{"id":43779,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/vessel-purchase-agreement-matson-navigation-co-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"vessel-purchase-agreement-matson-navigation-co-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/vessel-purchase-agreement-matson-navigation-co-inc-and.html","title":{"rendered":"Vessel Purchase Agreement &#8211; Matson Navigation Co. Inc. and American President Lines Ltd."},"content":{"rendered":"<pre>                          VESSEL PURCHASE AGREEMENT\n\n\n                                BY AND BETWEEN\n\n\n                       MATSON NAVIGATION COMPANY, INC.\n\n\n                                     AND\n\n\n                        AMERICAN PRESIDENT LINES, LTD.\n\n\n                           DATED DECEMBER 20, 1995\n\n\n\n                          VESSEL PURCHASE AGREEMENT\n                          -------------------------\n\n\n\n     THIS VESSEL PURCHASE AGREEMENT ('Purchase Agreement') is entered into as\nof December 20, 1995 by and between MATSON NAVIGATION COMPANY, INC., a Hawaii\ncorporation ('Matson'), and AMERICAN PRESIDENT LINES, LTD., a Delaware\ncorporation ('APL').\n\n                                   RECITALS\n                                   --------\n\n\n     A.   Matson and APL are party to that certain Agreement to Implement the\nExecution and Closing of Vessel Purchase, Purchase of Guam Assets and Alliance\nSlot Hire Agreement, dated September 22, 1995 (as originally executed and as\namended, modified or supplemented heretofore or hereafter in accordance with\nits terms, the 'Implementation Agreement').  Pursuant to the Implementation\nAgreement, APL and Matson are entering into this Purchase Agreement.\n\n     B.   APL is the owner of three (3) United States flag C-9 containerships:\nPRESIDENT LINCOLN, Official No. 651627, PRESIDENT WASHINGTON, Official No.\n653424, and PRESIDENT MONROE, Official No. 655397, and three (3) United States\nflag C-8 containerships:  PRESIDENT HOOVER, Official No. 530137, PRESIDENT\nGRANT, Official No. 530138, and PRESIDENT TYLER, Official No. 530140.  Each of\nsaid six (6) containerships, together with the below-defined Vessel Assets\nappertaining or belonging thereto, is individually referred to herein as a\n'Vessel' and all of the same are collectively referred to herein as the\n'Vessels.'\n\n     C.   APL has agreed to sell the Vessels to Matson and Matson has agreed to\npurchase the Vessels from APL, subject to the terms and conditions of this\nPurchase Agreement, including Section 13 hereof.  The parties have further\nagreed that the direct conveyance of some of the Vessels from APL to Matson\npursuant to this Purchase Agreement shall constitute a conveyance of such\nVessels by APL to a qualified intermediary, and the transfer of such Vessels\nfrom such qualified intermediary to Matson, if APL elects to effect a like-kind\nexchange transaction, pursuant to SECTION 13 hereof.\n\n     NOW, THEREFORE, in consideration of the recitals and of the respective\ncovenants, representations and agreements herein contained, and intending to be\nlegally bound, Matson and APL agree as follows:\n\n                                  SECTION 1.\n                       SALE AND PURCHASE OF THE VESSELS\n\n     In reliance on the representations, warranties and covenants and subject\nto the terms and conditions contained in this Purchase Agreement and in the\nImplementation Agreement, APL hereby agrees to sell, convey, transfer and\ndeliver to Matson each of the Vessels, and Matson hereby agrees to purchase\neach of the Vessels from APL.  As employed in this Purchase Agreement, the\nfollowing terms shall have the following meanings:\n\n      (a) 'VESSEL ASSETS' means all of the following, other than the Excluded\n          Assets:  (i) all engines, boilers, machinery, masts, boats, anchors,\n          cables, chains, tackle, apparel, furniture, capstans, outfit, tools,\n          pumps, pumping and other equipment, gear, lashings (including a full\n          complement of all components of container lashing equipment\n          sufficient in number to carry a full load of 40' containers),\n          furnishings, appliances, fittings and other personal property\n          appertaining or belonging to any of the Vessels referred to in\n          Recital B hereof and all spares and replacement parts, in each case\n          which are on board each such Vessel to the extent required by Section\n          6(c) of the below defined Bareboat Charter at the time the Vessel is\n          redelivered to by Matson by APL in accordance with the provisions of\n          said Bareboat Charter, (ii) the two shoreside propellers and two\n          shoreside propeller shafts identified in Exhibit A attached hereto,\n          (one such propeller and shaft relating to the C-8s and the other to\n          the C-9s), (iii) all plans, drawings and other technical documents,\n          logs, manuals, instruction books relating to each such Vessel, and\n          (iv) certain intellectual property or rights with respect thereto\n          relating to each such Vessel which are listed in Schedule 1(a)\n          attached hereto and which shall be sold, licensed or otherwise\n          transferred to Matson in accordance with the APL End User License\n          Agreement referred to in SECTION 4.3 hereof.\n\n      (b) 'EXCLUDED ASSETS' means:  (i) any and all consumable, expendable or\n          subsistence stores, slop chest, fuel oil or diesel oil for a Vessel,\n          whether on board or ashore, (ii) all personal property and effects of\n          the Master, officers or crew of any Vessel, and (iii) all other\n          shoreside spares identified in the inventory agreed to by the parties\n          prior to the date hereof to be purchased separately by Matson\n          pursuant to the Implementation Agreement, and (iv) any software or\n          other intellectual property other than the intellectual property or\n          rights to be sold, licensed or otherwise transferred to Matson in\n          accordance with the APL End User License Agreement.\n\n                                  SECTION 2.\n                                PURCHASE PRICE\n\n     The aggregate purchase price for the Vessels is ONE HUNDRED SIXTY MILLION\nFIVE HUNDRED THOUSAND UNITED STATES DOLLARS (US$160,500,000.00) (the 'Purchase\nPrice').  The parties agree that the Purchase Price is to be allocated among\nthe Vessels as previously agreed by the parties in writing.  The Purchase Price\nshall be paid by Matson to APL (or to the qualified intermediary if APL elects\nto effect a like-kind exchange pursuant to SECTION 13 hereof), at such\nappraised value for each Vessel, at the Closings (as defined in SECTION 3\nbelow) by wire transfer free of bank charges to an account or accounts designated\nin writing by APL, such designation not to be later than ten (10) days\nprior to the Closing Dates (as defined in SECTION 3 below).\n\n                                  SECTION 3.\n                                   CLOSING\n\n     The purchase and sale of the Vessels shall take place at  closings\n(individually, a 'Closing' and collectively, the 'Closings') to be held on the\nFirst VPA Closing Date (as defined in the Implementation Agreement) and each\nsubsequent VPA Closing Date, as such dates are determined pursuant to the\nImplementation Agreement (individually, a 'Closing Date' and collectively, the\n'Closing Dates') at the offices of Lillick &amp; Charles, Two Embarcadero Center,\nSuite 2700, San Francisco, California 94111, or at such other place or places\nas APL and Matson may agree.  On the First VPA Closing Date, the parties shall,\nsubject to the conditions set forth therein and in the Implementation Agreement,\nenter into the Interim Bareboat Charter Agreement, a form of which is\nattached hereto as Exhibit D (the 'Bareboat Charter').\n          \n                                                       \n                                  SECTION 4.\n                          DELIVERIES AT THE CLOSING\n\n     4.1  DELIVERIES BY APL.\n          -----------------\n\n     At each Closing, APL shall deliver to Matson, in each case relating to the\nVessel or Vessels to be transferred at such Closing, the following in the form\nreasonably acceptable to Matson, duly executed and acknowledged as appropriate:\n\n      (a) Valid and sufficient bills of sale in recordable form (the 'Bills of\n          Sale') transferring title to each of such Vessels from APL to Matson,\n          with warranties of title and free from all mortgages, pledges, liens,\n          charges, leases, claims and other encumbrances of any kind (whether\n          recorded or unrecorded) (collectively, 'Liens'), other than (i) any\n          Construction-Differential Subsidy and Capital Construction Fund\n          restrictions imposed by law, regulation or contract, (ii) any trading\n          restrictions imposed by law, regulation or contract, (iii) those\n          Liens described in items 1 and 2 of Exhibit B attached hereto, and\n          (iv) any Liens created by Matson (all such items referred to in the\n          preceding clauses (i) through (iv) being referred to herein\n          collectively, as 'Permitted Liens').  Such warranties in the Bills of\n          Sale to Matson shall survive the delivery of the Bills of Sale and\n          transfer title to such Vessels to Matson.\n\n      (b) A Certificate of Ownership of Vessel (United States Coast Guard\n          ('USCG') Form 1330) or certified copy of the USCG abstract of title\n          for each of such Vessels showing APL as the owner of the Vessels and\n          showing no encumbrances of record.\n\n      (c) Except to the extent the same is unavailable due to a Non-Termination\n          Loss (as defined in SECTION 14.9 hereof), a current confirmation of\n          class for each of such Vessels and their machinery and equipment\n          issued by the American Bureau of Shipping ('ABS') showing each of the\n          Vessels to be classed Maltese Cross A1(E) (hull), Maltese Cross AMS\n          (machinery) and, in the case of the C-9 Vessels, Maltese Cross ACCU\n          (automated equipment), free of any outstanding recommendations.\n\n      (d) Copies of certificates of insurance, policies or cover notes\n          evidencing the addition of Matson as an assured under the insurances\n          relating to such Vessels referred to in Section 13 of the Bareboat\n          Charter and referred to in SECTION 6 hereof, together with loss\n          payable clauses required by Section 13 of the Bareboat Charter.\n\n      (e) Except to the extent the same is unavailable due to a Non-Termination\n          Loss (as defined in SECTION 14.9 hereof), a current inspection\n          certificate of the USCG for each of such Vessels and evidence of no\n          outstanding citations or requirements.\n\n      (f) To the extent not previously delivered to Matson and in APL's\n          possession or control, copies of all certificates of regulatory\n          bodies, plans, drawings and other technical documents, logs and\n          instructional manuals for each of such Vessels.\n\n      (g) Copies of current radio and radio telegraphic licenses for each of\n          such Vessels.\n\n\n\n     4.2  DELIVERIES BY MATSON AND APL.\n          ----------------------------                              \n\n     At each Closing, Matson and APL shall execute and deliver to the other (a)\na Certificate of Delivery and Acceptance for each of the Vessels transferred at\nsuch Closing, showing date, time and place of delivery, in the form attached\nhereto as Exhibit C, and (b) an appropriate addendum (the 'CDS Addendum')\n          ---------\n\nwhereby Matson is substituted for APL, and APL is released as an obligor, under\nthe Construction-Differential Contract (or the Title V Contract) applicable to\neach of such Vessels to the extent agreed by the United States Maritime\nAdministration ('MARAD'), and (c) on the First VPA Closing Date, the APL End\nUser License Agreement (as defined in SECTION 4.3 hereof) in the form attached\nhereto as Exhibit 4.3, which shall become effective as to the property subject\n          -----------\n\nthereto as to each Vessel in accordance with the terms thereof.\n\n     4.3  APL VESSEL SOFTWARE.\n          -------------------\n\n     APL will grant Matson a non-exclusive license to use the APL proprietary\nsoftware located on the Vessels as listed on Schedule 1(a)(A) (the 'APL\n                                             ----------------\n\nProprietary Vessel Software') attached hereto.  APL will obtain consent to a\ntransfer of the licenses for third-party software located on the Vessels, as\nlisted in Schedule 1(a)(B) (the 'APL Licensed Vessel Software') attached \nhereto, at no additional cost to Matson.  APL will transfer to Matson the\nshrinkwrap software listed on Schedule 1(a)(C) (the 'APL Miscellaneous Vessel\nSoftware') attached hereto.  Matson will pay all associated costs and ongoing\nmaintenance for the APL Licensed Vessel Software and the APL Miscellaneous\nVessel Software. APL will provide Matson with any manuals corresponding to the\nAPL Proprietary Vessel Software, APL Licensed Vessel Software and APL\nMiscellaneous Vessel Software.  All the foregoing is provided in accordance\nwith and subject to the license terms attached hereto as Exhibit 4.3 (the 'APL\nEnd User License Agreement').\n\n                                  SECTION 5.\n                            CONDITIONS TO CLOSING\n\n     5.1  CONDITIONS TO MATSON'S OBLIGATIONS.\n          ----------------------------------\n\n     The obligation of Matson to purchase each Vessel to be transferred on each\nClosing Date shall be subject to the following conditions having been satis-\nfied, or waived in writing by Matson, on or before such Closing Date:\n\n      (a) APL shall have delivered to Matson each of the items specified in\n          SECTION 4 of this Purchase Agreement with respect to such Vessel.\n\n      (b) Each of the conditions set forth in Section 1.2(b) of the\n          Implementation Agreement for the benefit of Matson shall have been\n          satisfied.\n\n      (c) Each of the representations and warranties of APL set forth in\n          SECTION 7 of this Purchase Agreement shall be true and correct in\n          all material respects as of the Closing Date.\n\n      (d) APL shall have performed all of its obligations under SECTION 9 of\n          this Purchase Agreement.\n\n      (e) The United States of America shall have entered into the CDS Addendum\n          applicable to such Vessel, in form and substance reasonably\n          satisfactory to Matson.\n\n      (f) As of each Closing Date, such Vessel shall not be an actual,\n          constructive, agreed to or compromised total loss, there shall have\n          been no other loss, damage or casualty to any Vessel which is not\n          covered by insurance (except applicable deductibles) or which does\n          not constitute a Non-Termination Loss, and such Vessel shall, except\n          to the extent it has suffered such a Non-Termination Loss, be in the\n          same condition as it was in at its Vessel Inspection Date (as defined\n          below), ordinary wear and tear not affecting class excepted.  If\n          there has been any such Non-Termination Loss covered by insurance\n          which has not been fully repaired prior to a Closing Date, APL shall\n          concurrently with the related Closing, assign to Matson all insurance\n          proceeds relating thereto (except to the extent of amounts allocable\n          to repairs already performed by APL or for which APL is obligated to\n          pay), and shall pay to Matson any then applicable deductible.  As\n          used herein, 'Vessel Inspection Date' means, as to a particular\n          Vessel, the date on which such Vessel was previously inspected by or\n          on behalf of Matson as set forth below:\n\n          VESSEL                   INSPECTION DATE\n          ----------------------------------------\n\n\n          PRESIDENT LINCOLN        6\/12 - 6\/15, 1995\n          PRESIDENT WASHINGTON     6\/5  - 6\/8,  1995\n          PRESIDENT MONROE         5\/22 - 6\/25, 1995\n          PRESIDENT HOOVER         6\/18 - 6\/23, 1995\n          PRESIDENT GRANT          5\/28 - 5\/27, 1995\n          PRESIDENT TYLER          6\/4  - 6\/9,  1995\n\n          At any time or times prior to any Closing upon reasonable notice to\n          APL and without an undue delay to any Vessel to be transferred at\n          such Closing, Matson shall have the right to conduct such additional\n          inspections of any such Vessel (excluding drydocking) as it deems\n          reasonably necessary in order to determine the satisfaction of the\n          terms of this SECTION 5.1(f).\n\n      (g) The Vessels are, except for Permitted Liens, unrestricted and\n          specifically qualified to operate in the United States domestic,\n          coastwise and foreign trades.\n\n      (h) APL shall have obtained and delivered to Matson for the  third-party\n          software listed in Schedule 2.1(a)(B) attached hereto, the consents\n                             ------------------\n\n          which APL is required to obtain under the APL End User License\n          Agreement.\n\n      (i) The USCG shall have redocumented such Vessel in the name of Matson\n          for operation in the United States coastwise and foreign trades.\n\n      (j) Matson shall have received an opinion of counsel for APL reasonably\n          satisfactory to Matson, that the Exchangor (as defined in that\n          certain Exchange Agreement between APL and Chicago Deferred Exchange\n          Corporation, dated       , 1995) shall, upon completion of the tax-\n          free exchange, referred to in SECTION 13 hereof, retain no right,\n          title or interest in or to the Vessels subject to such exchange.\n          Counsel for APL shall be entitled to rely conclusively, when giving\n          such opinion, upon correspondence from the Exchangor concerning its\n          right, title and interest in and to the Vessel upon completion of the\n          tax-free exchange referred to herein.\n\n      (k) Matson shall have received a certificate of APL executed on its\n          behalf by the president or any vice president of APL stating whether\n          or not the Vessel is in compliance with SECTION 5.1(f) hereof, and,\n          if not, to the extent known to APL, the particulars and details of\n          any non-compliance therewith.\n\n     5.2  CONDITIONS TO APL'S OBLIGATIONS.\n          -------------------------------\n\n     The obligation of APL to sell each Vessel to be transferred on each\nClosing Date shall be subject to the following conditions having been satis-\nfied, or waived in writing by APL, on or before such Closing Date:\n\n      (a) Matson shall have paid the portion of the Purchase Price allocable to\n          such Vessel to APL, or to the qualified intermediary to the extent\n          that APL elects to effect a like-kind exchange pursuant to SECTION 13\n          hereof, in accordance with SECTION 2 of this Purchase Agreement.\n      (b) Matson shall have delivered to APL the items specified in SECTION 4.2\n          of this Purchase Agreement with respect to such Vessel.\n\n      (c) Each of the conditions set forth in Section 1.2(c) of the\n          Implementation Agreement for the benefit of APL shall have been\n          satisfied.\n\n      (d) As of each Closing Date, the United States of America shall have\n          entered into the CDS Addendum, in form and substance reasonably\n          satisfactory to APL.\n\n      (e) The representation and warranty of Matson set forth in SECTION 7 of\n          this Purchase Agreement shall be true and correct in all material\n          respects as of each Closing Date.\n\n      (f) The USCG shall have redocumented such Vessel in the name of Matson\n          for operation in the United States coastwise and foreign trades.\n\n      (g) As of each Closing Date, such Vessel shall not be an actual,\n          constructive, agreed to or compromised total loss, there shall have\n          been no other loss, damage or casualty to any Vessel which is not\n          covered by insurance (except applicable deductibles) or which does\n          not constitute a Non-Termination Loss, and such Vessel shall, except\n          to the extent it has suffered such a Non-Termination Loss, and in the\n          same condition as it was in at its Vessel Inspection Date, ordinary\n          wear and tear not affecting class excepted.  If there has been any\n          such Non-Termination Loss covered by insurance which has not been\n          fully repaired prior to a Closing Date, APL shall concurrently with\n          the related Closing, assign to Matson all insurance proceeds relating\n          thereto (except to the extent of amounts allocable to repairs already\n          performed by APL, for which APL is obligated to pay), and shall pay\n          to Matson any then applicable deductible.\n\n      (h) The Vessels are, except for Permitted Liens, unrestricted and\n          specifically qualified to operate in the United States domestic,\n          coastwise and foreign trades.     \n                                        \n\n     5.3  TRANSACTIONS DEEMED SIMULTANEOUS.\n          --------------------------------\n\n     All deliveries and payments referred to in SECTIONS 2 and 4 of this\nPurchase Agreement with respect to any Closing shall be deemed to have occurred\nsimultaneously and no delivery or payment shall be considered to have been\nfinally made until all have been completed.  Upon each Closing, all conditions\nprecedent to the obligations of each of the parties as specified in SECTION 5.1\nand SECTION 5.2 with respect to such Closing shall irrevocably be deemed to\nhave been either satisfied or waived; provided, however, that nothing in this\nSECTION 5.3 or elsewhere in this Purchase Agreement regarding conditions shall\nbe deemed or interpreted in any way to prohibit or impair the survival of all\nwarranties and representations set forth in SECTION 7 hereof pursuant to the\nprovisions thereof, or the survival of all warranties and representations set\nforth in Section 5 of the Implementation Agreement pursuant to the provisions\nthereof.\n\n                                  SECTION 6.\n          PASSAGE OF TITLE, DELIVERY OF VESSELS AND BAREBOAT CHARTER\n\n     On each Closing Date, title to each of the Vessels to be transferred on\nsuch Closing Date shall be transferred by APL to Matson while each Vessel is in\ninternational waters.\n\n                                  SECTION 7.\n                    WARRANTIES AND REPRESENTATIONS OF APL\n\n      (a) APL hereby makes the following representations and warranties to\n          Matson, which representations and warranties shall survive each\n          Closing:\n\n          (i)    On each Closing Date and immediately prior to the sale, APL\n                 was the sole owner of and had sole title to such Vessels to\n                 be transferred on that date, and such Vessels were\n                 documented in the name of APL under the laws of the United\n                 States.\n\n          (ii)   On each Closing Date, each of the Vessels to be transferred\n                 on that date will be free and clear of any Liens, except for\n                 Permitted Liens.\n\n          (iii)  On each Closing Date, APL is a citizen of the United States of\n                 America within the meaning of Section 802 of Title 46,\n                 United States Code Annotated and is qualified to operate the\n                 Vessels throughout the Bareboat Charter term of each Vessel\n                 in the trades in which the Vessels will be engaged\n                 throughout such term.\n                    \n      (b) Matson hereby makes the following representation and warranty to APL,\n          which representation and warranty shall survive each Closing.  On \n          each Closing Date, Matson is a citizen of the United States with in\n          the meaning of Section 802 of Title 46, United States Code Annotated.\n\n                                  SECTION 8.\n                 DISCLAIMER OF WARRANTIES AND REPRESENTATIONS\n\n     EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 HEREOF, APL HAS NOT MADE AND\nDOES NOT MAKE (NOR SHALL APL BE DEEMED TO HAVE MADE OR TO MAKE BY VIRTUE OF THE\nSALE OF THE VESSELS AND VESSEL ASSETS TO MATSON OR ANY OTHER FACT OR\nCIRCUMSTANCE WHATSOEVER), TO MATSON OR ANY OTHER PERSON ANY REPRESENTATION OR\nWARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE VESSELS, OR ANY OF THE\nVESSEL ASSETS OR ANY OF THE SOFTWARE AND INTELLECTUAL PROPERTY DESCRIBED IN\nSCHEDULE 1(A) ATTACHED HERETO, INCLUDING, WITHOUT LIMITATION, ANY\n- -------------\n\nREPRESENTATIONS OR WARRANTIES OF TITLE, DESIGN, CONDITION, QUALITY,\nSEAWORTHINESS, MERCHANTABILITY, WORKMANSHIP, SUITABILITY OR FITNESS OR\nELIGIBILITY FOR ANY TRADE OR VOYAGE OR FOR ANY OTHER USE OR PURPOSE, ALL OF\nWHICH REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY EXCLUDED.  THERE ARE NO\nREPRESENTATIONS OR WARRANTIES WHATSOEVER OF APL WITH RESPECT TO ANY OF THE\nVESSELS, OR ANY OF THE VESSEL ASSETS OR ANY OF THE SOFTWARE OR INTELLECTUAL\nPROPERTY DESCRIBED IN SCHEDULE 1(A) ATTACHED HERETO, OTHER THAN THE\n                      -------------\n\nREPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 7 HEREOF, WHICH\nREPRESENTATIONS AND WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER\nREPRESENTATIONS AND WARRANTIES OF APL WITH RESPECT TO ANY OF THE VESSELS OR ANY\nOF THE VESSEL ASSETS, WHETHER STATUTORY, WRITTEN, ORAL OR IMPLIED.  SUBJECT TO\nTHE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 7 HEREOF,\nMATSON SHALL PURCHASE AND ACCEPT ALL OF THE VESSELS, ALL OF THE SOFTWARE AND\nINTELLECTUAL PROPERTY DESCRIBED IN SCHEDULE 1(A) ATTACHED HERETO AND ALL OF THE\n                                   -------------\n\nVESSEL ASSETS AS IS, WHERE IS AND WITH ALL FAULTS AND DEFECTS, WHETHER PATENT \nOR LATENT, AND WITHOUT RECOURSE TO APL ON ACCOUNT OF ANY LOSS, DAMAGE OR INJURY\nSUFFERED OR SUSTAINED BY MATSON OR ANY OTHER PERSON ON ACCOUNT OF ANY SUCH \nFAULT OR DEFECT WHETHER ON ANY THEORY OF NEGLIGENCE, STRICT LIABILITY,\nUNSEAWORTHINESS, BREACH OF CONTRACT OR EXPRESS OR IMPLIED WARRANTY, ON WHICH \nANY SUCH RECOURSE MIGHT OTHERWISE BE PURSUED.  NOTHING IN THIS SECTION 8 SHALL \nLIMIT OR ALTER ANY OF THE RIGHTS OF APL OR MATSON UNDER SECTION 8 OF THE GUAM \nASSET PURCHASE AGREEMENT.\n\n                                  SECTION 9.\n                          MAINTENANCE OF THE VESSELS\n\n     APL agrees that from the date of this Purchase Agreement until each \nClosing Date, APL shall use due diligence to maintain and repair each of the\nVessels in accordance with good commercial marine practice and in accordance\nwith APL's normal practices.\n\n                                 SECTION 10.\n                                    TAXES\n\n     Any sales, use or ad valorem taxes payable to any governmental authority\nas a result of the transactions described in this Purchase Agreement shall be\nshared equally by the parties.\n\n                                 SECTION 11.\n                           DEFAULT AND TERMINATION\n                           \n     All defaults and disputes relating to this Purchase Agreement shall be\ngoverned exclusively by the provisions of Sections 7 and 8 of the Implementa-\ntion Agreement prior to and including the Implementation Date, and by the\nprovisions of the Alliance Agreement (as defined in the Implementation Agree-\nment) if such Alliance Agreement shall be executed and delivered by the parties\non the Implementation Date, after the Implementation Date.  This Purchase\nAgreement shall automatically terminate upon any termination pursuant to\nSection 7 of the Implementation Agreement.  Notwithstanding anything in this\nPurchase Agreement or in the Implementation Agreement to the contrary, the\nrights and obligations of the parties with respect to any termination pursuant\nto Section 7 of the Implementation Agreement prior to the Implementation Date\n(as defined in the Implementation Agreement) shall be exclusively as set forth\nin, and shall be exclusively governed by, the provisions of Section 7 of the\nImplementation Agreement.\n\n                                 SECTION 12.\n                               INDEMNIFICATION\n\n      (a) APL agrees to indemnify, defend and hold harmless Matson, its\n          employees, agents and representatives, from and against any and all\n          claims, judgments, demands, causes of action, damages, losses,\n          liabilities, interest, award, penalties, costs and expenses\n          (including, without limitation, reasonable attorneys' fees, costs and\n          expenses) incurred or suffered by Matson, its employees, agents and\n          representatives, in connection with or relating to:\n\n          (i)    Any breach of any representation, warranty, covenant or\n                 agreement of APL contained in this Purchase Agreement;\n                  \n          (ii)   Liabilities of APL arising from or relating to the\n                 ownership, chartering or other employment of any Vessel\n                 prior to its Closing Date;\n\n          (iii)  Claims of third parties arising out of or resulting from APL's\n                 ownership, chartering or other employment of any Vessel\n                 prior to its Closing Date; and\n\n          (iv)   The tax-free exchange by APL referred to in SECTION 13\n                 hereof.\n\n      (b) Matson agrees to indemnify, defend and hold harmless APL, its\n          employees, agents and representatives, from and against any and all\n          claims, judgments, demands, causes of action, damages, losses,\n          liabilities, interest, award, penalties, costs and expenses\n          (including, without limitation, reasonable attorneys' fees, costs and\n          expenses) incurred or suffered by APL, its employees, agents and\n          representatives, in connection with or relating to any or breach of\n          any representation, warranty, covenant or agreement of Matson\n          contained in this Purchase Agreement.\n\n      (c) Any party to be indemnified pursuant to this SECTION 12 shall notify\n          the indemnifying party in writing of any fact of circumstance which\n          may give rise to such indemnification with reasonable detail and\n          promptness after such fact or circumstance first comes to the\n          attention of the party to be indemnified; provided, that in the event\n                                                    --------\n\n          the party to be indemnified shall fail in any respect to give such\n          notice, the indemnifying party's obligation to indemnify in respect\n          of the fact or circumstance in question shall be reduced only by the\n          amount of the damage (if any) which the indemnifying party proves it\n          suffered as a direct and proximate result of such failure.  The\n          parties will cooperate with each other in the defense of any claim\n          for which indemnity may be sought, and will provide each other with\n          access to, and copies of, such records, and such other assistance,\n          as may reasonably be required in connection with such defense.\n\n                                 SECTION 13.\n                            APL LIKE-KIND EXCHANGE\n\n     Pursuant to Section 6.6 of the Implementation Agreement, and subject to\nsaid Section 6.6 and the above indemnities, Matson has agreed to cooperate in\ngood faith with APL to facilitate a tax-free exchange of any or all of the\nVessels under Internal Revenue Code Section 1031 for an APL C-11 newbuilding\ncurrently under construction, including the use of a qualified intermediary, if\nAPL elects to effect such a like-kind exchange; provided, that Matson bear no\n                                                --------\n\nmaterial financial, legal or other risk by reason of such tax-free exchange.\n\n                                 SECTION 14.\n                                MISCELLANEOUS\n\n     14.1 OTHER AGREEMENTS; AMENDMENTS; NO WAIVER IMPLIED.\n          -----------------------------------------------\n\n     This Purchase Agreement, including all appendices, exhibits and schedules\nattached hereto, and the Implementation Agreement and all appendices, exhibits\nand schedules attached thereto, constitute the entire agreement among the\nparties pertaining to the subject matter hereof and thereof and supersede all\nprior and contemporaneous agreements, representations and understandings of the\nparties with respect thereto.  No supplement, modification or amendment of this\nPurchase Agreement shall be binding unless executed in writing by all the\nparties hereto.  No waiver of any provision of this Purchase Agreement shall be\ndeemed to be, or shall constitute, a waiver of any other provision, whether or\nnot similar, nor shall any waiver constitute a continuing waiver.  No waiver\nshall be binding unless executed in writing by the party making the waiver.\n\n     14.2 NOTICES.\n          ------- \n\n     All notices under this Purchase Agreement shall be given in the same\nmanner as provided in the Implementation Agreement.\n\n     14.3 CAPTIONS.\n          --------          \n\n     The captions in this Purchase Agreement are for convenience of reference\nonly and are not part of this Purchase Agreement.  They do not define or limit\nany of the terms or provision, or otherwise affect the construction, of this\nPurchase Agreement.\n\n     14.4 REFERENCES.\n          ----------\n           \n     References in this Purchase Agreement to sections and exhibits are\nreferences to Sections and Exhibits of this Purchase Agreement, except as\nexpressly otherwise indicated.\n\n     14.5 ASSIGNMENT; BINDING EFFECT.\n          --------------------------\n\n     Neither party hereto shall have the right to assign or delegate any of its\nrights or obligations under this Purchase Agreement, and any purported\nassignment or delegation by such party in violation of the preceding clause\nshall be null and void and of no force or effect; provided, however, that APL\n                                                  --------  -------\n\nshall, subject to all provisions of this Purchase Agreement, have the right to\nassign or delegate its rights and obligations under this Purchase Agreement,\nrelating to the right to receive payment and the obligation to transfer any of\nthe Vessels, to a qualified intermediary in connection with a like-kind\nexchange of the Vessels pursuant to SECTION 13 hereof, and Matson shall,\nsubject to all the provisions of this Purchase Agreement, consent to such\nassignment and delegation.  This Purchase Agreement shall be binding upon,\ninure to the benefit of, and be enforceable by the parties hereto and their\nrespective successors.\n\n     14.6 APPLICABLE LAW.\n          --------------\n\n     This Purchase Agreement shall be construed and enforced in accordance with\nand be governed by the internal laws of the State of California.  In the event\nof any uncertainty in the terms of this Purchase Agreement, there shall exist\nno presumption against either party that such uncertainty arose from the\npreparation of this Purchase Agreement by such party.\n\n     14.7 COUNTERPARTS.\n          ------------\n\n     This Purchase Agreement may be executed in any number of counterparts,\neach of which so executed shall be deemed to be an original, but all such\ncounterparts shall together constitute but one and the same instrument.\n\n     14.8 FURTHER ASSURANCES.\n          ------------------\n\n     At any time or from time to time upon the reasonable request of a party\nhereto (the 'Requesting Party'), the other party will promptly execute,\nacknowledge, and deliver such further documents and do such other acts and\nthings, at the Requesting Party's expense, as shall be necessary or advisable,\nin the Requesting Party's reasonable judgment, in order to affect fully the\npurposes of this Purchase Agreement.\n\n     14.9 OTHER.\n          -----\n\n     As employed in this Purchase Agreement, the term 'Non-Termination Loss'\nmeans any loss, damage or casualty to a Vessel not constituting an event set\nforth in Section 7.1(a)(ii)(A) or (B) or Section 7.2(a)(ii)(A) or (B) of the\nImplementation Agreement.\n\n\n     IN WITNESS WHEREOF, APL and Matson have caused this Purchase Agreement to\nbe duly executed as of the day and year first above written.\n\n\n                                            MATSON NAVIGATION COMPANY, INC.\n\n\n                                            By\n                                              ------------------------------\n                                              Name:\n                                              Title:\n\n\n                                            AMERICAN PRESIDENT LINES, LTD.\n\n\n                                            By\n                                              ------------------------------\n                                              Name:\n                                              Title:\n\n\n\n\n- ------\n                                   EXHIBIT A\n                                   ---------\n\n\n\n                                DESCRIPTION OF\n                       PROPELLERS AND PROPELLER SHAFTS\n                       -------------------------------\n\n\n\nOne C-9 Propeller\n\nOne C-9 Tail Shaft\n\nOne C-8 Propeller\n\nOne C-8 Stern Tube Shaft\n\nOne C-8 Intermediate Shaft\n\nOne C-8 Propeller Shaft\n\n\n\n\n\n                                  EXHIBIT B\n                                  ---------\n\n\n                            RESTRICTIONS AND LIENS\n                            ----------------------\n\n\n     1.   Maritime liens arising by operation of law securing obligations for\nnecessaries and wages of crews employed by APL which obligations are not due \nand payable.  APL shall pay all such obligations when due and payable, and\nshall indemnify Matson fully against all such liens and obligations and shall,\nat APL's cost and expense, immediately cause the release of any Vessel seized\nor otherwise levied upon by reason of any such lien or obligation.\n\n     2.   Maritime liens arising by operation of law for salvage, cargo damage\nand tort claims incurred by APL which claims are insured (in excess of\ndeductibles) and which have not been liquidated by final judgment or \nsettlement. APL shall pay all such claims if and when liquidated by final\njudgment or settlement (and in accordance with the terms of the judgment or\nsettlement), and shall indemnify Matson fully against all such liens and\nobligations and shall, at APL's cost and expense, immediately cause the release\nof any Vessel seized or otherwise levied upon by reason of any such lien or\nobligation.\n\n\n\n\n                                  EXHIBIT C\n                                  ---------\n\n\n                    CERTIFICATE OF DELIVERY AND ACCEPTANCE\n                    --------------------------------------\n\n\n     AMERICAN PRESIDENT LINES, LTD. ('APL') does hereby certify:\n\n     1.   That at       a.m.\/p.m., San Francisco time, on the      day of      ,\n                  -----                                       -----       -----\n199 , APL delivered the containership named PRESIDENT      , Official No.\n   -                                                  -----               -----\n(the 'Vessel'), at          , to MATSON NAVIGATION COMPANY, INC. ('MATSON')\n                   ---------\npursuant to that certain Vessel Purchase Agreement between APL and Matson dated\nDecember   , 1995, as the same has been heretofore amended in accordance with\n         --\nits terms and a Bill of Sale executed by APL dated this date.\n\n     2.   That the Vessel was delivered in accordance with the Vessel Purchase\nAgreement, except for the items in Exhibit 1 hereto, if any, and delivered to\nMatson while the Vessel was located at           , and Matson simultaneously\n                                       ----------\naccepted the delivery of the Vessel from APL.\n\n     IN WITNESS WHEREOF, APL has executed this Certificate of Delivery and\nAcceptance on this       day of      , 199 .\n                   -----        -----     -\n\n                                          AMERICAN PRESIDENT LINES, LTD.\n\n\n                                          By\n                                            -----------------------------\n\n                                          Title\n                                               --------------------------\n\n     MATSON HEREBY accepts the Vessel pursuant to the Vessel Purchase Agreement\non the date hereof at the aforementioned time, at the aforementioned place,\nsubject to the exceptions listed in Exhibit 1 hereto, if any, and subject to\nwarranties and other rights of Matson under the Vessel Purchase Agreement.\n\n                                          MATSON NAVIGATION COMPANY, INC.\n\n\n                                          By\n                                            ------------------------------\n\n                                          Title\n                                               ---------------------------\n\n\n\n                                  EXHIBIT 1\n                                  ---------\n\n\n                  TO CERTIFICATE OF DELIVERY AND ACCEPTANCE\n                  -----------------------------------------\n\n\n\n                 REQUIRED REPAIRS, RENEWALS, REPLACEMENTS OR\n                     OTHER OBLIGATIONS WHICH REMAIN TO BE\n                          ACCOMPLISHED BY CHARTERER\n                          -------------------------\n\n\n\n\n                                  EXHIBIT D\n                                  ---------\n\n\n                  FORM OF INTERIM BAREBOAT CHARTER AGREEMENT\n                  ------------------------------------------\n\n\n\n\n                                 EXHIBIT 4.3\n                                 -----------\n\n\n                        APL END USER LICENSE AGREEMENT\n                        ------------------------------\n\n\n\n\n\n                                SCHEDULE 1(A)\n                                -------------\n\n\n                             APL VESSEL SOFTWARE*\n                             --------------------\n\n\n\n\nSOFTWARE                              TYPE                VENDOR\n\nA. APL PROPRIETARY VESSEL\n   SOFTWARE\n\nFilepump                              File Management     Proprietary\n                                      Communications      (Written by Paul\n                                                          Wood for APL)\n\nFuel                                  Fuel Tracking       Proprietary\n                                                          (Written by Paul\n                                                          Wood for APL)\n\nStability, Trim and Bending (STAB)    Ship Management     Proprietary\n                                                          (Written by Paul\n                                                          Wood for APL)\n\nTactics                               Ship Management     Proprietary\n                                                          (Developed by\n                                                          NAVIS for APL)\n\nB. APL LICENSED VESSEL\n   SOFTWARE\n\nAMOS-D                                Ship Management     SpecTech General\n\nFUTRAC                                Fuel Tracking       Ocean Systems,\n                                      Passage Reporting   Inc.\n\nNTC Ship Manager                      Ship Management     Nautical\n                                                          Technology Corp.\n\nStackWeight                           Lashing\/Stow        Herbert\n                                      Management          Engineering\n\nC. APL MISCELLANEOUS VESSEL\n   SOFTWARE\n\nAutoPilot System                      Menuing             Pilot Systems\n\n3 Menus                               Menuing             3-Com\n\nBlast                                 Communications      Communications\n                                                          Research Group\n\nFlow Charting 3                       Flowcharging        Patton &amp; Patton\n\nInstant Mail Manager                  Communications\/E-   Kensington\n                                      Mail\n\nLotus                                 Financial           Lotus\n                                      Spreadsheets and\n                                      Database Program\n\nMicrosoft DOS                         PC Operating        Microsoft\n                                      System\n\nMicrosoft Excel                       Spreadsheet         Microsoft\n\nMicrosoft Office                      Office Automation   Microsoft\n\nMicrosoft Power Point                 Drawing\/Graphics    Microsoft\n\nMicrosoft Windows                     PC Operations       Microsoft\n                                      Software\n\nMicrosoft Word                        Word Processing     Microsoft\n\nMultimate                             Word Processing     Borland\n\nNetWare                               PC Network          Novelle\n\nNorton AntiVirus                      Virus Detection     Symantec\n\nNorton Desktop for DOS                PC Operations       Norton\n                                      Software\n\nProfessional Write                    Word Processing     Software\n                                                          Publishing\n\nReflex                                Database program    Borland\n\nThe Network Archivist (TNA)           Tape BackUp         Pallindrome\n\n\n**Matson will receive either original or replacement software for all\nitems on this list reasonably required by Matson to run the Vessels.\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6618,6717],"corporate_contracts_industries":[9526],"corporate_contracts_types":[9623,9622],"class_list":["post-43779","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-alexander---baldwin-inc","corporate_contracts_companies-apl-ltd","corporate_contracts_industries-transportation__shipping","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43779","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43779"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43779"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43779"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43779"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}