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Exhibit 10.39
Contract No. MA/CCF-478
CAPITAL CONSTRUCTION FUND AGREEMENT
BETWEEN
MARITIME ADMINISTRATION -- UNITED STATES DEPARTMENT
OF TRANSPORTATION AND NATIONAL STEEL AND
SHIPBUILDING COMPANY
This Capital Construction Fund Agreement ("Agreement"), made on September 13,
1988, by and between the United States of America, represented by the Maritime
Administrator, Department of Transportation (the "Maritime Administrator"), and
National Steel and Shipbuilding Company, a corporation organized and existing
under the laws of the State of Nevada (the "Party"), a citizen of the United
States of America.
WHEREAS:
1. The Party has applied for the establishment of a Capital Construction Fund
(the "Fund") under Section 607 of the Merchant Marine Act, 1936, as amended
(the "Act").
2. The Party is or has been the owner of, and has contracted for the
construction or reconstruction of, one or more eligible vessels as defined in
Section 607(k) of the Act, which vessels are listed in Schedule A hereof;
3. The Party has a program for the construction, reconstruction or
acquisition of qualified agreement vessels as defined in Section 607(k) of the
Act, which program is described in Schedule B hereof;
4. The Maritime Administrator and the Party desire to enter into an Agreement
for the purpose of providing for the construction, or reconstruction of
vessels, built in the United States and documented under the laws of the United
States for operation in the United States foreign, Great Lakes, or
noncontiguous domestic trades;
5. The Maritime Administrator has determined that the Party qualifies for an
Agreement under the Act; and
6. The Maritime Administrator has authorized the award of an Agreement upon
the terms and conditions set forth herein subject to the Act, as it may be
amended from time to time, and such rules and regulations as shall be
prescribed by the Secretary of Transportation or his delegate, either alone or
jointly with the Secretary of the Treasury, as necessary to carry out the
powers, duties, and functions vested in them by the Act (the "rules and
regulations").
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NOW, THEREFORE in consideration of the premises the Maritime Administrator and
the Party hereby agree as set forth in the following Articles 1 through 15:
1. ESTABLISHMENT OF A FUND:
(A) A Fund is hereby established for the purposes set forth in Article 2
hereof, pursuant to such terms and conditions as shall be prescribed
in this Agreement, the Act, and the rules and regulations.
(B) The Fund shall be established in the depository or depositories
listed in Schedule C hereof.
2. PURPOSES OF THE FUND:
The Fund established hereunder shall be utilized to provide for the
construction or reconstruction of replacement vessels, additional vessels,
or reconstructed vessels, built in the United States and intended for
documentation as vessels of the United States for operation by qualified
United States citizens in the United States foreign, Great Lakes, or
noncontiguous domestic trades, and to provide for qualified withdrawals
to achieve the program set forth in Schedule B hereof.
3. TERM OF THE AGREEMENT
This Agreement shall be effective on the date of execution by the Maritime
Administrator and shall continue until terminated under Article 4.
4. TERMINATION OF AGREEMENT
(A) This Agreement may be terminated at any time under any of the
following circumstances:
(1) Upon written mutual agreement by the Parties.
(2) Upon written notice by the Party that a change has been made
in federal laws or regulations which would have substantial
effect upon the rights or obligations of the Party or the
economic benefits derived by Party from the Fund.
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(3) Upon passage of thirty-five (35) months, from the date hereof
without contracting for a part or all of the program listed in
Schedule B.
(B) This Agreement shall terminate upon completion of the program as set
forth in Schedule B hereof in its present form or as it may be amended
from time to time, or upon written notice by the Party that in its
judgement the program listed in Schedule B as in effect at any time,
will not be contracted for, or will not be contracted for in a fashion
such that the benefits of the Fund will be available to the Party.
(C) Upon termination of this Agreement pursuant to paragraphs (A) and/or
(B) hereof all amounts remaining in the Fund shall be treated as if
withdrawn in a nonqualified withdrawal (as that term is defined in the
Act and the rules and regulations) on the date of termination of this
Agreement.
5. DEPOSITS TO BE MADE INTO THE FUND
(A) Subject to any restrictions contained in the Act, the rules and
regulations, or this Agreement, the Party may deposit, for each taxable
year to which this Agreement applies, amounts representing some part or
all of:
(1) The net proceeds from the sale or other disposition of any of the
vessels listed in Schedule A or B hereof; and
(2) The net proceeds from insurance or indemnity attributable to the
vessels listed in Schedule A or B hereof.
(B) For each taxable year to which the Agreement applies, the Party shall
deposit all receipts from the investment or reinvestment of amounts
held in the Fund, except that the Party shall not be permitted to
deposit more than is necessary to complete its programs as set out in
Schedule B hereof, now or as it may then be amended.
(C) Notwithstanding anything in paragraph (A) or (B) hereof to the
contrary, the Party shall make the minimum deposits set forth in
Schedule D hereof at the time and in such amounts as may be set forth
herein, now or as it may then be amended.
(D) Deposits may be made in the form of cash or directly in the form of the
investments described in Article 7.
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6. WITHDRAWALS FROM THE FUND:
(A) The Party may make such qualified withdrawals (as that term is defined
in the Act and the rules and regulations) as shall be necessary to
fulfill the obligations set forth in Schedule B hereof. Any such
qualified withdrawal may be made without the consent of the Maritime
Administrator, except as required by the rules and regulations.
(B) Monies may be withdrawn from the Party's capital construction fund for
payments made by the Party or an affiliate to pay for the cost of
materials, labor, overhead or other components of the cost of a
qualified vessel or of the principal portion of indebtedness associated
with construction period financing with respect to such a vessel, or to
reimburse expenditures of general funds of the Party, or an affiliate,
where and to the extent that such general funds were used to pay for
the cost of materials, labor, overhead or other components of the cost
of a qualified vessel or for the principal portion of indebtedness
associated with construction period financing with respect to such a
vessel.
(C) Any other withdrawal from the capital construction fund shall be made
only upon prior written consent of the Maritime Administrator, or as
otherwise required herein by the rules and regulations.
7. INVESTMENT OF THE FUND:
(A) The Party, at its discretion, may invest fund assets in third party
receivables of NASSCO and of Xxxxxxxx Xxxxxxx Corporation, or of its
other affiliates, assigned to the Party for that purpose, from progress
payment xxxxxxxx contracts, and under other contracts, with the
collection of such receivables to be guaranteed by the Xxxxxxxx Xxxxxxx
Corporation if necessary to cause such receivables to be "qualified
investments", and in other investments which are "qualified
investments" under Maritime Administration regulations, as they exist
at the present time or as they may be amended. Investments in third
party receivables of Xxxxxxxx Xxxxxxx Corporation and its affiliates
(excluding the Party) shall be made pursuant to the terms of the form
of the Receivables Purchase and Sale Agreement attached hereto as
Appendix I. Investments in third party receivables of NASSCO shall be
made pursuant to the procedures set forth in Appendix II.
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(B) The Party agrees that when investing monies held in the Fund it will
make such investments as will insure that sufficient cash is available
at the time qualified withdrawals are required in accordance with the
program described in Schedule B hereof.
8. PLEDGES, ASSIGNMENTS AND TRANSFERS:
(A) The Party agrees not to assign, pledge or otherwise encumber, either
directly or indirectly or through any reorganization, merger, or
consolidation, all or any part of this Agreement, the Fund, or any
assets in the Fund without the prior written consent of the Maritime
Administrator; provided, however, the Party may transfer the assets of
the Fund, in whole or in part, to an investment trustee, as provided
in the rules and regulations.
(B) The Party shall not obligate any assets in the Fund as a compensating
balance.
(C) The Secretary hereby grants permission to sell or otherwise dispose
of any qualified vessel upon completion of its construction, provided
such sale or other disposition is to a United States citizen and
meets the requirements as provided in the Agreement and in the Act.
(D) If a qualified agreement vessel, in which basis has been reduced
through the application of qualified withdrawals, is sold or disposed
of by the Party at delivery or within one year of delivery, the
disposition will not be contrary to the policies of the Act, the
Agreement, and/or the rules and regulations; and no interest on the
tax applicable to the amount of gain attributable to the basis
reduction will be incurred.
(E) If a qualified agreement vessel undergoing construction in which
basis has been reduced through the application of qualified
withdrawals is destroyed or lost in the course of construction, or
prior to delivery and acceptance by the purchaser, as a result of
strikes, fires, earthquakes or other events beyond the control of the
Party, the destruction or loss will not be treated as a disposition
contrary to the policies of the Act, the Agreement, and/or the rules
and regulations; and no interest will be incurred on any tax which may
be imposed as the result of the receipt of any insurance proceeds or
other monies in payment of any insurance proceeds or other monies in
payment for the vessel so destroyed or lost.
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(F) Pursuant to 46 C.F.R. Section 390.6(d), the Secretary will agree to
modifications and amendments to Schedules A, B, and D, provided such
modifications and amendments are occasioned by changes in financing or
construction commitments, and will agree to delete or add a vessel or
vessels from Schedule A and B if a transaction is not consummated or
a new transaction has been contracted for.
9. RECORDS AND REPORTS:
(A) The Party and any affiliate, agreed to by the Party and the Maritime
Administrator, shall keep books, records and accounts relating to the
construction of the vessels covered by this Agreement in such form as
may be prescribed by the Maritime Administrator.
(B) The Maritime Administrator agrees not to require the duplication of
books, records and accounts required to be kept in some other form
by the Secretary of the Treasury, or any other government department,
so long as the information required in paragraph (A) hereof is made
available to the Maritime Administrator.
(C) The Party agrees to file, upon notice from the Maritime
Administrator, balance sheets, profit and loss statements, and such
other statements of financial operations, and such memoranda of facts
and transactions, as in the opinion of the Maritime Administrator may
be necessary to evaluate the Party's performance under this Agreement.
(D) To the extent required by regulation, the Maritime Administrator
shall be entitled to have any statements, reports and memoranda
specified in paragraph C above certified by independent public
accountants appointed by the Party and reasonably acceptable to the
Maritime Administrator.
(E) The Party agrees to submit promptly to the Maritime Administrator any
contract executed in connection with the program described in
Schedule B hereof.
(F) The Maritime Administrator is hereby authorized to examine and audit
the relevant books, records, and accounts of all persons referred to
in this Article whenever he may deem it necessary or desirable.
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10. Modification and Amendment:
This Agreement may be modified or amended at any time by mutual written
consent.
11. Incorporation of Schedules and Appendices:
The attached Schedules A, B, C and D and Appendices I and II are
incorporated into and made a part of this Agreement.
12. Liquidated Damages
Except as stated below in paragraphs (A) through (D), the Party shall have
no responsibility for compliance by a purchaser with respect to the
operation of any qualified agreement vessel in geographic trades other than
those permitted by Section 607 of the Act, but shall remain liable for any
such operation during any period where the Party remains the owner of the
vessel so operated.
(A) In the event that the initial purchaser (the "Purchaser") from the
party of a qualified agreement vessel described in Schedule B hereof
operates such vessel in geographic trades other than those permitted
by Section 607 of the Act, this Agreement, and/or the rules and
regulations, the Purchaser shall be obligated to pay to the United
States an amount of liquidated damages for each day of such
impermissible geographic trading which shall constitute the time value
of the deferral of Federal income tax which the Party has received,
calculated in accordance with the rules and regulations, such
liquidated damages, to be paid to the Maritime Administrator, for
deposit in the Treasury of the United States, within the time limits
provided for in the rules and regulations.
(B) In the event of a failure on the part of the Purchaser to make any
such payment, the Party shall be obligated to make such payment within
60 days subsequent to receipt by the Party of notice from the Maritime
Administrator. This obligation on the part of the Party under this
paragraph shall be limited in accordance with its terms to the
operation of a vessel by the Purchaser, as defined, and shall
terminate upon any subsequent vessel sale (the "Resale"), it being
agreed that in the event of Resale the Party shall no longer bear any
liability for the terms of the operation of the vessel subsequent to
such Resale.
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(C) Nothing in this Article shall in any way be construed to diminish or
waive any of the Maritime Administrator's other remedies for breach
under the Act, the Agreement, or the rules and regulations, or in any
way diminish or waive the right of the Party to seek full
reimbursement from the Purchaser for any payments which the Party
shall be required to make under this Article 12.
(D) Notwithstanding the fact that the Agreement may be terminated pursuant
to the provisions of Article 4 hereof, or otherwise, the provisions of
this Article 12 shall continue in effect as follows:
(1) In the case of a vessel constructed or acquired within one year
of final delivery from the shipyard after construction and the
aid of qualified withdrawals, for a period of twenty (20) years
from the date of such vessel's final delivery;
(2) In the case of a vessel reconstructed or acquired more than one
year after final delivery from the shipyard after construction
with the aid of qualified withdrawals, for a period of ten (10)
years from the date of such vessel's final delivery from the
shipyard after reconstruction or the date of such vessel's
acquisition; and
(3) In the case of a vessel included in Schedule B hereof as a
qualified agreement vessel in regard to which qualified
withdrawals from the Fund have been made to pay existing
indebtedness, for a period of ten (10) years from the date of the
first qualified withdrawal in regard to such vessel, provided,
however, that if such vessel was more than fifteen (15) years old
on the date of the first qualified withdrawal in regard thereto,
such conditions shall continue for a period of five (5) years in
regard to such vessel.
13. Warranties and Representations by the Party:
The Party hereby warrants and represents that:
(A) The Party is a citizen of the United States within the meaning of
Section 2 of the Shipping Act, 1916, as amended, and will continue to
be so for the term of this Agreement. The Party agrees that, each
year,
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within thirty (30) days after the annual meeting of its stockholders,
it shall file a supplemental affidavit as evidence of its continuing
United States citizenship, provided that any changes in data last
furnished with respect to officers, directors and stockholders holding
five percent or more of the issued and outstanding stock of each class
or series which would result in a loss of the Party's status as a
United States citizen shall be promptly reported to the Maritime
Administrator.
(B) The Party owns or has owned, or has contracted for the construction of
one or more eligible vessels (within the meaning of Section 607(k) of
the Act) as listed in Schedule A hereof.
(C) The qualified vessels described in Schedule B hereof:
(1) Were or will be constructed or reconstructed in the United
States, except as provided in the Act and the rules and
regulations;
(2) Are or will be documented under the laws of the United States and
are expected to be operated in the foreign, Great Lakes or non-
contiguous domestic trades of the United States within the
meaning of the Act and the rules and regulations.
(D) The Party will meet its deposit obligations as agreed upon in Article
5 of this Agreement.
(E) The Party will promptly inform the Maritime Administrator, in writing,
of any change in circumstances which would tend to adversely affect
the ability of the Party to carry out its obligations under the
Agreement.
(F) Any Contract for the construction or reconstruction of vessels with
respect to which the Party intends to make use of the Fund will
contain representations and warranties on the part of the Purchaser
to the effect that the Purchaser is a citizen of the United States
within the meaning of Section 2 of the Shipping Act, 1916, as amended,
and will continue to be so for the term of the construction contract,
that the vessel to be purchased is for use in qualified trades within
the meaning of Section 607 of the Act, and that upon any subsequent
sale of the vessel the provisions concerning operation in qualified
trades will be included in the contract of sale.
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(G) The Party will faithfully conform to all rules and regulations
governing the Agreement and the Fund.
(H) Nothing of monetary value has been improperly given, promised and
implied for entering into this Agreement. The Party warrants that no
improper personal, political or other activities have been used or
attempted in an effort to influence the outcome of the discussion or
negotiations leading to the award of this Agreement. Breech of this
warranty shall constitute an event of default for which the Maritime
Administrator shall have the right, notwithstanding Article 4, to
terminate this Agreement without liability to the United States.
14. DEFAULT IN OBLIGATIONS
(A) If the Maritime Administrator determines that any substantial
obligation under this Agreement is not being fulfilled by the Party,
he may, under the rules and regulations and after the Party has been
given notice and an opportunity to be heard, declare a breach and
treat the entire Fund, or any portion thereof, as an amount withdrawn
in a non-qualified withdrawal.
(B) The Maritime Administrator shall provide an opportunity for the Party
to cure a breach declared pursuant to Paragraph (A) of this Article
14.
(C) Events of breach by the Party shall include, but shall not be limited
to:
(1) Failure in any respect to use due diligence in performing the
program as set forth in Schedule B hereof;
(2) Obligating the assets in the Fund as a compensating balance;
(3) Failure to make deposits required in Schedule D hereof;
(4) Failure to secure written permission from the Maritime
Administrator when such permission is required by the rules and
regulations;
(5) Failure to submit reports and/or records on a timely basis as
provided in Article 9 hereof;
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(6) Any material misrepresentation made by the Party or any failure by
the Party to disclose material information in connection with this
Agreement whether before or after execution hereof and whether made
in an application, report, affidavit, or otherwise; or
(7) Failure by the Party to comply with any provisions of Section 607 of
the Act, the rules and regulations, or this Agreement.
15. EXTENSIONS OF FEDERAL INCOME TAX BENEFITS:
The Maritime Administrator agrees that the Federal income tax benefits
provided in the Act and the rules and regulations shall be available to the
Party if the Party fulfills its obligations under this Agreement.
IN WITNESS WHEREOF, The Administrator and the Party have executed this
Agreement, in quadruplicate, to be effective as of the date indicated on the
first page of this Agreement.
UNITED STATES OF AMERICA NATIONAL STEEL AND
MARITIME ADMINISTRATOR SHIPBUILDING COMPANY
By: /s/ Xxxxx X. Xxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ --------------------
(Contracting Officer) Vice President
Attest: Attest:
District of Columbia:
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx
------------------------- ---------------------
Secretary Notary Public
(Seal) My Commission Expires
March 31, 1991
Approved as to form: (Seal)
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
For Assistant Chief Counsel
Maritime Administration
September 13, 1988
--------- --- ----
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MA/CCF-478
Schedule A
ELIGIBLE AGREEMENT VESSELS
--------------------------
DATE AND
NAME AND SPECIFIC CAPACITY PLACE DATE AREA OF DETAILS OF
I.D. NO. TYPE (GROSS TONS) OWNER CONSTRUCTED DOCUMENTED OPERATION SERVICE
-------- -------- ------------ ----- ----------- ---------- --------- ----------
XX XXXX CITY Xxxxxx 89,700 NASSCO 7/23/76(a) To NASSCO U.S. Foreign Crude Oil
575056 San Diego, CA 10/13/85 Trade Transport
MR. ED Harbor 25 NASSCO 1976 To NASSCO U.S. Coast- Harbor
575765 Supply Brazoria, TX 6/09/81 wise Trade Service
Vessel and Supply
Transport
THE HAPPY Harbor 17 NASSCO 1929 To NASSCO U.S. Coast- Harbor
228709 Service North Band, 5/30/79 wise Trade Service
Vessel OR and Supply
Transport
(a) Reconstructed at San Diego.
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MA/CCF-478
, 1988
SCHEDULE B
PROGRAM OBJECTIVES
ACQUISITION OR CONSTRUCTION OF VESSELS
Amount
Program Vessel to be Approximate Date
Objective Name & General Vessel Withdrawn of Anticipated
No. Number Characteristics Cost From Fund(a) Contract Delivery Area of Oper
--------- ------ --------------- ------ ------------ -------- -------- ------------
1 Unknown Alaska Class Tanker $130 million $35 million 6/88 1/90 Alaska to Pan
209,000 DWT, (approx.) As (approx.)
identical to EXXON alternative
XXXXXX and EXXON to Programs
LONG BEACH 2 and 3
2 Unknown Passenger cruise $225 million $35 million 6/88 6/91 Inter-Island
ship of about 1,800 (approx.) As (approx.) Cruise ship,
passenger capacity alternative Hawaiian
for operation to Programs Islands
inter-island Hawaii 1 and 3
3 Unknown Two 2,000 TEU $200 million $35 million 1/89 3/91 West Coast
Container Ships (approx.) As (approx.) Mainland
alternative U.S. to
to Programs 6/91 Hawaiian
1 and 2 Islands
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(a) Represents maximum profit estimated to be received upon sale of vessels
listed in Schedule A. Interest earnings on the $35 million may, of course,
increase the amount available for program objective. The amounts required to be
deposited under Schedule D represent minimums.
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MA/CCF-478
, 1988
SCHEDULE C
DEPOSITORY: XXXXXX GUARANTY TRUST COMPANY, 00 XXXX XXXXXX, XXX XXXX, XX 00000
LIST OF TYPICAL ACCOUNTS RECEIVABLE
ESTIMATES AS OF SEPTEMBER 25, 1987
(Thousands of dollars)
Customer Billings Retentions
---------------------- -----------------------------------
Xxxxxxxx- Xxxxxxxx-
Xxxxxxx Xxxxxxx
(except (except
NASSCO) NASSCO (NASSCO) NASSCO Total
--------- ------- -------- -------- ---------
U.S. Government $ 8,405 $4,998 $ 2,306 $28,969 $ 44,678
State and Local Governments $ 21,721 $ 7,422 $ 29,143
Commercial $135,565 $ 100 $38,959 $ 1,321 $175,945
-------- ------- ------- ------- --------
Total $165,691 $5,098 $48,687 $30,290 $249,766
======== ======= ======= ======= ========
Notes
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1. Allocations among categories (U.S., state and local government, and
commercial contracts) are estimates based upon recent historical data.
2. Commercial customers include: Westinghouse Electric, X. X. Xxxxxxxx-Nabisco,
General Motors Corporation, Union Pacific Railroad, Shell Oil Company,
XxXxxxxx Xxxxxxx, Anheuser-Busch, Goodyear, Exxon, Xxxxxxx-Kodak, General
Electric Corporation, Hewlett-Packard, Xxxxxxxx Petroleum Corporation,
Chevron, Atlantic Richfield, and Rockwell International Corporation.
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MA/CCF-478
, 1998
SCHEDULE D
AVAILABLE FUNDS - EXPLANATION
Ordinary Interest Capital
Income(a) Income(a) Gain Depreciation Total(a)
----------- --------- -------- ------------- ----------
1987-89 $1,000,000 -- -- -- $1,000,000
1990-92 -- -- -- -- --
1993-95 -- -- -- -- --
---------------------------
(a) NASSCO will make an initial deposit of $50,000 at the signing of the Capital
Construction Fund Agreement. NASSCO anticipates a minimum deposit of $1 million,
including the $50,000, over the initial three-year period. As indicated on
Schedule B, "Program Objectives" NASSCO estimates that approximately $35 million
will be received as profit on the sale of the vessel listed on Schedule A.
Amounts in excess of $1 million shown in Schedule D will therefore be available
for deposit if NASSCO is successful in contract awards for the program objective
vessels listed on Schedule B. In addition, of course, interest income will
accrue on amounts on deposit. Final determinations with respect to the amount or
amounts to be deposited under the Agreement will only be made when and to the
extent that NASSCO believes it will be successful in obtaining, or anticipates
the award of, one or more of the vessel contracts designated as Schedule B
objectives, under a contract or contracts where monies from the NASSCO capital
construction fund can be used.
