential and no information or documents disclosed wiring it
shall be revealed to the Tribunal except to the extent that they are
disclosable under the law and procedure governing the arbitration.
(Note: The parties should be aware that the mediation process may
not necessarily interrupt time limits.)
(e) If Box 35 in Part I is not appropriately filled in, sub-clause 30(a)
of this Clause shall apply. Sub-clause 30(d) shall apply in all
cases.
*) Sub-clauses 30(a), 30(b) and 30(c) are alternatives; indicate
alternative agreed in Box 35.
31. NOTICES
(a) Any notice to be given by either party to the other party shall be in
writing and may be sent by fax, telex, registered or recorded mail or by
personal service.
(b) The address of the Parties for service of such communication shall be
as stated in Boxes 3 and 4 respectively.
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