October 10, 1995
Mr. Kevin C. O'Rourke
Vice President & General Counsel
Matson Navigation Company
333 Market Street
San Francisco, CA 94105
Re: Agreement to Implement the Execution and Closing of
Vessel Purchase, Purchase of Guam Assets and Alliance
Slot Hire Agreement Dated September 22, 1995
-----------------------------------------------------
Dear Kevin:
This is to confirm that APL and Matson have agreed to, and hereby do,
amend Sections 1.1(b)(viii) and 1.1(c)(vii) of the above agreement to change
the reference in those Sections from 'October 16, 1995' to 'October 30, 1995.'
To confirm this, please sign the enclosed copy of this letter in the space
provided and return that signed copy to me.
Thank you.
Very truly yours,
AMERICAN PRESIDENT LINES, LTD.
By /s/ David V. Ainsworth
Acknowledged and Agreed:
MATSON NAVIGATION COMPANY, INC.
By /s/ Kevin C. O'Rourke
October 30, 1995
Mr. Kevin C. O'Rourke
Vice President/General Counsel
Matson Navigation Company
P. O. Box 7452
San Francisco, CA 94120
Agreement to Implement the Execution and Closing of
Vessel Purchase, Purchase of Guam Assets and Alliance Slot
Hire Agreement, dated September 22, 1995,
as amended by letter dated October 10, 1995
Dear Kevin:
This is to confirm that APL and Matson have agreed to, and hereby do,
amend the above agreement as follows:
1) Section 1.1(b)(viii) and 1.1(c)(vii) are amended to change the
reference in those Sections to 'October 30, 1995' to 'December 1,
1995.'
2) Sections 1.1(b)(vii) and 1.1(c)(vi) are amended to change the
reference in those Sections to 'November 1, 1995' to December 1,
1995.'
3) Recital E, Section 1.1(c)(x) and Section 3.1(a) are amended to change
the reference in those Sections to 'October 16, 1995' to 'December 1,
1995.'
4) Section 9.8(a) is amended to change the reference therein to
'October 1, 1995' to 'November 1, 1995.'
To confirm this, please sign the enclosed copy of this letter in the space
provided and return that signed copy to me.
Thank you.
Very truly yours,
AMERICAN PRESIDENT LINES, LTD.
By /s/ Frederick M. Sevekow, Jr.
Acknowledged and Agreed:
MATSON NAVIGATION COMPANY, INC.
By /s/ Kevin C. O'Rourke
November 30, 1995
Mr. Kevin C. O'Rourke
Vice President/General Counsel
Matson Navigation Company, Inc.
333 Market Street
P. O. Box 7452
San Francisco, CA 94120
Agreement to Implement the Execution and Closing of Vessel
Purchase, Purchase of Guam Assets and Alliance Slot Hire
Agreement, dated September 22, 1995, as amended by Letters dated
October 10, 1995 and October 30, 1995
Dear Kevin:
This is to confirm that APL and Matson have agreed to, and hereby do,
amend the above agreement as follows:
1) Sections 1.1(b)(viii) and 1.1(c)(vii) are amended to change the
reference in those Sections to 'December 1, 1995' to 'December 8,
1995.'
2) Sections 1.1(b)(vii) and 1.1(c)(vi) are amended to change the
reference in those Sections to 'December 1, 1995' to 'December 8,
1995.'
3) Recital E and Section 3.1(a) are amended to change the reference in
those Sections to 'December 1, 1995' to 'December 8, 1995.'
To confirm this, please sign the enclosed copy of this letter in the space
provided and return that signed copy to me.
Thank you.
Very truly yours,
AMERICAN PRESIDENT LINES, LTD.
By /s/ Frederick M. Sevekow
Acknowledged and Agreed:
MATSON NAVIGATION COMPANY, INC.
By /s/ Kevin C. O'Rourke
December 8, 1995
Mr. Kevin C. O'Rourke
Vice President/General Counsel
Matson Navigation Company, Inc.
333 Market Street
P. O. Box 7452
San Francisco, CA 94120
Agreement to Implement the Execution and Closing of Vessel
Purchase, Purchase of Guam Assets and Alliance Slot Hire
Agreement, dated September 22, 1995, as amended by Letters dated
October 10, 1995, October 30, 1995 and November 30, 1995
Dear Kevin:
This is to confirm that APL and Matson have agreed to, and hereby do,
amend the above agreement as follows:
1) Sections 1.1(b)(viii) and 1.1(c)(vii) are amended to change the
reference in those Sections to 'December 8, 1995' to 'December 15,
1995.'
2) Sections 1.1(b)(vii) and 1.1(c)(vi) are amended to change the
reference in those Sections to 'December 8, 1995' to 'December 15,
1995.'
3) Recital E and Section 3.1(a) are amended to change the reference in
those provisions to 'December 8, 1995' to 'December 15, 1995.'
To confirm this, please sign the enclosed copy of this letter in the space
provided and return that signed copy to me.
Thank you.
Very truly yours,
AMERICAN PRESIDENT LINES, LTD.
By /s/ Frederick M. Sevekow, Jr.
Acknowledged and Agreed:
MATSON NAVIGATION COMPANY, INC.
By /s/ Kevin C. O'Rourke
AMENDMENT NO. 5
DATED DECEMBER 15, 1995
BY AND BETWEEN
MATSON NAVIGATION COMPANY, INC.
AND
AMERICAN PRESIDENT LINES, LTD.
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT,
DATED SEPTEMBER 22, 1995
AMENDMENT NO. 5
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT
----------------------------
THIS AMENDMENT NO. 5 ('Amendment No. 5') to the AGREEMENT TO IMPLEMENT THE
EXECUTION AND CLOSING OF VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND ALLIANCE
SLOT HIRE AGREEMENT (as originally executed on September 22, 1995, and as
previously amended on October 10, October 30, November 30, 1995 and December 8,
1995, the 'Agreement') is entered into this 15th day of December, 1995 by and
between MATSON NAVIGATION COMPANY, INC., a Hawaii corporation ('Matson') and
AMERICAN PRESIDENT LINES, LTD., a Delaware corporation ('APL'). Capitalized
terms used in this Amendment No. 5 and not otherwise defined herein have the
meanings specified in Appendix 1 to the Agreement.
SECTION 1.
(a) The brackets around the words 'Vessel Assets Inventory' in Section
6.9 of the Table of Contents of the Agreement are deleted and the brackets
around the words 'Schedule 1(b) - Responsibility and Schedule' in the Table of
Contents of the Agreement are deleted.
(b) The phrase 'the terms and conditions of which are to be determined by
the parties as set forth herein and to be attached as Exhibit C' is deleted
---------
from Recital D and the phrase 'substantially in the form set forth in
Exhibit C' is inserted in lieu thereof.
- ---------
(c) Exhibits A, B, C, D, E and F to the Agreement are amended and
---------------------- -
restated to read in their entirety as set forth, respectively, in Exhibits
--------
A, B, C, D, E and F to this Amendment No. 5.
- ------------- -
SECTION 2.
The words 'a C-8 Vessel to be mutually designated by the parties by
October16, 1995' in Recital E of the Agreement are deleted and the words 'the
PRESIDENT GRANT, Official No. 530138' are inserted in lieu thereof.
SECTION 3.
The phrase 'January 2, 1996' in Section 1.1(a) of the Agreement is deleted
and the phrase 'December 20, 1995' is inserted in lieu thereof.
SECTION 4.
The text of Sections 1.1(b)(vi), (vii) and (viii) and 1.1(c)(v), (vi) and
(vii) of the Agreement are deleted in their entirety, and the following text
inserted in lieu thereof in said Sections:
'Intentionally Omitted.'
SECTION 5.
The text of Section 1.1(c)(x) of the Agreement, including the brackets
around said Section, is deleted in its entirety.
SECTION 6.
Section 1.2(a) of the Agreement is deleted in its entirety and the
following inserted in lieu thereof:
'Provided that Matson and APL shall have executed and delivered the
VPA as provided in SECTION 1.1 hereof, and subject to the satisfaction
of the conditions set forth in SECTIONS 1.2(b) and 1.2(c) hereof,
Matson and APL shall consummate the transactions contemplated under
the VPA and IBCA (i) on the first VPA Closing Date with respect to the
PRESIDENT TYLER, which shall be on or about December 20, 1995, unless
otherwise agreed by the parties, (ii) on or about January 2, 1996 with
respect to two of the C-9 Vessels, but in no event later than January
6, 1996, unless otherwise agreed by the parties (the 'Second VPA
Closing Date'), and (iii) on the Second VPA Closing Date, or on one or
more subsequent VPA Closing Dates with respect to the remaining C-9
Vessel and the two remaining C-8 Vessels, any such subsequent VPA
Closing Date or Dates to occur as soon after the Second VPA Closing
Date as practical, given the geographic location of such Vessels and
availability of the United States Coast Guard to redocument such
Vessels, unless otherwise agreed to by the parties, but not later than
March 31, 1996, unless otherwise agreed to by the parties (any such
subsequent VPA Closing Dates, together with the First VPA Closing Date
and the Second VPA Closing Date, referred to herein individually as a
'VPA Closing Date' and collectively as the 'VPA Closing Dates').'
SECTION 7.
The words 'first two C-9 Vessels' are deleted from Section 2.1(a) of the
Agreement and the words 'PRESIDENT TYLER' are inserted in lieu thereof.
SECTION 8.
(a) Section 3.1(a) is deleted in its entirety and the following text is
inserted in lieu thereof:
'(a) Subject to the satisfaction of the conditions set forth in
SECTION 3.1(b) and (c) hereof and to the provisions of SECTIONS 3.1(d)
and (e) hereof, Matson and APL shall execute and deliver the Alliance
Agreement and all Ancillary Alliance Agreements which the parties have
theretofore in writing agreed on and identified as such on or about
February 8, 1996, but in no event later than March 31, 1996, unless
otherwise agreed by the parties (the date of such execution and
delivery being referred to in this Agreement as the 'Implementation
Date').'
(b) Section 3.1(b)(ii) is amended by adding the following words at the
end thereof and prior to the period: 'and this Agreement.'
(c) Section 3.1(b) is further amended by adding SECTION 3.1(b)(vii) as
follows:
'(vii) The parties shall have agreed on any matters on
which the parties are required to attempt to reach
agreement pursuant to SECTIONS 3.1(d) or (e)
hereof.'
(d) Section 3.1(c)(ii) is amended by adding the words at the end thereof
and prior to the period: 'and this Agreement.'
(e) Section 3.1(c) is further amended by adding SECTION 3.1(b)(vi) as
follows:
'(vi) The parties shall have agreed on any matters on which
the parties are required to attempt to reach
agreement pursuant to SECTIONS 3.1(d) or (e)
hereof.'
(f) Section 3.1 is further amended by adding SECTIONS 3.1(d), (e) and (f)
as follows:
'(d) In the event:
(i) A Non-Termination Loss shall have occurred
with respect to any of the Alliance Vessels (other
than the RJ PFEIFFER) before the Implementation
Date; and
(ii) Such Non-Termination Loss will interfere with
the commencement or operation of the Service in
accordance with the Alliance Agreement, the
Service Schedule and the Transition Plan were the
Service to begin (or be attempted to be begun) on
the then-scheduled Implementation Date;
then Matson shall have the option (which Matson shall exercise by
notice to APL promptly upon the occurrence of such Non-Termination
Loss) to defer the Implementation Date to a date later than February
8, 1996, but not later than March 31, 1996, unless otherwise agreed by
the parties; provided, whether or not Matson so elects to defer the
--------
Implementation Date, the parties shall promptly upon occurrence of
such Non-Termination Loss in good faith confer and attempt to agree on
such changes in the Transition Plan, and in the case of any deferral
of the Implementation Date such changes in the then-scheduled
Implementation Date as will (as nearly as practicable) achieve the
objectives of the Service Schedule and the original unmodified
Transition Plan.'
'(e) In the event:
(i) A Non-Termination Loss shall have occurred
with respect to the RJ PFEIFFER before the
Implementation Date; and
(ii) Such Non-Termination Loss will interfere with
the commencement or operation of the Service in
accordance with the Alliance Agreement, the
Service Schedule and the Transition Plan were the
Service to begin (or be attempted to be begun) on
the then-scheduled Implementation Date;
then APL shall have the option (which APL shall exercise by notice to
Matson promptly upon the occurrence of such Non-Termination Loss) to
defer the Implementation Date to a date later than February 8, 1996
but not later than March 31, 1996 unless otherwise agreed by the
parties; provided, whether or not APL so elects to defer the
--------
Implementation Date, the parties shall promptly upon the occurrence of
such Non-Termination Loss in good faith confer and attempt to agree on
such changes in the Transition Plan, and in the case of any deferral
of the Implementation Date such changes in the then-scheduled
Implementation Date as will (as nearly as practicable) achieve the
objectives of the Service Schedule and the original unmodified
Transition Plan.'
(g) Sections 3.1(b)(v) and 3.1(c)(v) are amended by deleting the words
'VPA Closing' wherever appearing therein, and by inserting the word
'Implementation' in lieu thereof.
SECTION 9.
(a) The words 'and Closing' are inserted after the word 'Execution' in
the titles to Sections 4.1, 4.1(a), 4.1(b) and 4.1(c) of the Agreement.
(b) The words 'the 10th day prior to the Implementation Date' are deleted
from Section 4.1(a) of the Agreement, and the following words inserted in lieu
thereof:
'February 1, 1995, unless otherwise agreed by the parties (the 'GAPA
Closing Date').'
(c) The words 'and to close the transactions contemplated thereby' are
inserted after the word 'GAPA' on the second line of Section 4.1(b) and (c) of
the Agreement.
(d) The word 'Execution' in the text of Sections 4.1(b), 4.1(b)(i),
4.1(b)(ii), 4.1(c)(i) and 4.1(c)(ii) of the Agreement is deleted, and the word
'Closing' is inserted in lieu thereof.
(e) The word 'VPA' in Sections 4.1(b)(iii)(B), (C) and (D) and in
Sections 4.1(c)(iii)(B), (C) and (D) is deleted, and the word 'GAPA' is
inserted in lieu thereof.
(f) Section 4.1(b) is amended by adding new clauses (v) and (vi) thereto
as follows:
'(v) Matson GAPA Conditions Satisfied. Each of the conditions
--------------------------------
set forth in Section 5 of the GAPA shall have been satisfied
or waived in writing by Matson.'
'(vi) APL and Matson shall have agreed in writing on: (A) the form
and substance of (1) all appendices, exhibits and schedules
to the copy of the GAPA which is attached as an Exhibit to
this Agreement, (2) all appendices, exhibits and schedules
which are not included, or are marked 'To Be Completed,' in
the copy of the Alliance Agreement which is attached as an
Exhibit to this Agreement, (3) the manner in which all
blanks in the copies of the GAPA, the Alliance Agreement,
and in the appendices, exhibits and schedules to the copy of
the Alliance Agreement, which are attached as Exhibits to
this Agreement, shall be completed, (B) whether the
bracketed language in the copies of the GAPA, the Alliance
Agreement, and in the appendices, exhibits and schedules to
the copy of the Alliance Agreement, which are attached as
Exhibits to this Agreement, shall stand as is or be changed
or otherwise resolved and, if so, how, (C) all Included
Materials to be contained in the Volumes referred to in
Exhibit E hereto, and (D) the form and substance of all
---------
Ancillary Alliance Agreements which either of them wishes to
enter into or identify as such concerning practices and
procedures relating to the Alliance Agreement performance.'
(g) Section 4.1(c) is amended by adding new clauses (iv), (v) and (vi)
thereto as follows:
'(iv) APL GAPA Conditions Satisfied. Each of the conditions set
-----------------------------
forth in Section 6 of the GAPA shall have been satisfied or
waived in writing by APL.'
'(v) APL and Matson shall have agreed in writing on: (A) the
form and substance of (1) all appendices, exhibits and
schedules to the copy of the GAPA which is attached as an
Exhibit to this Agreement, (2) all appendices, exhibits and
schedules which are not included, or are marked 'To Be
Completed,' in the copy of the Alliance Agreement which is
attached as an Exhibit to this Agreement, (3) the manner in
which all blanks in the copies of the GAPA, the Alliance
Agreement, and in the appendices, exhibits and schedules to
the copy of the Alliance Agreement, which are attached as
Exhibits to this Agreement, shall be completed, (B) whether
the bracketed language in the copies of the GAPA, the
Alliance Agreement, and in the appendices, exhibits and
schedules to the copy of the Alliance Agreement, which are
attached as Exhibits to this Agreement, shall stand as is or
be changed or otherwise resolved and, if so, how, (C) all
Included Materials to be contained in the Volumes referred
to in Exhibit E hereto, and (D) the form and substance of
---------
all Ancillary Alliance Agreements which either of them
wishes to enter into or identify as such concerning
practices and procedures relating to the Alliance Agreement
performance.'
'(vi) The Designated APL Employees (as defined in the GAPA) shall
have approved (A) the representations and warranties in the
GAPA, and (B) the Schedules to the GAPA.'
(h) Section 4.2 of the Agreement is deleted in its entirety.
SECTION 10.
(a) The text of the first three lines of Section 6.2(a)(i) of the
Agreement is deleted in its entirety, and the following text is inserted in
lieu thereof:
'Except for retention bonuses (A) change in any manner the rate of
compensation of any APL Guam Employee,'.
(b) The text of Section 6.2(a)(iii) is deleted in its entirety, and the
following text is inserted in lieu thereof:
'Sell, transfer, license or otherwise dispose of, or agree to sell,
transfer, license or otherwise dispose of, any intellectual property
which is to be subject to the APL End User License Agreement referred
to in the GAPA and the VPA in any manner which would preclude APL from
complying with its obligations under such APL End User License
Agreement.'
SECTION 11.
(a) Section 6.5(c) is amended by adding the following new sentence
between the existing third and fourth sentences of that Section:
'The party entering into the contract shall be responsible for
administration and supervision of warranty claims under that
contract.'
(b) The first sentence of Section 6.5(e) is deleted in its entirety and
the following text is inserted in lieu thereof:
'Matson and APL agree to share any third-party costs under SECTION
6.5(b) and (c) hereof, the out-of-pocket costs incurred by the party
entering into each respective contract in connection with
administration and supervision of warranty claims under SECTION 6.5(c)
hereof, together with the Delivery Costs under SECTION 6.5(d) hereof
as well as any United States customs duties on any of the Requisite
Work (such costs and any such duties, jointly the 'Reimbursable
Costs').'
SECTION 12.
Section 6.7 is amended by adding a new Section 6.7(d) as follows:
'(d) APL warrants to Matson that APL is the owner of the Other
Shoreside Spares to be transferred to Matson pursuant to SECTION
6.7(b) hereof, and Matson warrants to APL that Matson will be the
owner of any of the Other Shoreside Spares withdrawn by APL pursuant
to SECTION 6.7(c) hereof, in each case free and clear of all liens and
encumbrances, except for the rights of Waterman Steamship Company in
certain of the Other Shoreside Spares under the Joint Spares
Agreement. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, NEITHER
PARTY MAKES OR HAD MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO OR IN CONNECTION WITH ANY OF THE OTHER
SHORESIDE SPARES, INCLUDING ANY OF THE OTHER SHORESIDE SPARES SUBJECT
TO THE JOINT SPARES AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY OF TITLE, DESIGN, CONDITION, QUALITY,
SEAWORTHINESS, MERCHANTABILITY, WORKMANSHIP, SUITABILITY OR FITNESS OR
ELIGIBILITY FOR ANY TRADE OR VOYAGE OR FOR ANY OTHER USE OR PURPOSE,
ALL OF WHICH REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY EXCLUDED.
THERE ARE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OF EITHER PARTY
WITH RESPECT TO ANY OF THE OTHER SHORESIDE SPARES, INCLUDING ANY OF
THE OTHER SHORESIDE SPARES SUBJECT TO THE JOINT SPARES AGREEMENT,
OTHER THAN AS SET FORTH IN THE FIRST SENTENCE OF THIS SECTION 6.7(D),
WHICH REPRESENTATIONS AND WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER REPRESENTATIONS AND WARRANTIES OF EITHER PARTY WITH RESPECT TO
ANY OF THE OTHER SHORESIDE SPARES OR ANY OF THE SPARES SUBJECT TO THE
JOINT SPARES AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED.
EACH PARTY ACCEPTS THE OTHER SHORESIDE SPARES AND ANY OF THE OTHER
SHORESIDE SPARES SUBJECT TO THE JOINT SPARES AGREEMENT AS IS, WHERE IS
AND WITH ALL FAULTS AND DEFECTS, WHETHER PATENT OR LATENT, AND WITHOUT
RECOURSE OF ANY KIND TO THE OTHER PARTY ON ACCOUNT OF ANY LOSS, DAMAGE
OR INJURY SUFFERED OR SUSTAINED ON ACCOUNT OF ANY SUCH FAULT OR
DEFECT, WHETHER ON ANY THEORY OF NEGLIGENCE, STRICT LIABILITY,
UNSEAWORTHINESS, BREACH OF CONTRACT OR EXPRESS OR IMPLIED WARRANTY, ON
WHICH ANY SUCH RECOURSE MIGHT OTHERWISE BE PURSUED.'
SECTION 13.
Section 6.9 of the Agreement, including the brackets around said Section,
is deleted.
SECTION 14.
The words '[Add provision re no further claim]' in Section 7.3(a)(v) of
the Agreement are deleted, and the following text is inserted in lieu thereof:
'Upon such refund, Matson shall have no further claim against APL with
respect to the fee or any lost profits referred to in, or any
obligation created by, said SECTION 6.8.'
SECTION 15.
Section 7.6 of the Agreement is deleted in its entirety and the following
inserted in lieu thereof:
'7.6 CDS REPAYMENT DATA AND CALCULATIONS.
-----------------------------------
'During the Alliance Period, and for twelve (12) months following
the end thereof, APL shall provide Matson, or cause Matson to be
provided with all information relating to gross freight revenues
generated by the carriage of APL Cargo (as that term is defined in the
Alliance Agreement) on the Alliance Vessels, whether paid to APL or
any alliance partner of APL (other than Matson) for any such carriage
during the Alliance Period, as required by the United States Maritime
Administration ('MARAD') for CDS repayment computation purposes.
Matson shall not disclose such information to any other Person,
including, but not limited to, APL if any such information shall be
received by Matson from any Person other than APL, except as otherwise
required by law. Matson shall request confidential treatment of any
such information forwarded by it to MARAD under the Freedom of
Information Act.'
SECTION 16.
(a) Section 7.3(a)(i) of the Agreement is deleted in its entirety, and
the following inserted in lieu thereof:
'(i) The reversal of the sale of any Vessel, Vessel Assets, Other
Shoreside Spares or Guam Sale Assets (as defined in the GAPA).'
(b) Section 7.3(a)(ii) of the Agreement is amended by inserting the words
'or New Employee (as defined in the GAPA)' after the word 'Officer.'
(c) Sections 7.3(a)(iv) and (v) of the Agreement are amended by inserting
the words 'or under the GAPA' before the word 'together' in the first sentence
thereof.
(d) The following are added as new clauses (viii) and (ix) of Section
7.3(a) of the Agreement:
'(viii) The payment from Matson to APL of any insurance
proceeds or payment from APL or any other Person
received by Matson with respect to any loss or
damages to a Vessel, except to the extent that (A)
Matson shall be entitled to such proceeds in
reimbursement of any repairs of such loss or
damages to a Vessel the cost of which are borne by
Matson, or (B) Matson shall be obligated under any
contract for repairs of such loss or damages at
the time of any such termination, or (C) APL shall
have failed to reimburse Matson for any uninsured
portion borne by Matson under clause (A) or with
respect to which Matson is obligated pursuant to
clause (B).'
'(ix) The refund to APL or its qualified plans of all
amounts previously transferred to Matson or
Matson's qualified plans pursuant to Section 4.3
of the GAPA.'
SECTION 17.
The last sentence of Section 9.1 of the Agreement, including the brackets
around the same, is deleted in its entirety.
SECTION 18.
Section 9.8 is deleted in its entirety and the following text is
substituted in lieu thereof:
'Exhibit E sets forth representations and warranties of APL, and the
---------
parties' agreement, concerning materials provided by APL to Matson
during the course of the negotiation and documentation, and Matson's
evaluation, of the transactions contemplated by this Agreement and the
Related Agreements.'
SECTION 19.
The bracketed proviso clause at the end of the third sentence of Section
9.9 of the Agreement is deleted in its entirety, the brackets only are deleted
from the fourth sentence of said Section, and the following is added as a new
sentence at the end of said Section:
'Neither party shall be liable to the other for any act or omission of
the party or its employees, agents or independent contractors in the
course of or in connection with the performance of any Transition
Services pursuant to this SECTION 9.9, other than any such act or
omission which is willful or which constitutes a willful refusal to
provide such Transition Services required to be provided under this
SECTION 9.9.'
SECTION 20.
The definition of 'Material Guam Change' in Appendix 1 to the Agreement is
deleted in its entirety and the following text inserted in lieu thereof:
'Material Guam Change' means any of the following: (A) total Guam
revenues for the full calendar year 1995 shall be less than $67
million (as reported in APL's Star Database), or (B) at any time prior
to and including December 31, 1995, APL's market share in Guam (based
on total FEUs of APL and Sea-Land) for 1995 on a year-to-date basis
shall decline below forty-four percent (44%) as determined by APL in
Guam utilizing data provided by the Port of Guam and calculated on a
basis consistent with the 1995 market share data previously provided
to Matson by APL, or (C) at any time after December 31, 1995, either
(i) total Guam revenues for the 365-day period ending on the date the
determination of a Material Guam Change is made shall be less than $67
million (as reported in APL's Star Database), or (ii) APL's market
share in Guam (based on total FEUs of APL and Sea-Land) for the 365-
day period ending on such a determination date shall be less than
forty-four percent (44%) as determined by APL in Guam utilizing data
provided by the Port of Guam and calculated on a basis consistent with
the 1995 market share data previously provided to Matson by APL.'
SECTION 21.
The brackets around the definition of 'ODS' in Appendix 1 to the Agreement
are deleted.
SECTION 22.
(a) The following definitions are inserted in Appendix 1 to the Agreement
in alphabetical order:
' 'SECOND VPA CLOSING DATE' has the meaning set forth in SECTION
1.2(a) of this Agreement.'
'NON-TERMINATION LOSS' means any loss, damage, casualty,
breakdown or inability to operate in a manner consistent with
recent operating history which (i) in the case of any such event
or condition affecting any Alliance Vessel other than the RJ
PFEIFFER, is not described in SECTIONS 7.1(a)(ii)(A) or (B) or
7.2(a)(ii)(A) or (B) hereof, or (ii) in the case of any such
event or condition affecting the RJ PFEIFFER, cannot be repaired
by Matson prior to March 31, 1996.
'TRANSITION PLAN' has the meaning specified in the Alliance
Agreement.
'SERVICE SCHEDULE' has the meaning specified in the Alliance
Agreement.'
(b) The term 'GAPA Execution Date' in Appendix 1 to the Agreement is
deleted in its entirety.
SECTION 23.
(a) The title of item 2 of Schedule 1(a) to the Agreement is deleted in
its entirety, and the words 'PRESIDENT GRANT' inserted in lieu thereof, and the
title to item 4 of said Schedule is deleted in its entirety, and the words
'PRESIDENT HOOVER' inserted in lieu thereof.
(b) The bracketed phrase '[additional on deck reefer receptacles]' is
added at the end of item 2 of Schedule 1(a) to the Agreement.
SECTION 24.
SCHEDULE 1(b) to the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
'SCHEDULE 1(B)
-------------
RESPONSIBILITY AND SCHEDULE
---------------------------
ANTICIPATED ANTICIPATED WORK
VESSEL RESPONSIBILITY WORK LOCATION SCHEDULE
PRESIDENT MONROE APL Pusan 1/6-8/96
PRESIDENT WASHINGTON APL Pusan 1/20-22/96
PRESIDENT LINCOLN APL Pusan 1/27-29/96
PRESIDENT GRANT APL Far East 2/22-3/12/96
R.J. PFEIFFER Matson Far East 3/12-4/15/96
PRESIDENT HOOVER APL Far East 1/31-2/14/96'
SECTION 25.
Except as amended by this Amendment No. 5, all other terms, conditions and
covenants of the Agreement are hereby confirmed by the parties hereto and
remain unchanged and in full force and effect. From and after the date hereof,
all references to the Agreement in the Agreement (including references therein
to 'this Agreement,' 'hereof,' 'hereto' or 'hereunder') and in any of the
Related Agreements, shall be deemed to be references to the Agreement as
amended by this Amendment No. 5.
SECTION 26.
This Amendment No. 5 may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such counter-
parts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Matson and APL have caused this Amendment No. 5 to be
duly executed as of the day and year first above written.
MATSON NAVIGATION COMPANY, INC.
By
-------------------------------
Name:
Title:
AMERICAN PRESIDENT LINES, LTD.
By
-------------------------------
Name:
Title:
AMENDMENT NO. 6
DATED AS OF JANUARY 31, 1996
BY AND BETWEEN
MATSON NAVIGATION COMPANY, INC.
AND
AMERICAN PRESIDENT LINES, LTD.
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT,
DATED SEPTEMBER 22, 1995
AMENDMENT NO. 6
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT
----------------------------
THIS AMENDMENT NO. 6 ('Amendment No. 6') to the AGREEMENT TO IMPLEMENT THE
EXECUTION AND CLOSING OF VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND ALLIANCE
SLOT HIRE AGREEMENT (as originally executed on September 22, 1995, and as
previously amended on October 10, October 30, November 30, 1995, December 8,
1995 and December 15, 1995, the 'Agreement') is entered into as of this 31st
day of January, 1996 by and between MATSON NAVIGATION COMPANY, INC., a Hawaii
corporation ('Matson') and AMERICAN PRESIDENT LINES, LTD., a Delaware
corporation ('APL'). Capitalized terms used in this Amendment No. 6 and not
otherwise defined herein have the meanings specified in Appendix 1 to the
Agreement.
SECTION 1.
The reference to 'Recital C' in the definition of 'Guam Sale Assets' in
Appendix A to the Agreement is changed to 'Recital D'.
SECTION 2.
Each of Sections 3.1(b) and 3.1(c) of the Agreement is amended by adding
the following clause at the end thereof, which clause shall be designated
clause '(viii)' in the case of Section 3.1(b) and clause '(vii)' in the case of
Section 3.1(c):
'APL and Matson shall have agreed in writing on: (A) the form and
substance of (1) all appendices, exhibits and schedules which are not
included or are marked 'To Be Completed' in the copy of the Alliance
Agreement which is attached as an Exhibit to this Agreement, and (2)
the manner in which all blanks in the copy of the Alliance Agreement,
and in the appendices, exhibits and schedules to the copy of the
Alliance Agreement, which are attached as Exhibits to this Agreement,
shall be completed, (B) whether the bracketed language in the copy of
the Alliance Agreement, and in the appendices, exhibits and schedules
to the copy of the Alliance Agreement, which are attached as Exhibits
to this Agreement, shall stand as is or be changed or otherwise
resolved and, if so, how, (C) all Included Materials to be contained
in the Volumes referred to in Exhibit E hereto, and (D) the form and
---------
substance of all Ancillary Alliance Agreements which either of them
wishes to enter into or identify as such concerning practices and
procedures relating to the Alliance Agreement performance.'
SECTION 3.
The text of each of Sections 4.1(b)(vi) and 4.1(c)(v) of the Agreement is
amended and restated in its entirety to read as follows:
'APL and Matson shall have agreed in writing on: (A) the form and
substance of (1) all appendices, exhibits and schedules to the copy of
the GAPA which is attached as an Exhibit to this Agreement, and (2)
the manner in which all blanks in the copy of the GAPA which is
attached as an Exhibit to this Agreement shall be completed, and (B)
whether the bracketed language in the copy of the GAPA which is
attached as an Exhibit to this Agreement shall stand as is or be
changed or otherwise resolved and, if so, how.'
SECTION 4.
Section 6.5 of the Agreement is amended by inserting the words 'and the
R.J. Pfeiffer' after the word 'Vessels' in the first paragraph thereof, and by
changing all references to 'Vessel' or 'Vessels' in clauses (a), (b) and (c)
thereof to 'vessel' and 'vessels' respectively.
SECTION 5.
Except as amended by this Amendment No. 6, all other terms, conditions and
covenants of the Agreement are hereby confirmed by the parties hereto and
remain unchanged and in full force and effect. From and after the date hereof,
all references to the Agreement in the Agreement (including references therein
to 'this Agreement,' 'hereof,' 'hereto' or 'hereunder') and in any of the
Related Agreements, shall be deemed to be references to the Agreement as
amended by this Amendment No. 6.
SECTION 6.
This Amendment No. 6 may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Matson and APL have caused this Amendment No. 6 to be
duly executed as of the day and year first above written.
MATSON NAVIGATION COMPANY, INC.
By
-------------------------------
Name:
Title:
AMERICAN PRESIDENT LINES, LTD.
By
-------------------------------
Name:
Title:
AMENDMENT NO. 7
DATED AS OF FEBRUARY 8, 1996
BY AND BETWEEN
MATSON NAVIGATION COMPANY, INC.
AND
AMERICAN PRESIDENT LINES, LTD.
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT,
DATED SEPTEMBER 22, 1995
AMENDMENT NO. 7
TO THE
AGREEMENT TO IMPLEMENT
THE EXECUTION AND CLOSING OF
VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND
ALLIANCE SLOT HIRE AGREEMENT
----------------------------
THIS AMENDMENT NO. 7 ('Amendment No. 7') to the AGREEMENT TO IMPLEMENT THE
EXECUTION AND CLOSING OF VESSEL PURCHASE, PURCHASE OF GUAM ASSETS AND ALLIANCE
SLOT HIRE AGREEMENT (as originally executed on September 22, 1995, and as
previously amended on October 10, October 30, November 30, 1995, December 8,
December 15, 1995 and January 31, 1996, the 'Agreement') is entered into as of
this 8th day of February, 1996 by and between MATSON NAVIGATION COMPANY, INC.,
a Hawaii corporation ('Matson') and AMERICAN PRESIDENT LINES, LTD., a Delaware
corporation ('APL'). Capitalized terms used in this Amendment No. 7 and not
otherwise defined herein have the meanings specified in Appendix 1 to the
Agreement.
SECTION 1.
The Exhibits to the Agreement are amended as follows:
(a) Exhibit A to the Agreement is amended by adding thereto Amendment
No. 1 to the Vessel Purchase Agreement attached hereto as
Exhibit A; and
(b) Exhibits C, D and E to the Agreement are amended and restated to
read in their entirety as set forth, respectively, in Exhibits C,
D and E to this Amendment.
SECTION 2.
Section 6.7 of the Agreement is amended by: (a) deleting the words 'The
shoreside spare parts in APL's possession' in the third sentence thereof and
inserting in lieu thereof of the words 'The portion of the shoreside spare
parts in APL's possession which APL desires to sell to Matson and Matson
desires to purchase from APL,'; (b) deleting the words 'Within ten (10) days
prior to the Implementation Date' in the fifth sentence of clause (a) and
inserting in lieu thereof the words 'By March 31, 1996,' and by adding to the
end of said fifth sentence the words 'as at February 8, 1996'; (c) deleting the
words 'On or about the time of transfer of title' in clause (b) and inserting
in lieu thereof the words 'Prior to March 31, 1996,'; and (d) changing the
reference to 'Section 6.7(d)' in clause (b) to 'Section 6.7(c).'
SECTION 3.
The parties hereto acknowledge and agree that, the Stevedoring and
Terminal Services Agreement between Eagle Marine Services, Ltd., a Delaware
corporation, and Matson (Port of Los Angeles) dated as of February 1, 1996
(the 'APL Terminal Agreement'), and the Stevedoring and Terminal Services
Agreement between Matson Terminals, Inc., a Hawaii corporation, and APL (Port
of Oakland) dated as of February 1, 1996 (the 'Matson Terminal Agreement') were
entered into pursuant to that certain Alliance Slot Hire Agreement (as
originally executed and as amended from time to time in accordance with its
terms (the 'Alliance Agreement')) and are the APL Terminal Agreement and the
Matson Terminal Agreement, respectively, referred to and defined in the
Alliance Agreement and that each (as originally executed and as amended from
time to time in accordance with their respective terms) is an Alliance
Agreement within the meaning of, and for all purposes relating to, the Alliance
Agreement.
SECTION 4.
Except as amended by this Amendment No. 7, all other terms, conditions and
covenants of the Agreement are hereby confirmed by the parties hereto and
remain unchanged and in full force and effect. From and after the date hereof,
all references to the Agreement in the Agreement (including references therein
to 'this Agreement,' 'hereof,' 'hereto' or 'hereunder') and in any of the
Related Agreements, shall be deemed to be references to the Agreement as
amended by this Amendment No. 7.
SECTION 5.
This Amendment No. 7 may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such counter-
parts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Matson and APL have caused this Amendment No. 7 to be
duly executed as of the day and year first above written.
MATSON NAVIGATION COMPANY, INC.
By
---------------------------------
Name:
Title:
AMERICAN PRESIDENT LINES, LTD.
By
---------------------------------
Name:
Title:
Agreement to Implement the Execution and Closing of Vessel Purchase, Purchase of Guam Assets and Alliance Slot Hire Agreement - Matson Navigation Co. and American President Lines Ltd.
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