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Exhibit
10.36
Contract No.
MA/CCF-607
CAPITAL CONSTRUCTION FUND
AGREEMENT
WITH
HORIZON LINES,
LLC
This CAPITAL CONSTRUCTION
FUND AGREEMENT (the “Agreement”), entered into as of
the 29 th day of March, 2004, by and between the UNITED
STATES OF AMERICA, represented by the Secretary of Transportation,
acting by and through the Maritime Administrator, (the
“Maritime Administrator”) and HORIZON LINES, LLC, a
company duly organized and existing under the laws of the State of
Delaware (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 the owner or
lessee or has contracted for the construction 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 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 replacement vessels, additional vessels, or reconstructed
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 trade;
5. The Maritime Administrator
has determined that the Party qualifies for an Agreement under the
Act and the “Rules and Regulations” as hereinafter
defined; 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 are
now or shall from time to time be prescribed by the Secretary of
Transportation and/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”).
NOW, THEREFORE, in
consideration of the premises and of the other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the Maritime Administrator and the Party
hereby agree as follows:
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1. |
Establishment of a Fund |
(A) A Fund is hereby
established for the purposes set forth in Article 2 hereof,
pursuant to the terms and conditions prescribed in this Agreement,
the Act, and the Rules and Regulations.
(B) The Fund shall be
established in one or more of the depositories listed in Schedule C
hereof.
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The Fund established
hereunder shall be utilized to provide for replacement vessels,
additional vessels, or reconstructed 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 trade, and to provide for “Qualified
Withdrawals” as defined in Section 607(f) of the Act, to
accomplish the program set forth in Schedule B hereof.
This Agreement shall continue
until terminated under Article 4.
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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 the Rules and Regulations
which would have a substantial effect upon the rights or
obligations of the Party.
(B) This Agreement shall
terminate upon completion of the program as set forth in Schedule
B, unless otherwise mutually agreed by the parties.
(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
“Non-qualified Withdrawal” as defined in Section 607(h)
of the Act as of the date of termination of this
Agreement.
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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:
(1) Taxable income
attributable to the operation of the vessels listed in Schedule A
or B hereof;
(2) The depreciation
allowable under Section 167 of the Internal Revenue Code of 1986 on
the vessels listed in Schedule A or B hereof;
(3) The net proceeds from the
sale or other disposition of any of the vessels listed in Schedule
A or B hereof; and
(4) The net proceeds from
insurance or indemnity attributable to the vessels listed in
Schedule A or B hereof.
(B) The Party shall deposit
for each taxable year to which this Agreement applies amounts
representing:
(1) 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 program set out in Schedule B hereof;
and
(2) The net proceeds from the
mortgage of any vessel listed in Schedule B hereof for which
qualified withdrawals from the Funds have been made.
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(C) Notwithstanding any
provision or provisions of sub. (A) or (B) of the paragraph 5, to
the contrary, the Party shall make the minimum deposits set forth
in Schedule D hereof at the time and in such amounts as any be set
forth therein. The Party specifically agrees to deposit up to one
hundred percent of allowable taxable income attributable to the
operation of agreement vessels in order to meet its obligations
under this paragraph.
(D) In the event that any
leased vessel listed in Schedule A hereof is included in another
capital construction fund agreement, the maximum amount of
depreciation which the Party may deposit in respect to that vessel
shall be calculated by using the allowable percentage of the
depreciation ceiling listed for that vessel in Schedule A
hereof.
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6. |
Withdrawals from the Fund |
(A) Except as otherwise
required by the rules and regulations the Party may make such
qualified withdrawals as shall be necessary to fulfill the
obligations set forth in Schedule B hereof without the consent of
the Maritime Administrator.
(B) Any other withdrawal from
the Fund shall be made only upon the prior written consent of the
Maritime Administrator.
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7. |
Investment of the Fund |
(A) The Party, as its
discretion, may invest assets held in the Fund in accordance with
the Act and the Rules and Regulations.
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(B) The Party agrees, when
investing assets held in the Fund, to 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.
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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) T
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