Exhibit 10.a.(xxviii)(b)
CONSENT AND AMENDMENT AGREEMENT
Reference is made to: (i) the note agreement among Matson Leasing Company,
Inc., a Hawaii corporation ("Leasing"), Prudential Reinsurance Company, a
Delaware corporation ("PruRe"), and The Prudential Insurance Company of America,
a New Jersey corporation ("Prudential"), dated as of June 28, 1991 (as amended,
the "1991 Agreement") pursuant to which Leasing issued and sold and Prudential
and PruRe purchased Leasing's $50,000,000 9.00% Notes due October 2, 1999 (the
"9.00% Notes"); (ii) the note agreement between Leasing and Prudential dated as
of July 17, 1992 (as amended, the "July 1992 Agreement"), pursuant to which
Leasing issued and sold and Prudential purchased Leasing's $10,000,000 7.65%
Note due August 2, 2001 (the "7.65% Note"); and (iii) the note agreement dated
March 11, 1992 (as amended, the "March 1992 Agreement") among Leasing,
Prudential and Prudential Property and Casualty Company ("PruPac"), pursuant to
which Leasing issued and sold and Prudential and PruPac purchased Leasing's
$50,000,000 8.00% Notes due August 2, 2000 (the "8.00% Notes"). The 9.00%
Notes, the 8.00% Notes and 7.65% Note are collectively referred to as the
"Leasing Notes."
Subsequent to the respective dates of issuance of the Leasing Notes, PruPac
and PruRe transferred all of their right, title and interest in and to the
Leasing Notes to Prudential, with the result that Prudential is now the only
holder of the Leasing Notes (the "Noteholder").
The Leasing Notes are guarantied by Matson Navigation Company, Inc., the
parent of Leasing ("Parent") pursuant to guaranty agreements dated the date of
such notes (collectively, the "Parent Guaranties"). The 1991 Agreement, the
March 1992 Agreement and the July 1992 Agreement are referred to together as the
"Agreements." The Company and Parent are together referred to as "Matson."
Other capitalized terms not otherwise defined herein shall have the respective
meanings assigned to them in the applicable Agreement or Parent Guaranty.
Matson has advised the Noteholder that Leasing's assets will be sold to
XTRA Corporation ("XTRA") or an affiliate on or about June 30, 1995, on
substantially the terms and conditions set forth in the attached letter of
intent (the "Letter of Intent") between Parent and XTRA dated May 2, 1995 (the
"Transaction"). Matson proposes to use a portion of the net cash proceeds from
the Transaction to prepay up to $10,000,000 principal amount of the 9.00% Notes
at par and up to another $10,000,000 principal amount of the 9.00% Notes at a
spread of 0.50% over the Reinvestment Yield (the "9.00% Notes Prepayment"). The
Transaction may require the consent of the Required Holders under each Agreement
and Parent Guaranty and the 9.00% Notes Prepayment requires the consent of each
holder of the 9.00% Notes. Matson has also requested certain amendments to the
Agreements to reflect the Transaction. The Noteholder is willing to consent to
the foregoing requests, but only on the terms and conditions set forth herein.
A. Consents and Amendments to the Agreements
Subject to the satisfaction of the conditions to effectiveness set forth in
Section C below, Parent, Leasing and the Noteholder hereby agree to the
following consents and amendments to each Agreement:
1. The Noteholder agrees to the consummation of the Transaction on
substantially the terms and conditions of the Letter of Intent and to the 9.00%
Notes Prepayment on the terms set forth in the second paragraph of this Consent
and Amendment, provided that the 9.00% Notes Prepayment shall not occur later
than (July 5), 1995 and any prepayment of the 9.00% Notes at any time thereafter
shall be with the full Yield-Maintenance Premium, as defined in the applicable
Agreement.
2. Amend paragraphs 5 and 6 of each Agreement by deleting said paragraphs
in their entirety and substituting therefor new paragraphs 5 and 6, as set forth
in Exhibit A hereto.
3. Amend paragraph 10B by adding the following at the end thereof:
"Upon the effectiveness of both the Assignment and Assumption
Agreement and the Consent and Amendment, each dated June 30, 1995 (the
"Effective Date") among Matson Leasing Company, Inc., Matson Navigation
Company, Inc. and the holders of the Notes parties thereto, the definitions
set forth in this paragraph 10B that correspond to defined terms used in
paragraphs 5 and 6 of this Agreement, as amended as of the Effective Date
(including, without limitation, "Affiliate," "B of A Agreement," "Capital
Assets," "Capital Construction Fund," "Consolidated Net Earnings,"
"Consolidated Net Worth," "Consolidated Total Capital," "Consolidated
Working Capital," "Debt," "Funded Debt," "Lien," "Material Subsidiary,"
"Principal Assets," "Restricted Investments," "Restricted Payments," and
"Secured Debt Basket"), shall be amended, automatically and without the
necessity of any further written agreement, to incorporate the defined
terms set forth in Section 11 of the Guaranty Agreement, (the "Incorporated
Definitions"), and such definitions are incorporated herein by this
reference; provided that:
(i) all references in the Incorporated Definitions to (A) "the
Company" shall be deemed to refer to Matson Navigation Company, Inc.,
not Matson Leasing Company, Inc.; (B) "the Guarantor" shall be deemed
to refer to the Company (as modified in the immediately preceding
subclause (A)); (C) Section 8 of the Guaranty shall be deemed to refer
to paragraph 5 of this Agreement; and (D) Section 9 of the Guaranty
shall be deemed to refer to paragraph 6 of this Agreement; and
(ii) upon the written request of any holder of the Notes or the
Company, this Agreement shall be amended to restate said paragraph 10B
to reflect the incorporation of the Incorporated Definitions. All
holders of the Notes and the Company hereby agree that the termination
of the Guaranty Agreement, as contemplated by the aforementioned
Assignment and Assumption Agreement, shall not affect the continued
application to this Agreement of the Incorporated Definitions. A
copy of the Incorporated Definitions is attached hereto for
convenience of reference."
4. Amend each Agreement by incorporating all Exhibits in the Guaranty
Agreement referred to in paragraphs 5, 6 or 10B of each Agreement, as amended as
of the Effective Date.
5. Amend paragraph 7A of each Agreement by deleting said paragraph
in its entirety and substituting therefor new paragraph 7A, as set forth in
Exhibit B hereto.
B. Representations and Warranties
As material consideration for the Noteholder's execution and delivery of
this Consent and Amendment Agreement, Parent makes the representations and
warranties set forth in Exhibit C, which representations and warranties will be
reaffirmed on and as of the Closing Date pursuant to Section C below.
As material consideration for Parent and Leasing's execution and delivery
of this Consent and Amendment Agreement, Prudential makes the representations
and warranties set forth in paragraph 9 of each Agreement, and by its execution
and delivery of this Consent and Amendment Agreement, reaffirms such
representations and warranties on and as of the Closing Date.
C. Conditions to Consent
The consent and amendments to the Agreements contained herein shall become
effective on the date (the "Effective Date") on which all of the following
conditions shall have been satisfied or waived:
1. Four (4) copies of this Consent and Amendment Agreement shall have been
duly executed and delivered by the parties hereto.
2. After giving effect to the consents and transactions contained herein
or contemplated hereby, there shall exist no Default or Event of Default under
any Agreement, and the representations and warranties set forth in Exhibit C
shall be true and correct as of the Effective Date, and each of Leasing and
Parent shall have delivered to the Noteholder duly executed Officers'
Certificates to such effect.
3. An original set of good standing certificates with respect to Parent
from the States of Hawaii and California and any other state in which its
failure to qualify to do business as a foreign corporation would have a material
adverse effect on its business, operations, assets, liabilities, prospects or
condition (financial or otherwise) shall have been delivered to the Noteholder.
4. The Noteholder shall have received from Parent a $10,000 structuring
fee, payable by wire transfer in the manner and to the account set forth in the
Purchaser Schedule to the July 1992 Agreement.
5. The Noteholder shall have received an opinion addressed to it in
substantially the form of Exhibit D hereto from Parent's counsel, which may be
Parent's in-house counsel.
6. A letter agreement among Alexander & Baldwin, Inc., A&B-Hawaii, Inc.
(together, "A&B"), and the holders of each series of senior notes issued by A&B
consenting to the Transaction in substantially the form of Exhibit E hereto (the
"A&B Consent") shall have been executed and delivered, and all conditions to its
effectiveness shall have been satisfied or waived.
7. The Noteholder shall have received evidence satisfactory to it that all
conditions to closing of the Transaction (other than the A&B Consent and this
consent) shall have occurred on substantially the terms and conditions
previously disclosed to it, and that the Transaction will be consummated no
later than simultaneously with the effectiveness of the Assumption Agreement (as
defined below).
8. An assignment and assumption agreement in substantially the form of
Exhibit F hereto (the "Assumption Agreement") whereby Parent shall
unconditionally and irrevocably assume all obligations and liabilities of
Leasing under the Leasing Notes and the Agreements shall have been executed and
delivered and become effective.
9. The Noteholder shall have received
(a) an incumbency certificate as to officers signing on behalf of
Parent and Leasing;
(b) a certificate of the Secretary or Assistant Secretary to Parent
(i) as to the absence of any proceedings to dissolve or liquidate
Parent, (ii) attaching the resolutions of the Board of Directors of
Parent authorizing the transactions contemplated by this Consent and
Amendment Agreement, including this consent; the Transaction; the
9.00% Notes Prepayment and the Assumption, and the execution and
delivery of the Assumption Agreement and other related instruments,
agreements and other documents, and stating that such resolutions have
not been revoked, modified or rescinded since their original adoption,
and (iii) attaching copies of Parent's articles of incorporation and
bylaws, certified by the Director of Commerce and Consumer Affairs of
the State of Hawaii and Parent's Assistant Secretary, respectively;
and
(c) copies of any duly executed consents, approvals or waivers
necessary to avert a default, event of default or similar event under
any of Parent's material debt or other agreements, including under any
revolving credit, loan or similar agreement with Bank of America.
10. The Noteholder shall have received such other certificates and other
documents, and all other proceedings to be taken in connection with the
transactions contemplated hereby shall be satisfactory to it.
D. Miscellaneous.
1. Each party hereto agrees to execute and deliver any and all such
consents, instruments and other documents and to take any other action as any
other party hereto may reasonably request to confirm and give effect to the
provisions and intent of this Consent and Amendment Agreement.
2. This Consent and Amendment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
3. This Consent and Amendment Agreement shall be governed by and construed
in accordance with the laws of the State of California.
4. Except as otherwise expressly provided herein, each party hereto shall
pay for and be responsible for its own fees and expenses in connection with the
transactions contemplated hereby.
If you are in agreement with the foregoing, please sign and return the
enclosed copies of this Consent and Amendment Agreement, and upon the satisfac
tion of the closing conditions above, this shall become a binding agreement
among Leasing, Parent and the Noteholder.
IN WITNESS WHEREOF, this Consent and Assignment Agreement has been executed
by the parties hereto as of June 30, 1995.
The Prudential Insurance Company of America
By /s/ Raymond G. Kennedy
Its Second Vice President
Matson Leasing Company, Inc.
a Hawaii corporation
By /s/ K. C. O'Rourke
Title: Vice President
Matson Navigation Company, Inc.
a Hawaii corporation
By /s/ R. J. Donohue
Title: Senior Vice President