EXHIBIT 10.6
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1. Shipbroker THE BALTIC AND INTERNATIONAL MARITIME COUNCIL (BIMCO)
STANDARD BAREBOAT CHARTER CODE NAME: "BARECON 89"
None PART I
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2. Place and date
May 1, 0000
Xxxx Xxxxxxxxxx, Xxxxxxx
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3. Owners/Place of business 4. Bareboat charterers (Charterers)/Place of business
Norsong Shipping, Ltd. Capri Cruises
00 Xxxxx Xxxxxx x/x Xxx Xxxxxxxxx Cruise Line Limited
Monrovia, Liberia 0000 Xxxxxxxxx Xxxx., Xxxxx 000-X
Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
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5. Vessel's name, Call Sign and Flag (Cl. 9(c))
M/V Enchanted Capri, C6KX, Bahamian
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6. Type of Vessel 7. GRT/NRT
Passenger 15,410/6401
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8. When/Where built 9. Total DWT (abt.) in metric tons on summer freeboard
2250
1975, Finland
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10. Class 11. Date of last special survey by the Vessel's
classification society
1A1 Passenger Ship, Det Norske
Veritas June 4, 1998
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12. Further particulars of Vessel (also indicate minimum number of month's
validity of class certificates agreed acc. To Cl.14)
Length 140.42 m. Breadth 21.83 m. Depth 6.20 m
Main Engines: Diesel 2 x 6620 Kw
Minimum Three Months Validity of Class Certificate
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13. Port or Place of delivery (Cl. 2) 14. Time for delivery 15. Canceling date
(Cl. 3) (Cl. 4)
New Orleans, Louisiana Not Applicable Not applicable
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16. Port or Place or redelivery (Cl. 14)
Freeport, Grand Bahama
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1
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17. Running days' notice if other than stated in Cl. 3 18. Frequency of dry-docking if other than stated in
C. 9(f)
Drydock and/or classification repair every 12
months or as necessary to keep in Class
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19. Trading Limits (Cl. 5)
Lawful Trades Worldwide. Vessel not to compete with SeaEscape in New York or Port
Everglades as a gaming vessel. See Clause 58 of Addendum.
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20. Charter period 21. Charter hire (Cl. 10)
Expires September 30, 2005 with five year option As per Cl. 63 of Addendum
as per Clause 43 of Addendum
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22. Rate of interest payable acc. to C. 10(f) and, if 23. Currency and method of payment (Cl. 10)
applicable, acc. to PART IV
U.S. dollars, wire transfer
15% per annum
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24. Place of payment, also state beneficiary and bank 25. Bank guarantee/bond (sum and place) (optional)
account (Cl. 10)
Corporate guaranty issued by Commodore Holdings
Limited pursuant to Clause 22
See Clause 63 of Addendum
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26. Mortgage(s), if any (Cl. 11) 27. Insurance (marine and war risks)
See Cl. 11 As per Clause 53 of Addendum
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28. Additional insurance cover, if any, for Owner's 29. Additional insurance cover, if any, for
account limited to (Cl. 12(b)) or, if applicable, (Cl. Charterer's account limited to (Cl. 12(b)) or, if
13(g)) applicable, (Cl. 13(g))
None. See Clause 53 of Addendum
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30. Latent defects (only to be filled in if period other 31. War cancellation (indicate countries agreed)
than stated in Cl. 2) (Cl. 24)
Latent defects clause deleted.
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2
32. Brokerage commission and to whom payable (Cl. 25)
None
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33. Law and arbitration 34. Number of additional clauses
covering special provisions, if agreed
See Clause 79 of Addendum
See Addendum Clauses 43 - 90
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35. Newbuilding Vessel (indicate with "yes" or "no" 36. Name and place of Builders (only to be
whether Part III applies) (OPTIONAL) filled in if Part III applies)
N/A N/A
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37. Vessel's Yard Building No. (only to be filled in 38. Date of Building Contract (only to be filled in
Part III applies) if Part III applies)
N/A N/A
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39. Hire/Purchase agreement (indicate with "yes" or "no" 40. Bareboat Charter Registry (indicate with "yes" or
whether Part IV applies) (OPTIONAL) "no" whether Part V applies) (OPTIONAL)
N/A N/A
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41. Flag and Country of the Bareboat Charter Registry 42. Country of the Underlying Registry (only to be
(only to be filled in if Part V applies) filled in if Part V applies)
N/A N/A
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3
PREAMBLE - It is mutually agreed that this Charter 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 shall only form part of this Charter if expressly agreed and stated in
the Boxes 35, 39, 40. If PART III and/or PART IV and/or PART V apply, it is
further mutually 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.
Signature (Owners) Signature (Charterers)
NORSONG SHIPPING, LTD., a Liberian CAPRI CRUISES, a Florida general
corporation partnership
By: COMMODORE CRUISES LIMITED, a
Bermudan corporation and general
By: /s/ Xxxxx Xxxxxxxxxx partner
----------------------------
Xxxxx Xxxxxxxxxx, its
Authorized Representative
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------
Xxxxxxxxx X. Xxxxx, President
4
ENCHANTED CAPRI CHARTER
PART II AND ADDENDUM
PART II
1. DEFINITIONS. In this Charter, the following terms shall have the meanings
thereby assigned to them:
"THE OWNERS" shall mean Norsong Shipping, Ltd., a Liberian company, or
its permitted assignee.
"THE CHARTERERS" shall mean the Bareboat charterers and shall not be
construed to mean a time charterer or a voyage charterer.
2. DELIVERY (not applicable to new building vessels.) The parties acknowledge
that the Charterer is now and has been since the 2nd day of June, 1998, in
possession of the Vessel pursuant to a Second Sub-Bareboat Charter between
Cruise Charter, Ltd. and Commodore Cruises Limited, which was assigned to
Charterer. Accordingly, no formal delivery of the Vessel is necessary with
respect to this Charter and, therefore, the term "delivery," as used herein,
shall be deemed to mean the "Commencement Date" of this Charter as is set forth
in Box 2, Part I hereof. However, and notwithstanding that delivery is automatic
as of the Commencement Date, nevertheless, the parties wish to establish as of
the Commencement Date the condition of the Vessel and the state of the inventory
so that the Vessel condition and inventory facts attributable to preceding
charter parties will be identified vis-a-vis this Charter. Accordingly, the
parties have nominated, constituted and appointed Xxxxx Xxxxx & Associates,
Inc., Marine Surveyor, as the Marine Surveyor who has surveyed the Vessel prior
to the Commencement Date hereof and has prepared a Condition Survey (the
"Condition Survey"), which has established the condition of the Vessel as of the
Commencement Date. A copy of the Condition Survey is appended hereto and made a
part hereof as EXHIBIT "A." All items on the Condition Survey requiring repairs,
maintenance or upgrades in order to keep the Vessel in class or to comply with
SOLAS or USPH requirements are the responsibility of the Charterer.
Additionally, the Condition Survey shall be the basis for evaluating the
condition of the Vessel upon its re-delivery (which shall be confirmed by a
Re-Delivery Survey). At the expiration of the charter period, the Vessel shall
be re-delivered in the same condition as is set forth in the Condition Survey,
reasonable wear excepted. Additionally, the parties agree that the cost of the
Condition Survey and the Re-Delivery Survey shall be borne equally by them.
The Charterer acknowledges that the Vessel is properly documented as of
the Commencement Date and that the execution of this Charter by the Charterer
shall constitute acceptance of the Condition Report and assumption of any repair
and maintenance responsibility in accordance with the terms hereof, which relate
to keeping the Vessel in class or complying with SOLAS or USPH requirements.
Therefore, upon the Commencement Date, the Owner's delivery of the Vessel to the
Charterer and the taking over of the Vessel by the Charterer shall be complete
and shall constitute full performance by the Owner of all of the Owner's
obligations under this Clause 2 (with respect to the delivery of the Vessel) and
Box 13 of Part I hereof and, thereafter, Charterer shall not be entitled to make
or assert any claim against the Owner on
5
account of any conditions, representations or warranties, expressed or implied,
with respect to the condition of the Vessel on the Commencement Date.
Charterer and Owner agree that the written inventory attached hereto
correctly describes the personal property comprising the Vessel's equipment,
furniture, furnishings and gear, that is owned by a person other than Charterer,
as named therein, and the Charterer shall be responsible for the care,
maintenance and replacement of such inventory during the charter period and
shall be further responsible to return the same inventory to the Owner or other
owner listed therein upon re-delivery of the Vessel at the termination of the
Charter.
Upon re-delivery of the Vessel, the Charterer shall be responsible to
have on board a three-day supply of water, lubricants and fuel, as follows:
IFO/HFO 150 metric tons
MGO 30 metric tons
Luboil 3 metric tons
Fresh Water 800 metric tons
The Owner shall be responsible to pay the Charterer for the above
liquids inventory at the then current market prices at the port of re-delivery;
such payment shall be made at the time of re-delivery. Upon re-delivery, the
Charterer shall be responsible to have on board the Vessel a minimum of spare
parts as prescribed by the Vessel's current class. Any additional spare parts on
board at the time of re-delivery may, at the option of the Owner, be purchased
from the Charterer or, should the Owner elect not to purchase such other items,
then the same may be removed by the Charterer. Food stuffs on board shall be
removed by the Charterer except for such food stuffs as are in sealed and
unbroken packages, which food stuffs may be purchased at Owner's option at
current market prices. Should Owner not elect to purchase food stuffs in sealed
and unbroken packages, then they likewise shall be removed. All alcoholic
beverages shall be removed by the Charterer upon re-delivery.
3. TIME FOR DELIVERY. Deleted.
4. CANCELING (not applicable to new building vessels). Should the Vessel not be
delivered latest by the canceling date indicated in Box 15, the Charterers to
have the option of canceling this Charter without prejudice to any claim the
Charterers may otherwise have on the Owners under the Charter.
If it appears that the Vessel will be delayed beyond the canceling
date, the Owners shall, as soon as they are in a position to state with
reasonable certainty the day on which the Vessel should be ready, give notice
thereof to the Charterers asking whether they will exercise their option of
canceling, and the option must then be declared within one hundred and
sixty-eight (168) hours of the receipt by the Charterers of such notice. If the
Charterers do not then exercise their option of canceling, the seventh day after
the readiness date stated in the Owners' notice shall be regarded as a new
canceling date for the purpose of this Clause.
5. TRADING LIMITS. The Vessel shall be employed in lawful trades for the
carriage of suitable lawful merchandise within the trading limits indicated in
Box 19.
6
The Charterers undertake not to employ the Vessel or suffer the Vessel
to be employed otherwise than in conformity with the terms of the instruments of
insurance (including any warranties expressed or implied therein) without first
obtaining the consent to such employment of the insurers and complying with such
requirements as to extra premium or otherwise as the insurers may prescribe. If
required, the Charterers shall keep the Owners and the Mortgagees advised of the
intended employment of the Vessel.
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.
6. SURVEYS (not applicable to new building vessels). Deleted.
7. INSPECTION. The Owners shall have the right at any time to inspect or survey
the Vessel or instruct a duly authorized surveyor to carry out such survey on
their behalf to ascertain the condition of the Vessel and satisfy themselves
that the Vessel is being properly repaired and maintained. Inspection or survey
in drydock shall be made only when the Vessel shall be in drydock for the
Charterers' purpose. However, the owners shall have the right to require the
Vessel to be drydocked for inspection if the Charterers are not docking her at
normal classification intervals. The fees for such inspection or survey shall,
in the event of the Vessel being found to be in the condition provided in Clause
9 of this Charter, be payable by the Owners and shall be paid by the Charterers
only in the event of the Vessel being found to require repairs or maintenance in
order to achieve the condition so provided. All time taken in respect of
inspection, survey or repairs shall count as time on hire and shall form part of
the Charter period.
8. INVENTORIES AND CONSUMABLE OIL AND STORES. Deleted.
9. MAINTENANCE AND OPERATION.
The Vessel shall, during the Charter period, 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 a good state of repair, in
efficient operation condition, and in accordance with good commercial
maintenance practice, wear and tear always excepted and, except as provided for
in Clause 13(1), they shall keep the Vessel with unexpired classification of the
class indicated in Box 10 (or such other class as may be assigned to the Vessel
by any subsequent classification society) and with other required certificates
in force at all times.
The Charterers to take immediate steps to have material, necessary
repairs done within a reasonable time failing which, after written notice and a
reasonable opportunity to cure, the Owners shall have the right of withdrawing
the Vessel from the service of the Charterers without
7
noting any protest and without prejudice to any claim the Owners may otherwise
have against the Charterers under the Charter.
Unless otherwise agreed, in the event of any improvement, structural
changes, or expensive new equipment becoming necessary for the continued
operation of the Vessel by reason of the Vessel's marine insurance value as
stated in Box 27, then the extent, if any, to which the rate of hire shall be
varied and the ratio in which the cost of compliance shall be shared between the
parties concerned in order to achieve a reasonable distribution thereof as
between the Owners and the Charterers having regard, inter alia, to the length
of the period remaining under the Charter, shall in the absence of agreement, be
referred to arbitration according to Clause 79.
The Charterers are required to establish and maintain financial
security or responsibility in respect of oil or other pollution damage 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.
TOVALOP SCHEME. Deleted.
(a) Charterers shall at their own expense and by their own procurement
man, navigate, operate, supply, fuel and repair the Vessel whenever required
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 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 the
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.
(b) During the currency of this Charter, the Vessel shall retain her
present name as indicated in Box 5 and shall remain under and fly the flag as
indicated in Box 5 (or the flag of the Bahamas). Provided, however, that the
Charterers shall have the liberty to paint the Vessel in their own colors,
install and display their funnel insignia and fly their own house flag. Painting
and re-painting, installment and re-installment to be for the Charterers account
and time used thereby to count as time on hire.
(c) 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.
8
(d) 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 assure 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 the 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.
(e) The Charterers shall drydock the Vessel and clean and paint her
underwater parts whenever the same may be necessary, but not less than once in
every eighteen calendar months after delivery unless otherwise agreed in Box 18.
10. HIRE.
(a) The Charterers shall pay to the Owners for the hire of the Vessel
at the rate indicated in Box 21 commencing on and from the date and hour of her
delivery to the Charterers. Hire to continue until the date and hour when the
Vessel is redelivered by the Charterers to her Owners.
(b) Payment of Hire, except for the first and last month's Hire, if
subclause (c) of this Clause is applicable, shall be made in cash without
discount in the currency and in the manner indicated in Box 23 and at the place
mentioned in Box 24.
(c) Payment of Hire for the first and last month's Hire if less than a
full month shall be calculated proportionally according to the number of days in
the particular calendar month and advance payment to be effected accordingly.
(d) Should the Vessel be lost or missing, Hire to cease from the date
and time when she was lost or last heard of. Any Hire paid in advance to be
adjusted accordingly.
(e) Time shall be of the essence in relation to payment of Hire
hereunder. In default of payment beyond a period of ten running days after
notice is delivered to Charterer, the Owners shall have the right to withdraw
the Vessel from the service of the Charterers without noting any protest and
without interference by any court or any other formality whatsoever and shall
without prejudice to any other claim the Owners may otherwise have against the
Charterers under the Charter, be entitled to damages in respect of all costs and
losses incurred as a result of the Charterers' default and the ensuing
withdrawal of the Vessel.
9
(f) Any delay in payment of Hire shall entitle the Owners to an
interest at the rate per annum as agreed in Box 22. If Box 22 has not been
filled in, the current market rate in the country where the Owners have their
Principal Place of Business shall apply.
11. MORTGAGE.
Owners warrant that they have not effected any mortgage of the Vessel.
Owners plan to grant a mortgage on the Vessel in favor of a lender (the
"Lender") who agrees to refinance the loan (the "Loan") on the vessel.
Concurrently with the grant of such mortgage, Owners shall cause Lender to
execute a non-disturbance letter substantially in the form attached hereto as
EXHIBIT "B." Owners warrant that they have not effected, and will not effect,
any other mortgages on the Vessel without Charterer's prior written consent.
12. INSURANCE AND REPAIRS.
During the Charter period the Vessel shall be kept insured by the
Charterers at their expense against marine, war and Protection and Indemnity
risks in such form as the Owners shall in writing approve, which approval shall
not be unreasonably withheld. Such marine, war and Protection and Indemnity
Insurances shall be arranged by the Charterers to protect the interests of both
the Owners and the Charterers and mortgagees (if any), and the Charterers shall
be at liberty to protect under such insurances the interests of any managers
they may appoint. All insurance policies shall be in the joint names of the
Owners and the Charterers as their interests may appear.
If the Charterers fail to arrange and keep any of the insurances
provided for under the provisions of sub-clause (a) above in the manner
described therein, the Owners shall notify the Charterers whereupon the
Charterers shall rectify the position within seven running days, failing which
Owners shall have the right to withdraw the Vessel from the service of the
Charterers without prejudice to any claim the Owners may otherwise have against
the Charterers.
The Charterers shall, subject to the approval of the Owners and the
Underwriters, effect all insured repairs and shall undertake settlement of all
costs in connection with such repairs as well as insured charges, expenses and
liabilities (reimbursement to be secured by the Charterers from the
Underwriters) to the extent of coverage under the insurances herein provided
for.
The Charterers are also to remain responsible for and to effect repairs
and settlement of costs and expenses 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 (a) of
this Clause shall count as time on hire and shall form part of the Charter
period.
(a) If the conditions of the above insurances permit additional
insurance to be placed by the parties, such cover shall be limited to the amount
for each party set out in Xxx 00 xxx Xxx 00, respectively. 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
10
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.
(b) Should the Vessel become an actual, constructive, compromised or
agreed total loss under the insurances required under sub-clause (a) of Clause
12, all insurance payments for such loss shall be paid to the Mortgagee, if any,
in the manner described in the Deed(s) of Covenant, who shall distribute the
moneys between themselves, the Owners and the Charterers according to their
respective interests. The Charterers undertake to notify the Owners and the
Mortgagee, if any, of any occurrences in consequence of which the Vessel is
likely to become a Total Loss as defined in this Clause.
(c) If the Vessel becomes an actual, constructive, compromised or
agreed total loss under the insurances arranged by the Charterers in accordance
with sub-clause (a) of this Clause, this Charter shall terminate as of the date
of such loss.
(d) 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.
(e) For the purpose of insurance coverage against marine and war risks
under the provisions of sub-clause (a) of this Clause, the value of the Vessel
is the sum indicated in Box 27.
13. DELETED.
14. REDELIVERY. The Charterers shall at the expiration of the Charter period
Redeliver the Vessel at a safe and ice-free port or place as indicated in Box
16. The Charterers shall give the Owners not less than 30 running days'
preliminary and not less than 14 days' definite notice of expected date, range
of ports of redelivery or port or place of redelivery. Any changes thereafter in
Vessel's position shall be notified immediately to the Owners.
Should the vessel be ordered on a voyage by which the Charter period
may be exceeded the Charterers to have the use of the Vessel to enable them to
complete the voyage, provided it could be reasonably calculated that the voyage
would allow redelivery about the time fixed for the termination of the Charter.
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
class certificates valid for at least the number of months agreed in Box 12.
15. NON-LIEN AND INDEMNITY. 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:
11
"This Vessel is the property of Norsong Shipping, Ltd. It is under
charter to Capri Cruises 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."
The Charterers shall indemnify and hold the Owners harmless against any
lien of whatsoever nature arising upon the Vessel during the Charter period
while she is under the control of the Charterers, and against any claims against
the Owners arising out of or in relation to the operation of the Vessel by the
Charterers. Should the Vessel be arrested 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 and at their own expense put up bail to secure release of
the Vessel.
16. LIEN. The Owners to have a lien upon all cargoes and sub-freights belonging
to the Charterers and any Xxxx of Lading freight for all claims under this
Charter, and the Charterers to have a lien on the Vessel for all moneys paid in
advance and not earned, and for any breach of Charter by Owners.
17. 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.
18. 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.
19. GENERAL AVERAGE. General Average, if any, shall be adjusted according to the
York-Antwerp Rules 1974 or any subsequent modification thereof current at the
time of the casualty.
The Charter Hire not to contribute to General Average.
20. ASSIGNMENT AND SUB DEMISE. The Charterers shall not assign this Charter nor
subdemise the Vessel except to an affiliate or with the prior consent in writing
of the Owners which shall not be unreasonably withheld and subject to such terms
and conditions as the Owners shall approve.
21. BILLS OF LADING. The Charterers are to procure that all Bills of Lading
issued for carriage of goods under this Charter shall contain a Paramount Clause
incorporating any legislation relating to Carrier's liability for cargo
compulsorily applicable in the trade; if no such legislation exists, the Bills
of Lading shall incorporate the U.S. Carriage of Goods by Sea Act. The Bills of
Lading shall also contain the amended New Xxxxx Clause and the Both-to-Blame
Collision Clause.
22. CORPORATE GUARANTEE. Contemporaneously with the execution of this Charter,
the Charterers have caused Commodore Holdings Limited ("Commodore") to execute a
Guaranty of
12
this Charter according to the form of Guaranty of Bareboat Charter appended
hereto as EXHIBIT "C," which Guaranty is also indicated in Box 25 of Part 1 of
this Charter. In the event Owner becomes a partner in Charterer, Owner shall
have 30 days to take one of the following actions: (a) secure a bank guaranty or
letter of credit from an institution and in a form reasonably acceptable to
Charterer in the amount of [*] to secure Owner's guaranty to Charterer; (b)
obtain the Lender's consent to a reduction in the amount of the Guaranty to [*];
or (c) grant a second mortgage on the Vessel to secure Owner's guaranty to
Charterer in the amount of [*].
23. 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, the Charterers shall have the option to terminate the Charter or
to 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, provided that the requisition continues for four
uninterrupted weeks, and 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.
The Hire under this Charter shall be payable to the Owners
from the same time as the Requisition Hire is payable to the Charterers.
(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 of such
"Compulsory Acquisition."
24. WAR.
(a) The Vessel unless the consent of the Owners be first obtained not
to be ordered nor continue to any place or on any voyage, nor be used on any
service which will bring her within a zone which is dangerous as the result of
any actual or threatened act of war, hostilities, warlike operations, acts of
piracy or of hostility or malicious damage against this or any other vessel or
its cargo by any person, body or State whatsoever, revolution, civil war, civil
commotion or the operation of the international law, nor be exposed in any way
to any risks or penalties whatsoever consequent upon the imposition of
Sanctions, nor carry any goods that may
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13
in any way expose her to any risks of seizure, capture, penalties or any other
interference of any kind whatsoever by the belligerent or fighting powers or
parties or by any Government or Ruler.
(b) The Vessel to have liberty to comply with any orders or directions
as to departure, arrival, routes, ports of call, stoppages, destination,
delivery or in any other wise whatsoever given by the Government of the nation
under whose flag the Vessel sails or any other Government or any person (or
body) acting or purporting to act with the authority of such Government or by
any committee or person having under the terms of the war risks insurance on the
Vessel the right to give any such orders or directions.
(c) In the event of outbreak of war (whether there be a declaration of
war or not) between any two or more of the countries as stated in Box 31, 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 14, if she has cargo on board after discharge 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 she has no cargo on
board, at the port at which she 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 10 except as aforesaid all other provisions of this
charter shall apply until redelivery.
25. COMMISSION. Deleted.
CHARTERERS: OWNER:
CAPRI CRUISES, a Florida general NORSONG SHIPPING, LTD., a Liberian
Partnership Corporation
By: COMMODORE CRUISES LIMITED, a
Bermudan corporation and general
partner
By: /s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------- ----------------------------------
Xxxxxxxxx X. Xxxxx, President Xxxxx Xxxxxxxxxx, its Authorized
Representative
14
ADDENDUM TO BARECON '89
BAREBOAT CHARTER DATED MAY 1, 1999
BETWEEN NORSONG SHIPPING, LTD.
A LIBERIAN CORPORATION, AS "OWNER,"
AND CAPRI CRUISES, A FLORIDA GENERAL
PARTNERSHIP, AS "CHARTERER"
43. PERIOD / EXTENSIONS
Subject to the right of termination as is hereinafter set forth and
further subject to the terms and conditions as are provided herein, the Owner
shall let and the Charterer shall hire the Vessel for a period commencing on the
Commencement Date and expiring on September 30, 2005 (the "Initial Period").
Subsequent to the Initial Period, the Charterer shall have an option with
respect to extending this Charter for a period of five (5) additional years (the
"Subsequent Period") on the same terms as set forth herein. Accordingly, should
the Charterer desire to exercise its option relative to the Subsequent Period,
it shall, within six (6) months prior to the expiration of the Initial Period,
notify the Owner in writing of Charterer's intention to exercise its option.
Notwithstanding the foregoing, the parties acknowledge that a sprinkler system
must be installed on the Vessel on or before October 1, 2005. In the event the
Charterer exercises its option for the Subsequent Period, the Owner and the
Charterer shall share equally the cost of such installation up to a maximum of
[*] each. In the event the cost to install the sprinkler system exceeds [*],
Charterer shall be responsible for the excess.
44. DELIVERY / SURVEY AND CONDITION ON DELIVERY. Deleted.
45. MODIFICATIONS
Except as described in Clause 61, Charterer shall not make any
structural alterations or modifications to the Vessel, to her passenger and
public spaces, to her furniture, furnishings, passenger and other facilities and
equipment without first securing approval of the Owner. Except as described in
Clause 61, any such alterations will be at the sole expense of the Charterer.
Owner shall not unreasonably refuse such modifications and alterations if:
(i) they do not affect classification requirements or the Vessel's
compliance with SOLAS, class or other regulations; and
(ii) they do not, in the opinion of the Owner, materially and adversely
affect the resale value or the marketability of the Vessel upon expiration of
the Charter period.
46. OWNER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Owner represents, warrants and covenants to the Charterer as
follows:
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confidential treatment by Commodore Holdings Limited.
15
(a) That it or Multi-Group Enterprises, S.A. is and shall remain the
lawful Owner of said Vessel during the term of the Charter and that it will
warrant and defend the title to the same against the lawful claims and demands
of all persons, and has good right and lawful authority to enter into this
Charter and grant the rights and privileges herein set forth;
(b) Subject to the limitation of liability set forth in Clause 73
hereof, that Owner shall indemnify and hold harmless the Charterer from any
damages Charterer may incur during the term of this Charter caused by a breach
of this Charter by Owner or caused by a breach of any agreement between the
Owner and any third party;
(c) That Owner will notify and obtain the consent of mortgagee or any
person whose consent to this Charter is required. Owner further agrees to make
any and all mortgage payments on the Vessel in a timely manner and promptly
notify Charterer of any "monetary default" by Owner in the monetary terms of any
and all mortgage (or related loans) on the Vessel and allow Charterer an
opportunity to cure such "monetary default" and offset payments from amounts due
to Owner. The Owner shall indemnify and hold harmless the Charterer from any
damages Charterer may incur caused by a monetary default by Owner in the payment
of any mortgage (or related loans) on the Vessel; and
(d) That Owner will comply with all laws applicable to the Vessel
during the term of this Charter except those items that are the responsibility
of Charterer hereunder.
In the event of a seizure or threatened seizure of the Vessel during
the term of this Charter caused by a breach of this Charter by Owner or caused
by a breach of any agreement between the Owner and a third party, the Charterer
shall have the option of curing said breach and obtaining a release of the
Vessel (if the Vessel has actually been seized), in which event any payments
made by the Charterer to obtain a release of the Vessel (including payments to
an unpaid vendor) from seizure shall be credited toward any payments due to the
Owner pursuant to this Charter.
47. FLAG AND REGISTRY
The Vessel is registered under the Bahamian flag with Nassau, Bahamas
as its port of registry. However, the Owner shall have the right, subject to
Charterers' approval which shall not be unreasonably withheld, to change the
flag and port of registry of the Vessel at its own discretion, during the
Charter Period. Charterer may withhold approval unless Owner agrees to pay any
and all initial and continuing extra expenses and costs of whatever kind caused
by the change of flag.
48. MAINTENANCE / DRYDOCKING AND CLASS REPAIRS
The Charterer shall maintain the Vessel in class and its hull and
machinery in such state as is consistent with usual and customary practice in
the operation of cruise passenger ships of the same type and age as the Vessel,
including (but without limiting the generality of the foregoing) compliance with
SOLAS, USPH, class and the requirements of all applicable laws, reasonable wear
excepted.
16
Except as otherwise provided herein, the Charterer shall, at his sole
expense, repair and maintain the Vessel to a standard at least as good as at
delivery of same. Charterer shall remain solely responsible for all other
repairs and maintenance of the Vessel required by all applicable laws, SOLAS,
USPH and class rules, including without limitation, the hull, engines and
machinery and attendant spaces, the fire fighting and fire prevention systems,
plumbing, electrical wiring, air conditioning equipment and lifeboats which
shall remain the sole responsibility of the Charterer during the Charter Period.
Notwithstanding the provisions of Clause 9(f), nevertheless, the
Charterer shall bring the Vessel to drydock every twelve (12) months or as
necessary to keep the Vessel in Class. Drydock and vessel classification
repairs, whether scheduled or unscheduled, continuing through Charter Period,
shall be for the account of the Charterer.
49. CHARTERER'S ADDITIONAL UNDERTAKING
During the Charter Period, the Charterer to ensure that the Vessel
visits a non-US port at least once every twenty-eight (28) days or as required
by US regulatory authorities for US immigration law purposes. For the avoidance
of doubt, the Vessel to remain on hire during such visits.
50. MASTER'S RIGHTS TO PUT ASHORE
The Master always to be entitled to put any person ashore in the
interests of the Vessel whether a member of the crew, or staff retained by the
Charterer or a concessionaire or a passenger or otherwise, but not the Owner's
representatives.
51. CHARTERER BOND
Prior to commencing passenger service from any U.S. port, the Charterer
shall post and maintain a surety bond in an amount as required by the Federal
Maritime Commission's regulations with a good and sufficient surety and the same
shall be posted with the Federal Maritime Commission to comply with its rules
and regulations with respect to Vessel performance and shall be continually kept
in good standing. Failure to post a surety bond as herein required or to keep
the surety bond in continuous good standing shall be and constitute a material
default under this charter. The Charterer shall name as entities covered under
the bond the Owner and Lender.
52. NAME
Charterer shall have the right to change the name of the Vessel with
the approval of the Owner and Lender, which shall not be unreasonably withheld
provided that Charterer shall bear all costs and expenses of changing the name
and returning to the original name.
53. INSURANCE
17
The Charterer warrants that on delivery of the Vessel the following
insurance and Financial Responsibility Certificates shall be in effect at the
sole responsibility and for the account of the Charterer:
(a) Hull and Machinery Policy reasonably acceptable to Owner in an
amount of $25,000,000;
(b) P&I Passenger Casualty Policy reasonably acceptable to Owner;
(c) P&I International Crew Policy reasonably acceptable to Owner;
(d) Federal Maritime Commission Certificate re: liability for
death or injury to passengers or other persons; and
(e) United States Coast Guard Vessel Certificate re: financial
responsibility water pollution.
The Charterer shall provide the Owner with copies of all insurance
policies and certificates of financial responsibility, together with
certificates of good standing as to each, and copies of proofs of payment of
premiums or receipted premium payments indicating all premium liability is
maintained current. Such proofs shall be provided annually or more frequently if
more frequent premium payments are involved.
54. INDEMNIFICATION
Charterer shall indemnify Owner of and from any and all claims which
may be asserted by or on behalf of any passenger or any member of the public or
any member of the crew arising out of injury to persons or property, including
damages for death sustained during any cruise or during any loading or unloading
of the Vessel during the Charter Period except any such claims arising out of
the willful misconduct of Owners or their representatives. Such indemnification
shall include the obligation to defend any claims asserted against the Owner to
pay all attorneys' fees and costs associated therewith through all appeals.
55. OPERATIONAL COSTS AND OPERATIONAL COMPANY
Charterer shall, at its own expense, man, victual, navigate, operate,
supply and fuel the Vessel and maintain such Vessel in a good state of repair,
reasonable wear excepted and in efficient operating condition in accordance with
good commercial maintenance practices, and shall repair her and pay all other
charges and expense of every kind and nature whatsoever incident to the use and
operation of the Vessel, except as otherwise specifically provided in this
Charter.
56. USPH/USCG
During the Charter Period, the Charterer shall be responsible for
implementing USPH standards at its own cost and expense. The Charterer shall
also be responsible for securing and keeping in full force and effect, at its
expense, all U.S. Maritime and Coast Guard certificates so as to comply with
U.S. law during the Charter Period. Any repairs, modifications or additions
18
necessary to secure and keep in effect such U.S. certifications shall be the
sole expense of Charterer.
57. OFF HIRE
The Charterer shall be responsible for all loss of operating time
during the Charter, except for time lost to Owner's material breach of charter.
58. TRADING LIMITS
The Vessel shall be employed and carry passengers in lawful trades
worldwide, provided that the Vessel will not be operated as a gaming vessel in
or out of Port Everglades or New York/New Jersey. Owner shall not unreasonably
withhold approval of additional ports. However, the Charterer can carry cargo
except for hazardous materials, explosives, weapons and items that can risk the
compliance of rules and regulations in the area of trade. In the event of
serious outbreak of pestilence, war, Acts of God, force majeure, or other causes
beyond the Charterer's control making the use of the Vessel in such trade
commercially impracticable for a period in excess of 4 weeks, the Vessel may be
placed or may be sublet for employment in any other safe trades, upon first
securing the approval of the Owner, or Charterers may terminate this Charter.
59. USE OF EQUIPMENT
The Charterer shall have the use of all outfit, equipment, spare
supplies, and appliances now on board the Vessel without extra cost provided the
same or their substantial equivalent shall be returned to the Owner on
redelivery in the same good order and condition as when received, reasonable
wear excepted.
60. DELETED.
61. VESSEL'S UPGRADES
Should the Charterer elect to effect upgrades to the Vessel, Charterer
shall be responsible to complete any interior and safety equipment upgrades on
the Vessel in accordance with the requirements for the same improvements
pertaining to the ship's passenger capacity.
Owner hereby consents to Charterer's construction of an additional 25
cabins on the Vessel. If Owner (or an affiliate of Owner) is not a partner in
Charterer at the time of such construction and has obtained the refinancing of
the Loan, Owner shall loan Charterer [*] of the cost of such additional cabins,
which amount loaned by Owner shall not exceed [*] (the "Cabin Loan"). The Cabin
Loan shall be amortized over six (6) years with interest at the same rate per
annum as Owner is paying on the Loan and shall be repaid by Charterer together
with charter hire on a bi-weekly basis. If Owner obtains the refinancing of the
Loan after Charterer has constructed the cabins, Owner shall make the Cabin Loan
to Charterer concurrently with the
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* Marked text omitted pursuant to an application for an order for
confidential treatment by Commodore Holdings Limited.
19
closing of the Loan (assuming neither Owner nor an affiliate of Owner has become
a partner in Charterer). If Owner (or an affiliate of Owner) becomes a partner
in Charterer after such additional cabins are constructed, the principal amount
of the Cabin Loan shall be reduced by [*] of the actual original cost to
construct such cabins (not to exceed [*]) and the balance, if any, shall
continue to be paid as described herein. For example, if the cost to construct
the cabins was [*] and Owner had loaned [*] to Charterer, the principal amount
of the Cabin Loan would be reduced by [*] ([*]).
Additionally, the Charterer shall indemnify and hold the Owner harmless
of and from any and all liability or responsibility in connection with the same
interior upgrades and should any liens be filed in consequence thereof by any
supplier or materialmen, it shall be the responsibility of the Charterer to pay
such lien or transfer the same to bond within a reasonable time. Commodore
Holdings Limited hereby guaranties the obligation of Charterer to pay any and
all suppliers or materialmen who provide materials or services to the Vessel in
connection with such construction or transfer any claimed lien by such person to
a bond within a reasonable time.
62. SAFETY OF LIFE AT SEA (SOLAS)
Except as described in Section 43, all future SOLAS requirements and
upgrades are for the account of the Charterer.
63. CHARTER HIRE
Since the Charterer is in possession of the Vessel prior to the
Commencement Date pursuant to the Second Sub-Bareboat Charter between Cruise
Charter, Ltd. and Commodore Cruises Limited, which was assigned to Charterer,
the charter hire paid under such previous Charter shall be prorated as of the
Commencement Date and Multi-Group Enterprises, S.A. ("Multi-Group") shall refund
such portion of the prepaid charter hire to the Charterer on the Commencement
Date so as to zero the prepaid current charter hire as of the Commencement Date.
Multi-Group, by its signature at the end hereof, covenants and agrees to such
proration. Therefore, as of the Commencement Date, the Charterer shall pay the
Owner the sum of [*]representing the charter hire in advance for the two week
period next ensuing except that should the last day of the two week period fail
to end on a Friday, then the Charterer shall add to the initial payment per diem
charter hire so as to extend the initial two-week period as many additional days
as are necessary to have the initial payment period end on Friday. Thereafter,
subsequent charter hire payments are to be paid in advance on Friday on a
bi-weekly basis accordance with the following schedule:
TIME PERIOD BI-WEEKLY CHARTER HIRE
----------- ----------------------
First 183 days following Commencement Date [*]
Next 182 days [*]
Next 365 days [*]
Thereafter [*]
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confidential treatment by Commodore Holdings Limited.
20
All charter hire payments shall be sent by wire transfer as follows, or
as may be directed by the Owner to Charterer, in writing, from time to time
during the Charter Period:
Bank: First Union National Bank
Fort Lauderdale, Florida
ABA No. _________________
To the account of: International Investment
& Financial Group, Inc.
Account No.: _________________
64. DELETED.
65. DELETED.
66. HOUSE CABINS
The Owner and the Charterer agree that during the term of the Bareboat
Charter, the Owner shall have the right to the use, occupancy and possession of
one (1) cabin, to wit Cabin No. 1015. This cabin shall not be sold or used by
Charterer's passengers, but may be used by the Owner or Owner's designees,
provided that Charterers may sell this cabin if it has not been reserved by
Owners more than one month prior to the commencement of the voyage. If Owner
requests the use of a cabin less than one month prior to the commencement of the
voyage and Cabin No. 1015 is not available, Charterer shall use its reasonable
efforts to provide another cabin to Owner.
67. LIENS
(a) Charterer, its vendors and contractors, shall have no lien rights
against the Vessel for any sums expended for the improvement of the Vessel as
all such expenditures are either required to be made by the terms of this
Charter or expenditures that Charterer volunteers because of alterations,
modifications or upgrades it elects.
(b) In the event a lien is filed with the U.S. Coast Guard or with any
federal or state court for any reason during the Charter Period as a result of
the activity or conduct of the Charterer, then it shall be the obligation of the
Charterer to provide immediate notice to the Owner of the existence of the lien
and to, within ten (10) days next after Charterer has notice of the lien, either
pay the lien or transfer the same to bond, and should Charterer fail to do so,
then Owner shall have the right to:
i. declare a default and cancel the Bareboat Charter imposing
the liquidated damage provisions hereinafter set forth; and
ii. pay the lien or transfer the same to bond in which event
all moneys advanced in consequence thereof shall be and constitute additional
charter hire due and payable with the next charter hire periodic payment.
21
68. VESSEL LOGS
During the Charter Period, it shall be the obligation of the Charterer
to insure that the Captain and Chief Engineer of the Vessel maintain a daily log
in traditional form.
69. LOSS OR DESTRUCTION OF THE VESSEL
Should the Vessel be lost or destroyed as a result of casualty or for
any other reason, then this Bareboat Charter shall be canceled, each party shall
be released from further liability hereunder and it shall not be the obligation
of the Owner to replace the Vessel; provided, however, that any claim or
obligation accruing prior to the time of such loss or destruction shall survive
such cancellation. Any cancellation under this Paragraph shall impose the duty
upon the Owner to return to the Charterer any prepaid charter hire. Owner will
obtain for Charterer's benefit insurance covering Charterer's interest to the
extent of its payments and expenses prior to delivery in the event of the loss
or destruction of the Vessel prior to delivery.
70. EVENTS OF DEFAULT
Should any one or more of the following events occur, one party may,
without prejudice to the exercise of any right or remedy which may be available
to it, cancel this Charter forthwith or terminate the Charter on such notice
which, in its absolute discretion, it might think fit:
(a) the party shall fail to perform or comply in any material respect
with any one or more of its covenants, duties or obligations thereunder and,
having been given written notice of such failure, fails to rectify such failure
within ten (10) days, unless such party has commenced and is diligently
attempting to correct such failure within said ten (10) day period;
(b) any material statement, representation or warranty of the other
party contained in this Charter or in any document furnished pursuant to this
Charter shall prove to be knowingly or recklessly or negligently untrue or
incorrect in any material respect when made; and
(c) i. the Vessel is requisitioned by title or for use by any
government claiming jurisdiction; or
ii. the Vessel becomes an actual or constructive total loss;
or
iii. the other party shall (A) admit in writing its inability
to pay its debts as they mature; or (B) make any general assignment for the
benefit of creditors; or (C) be adjudicated bankrupt or insolvent, or be
dissolved; or (D) file a petition in bankruptcy or for the reorganization or for
arrangement pursuant to a Bankruptcy Act or any insolvency law providing for
relief of debtors now or hereafter in effect; or (E) file an answer admitting
material allegations of or consent to or default in answering a petition filed
against it in bankruptcy, reorganization or insolvency process, or take
corporate action for purpose of effecting any of the foregoing; or (F) be the
subject of any order made or resolution passed for its winding up.
22
71. CHARTERER'S DEFAULT
In the event Charterer defaults in carrying out its obligations
hereunder after notice and a ten (10) day opportunity to cure (other than
defaults as a result of liens against the Vessel), then, and in such event, the
Charterer shall pay to the Owner the sum of [*] as agreed liquidated damages
less the amount of any prepaid charter hire. Upon the payment of liquidated
damages, both parties shall be released of and from any and all further
obligations under this Bareboat Charter and the same shall be deemed cancelled.
72. SECURITY FOR OWNER'S PERFORMANCE
And as for security for the Owner's performance of its obligations
under this Bareboat Charter and the payment of any sums due hereunder by the
Owner to the Charterer, the Owner does hereby grant to the Charterer a lien
against the Vessel, which lien shall be enforceable by the Charterer only in the
event a default occurs and is not cured within the time provided in Paragraph 73
below.
73. OWNER'S DEFAULT
(a) Owner's Default - Liquidated Damages - In the event Owner defaults
in carrying out its obligations hereunder, other than a Willful Default (as
hereafter defined) and such default interferes with the continued possession and
use of the Vessel by the Charterer and after notice and a ten (10) day
opportunity to cure, then, and in such event, the Owner shall pay to the
Charterer the sum of [*] as agreed liquidated damages. Upon the payment of the
liquidated damages, each party shall be released of and from further obligations
under this Bareboat Charter and the same shall be deemed cancelled. Any other
defaults by the Owner not involving or affecting the possession and use of the
Vessel by the Charterer shall be remedied by the Charterer, after providing
Owner with notice and a ten (10) day opportunity to cure, by deducting the
amount to cure from the charter hire in progressive order of charter hire
payments.
(b) Owner's Default - Actual Damages - In the event the Owner commits a
Willful Default then the Charterer shall be entitled to pursue claims for actual
damages sustained as a result of such default or specific performance after
notice of such default to Owner. Willful Default shall mean a default including
all of (i), (ii) and (iii) OR (iv) below:
(i) the default shall interfere with Charterer's use and
possession of the Vessel,
(ii) the default shall have occurred after the closing and
funding of the loan from the Lender contemplated herein to be secured by the
Owner, and
(iii) the default shall involve the Owner's failure to pay
unpaid vendors outstanding and known at the time of the closing and funding of
the above-referenced loan;
OR
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confidential treatment by Commodore Holdings Limited.
23
(iv) the default shall be a willful and malicious
deprivation of Charterer's possession of the Vessel by the direct conduct, act
and deed of the Owner without color of legal right, and in flagrant disregard of
Charterer's rights under this Charter.
74. ATTORNEY'S FEES
In the event a dispute arises in connection with this Bareboat Charter,
the prevailing party shall be entitled to recover reasonable attorneys' fees
incurred to and through all appeals.
75. ASSIGNMENT
The Charterer may not assign this Bareboat Charter unless it has first
obtained the written consent of the Owner, which shall not be unreasonably
withheld, except that Charterer shall be permitted to assign the Charter and/or
subcharter the Vessel to an affiliate. If Owner elects to sell the Vessel to
Multi-Group Enterprises, S.A., ("Multi-Group"), and the Lender consents to such
sale, then Owner may assign this Charter to Multi-Group, and Multi-Group shall
have all rights and obligations of Owner, and be referred to as Owner for
purposes of this Charter, thereafter.
76. TERMINATION OF CHARTER BY OWNER
In the event Owner (or an affiliate of Owner) is a partner in
Charterer, then beginning October 1, 2000, if Charterer incurs a net loss in
excess of [*] during any fiscal year, Owner may, with Lender's consent, upon six
(6) months written notice (or such lesser period as may be mutually agreed upon
with Charterer), cancel this Charter without penalty.
77. DELETED
78. NOTICES
Notices to the parties may be hand-delivered, transmitted by regular
mail, transmitted by facsimile transmission or Federal Express to the
representative parties at the following addresses:
CHARTERER: Capri Cruises
Commodore Cruise Line Limited
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 - Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
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* Marked text omitted pursuant to an application for an order for
confidential treatment by Commodore Holdings Limited.
24
WITH A COPY TO: Xxxxxxxx X. Deutsch, P.A.
Broad and Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx Center - Suite 3000
Xxxxx, Xxxxxxx 00000
OWNER: Norsong Shipping, Ltd.
c/o International Investment & Financial
Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000-X
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
WITH A COPY TO: Xxxxx X. Xxxxxxxx, Chartered
Xxxxx X. Xxxxxxxx, Esquire
000 X. X. Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
79. ARBITRATION
Any dispute arising under this Bareboat Charter is to be referred to
arbitration in the City of Fort Lauderdale, County of Broward, State of Florida,
conducted according to the Rules of the Miami Maritime Arbitration Council,
before three arbitrators one arbitrator to be nominated by the Charterer and the
other by the Owner, and the third by the two so chosen, the award of the
arbitrators to be final and binding upon both parties. Where appropriate, award
of the arbitrators may include any or all of affirmative relief, including
injunctive relief. General Maritime Law of the United States, and, where such
law does not apply, the law of Florida shall govern this Charter.
80. DELETED
81. BROKERS
The Owner and the Charterer hereby represent to each other that neither
has contacted any broker in connection with the instant Charter and should any
broker or person make any claim for commission as a result of the alleged
activity of either party then, the party responsible shall indemnify the other
party of and from any and all responsibility or liability in connection with
such claim, which shall include the duty to defend such claim.
82. MISCELLANEOUS
Clause headings are for ease of reference only and shall not affect
construction.
83. DELETED
84. DELETED
85. DELETED
25
86. MATERIAL BREACH
A material breach on the part of the Charterer shall mean a failure on
its part to observe and comply with any of the following:
(a) Payment of the charter hire, as required herein;
(b) Failure to post and maintain in good standing Federal Maritime
commission bond, as required herein;
(c) Failure to pay or to bond liens against the Vessel where required
herein; and
(d) Failure to carry out maintenance obligations to the extent that the
same materially affect the seaworthiness of the Vessel.
In addition to the above enumerated material breaches, a material
breach shall also include any failure by Charterer to carry out a covenant or
obligation under this Charter involving an expense to cure of [*] or more, or a
loss to the Owner in consequence thereof in an amount of [*] or more.
Additionally, a material breach of the Owner shall be the violation of any
obligation or covenant of this Charter which results in depriving the Charterer
of the use and possession of the Vessel. A material breach shall also be and
constitute any violation of the Charter by the Owner involving costs or damages
to the Charterer in an amount of [*] or more.
87. DELETED
88. NOTICE OF DEFAULT
Anything to the contrary in any part of this Charter notwithstanding,
whether in Parts I, II or this Addendum, Owners shall not repossess the Vessel
or deem Charterers in default unless Charterers first receive notice of, and a
ten (10) day opportunity to cure, any condition or event which Owners believe in
good faith to constitute a default, and of Owners' intention to declare
Charterers to be in default therefor.
89. CONFLICT
In the event of any conflict between Part I and Part II of this Charter
on the one hand and the "Addendum" set forth in Paragraphs 43 through 90 on the
other hand, then Paragraphs 43 through 90 shall control.
----------
* Marked text omitted pursuant to an application for an order for
confidential treatment by Commodore Holdings Limited.
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90. COUNTERPARTS
This Charter may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
Signed, sealed and delivered
In the presence of: CHARTERER:
CAPRI CRUISES, a Florida general partnership
By: COMMODORE CRUISES LIMITED, a
general partner
/s/ Xxxxxxxx X. Deutsch By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------- ------------------------------------
Witness Xxxxxxxxx X. Xxxxx, President
OWNER:
NORSONG SHIPPING, LTD., a Liberian
corporation
/s/ Xxxxxxxx X. Deutsch By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------- ------------------------------------
Witness Xxxxx Xxxxxxxxxx, its Authorized
Representative
Multi-Group Enterprises, S.A. hereby executes this Charter Agreement solely for
the purpose of acknowledging its obligations pursuant to Section 63 herein and
agreeing to be bound thereby.
MULTI-GROUP ENTERPRISES, S.A., a
Bahamiam Corporation
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Xxxxx Xxxxxxxxxx, President
Commodore Holdings Limited hereby executes this Charter Agreement solely for the
purpose of acknowledging its obligations pursuant to Section 61 herein and
agreeing to be bound hereby.
COMMODORE HOLDINGS LIMITED
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------
Xxxxxxxxx X. Xxxxx
Chief Executive Officer
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