Exhibit 10.a.(xxviii)(a)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is dated as of June 30, 1995 and
is among Matson Leasing Company, Inc. ("Leasing"), Matson Navigation Company,
Inc. ("Matson") and The Prudential Insurance Company of America ("Prudential" or
the "Noteholder"), as the holder of the $50,000,000 9.00% Notes due October 2,
1999 (the "9.00% Notes"), the $10,000,000 7.65% Note due August 2, 2001 (the
"7.65% Note") and the $50,000,000 8.00% Notes due August 2, 2000 (the "8.00%
Notes") (the 9.00% Notes, the 8.00% Notes and the 7.65% Notes are collectively
referred to as the "Notes"), in each case issued by Leasing. Capitalized terms
not otherwise defined herein shall have the respective meanings assigned to them
in the Consent and Amendment Agreement of even date herewith (the "Consent").
WHEREAS, Leasing issued the Notes as follows: (a) the 9.00% Notes were
issued pursuant to the note agreement among Leasing, Prudential Reinsurance
Company, a Delaware corporation ("PruRe"), and Noteholder, dated as of June 28,
1991 (as amended, the "1991 Agreement"); (b) the 8.00% Notes were issued
pursuant to the note agreement dated March 11, 1992 (as amended, the "March 1992
Agreement") among Leasing, Prudential and Prudential Property and Casualty
Company ("PruPac") and Prudential; and (c) the 7.65% Notes were issued pursuant
to the note agreement between Leasing and Prudential dated as of July 17, 1992
(as amended, the "July 1992 Agreement;" the 1991 Agreement, the March 1992
Agreement and the July 1992 Agreement are collectively referred to as the
"Agreements"). Since the respective dates of issuance of the Notes, PruPac and
PruRe have transferred the Notes purchased by them to Prudential, so that
Prudential is the only Noteholder.
WHEREAS, each of the Notes is fully and unconditionally guarantied by
Matson, as parent of Leasing, pursuant to guaranty agreements of even date
therewith (the "Guaranties").
WHEREAS, Matson and Leasing have agreed to the sale of substantially all of
Leasing's assets to XTRA Corporation on or about June 30, 1995 (the
"Transaction"), and Leasing has requested that the Noteholder consent to the
Transaction.
WHEREAS, the Noteholder has indicated that it is willing to so consent,
provided that the conditions set forth in the Consent have been satisfied, and
one of such conditions is the full, unconditional and irrevocable assumption by
Matson of all of Leasing's obligations and liabilities under and in respect of
the Notes and the related note agreements pursuant to this Assignment and
Assumption Agreement.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Matson and Leasing hereby agree, for the benefit of the
Noteholder and its successors, assigns and transferees:
1. Upon the terms and subject to the conditions set forth in the Consent,
simultaneously with the consummation of the Transaction, Leasing shall delegate,
assign and transfer to Matson all of its duties, liabilities, obligations and
undertakings under or in respect of the 9.00% Notes, the 8.00% Notes, the 7.65%
Note, the 1991 Agreement, the March 1992 Agreement and the July 1992 Agreement
(collectively, "Obligations"), and simultaneously with such transfer, Matson
shall accept and assume each and every Obligation as its own direct Obligation,
as principal and not as guarantor or surety. Without limiting the generality of
the foregoing, the Obligations include (a) punctually paying the principal of,
and interest and Yield Maintenance Premium on, each Note, and all other amounts
due and payable under the Documents, to the extent not theretofore paid, all as
the same shall in each case become due and payable in accordance with their
respective terms; and (b) punctually performing and complying with all the
terms, covenants, and conditions of each Agreement and each Note (collectively,
the "Documents") to the same extent as if Matson had been the original obligor
thereunder.
2. Matson, Leasing and the Noteholder agree that (a) the term "the
Company" in the Documents shall mean Matson Navigation Company, Inc., a Hawaii
corporation and successor in interest to Leasing, from and after the date this
assignment and assumption becomes effective (the "Effective Date"); (b) the
provisions of each Document are ratified and confirmed in all respects by
Matson; and (c) except as otherwise expressly set forth herein and in the
Consent, all provisions of each Document shall be and remain in full force and
effect.
3. On the Effective Date, all liability and obligations of (a) Leasing
under the Documents and (b) Matson under the Guaranties shall cease and be of no
further force or effect, unless this Assignment and Assumption Agreement (i) is
successfully challenged in court or by other legal or administrative action or
proceeding; (ii) hereafter becomes null and void or otherwise ineffective in any
respect whatsoever; or (iii) Matson repudiates, or denies it has, any liability,
responsibility or obligation in respect of the Obligations.
4. Matson agrees to execute and deliver such further instruments,
agreements and documents, including without limitation, allonges to the Notes or
new Notes in replacement therefor, in either case reflecting Matson's assumption
thereof, and to take such further actions as the Noteholder may reasonably
request for the purpose of more fully evidencing the assumption by Matson of the
Obligations and otherwise to effect the terms of this Assignment and Assumption
Agreement.
5. Notices to Matson under the Documents shall continue to be given in the
manner and to its address set forth for notices in the applicable Guaranty.
This Assignment and Assumption Agreement shall be governed by the laws of the
State of California, without giving effect to principles of conflicts of law
thereof.
6. This Assignment and Assumption Agreement may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
7. Any provision of this Assignment and Assumption Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remaining provisions hereof.
Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. If
any provision of this Assignment and Assumption Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment
and Assumption Agreement to be executed on its behalf by its officer thereunto
duly authorized, all as of the day and year first above written.
Matson Navigation Company, Inc.
a Hawaii corporation
By /s/ R. J. Donohue
Name:
Title: Senior Vice President
Matson Leasing Company, Inc.
a Hawaii corporation
By /s/ K. C. O'Rourke
Name:
Title: Vice President
The Prudential Insurance Company of America
a New Jersey corporation
By /s/ Raymond G. Kennedy
Name:
Title: Second Vice President