Commodore Holdings Ltd · 10-K · For 9/30/98 · EX-10.V

Filed On 12/29/98   ·   SEC File 0-20961   ·   Accession Number 950170-98-2423

Annual Report   —   Form 10-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                         58    337K 
 2: EX-4.F      Instrument Defining the Rights of Security Holders     2     11K 
 9: EX-10.AA    Material Contract                                      5     16K 
10: EX-10.EE    Material Contract                                     18     96K 
11: EX-10.FF    Material Contract                                     10     52K 
12: EX-10.GG    Material Contract                                     27    106K 
13: EX-10.HH    Material Contract                                      9     42K 
 3: EX-10.U     Material Contract                                      8     25K 
 4: EX-10.V     Material Contract                                      9     30K 
 5: EX-10.W     Material Contract                                      1      9K 
 6: EX-10.X     Material Contract                                     17     82K 
 7: EX-10.Y     Material Contract                                     17     82K 
 8: EX-10.Z     Material Contract                                     30    138K 
14: EX-21       Subsidiaries of the Registrant                         1      5K 
15: EX-27       Financial Data Schedule                                1      8K 

EX-10.V   —   Material Contract

EX-10.V
1st Page of 9
TOC
Top
Previous
Next
Bottom
Just 1st
 

                                                                    EXHIBIT 10.v

MODIFICATION AGREEMENT

   Modification Agreement made as of December 4th, 1998 by and among
Sea-Comm, Limited ("Sea-Comm"), a Liberian corporation, Commodore Holdings,     
Limited ("CHL"), a Bermuda Company, Seawise Foundation, Inc. ("Seawise"), a     
Liberian corporation, New Commodore Cruise Lines Limited ("NCCLL"), a Bermuda   
corporation, World Explorer Cruises, Inc. (formerly, World Explorer Cruises and 
Tours, Inc.) ("WEC"), a California corporation, and Hemisphere Cruises and      
Tours, Inc. ("HCT"), a Liberian corporation, and Azure Investments, Inc.        
("Azure"), a Panamanian corporation.                                            

        WHEREAS, CHL, Seawise and Sea-Comm entered into that certain Agreement
dated October 30, 1995 (the "Shareholders Agreement") pursuant to which CHL and 
Seawise have agreed on arrangements for the charter and operation of the        
Panamanian flag vessel UNIVERSE EXPLORER (the "Vessel").                        

     WHEREAS, pursuant to the Shareholders Agreement, NCCLL and Sea-Comm
entered into that certain time charter dated October 30, 1995 (the "Time        
Charter") providing for the time charter of the Vessel by Sea-Comm;             

       WHEREAS, pursuant to the Shareholders Agreement, Sea-Comm and Seawise
entered into that certain space charter dated October 30, 1995 (the "Space      
Charter"), providing for the space chartering of passenger cabins and selected  
cruise facilities by Seawise in connection with the Semester-at-Sea program (the
"SAS Program"), as more particularly described in the Space Charter, conducted  
by the Institute for Shipboard Education ("ISE");                               

        WHEREAS, pursuant to the Shareholders Agreement, WEC, HCT, Seawise and
Sea-Comm entered into an Assignment, Assumption and Substitution Agreement which
amends the Alaska Cruise Agreement dated January 1, 1986 (the "Alaska Cruise    
Agreement") among WEC,                                                          

EX-10.V
2nd Page of 9
TOC
1st
Previous
Next
Bottom
Just 2nd

HCT and Seawise to provide that Sea-Comm shall perform the obligations of       
Seawise under the Alaska Cruise Agreement;                                      

       WHEREAS, the parties have from time to time entered into certain oral
and written agreements which in some instances call for the modification or     
amendment of the Operative Documents.                                           

    WHEREAS, the parties desire to modify their arrangements under the
Shareholders Agreement, the Time Charter and the Space Charter (collectively    
referred to herein as the "Operative Agreements"); and                          

   WHEREAS, the parties have agreed to arrange for the financing and
completion of (i) the installation of a sprinkler system onboard the Vessel (the
"Sprinkler Installation") to be completed between the end of the SAS Program    
1998 Fall Semester Voyage and the scheduled commencement of the 1999 Spring     
Semester Voyage, i.e., between on or about December 20, 1998 and February 16,   
1999 (the "Installation Period"); and (ii) for the funding and treatment of     
certain off-hire and associated costs (the "Associated Costs") in connection    
with the Sprinkler Installation and Installation Period as "Capital             
Expenditures" as defined in the Shareholders Agreement and Seawise, Sea-Comm and
NCCLL have agreed to facilitate the foregoing; and                              

     WHEREAS, Azure is the registered owner of the Vessel and desires to
facilitate the financing of the Sprinkler Installation and the Associated Costs.

      NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are 
hereby acknowledged, the parties hereto agree as follows:                       

 1. All capitalized terms in this Modification Agreement, unless
otherwise indicated, shall have the same meaning as set out in the Operative    
Agreements.                                                                     

2 

EX-10.V
3rd Page of 9
TOC
1st
Previous
Next
Bottom
Just 3rd

    2. During the Installation Period, NCCLL shall cause the Sprinkler
Installation to be completed on the Vessel in compliance with the International 
Convention for the Safety of Life at Sea, 1974, as amended by the 1992          
Amendments. The Installation Period shall be considered an "Off-hire Period" for
purposes of the payment of the Time Charter Hire under Clause 3(a) of the Time  
Charter. However, during the Installation Period no "Advances" shall be payable 
or accrue under such Clause 3(a).                                               

   3. Commencing with the expiration of V Ship's existing Management
Agreement with NCCLL, approximately one year hence, Seawise shall have the right
to nominate the manager of the hotel department, which manager may be Mariser,  
subject to approval by KeyCorp. Seawise's right to nominate a manager shall be  
subject however to the limitation that the hotel department budget under such   
managers shall not exceed the budget agreed with NCCLL in the preceding year    
plus any reasonable adjustments as shall be agreed between Seawise and NCCLL.   

    4. The parties have noted that the Berth Guarantee, as provided in
Article 4.7 of the Shareholders Agreement and as modified by certain            
understandings among Seawise, Sea-Comm, and NCCLL will expire at the end of the 
1998 Fall Semester Voyage. The parties desire to provide a new form of Berth    
Guarantee for the remaining term commencing with the 1999 Spring Semester Voyage
and to accordingly provide for the utilization of the eighty-seven (87) adult   
passenger cabins reserved to Sea-Comm on SAS Program Voyages ("Adult Cabins")   
whereby the following would occur:                                              

                 a. Seawise shall guaranty to Sea-Comm, by means of a lump sum
"Berth Guarantee" to arrange at Seawise's own cost, risk and expense, for       
bookings of and the utilization of the Adult Cabins on SAS Program Voyages as   
further herein provided;                                                        

3 

EX-10.V
4th Page of 9
TOC
1st
Previous
Next
Bottom
Just 4th

                  b. Seawise shall pay to the ISE, without recourse to Sea-Comm,
any commissions and fees for shipboard programs for which Sea-Comm is           
responsible in respect of the Adult Cabins under Section 2b) of the Space       
Charter;                                                                        

          c. Seawise shall have the sole right and discretion to
allocate the utilization of the Adult Cabins on SAS Program Voyages, any        
provision of Section 2c) of the Space Charter notwithstanding; and              

                d. So long as Sea-Comm shall receive the Passenger Guarantee
Amount, Sea-Comm shall waive its right under Section 10(a) of the Space Charter 
to receive a ten percent (10%) commission on all adult passengers.              

       In order to effectuate the foregoing, Article 4.7 of the Shareholders
Agreement shall be amended with effect from January 14, 1999, as follows:       

               4.7. BERTH GUARANTEE. Notwithstanding any other term of the
                  Space Charter to the contrary, Space Charterer (Seawise) shall
               arrange, at its own cost, risk and expense, for bookings of
            and the utilization of eighty-seven (87) cabins by adult
                  passengers ("Adult Cabins") on the SAS Program voyages for the
             years 1999 through 2005. For years 1999 and 2000, Seawise
           shall guaranty to Disponent Owner (Sea-Comm) a lump sum
             payment ("Berth Guarantee") of $1,500,000 per semester of
                 which $80,000 shall be allocated toward the cost of procuring
                  food for adult passengers aboard the Vessel during SAS Program
                  voyages for each such semester. The Berth Guarantee, inclusive
               of $80,000 per semester for food costs, shall be $1,650,000
            per semester for years 2001 and 2002, and $1,732,500 per
           semester for each of years 2003 through 2005. The Berth
               Guarantee shall be payable by Space Charterer in advance in
                semi-monthly installments together with payment of the Space
              Charter Hire under the Space Charter. Nothing contained in
              this Article 4.7 shall affect the continuing obligation of
           Sea-Comm to bear twenty-four percent (24%) of the Daily
            Operating Cost of the Vessel at any time that this Berth
                 Guarantee shall remain in effect. Irrespective of the revenue
                 received from the utilization of the Adult Cabins, the amount
             of the Berth Guarantee shall not vary except as otherwise
provided in this Article 4.7.               

      5. As a condition of the performance of this Modification Agreement,
the parties shall enter into a subordination and non-disturbance agreement (the 
"Non-Disturbance Agreement") with KeyCorp Leasing, a division of Key Corporate  
Capital, Inc. ("KeyCorp").                                                      

4 

EX-10.V
5th Page of 9
TOC
1st
Previous
Next
Bottom
Just 5th

The Non-Disturbance Agreement provides that KeyCorp, as lender, will forbear    
from taking certain actions with respect to the continued use of the Vessel by  
Seawise, should there be a default under the "Loan Documents" as defined in the 
Non-Disturbance Agreement, conditioned on Seawise's exercise of certain options 
set out in Section 6 thereof ("Section 6 Options"). Within sixty (60) date      
hereof, and in consideration of the execution and performance by Seawise of this
Modification Agreement and the Non-Disturbance Agreement, each of NCCLL,        
Sea-Comm, and Azure shall execute and deliver to Seawise such documents,        
instruments and waivers, within such sixty (60) day period and from time to time
thereafter, as may reasonably be required for Seawise to be able to exercise any
of the Section 6 Options and/or to enjoy the benefits of the Section 6 Options  
including but not limited to Azure's agreement to transfer its ownership        
interest in the Vessel to Seawise or its nominee upon Seawise's exercise of     
Option 6(b). In order to accommodate the request of KeyCorp in connection with  
the Non-Disturbance Agreement, Sea-Comm and NCCLL agree that Clause 2 of the    
Time Charter shall be amended to delete the Bahamas as a place of redelivery of 
the Vessel.                                                                     

     6. Except as provided for in this Modification Agreement, all other
terms and conditions of the Operative Agreements shall remain unchanged and     
shall remain in full force and effect including but not limited to the amount of
the current "Hypothetical Mortgage" as defined in Annex A of the Time Charter   
and Section 6(d) of the Space Charter. In the event that this Modification      
Agreement is terminated for any reason, the Operative Agreements shall continue 
to have full force and effect pursuant to their terms as originally drafted and 
until terminated in accordance with such terms. This Modification Agreement may 
be amended or modified only by written agreement duly executed by all of the    
parties hereto. In the event of                                                 

5 

EX-10.V
6th Page of 9
TOC
1st
Previous
Next
Bottom
Just 6th

any conflict between any of the terms of this Modification Agreement and the    
Operative Documents, the terms hereof shall govern.                             

       7. Each of Sea-Comm, Seawise, CHL and NCCLL shall procure any and all
consents, waivers and accommodations required for each such party to enter into 
and perform its obligations under this Modification Agreement.                  

         8. This Modification Agreement constitutes the entire understanding and
agreement between the parties hereto with respect to the matters hereinabove set
forth.                                                                          

    9. This Modification Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York.                  

        10. All notices, requests, demands and other communications under this
Modification Agreement shall be given to or made upon the parties by personal   
delivery, courier, certified mail or telefax, or in any other manner agreed by  
the parties hereto in writing at the following addresses:                       

If to Sea-Comm:                               

Sea-Comm, Ltd.            
     c/o Commodore Holdings, Limited
         4000 Hollywood Blvd., Suite #385-S,
Hollywood, Florida 33021  
Fax No.: (954) 967-2147   

If to CHL:                                  

 Commodore Holdings, Limited
        4000 Hollywood Blvd., Suite #385-S
Hollywood, FL 33021       
Fax No.: (954) 967-2147   

If to NCCLL:                                

        New Commodore Cruise Lines Limited
     c/o Commodore Holdings, Limited

6 

EX-10.V
7th Page of 9
TOC
1st
Previous
Next
Bottom
Just 7th

        4000 Hollywood Blvd., Suite #385-S
Hollywood, FL 33021       
Fax No.: (954) 967-2147   

If to Seawise:                              

Seawise Foundation, Inc.  
29th Floor, Harbour Centre
25 Harbour Road           
Wanchai, Hong Kong        
Fax No.: 011 852 2511 1550

With a copy to:                             

Mariser, Inc.             
       555 Montgomery Street, Suite 1412
  San Francisco, CA 94111-2544
Fax No.: (415) 616-8982   

If to WEC and/or HCT:                       

      c/o World Explorer Cruises, Inc.
555 Montgomery Street     
San Francisco, CA 94111   
Fax No.: (415) 391-1145   

If to Azure:                                

    c/o Commodore Holdings Limited
           4000 Hollywood Boulevard, Suite 385-S
Hollywood, FL  33021      
Fax No.:  (954) 967-2147  

    All such notices, requests, demands and other communications shall
become effective on the date received by the receiving party. Any party hereto  
may change his or its address for the receipt of notice, by notice in writing   
given as provided herein to the other parties hereto.                           

  11. This Modification Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which, when 
taken together, shall constitute one agreement, and any party may execute this  
Modification Agreement by signing one or more counterparts. This instrument is  
not intended to have any legal effect whatsoever, or to be a                    

7 

EX-10.V
8th Page of 9
TOC
1st
Previous
Next
Bottom
Just 8th

legally binding agreement, or any evidence thereof, until it has been signed by 
all of the parties hereto.                                                      

         12. The parties hereto shall execute such additional documents and take
such actions as may be necessary to carry out the terms of this Modification    
Agreement and the transactions contemplated hereby.                             

         13. If any provision of this Modification Agreement shall be invalid or
unenforceable for any reason, the remainder of this Modification Agreement shall
not be affected thereby, but rather shall be enforced to the greatest extent    
permitted by law.                                                               

        14. This Modification Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. No party     
hereto may assign any of its rights or obligations hereunder to any person      
without the prior written consent of the other parties hereto.                  

 IN WITNESS WHEREOF, the parties have executed this Modification
Agreement as of the date and year first hereinabove written.                    

SEA-COMM, LTD.                          SEAWISE FOUNDATION, INC.                

By:/S/ FREDERICK A. MAYER               By: /S/ K.Y. TANG                       
------------------------------           -------------------------        
Title: PRESIDENT                        Title: ATTORNEY-IN-FACT                 

COMMODORE HOLDINGS LIMITED              NEW COMMODORE CRUISE                    
             LINES LIMITED

By: /S/ FREDERICK A. MAYER              By: /S/ FREDERICK A. MAYER              
------------------------------           -------------------------        
Title: VICE CHAIRMAN OF THE BOARD       Title: CHAIRMAN OF THE BOARD            

8 

EX-10.V
Last Page of 9
TOC
1st
Previous
Next
Bottom
Just 9th

WORLD EXPLORER CRUISES, INC.            HEMISPHERE CRUISES AND                  
           TOURS, INC.

By: /S/ K.Y. TANG                       By: /S/ K.Y. TANG                       
------------------------------           -------------------------        
Title: ATTORNEY-IN-FACT                 Title: ATTORNEY-IN-FACT                 

AZURE INVESTMENTS, INC.                                                         

By: /S/ FREDERICK A. MAYER                                                      
------------------------------                                            
Title: ATTORNEY-IN-FACT                                                         

9 

Dates Referenced Herein   and   Documents Incorporated By Reference

				Referenced-On Page
This 10-K Filing		Date		First		Last			Other Filings
		10/30/95		1
For The Period Ended		9/30/98
		12/20/98		2
Filed On / Filed As Of		12/29/98
		1/14/99		4
		2/16/99		2					10-Q
Top									List All Filings