EXHIBIT 10.oo
AMENDMENT TO
ROSARITO PIER DOCKING CONTRACT
THIS AMENDMENT (the "Amendment") is made and entered into by and
between Inversiones Rosarito, S.A. de C.V., a Mexican corporation ("IRO"),
represented in this act by C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert, Coronado Seas, LLC, a
Delaware limited liability company (the "Venture"), represented in this act by
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Playas de Rosarito Marina Resort, S.A. de C.V., a Mexican
corporation ("PLAYMAR"), represented in this act by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, and Banco
Internacional, S.A., a Mexican corporation ("BITAL"), represented in this act by
C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert, in conformity with the following Declarations and
Clauses:
DECLARATIONS
I. BITAL DECLARES:
(a) That it is a corporation duly organized under General Commercial
Law, as evidenced in public document number 12,718, dated July 22, 1941,
executed before Lic. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Notary Public No. 28 of the Federal
District, registered in the Public Registry of Mexico City under number 170,
page 114, book 3, dated August 16, 1941.
(b) That it is dedicated, among other activities, to the rendering of
banking services and elements necessary thereto.
(c) That C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert, its representative, has sufficient
legal capacity to execute this contract on behalf of Bital, as evidenced in
public document number 5,482 and 260, dated March 6, 1974 and August 1, 1997,
executed before C.C. Lics. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
Notaries No. 6 of Tijuana and ▇▇. ▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇.▇., respectively,
and that said powers have not been withdrawn nor modified in any way. Copies of
such documents are attached hereto as EXHIBITS 1 AND 2.
(d) That on March 12, 1998, it became a concessionaire of the Secretary
of Communications and Transportation Concession for the use and development of a
federal maritime zone for the construction and operation of a marina and pier
located in the port of Rosarito, Baja California (the "Concession").
(e) On June 2, 1982, it entered into a trust as evidenced in Public
Document No. 16,807 dated June 2, 1982, executed before ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Public Notary No. 6 of
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Tijuana. Under the terms of said trust, IRO in its capacity as settlor and
trustee, has the authority to develop the concession referenced in paragraph (d)
above. A copy of such document is attached hereto as EXHIBIT 3.
(f) That on April 6, 1999, it entered into the Rosarito Pier Docking
Contract (the "Docking Contract"), attached hereto as EXHIBIT 4, with respect to
the operation of the pier referenced in paragraph (d) above.
II. IRO DECLARES:
(a) That it is a corporation with variable capital duly organized under
Mexican law as evidenced in Public Document No. 7,490 of May 23, 1960 executed
before Lic. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ y ▇▇▇▇▇▇▇, Public Notary No. 3 of Tijuana, Baja
California and registered with the Public Registry of Tijuana under No. 3611
book XXX, of June 29, 1960, with Federal Registry No. 840828-CY7 and with a
purpose, among other activities, of the construction, use, operation and
development of ports, port areas, terminals, marinas, wharves, landings, etc.,
and the establishment and development of tourist centers such as hotels,
restaurants, bars, recreational facilities and the celebration of contracts
necessary for such activities, including lease, rental and loan agreements, and
the preparation and execution of all acts necessary to further these goals, as
stated in the corporate articles, attached hereto as EXHIBIT 5.
(b) That in accordance with the terms of the trust referenced in
paragraph I(e), above, it is responsible for and beneficiary of a concession
granted by the Mexican Secretary of Communications and Transportation, to
construct and operate a private pier and marina in Playas de Rosarito, Baja
California (the "Pier"), and desires to encourage, develop and commence the flow
of waterborne passenger commerce to said pier. A copy of the Concession is
attached hereto as EXHIBIT 6.
(c) That currently it has entered into a contract for construction of
the Pier referred to in the previous Declaration, which provides for the
completion of construction by August 15, 1999 (the "Construction Contract"),
which Construction Contract is being amended on the date hereof.
(d) That C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert is the lawful representative of IRO,
as verified under Public Document Number 5,482, dated March 6, 1974,
respectively, duly executed before Notaries Public Number 1 of Playas de
Rosarito and number 6 of Tijuana, Lics. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Llades
▇▇▇▇▇▇▇▇▇, respectively, and that the powers granted under said documents have
not been withdrawn nor limited in any way. A copy of said power of attorney is
attached hereto as EXHIBIT 1.
(e) That on April 6, 1999, it entered into the Docking Contract,
attached hereto as EXHIBIT 4, with respect to the operation of the Pier.
III. PLAYMAR DECLARES:
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(a) That it is a corporation with variable capital duly organized under
Mexican laws, as evidenced in Public Document No. 1,460 of February 15, 1999,
executed before Lic. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Public Notary ▇▇. ▇ ▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇.▇., and with a purpose as stated in the Corporate Articles, attached
hereto as EXHIBIT 7.
(b) That it entered into a Services Agreement with IRO, dated March 10,
1999, for the operation of the Pier (the "Services Agreement") which is the
subject of the Docking Contract, as evidenced in EXHIBIT 8, hereto.
(c) That ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ is the lawful representative of PLAYMAR
under Public Document Number 1,460, dated February 15, 1999, duly executed
before Lic. ▇▇▇▇ ▇. ▇▇▇▇▇▇ Bazva, Public Notary ▇▇. ▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇.▇., and registered with the Public Registry under number 5166954, dated
February 19, 1999, as evidenced in EXHIBIT 7.
(d) That on April 6, 1999, it entered into the Docking Contract
attached hereto as EXHIBIT 4, with respect to the operation of the Pier.
IV. THE VENTURE DECLARES:
(a) That it is a limited liability company duly organized under the
laws of the State of Delaware, United States of America, as evidenced in the
Certificate of Formation of Commodore Day Cruises, LLC, Authentication Number
9514996, of January 11, 1999, which is attached hereto as EXHIBIT 9.
(b) That it duly changed its name with the State of Delaware to Baja
California, LLC, effective March 1, 1999, and that on March 5, 1999, it duly
changed its name with the State of Delaware to Coronado Seas, LLC.
(c) That it intends to operate a passenger cruise ship between San
Diego, California, USA and Playas de Rosarito, Baja California, Mexico, and it
wishes to dock at the Pier referred to in the Docking Contract at the Beginning
of Operations Date (as defined in the Docking Contract).
(d) That ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the Venture's lawful representative,
as evidenced in the Unanimous Written Consent of the Members of the Venture, and
that the rights and duties granted under such document have not been withdrawn
nor limited in any way. A copy of such document is attached hereto as EXHIBIT
10.
(e) That on April 6, 1999, it entered into the Docking Contract,
attached hereto as EXHIBIT 4, with respect to the Pier.
▇. ▇▇▇▇▇, IRO, PLAYMAR AND THE VENTURE DECLARE:
(a) Based on revisions to the proposed business of the Venture and the
benefits that are likely to be derived by both IRO and the Venture therefrom,
IRO has agreed to expand the Venture's rights to use the Pier in accordance with
the terms of this Amendment.
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(b) Based on changes to the construction plans for the Pier, IRO has
modified the Construction Contract with the contractor, Estructuras y Puertos,
S.A. de C.V., the amendment to which is attached hereto as EXHIBIT 12A.
C L A U S E S
FIRST. BERTHING RIGHTS. The parties hereto agree to modify Clause Fourth of the
Docking Contract, which originally stated:
"IRO hereby grants to the Venture the exclusive berthing rights at the
Pier for a Cruise Ship, in connection with voyages departing from the
San Diego metropolitan area."
So that it shall now read:
"IRO hereby grants to the Venture the exclusive berthing rights at the
Pier for a Cruise Ship, in connection with voyages departing from the
metropolitan areas of San Diego and Los Angeles."
SECOND. DEFINED TERMS. Furthermore, the parties agree to redefine certain
concepts established in the definitions section of the Docking Contract. The
term "The Route" shall be modified, which originally stated:
"The Route: The route taken by the Cruise Ship between San Diego and
Rosarito."
So that it shall now read:
"The Route: The route taken by the Cruise Ship among San Diego, Los
Angeles and Rosarito."
In the same manner, the term "Other Route" shall be modified, which originally
read:
"Other Route: Any route taken by the Cruise Ship other than between San
Diego and Rosarito."
So that it shall now read:
"Other Route: Any route taken by the Cruise Ship other than among San
Diego, Los Angeles and Rosarito."
In the same manner, the term "Beginning of Operations Date" shall be modified,
which originally read:
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"Beginning of Operations Date: The date on which the Pier is capable of
safely receiving a cruise ship for dockage, which in no case shall be
earlier than July 15, 1999, or later than August 15, 1999, subject to
authorization from the SCT."
So that it shall now read:
"Beginning of Operations Date: The date on which the Pier is capable of
safely receiving a cruise ship for dockage, which in no case shall be
earlier than February 28, 2000 or later than March 18, 2000, subject to
authorization from the SCT."
THIRD. CONDITION OF THE PIER. The parties hereto agree to modify the first
sentence of Clause Sixth of the Docking Contract, which originally stated:
"IRO, to ensure compliance with the requirements for the construction
of the Pier as set forth by SCT in the Concession, and to satisfy the
terms of this Contract, shall contract "Estructuras y Puertos S.A. de
C.V.," (a copy of the Construction Contract is attached hereto as
EXHIBIT 12), setting forth in such contract August 15, 1999 as the
completion date for the Pier."
So that it shall now read:
"IRO, to ensure compliance with the requirements for the construction
of the Pier as set forth by SCT in the Concession, and to satisfy the
terms of this Contract, shall contract "Estructuras y Puertos, S.A. de
C.V.," (a copy of the First Amendment to the Construction Contract is
attached hereto as EXHIBIT 12A), setting forth in such amended contract
March 18, 2000, as the completion date for the Pier."
FOURTH. RATIFICATION. Except as specifically modified herein, the Docking
Contract shall continue in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
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This Amendment, read and heard by all parties, all aware of its
contents and legal effect of each and every one of its clauses, is executed
before the witnesses at the city of Rosarito, on September 17, 1999.
WITNESS: INVERSIONES ROSARITO S.A. de C.V.,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ C.P. ▇▇▇▇ ▇▇▇▇▇▇ CHABERT
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C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert
Attorney-in-Fact
WITNESS: CORONADO SEAS, LLC:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorney-in-Fact
WITNESS:
PLAYAS DE ROSARITO MARINA
RESORT, S.A. de C.V.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ANGEL ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Angel ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact
WITNESS: BANCO INTERNACIONAL, S.A.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ C.P. ▇▇▇▇ ▇▇▇▇▇▇ CHABERT
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C.P. ▇▇▇▇ ▇▇▇▇▇▇ Chabert
Attorney-in-Fact
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CERTIFICATION
I, ▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer of Commodore Holdings Limited, hereby
represent that the previously attached document is a fair and accurate English
translation of the First Amendment to the Rosarito Pier Docking Agreement which
was executed in Spanish.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
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