Exhibit 99.1
In addition to other information included in this report, the following factors
should be considered in evaluating our business and future prospects.
Risks Associated with our Business
Our business is dependent upon key personnel whose loss may adversely impact our
business.
We depend on the expertise, experience and continued services of Lower
Lakes' senior management employees, especially Scott Bravener, its President.
Bravener has acquired specialized knowledge and skills with respect to Lower
Lakes and its operations and most decisions concerning the business of Lower
Lakes will be made or significantly influenced by him. Although Lower Lakes
maintains life insurance with respect to Bravener, the proceeds of such
insurance may not be adequate to compensate Lower Lakes in the event of
Bravener's death. The loss of Bravener or other senior management employees, or
an inability to attract or retain other key individuals, could materially
adversely affect our business. We seek to compensate and incentivize executives,
as well as other employees, through competitive salaries and bonus plans, but
there can be no assurance that these programs will allow us to retain key
employees or hire new key employees. As a result, if Bravener were to leave
Lower Lakes, we could face substantial difficulty in hiring a qualified
successor and could experience a loss in productivity while any such successor
obtains the necessary training and experience.
Our officers and directors may allocate their time to other businesses thereby
causing conflicts of interest in their determination as to how much time to
devote to our affairs.
Our officers and directors are not required to commit their full time to
our affairs, which may result in a conflict of interest in allocating their time
between our operations and other businesses. Laurence S. Levy, our sole
executive officer, is engaged in several other business endeavors and is not
obligated to contribute any specific number of hours per week to our affairs.
Some of our officers and directors may have conflicts of interest in business
opportunities.
Some of our officers and directors may become aware of business
opportunities which may be appropriate for presentation to us as well as the
other entities with which they are or may be affiliated. Each of Laurence S.
Levy, our chairman of the board and chief executive officer, and Isaac Kier, one
of our directors, has contractual obligations that require them to present
appropriate business opportunities to other entities prior to presenting them to
us for our consideration. Additionally, due to our officers' and directors'
existing affiliations with other entities, they may have fiduciary obligations
to present potential business opportunities to those entities in addition to
presenting them to us which could cause additional conflicts of interest.
Accordingly, they may have conflicts of interest in determining to which entity
a particular business opportunity should be presented. For example, Mr. Levy has
a pre-existing contractual and fiduciary obligation to Ozburn-Hessey Logistics,
LLC, of which he is a director and consultant. Mr. Levy's contractual
obligations include limiting his ability to present to us potential business
combination partners in certain industries that we intend to focus on. Mr. Kier
has a pre-existing contractual and fiduciary obligation to Tremisis Energy
Acquisition Corporation, a blank check company seeking to acquire an operating
business in either the energy or environmental industries and their related
infrastructures.
Capital expenditures and other costs necessary to operate and maintain Lower
Lakes' vessels tend to increase with the age of the vessel and may also increase
due to changes in governmental regulations, safety or other equipment standards.
Capital expenditures and other costs necessary to operate and maintain
Lower Lakes' vessels tend to increase with the age of each vessel. Accordingly,
it is likely that the operating costs of Lower Lakes' older vessels will
increase. In addition, changes in governmental regulations, safety or other
equipment standards, as well as compliance with standards imposed by maritime
self-regulatory organizations and customer requirements or competition, may
require Lower Lakes to make additional expenditures. For example, if the U.S.
Coast Guard, Transport Canada or the American Bureau of Shipping (an independent
classification society that inspects the hull and machinery of commercial ships
to assess compliance with minimum criteria as set by U.S., Canadian and
international regulations) enact new standards, Lower Lakes may be required to
incur significant costs for alterations to its fleet or the addition of new
equipment. In order to satisfy any such requirement, Lower Lakes may be required
to take its vessels out of service for extended periods of time, with
corresponding losses of revenues. In the future, market conditions may not
justify these expenditures or enable Lower Lakes to operate its older vessels
profitably during the remainder of their anticipated economic lives.
If Lower Lakes is unable to fund its capital expenditures, Lower Lakes may not
be able to continue to operate some of its vessels, which would have a material
adverse effect on our business.
In order to fund Lower Lakes' capital expenditures, we may be required to
incur borrowings or raise capital through the sale of debt or equity securities.
Our ability to access the capital markets for future offerings may be limited by
our financial condition at the time of any such offering as well as by adverse
market conditions resulting from, among other things, general economic
conditions and contingencies and uncertainties that are beyond its control. Our
failure to obtain the funds for necessary future capital expenditures would
limit its ability to continue to operate some of its vessels and could have a
material adverse effect on our business, results of operations and financial
condition.
The climate in the Great Lakes region limits Lower Lakes' vessel operations to
approximately nine months per year.
Lower Lakes' operating business is seasonal, meaning that it experiences
higher levels of activity in some periods of the year than in others.
Ordinarily, Lower Lakes is able to operate its vessels on the Great Lakes for
approximately nine months per year beginning in late March and continuing
through December or mid-January. However, weather conditions and customer demand
cause increases and decreases in the number of days Lower Lakes actually
operates.
The shipping industry has inherent operational risks that may not be adequately
covered by Lower Lakes' insurance.
Lower Lakes maintains insurance on its fleet for risks commonly insured
against by vessel owners and operators, including hull and machinery insurance,
war risks insurance and protection and indemnity insurance (which includes
environmental damage and pollution insurance). We can give no assurance that
Lower Lakes will be adequately insured against all risks or that its insurers
will pay a particular claim. Even if its insurance coverage is adequate to cover
its losses, Lower Lakes may not be able to timely obtain a replacement vessel in
the event of a loss. Furthermore, in the future, Lower Lakes may not be able to
obtain adequate insurance coverage at reasonable rates for Lower Lakes' fleet.
Lower Lakes may also be subject to calls, or premiums, in amounts based not only
on its own claim record but also the claims record of all other members of the
protection and indemnity associations through which Lower Lakes may receive
indemnity insurance coverage. Lower Lakes' insurance policies will also contain
deductibles, limitations and exclusions which, although we believe are standard
in the shipping industry, may nevertheless increase its costs.
Lower Lakes is subject to certain credit risks with respect to its
counterparties on contracts and failure of such counterparties to meet their
obligations could cause us to suffer losses on such contracts decreasing
revenues and earnings.
Lower Lakes enters into Contracts of Affreightment (COAs) pursuant to
which Lower Lakes agrees to carry cargoes, typically for industrial customers,
who export or import dry bulk cargoes. Lower Lakes also enters into spot market
voyage contracts, where Lower Lakes is paid a rate per ton to carry a specified
cargo from point A to point B. All of these contracts subject Lower Lakes to
counterparty credit risk. As a result, we are subject to credit risks at various
levels, including with charterers, cargo interests, or terminal customers. If
the counterparties fail to meet their obligations, Lower Lakes could suffer
losses on such contracts which would decrease our revenues and earnings.
Lower Lakes may not be able to generate sufficient cash flows to meet its debt
service obligations.
Lower Lakes' ability to make payments on its indebtedness will depend on
its ability to generate cash from its future operations. Lower Lakes business
may not generate sufficient cash flow from operations or from other sources
sufficient to enable it to repay its indebtedness and to fund its other
liquidity needs, including capital expenditure requirements. The indebtedness of
Lower Lakes under its new senior credit facility bears interest at floating
rates, and therefore if interest rates increase, Lower Lakes' debt service
requirements will increase. Lower Lakes may need to refinance or restructure all
or a portion of its indebtedness on or before maturity. Lower Lakes may not be
able to refinance any of its indebtedness, including the new senior credit
facility, on commercially reasonable terms, or at all. If Lower Lakes cannot
service or refinance its indebtedness, it may have to take actions such as
selling assets, seeking additional equity or reducing or delaying capital
expenditures, any of which could have a material adverse effect on our
operations. Additionally, Lower Lakes may not be able to effect such actions, if
necessary, on commercially reasonable terms, or at all.
A default under Lower Lakes' indebtedness may have a material adverse effect on
our financial condition.
In the event of a default under Lower Lakes' indebtedness, including the
indebtedness under its new senior credit facility, the holders of the
indebtedness generally would be able to declare all of such indebtedness,
together with accrued interest, to be due and payable. In addition, borrowings
under the new senior credit facility are secured by a first priority lien on all
of the assets of Lower Lakes, Lower Lakes Transportation and Grand River and, in
the event of a default under that facility, the lenders generally would be
entitled to seize the collateral. In addition, default under one debt instrument
could in turn permit lenders under other debt instruments to declare borrowings
outstanding under those other instruments to be due and payable pursuant to
cross default clauses. Moreover, upon the occurrence of an event of default
under the new senior credit facility, the commitment of the lenders to make any
further loans to us would be terminated. Accordingly, the occurrence of a
default under any debt instrument, unless cured or waived, would likely have a
material adverse effect on our results of operations.
Servicing debt could limit funds available for other purposes, such as the
payment of dividends.
Lower Lakes will use cash to pay the principal and interest on its debt as
well as to fund required reserves for future capital expenditures. These
payments limit funds otherwise available for other purposes, including
distributions of cash to our stockholders.
Lower Lakes' loan agreements contain restrictive covenants that will limit its
liquidity and corporate activities.
Lower Lakes' loan agreements impose operating and financial restrictions
that limit Lower Lakes' ability to:
o incur additional indebtedness;
o create additional liens on its assets;
o make investments;
o engage in mergers or acquisitions;
o pay dividends; and
o sell any of Lower Lakes' vessels or any other assets outside the
ordinary course of business.
Therefore, Lower Lakes will need to seek permission from its lender in
order for Lower Lakes to engage in some corporate actions. Lower Lakes' lender's
interests may be different from those of Lower Lakes, and no assurance can be
given that Lower Lakes will be able to obtain its lender's permission when
needed. This may prevent Lower Lakes from taking actions that are in its best
interest.
Because Lower Lakes generates approximately 60% of its revenues, and incurs
approximately 60% of its expenses, in Canadian dollars, exchange rate
fluctuations could cause us to suffer exchange rate losses thereby increasing
expenses and reducing income.
Lower Lakes generates a portion of its revenues in Canadian dollars.
Similarly, Lower Lakes incurs a portion of its expenses in Canadian dollars.
This could lead to fluctuations in our net income due to changes in the value of
the U.S. Dollar relative to the Canadian Dollar.
Lower Lakes depends upon unionized labor for its U.S. operations. Any work
stoppages or labor disturbances could disrupt its business.
Substantially all of Grand River's employees are unionized with the
International Organization of Masters, Mates and Pilots, AFL-CIO. Any work
stoppages or other labor disturbances could have a material adverse effect on
our business, results of operations and financial condition.
A labor union has attempted to unionize Lower Lakes' Canadian employees.
The Seafarers International Union of Canada, or SIU, has attempted without
success to organize Lower Lakes' unlicensed employees in each of the past
several years, and is attempting to do so again. SIU and Lower Lakes recently
completed a proceeding before the Canada Industrial Relations Board, or CIRB.
One outcome of the proceeding was a settlement to the effect that in exchange
for union organizers ceasing attempts to access Lower Lakes vessels, the union
would be granted access to each vessel for a one hour information session in the
presence of a labor board officer and that employee attendance would be strictly
voluntary. The process would be repeated in approximately one calendar year, and
the union would not be allowed access to the vessels or customer facilities at
any other time. Although we believe that support for this union is low, if SIU
is successful in organizing a union among Lower Lakes' Canadian employees, it
could result in increased labor costs for Lower Lakes, which could have a
material adverse effect on our results of operations.
Lower Lakes employees are covered by U.S. Federal laws that may subject it to
job-related claims in addition to those provided by state laws.
All of Lower Lakes' U.S. seagoing employees are covered by provisions of
the Shipping Act, 1916, and the Merchant Marine Act, 1920, commonly referred to
as the Jones Act, and general maritime law. These laws typically operate to make
liability limits established by state workers' compensation laws inapplicable to
these employees and to permit these employees and their representatives to
pursue actions against employers for job-related injuries in Federal courts.
Because Lower Lakes is not generally protected by the limits imposed by state
workers' compensation statutes, Lower Lakes has greater exposure for claims made
by these employees as compared to employers whose employees are not covered by
these provisions.
Restriction on foreign ownership and possible required divestiture of stock.
Under U.S. maritime laws, in order for us to maintain our eligibility to
own and operate vessels in the U.S. domestic trade, 75% of our outstanding
capital stock and voting power is required to be held by U.S. citizens. Although
our amended and restated certificate of incorporation will contain provisions
limiting non-citizenship ownership of our capital stock, we could lose its
ability to conduct operations in the U.S. domestic trade if such provisions
prove unsuccessful in maintaining the required level of citizen ownership. Such
loss would have a material adverse effect on our result of operations. If our
board of directors determines that persons who are not citizens of the U.S. own
more than 23% of our outstanding capital stock or more than 23% of our voting
power, we may redeem such stock or, if redemption is not permitted by applicable
law or if our board of directors, in its discretion, elects not to make such
redemption, we may require the non-citizens who most recently acquired shares to
divest such excess shares to persons who are U.S. citizens in such manner as our
board of directors directs. The required redemption would be at a price equal to
the average closing price during the preceding 30 trading days, which price
could be materially different from the current price of the common stock or the
price at which the non-citizen acquired the common stock. If a non-citizen
purchases the common stock, there can be no assurance that he will not be
required to divest the shares and such divestiture could result in a material
loss. Such restrictions and redemption rights may make Rand's equity securities
less attractive to potential investors, which may result in Rand's publicly
traded common stock having a lower market price than it might have in the
absence of such restrictions and redemption rights.
Our outstanding warrants may have an adverse effect on the market price of
common stock and make it more difficult to obtain future public financing.
We currently have outstanding warrants to purchase 9,200,000 shares of
common stock and an option to purchase 300,000 shares of common stock and
warrants to purchase an additional 600,000 shares of common stock. The sale, or
even the possibility of sale, of the shares underlying the warrants and options
could have an adverse effect on the market price for our securities or on our
ability to obtain future public financing. If and to the extent these warrants
and options are exercised, you may experience dilution to your holdings.
The conversion of our series A convertible preferred stock will result in
significant and immediate dilution of our existing stockholders and the book
value of their common stock.
The shares of series A convertible preferred stock to be issued in
connection with the acquisition are convertible into 2,419,354 shares of our
common stock, which, on an "as converted" basis, represents approximately 30.2%
of our aggregate outstanding common stock. The conversion price of our series A
convertible preferred stock is subject to weighted average anti-dilution
provisions whereby, if Rand issues shares in the future for consideration below
the existing conversion price of $6.20, then the conversion price of the series
A convertible preferred stock would automatically be decreased, allowing the
holders of the series A convertible preferred stock to receive additional shares
of common stock upon conversion. Upon any conversion of the series A convertible
preferred stock, the equity interests of our existing common stockholders, as a
percentage of the total number of the outstanding shares of our common stock,
and the net book value of the shares of our common stock will be significantly
diluted.
If our founding officers and directors exercise their registration rights, it
may have an adverse effect on the market price our common stock.
Our founding officers and directors and their affiliates and associates to
whom shares of our common stock were issued prior to our initial public offering
are entitled to demand that we register the resale of their shares of common
stock at any time after the date on which their shares are released from escrow.
If our founders exercise their registration rights with respect to all of their
shares of common stock, then there will be an additional 1,000,000 shares of
common stock eligible for trading in the public market. The presence of this
additional number of shares of common stock eligible for trading in the public
market may have an adverse effect on the market price of our common stock.
Our securities are quoted on the OTC Bulletin Board, which limits the liquidity
and price of our securities.
Our securities are traded on the OTC Bulletin Board, an NASD-sponsored and
operated inter-dealer automated quotation system for equity securities not
included on The Nasdaq Stock Market. Quotation of our securities on the OTC
Bulletin Board limits the liquidity and price of our securities more than if our
securities were quoted or listed on The Nasdaq Stock Market or a national
exchange.
Future acquisitions of vessels or businesses by Rand or Lower Lakes would
subject Rand and Lower Lakes to additional business, operating and industry
risks, the impact of which cannot presently be evaluated, and could adversely
impact Rand's or Lower Lakes' capital structure.
Rand intends to pursue other acquisition opportunities following the
closing of the Lower Lakes acquisition in an effort to diversify its investments
and/or grow Lower Lakes' business. While neither Rand nor Lower Lakes is
presently committed to any additional acquisition, Rand is currently actively
pursuing one or more potential acquisition opportunities. Acquisitions may be of
individual or groups of vessels or of businesses operating in the shipping or
other industries. Following the acquisition of Lower Lakes, Rand will not be
limited to any particular industry or type of business that it may acquire.
Accordingly, there is no current basis for you to evaluate the possible merits
or risks of the particular business or assets that Rand may acquire, or of the
industry in which such business operates. To the extent Rand acquires a
financially unstable business, we may be affected by numerous risks inherent in
the acquired business's operations. If Rand acquires a business in an industry
characterized by a high level of risk, we may be affected by the currently
unascertainable risks of that industry. Although Rand's management will endeavor
to evaluate the risks inherent in a particular industry or target business, we
cannot assure you that we will properly ascertain or assess all of the
significant risk factors.
In addition, the financing of any acquisition completed by Rand after the
Lower Lakes acquisition could adversely impact Rand's capital structure as any
such financing would likely include the issuance of additional equity securities
and/or the borrowing of additional funds. The issuance of additional equity
securities may significantly reduce the equity interest of existing stockholders
and/or adversely affect prevailing market prices for Rand's common stock.
Increasing Rand's indebtedness could increase the risk of a default that would
entitle the holder to declare all of such indebtedness due and payable and/or to
seize any collateral securing the indebtedness. In addition, default under one
debt instrument could in turn permit lenders under other debt instruments to
declare borrowings outstanding under those other instruments to be due and
payable pursuant to cross default clauses. Accordingly, the financing of future
acquisitions could adversely impact our capital structure and your equity
interest in Rand.
Except as required by law or the rules of any securities exchange on which
our securities might be listed at the time we seek to consummate an acquisition,
you will not be asked to vote on any proposed acquisition and you will not be
entitled to exercise conversion rights in connection with any such acquisition.
Risks Associated with the Shipping Industry
The cyclical nature of the Great Lakes dry bulk shipping industry may lead to
decreases in shipping rates, which may reduce Lower Lakes' revenue and earnings.
The shipping business, including the dry cargo market, has been cyclical
in varying degrees, experiencing fluctuations in charter rates, profitability
and, consequently, vessel values. Rand anticipates that the future demand for
Lower Lakes' dry bulk carriers and dry bulk charter rates will be dependent upon
continued demand for imported commodities, economic growth in the United States
and Canada, seasonal and regional changes in demand, and changes to the capacity
of the Great Lakes fleet which cannot be predicted. Adverse economic, political,
social or other developments could decrease demand and growth in the shipping
industry and thereby reduce revenue and earnings. Fluctuations, and the demand
for vessels, in general, have been influenced by, among other factors:
o global and regional economic conditions;
o developments in international and Great Lakes trade;
o changes in seaborne and other transportation patterns, such as port
congestion and canal closures;
o weather and crop yields;
o political developments; and
o embargoes and strikes.
The market values of Lower Lakes' vessels may decrease, which could cause Lower
Lakes to breach covenants in its credit facility and which could reduce earnings
and revenues as a result of potential foreclosures.
Vessel values are influenced by several factors, including:
o changes in environmental and other regulations that may limit the
useful life of vessels;
o changes in Great Lakes dry bulk commodity supply and demand;
o types and sizes of vessels;
o development of and increase in use of other modes of transportation;
o governmental or other regulations; and
o prevailing level of charter rates.
If the market values of Lower Lakes' owned vessels decrease, Lower Lakes
may breach some of the covenants contained in its new credit facility. If Lower
Lakes does breach such covenants and Lower Lakes is unable to remedy the
relevant breach, its lenders could accelerate its debt and foreclose on the
collateral, including Lower Lakes' vessels. Any loss of vessels would
significantly decrease the ability of Rand to generate revenue and income. In
addition, if the book value of a vessel is impaired due to unfavorable market
conditions, or a vessel is sold at a price below its book value, Rand would
incur a loss that would reduce earnings.
A failure to pass inspection by classification societies and regulators could
result in one or more vessels being unemployable unless and until they pass
inspection, resulting in a loss of revenues from such vessels for that period
and a corresponding decrease in earnings, which may be material.
The hull and machinery of every commercial vessel must be classed by a
classification society authorized by its country of registry, as well as being
subject to inspection by shipping regulatory bodies such as Transport Canada.
The classification society certifies that a vessel is safe and seaworthy in
accordance with the applicable rules and regulations of the country of registry
of the vessel and the United Nations Safety of Life at Sea Convention. Lower
Lakes' owned fleet is currently enrolled with the American Bureau of Shipping.
A vessel must undergo Annual Surveys, Intermediate Surveys, and Special
Surveys by its classification society, as well as periodic inspections by
shipping regulators. As regards classification surveys, in lieu of a Special
Survey, a vessel's machinery may be on a continuous survey cycle, under which
the machinery would be surveyed periodically over a five-year period. Lower
Lakes' vessels are on Special Survey cycles for hull inspection and continuous
survey cycles for machinery inspection. Every vessel is also required to be
drydocked every four to five years for inspection of the underwater parts of
such vessel.
Due to the age of several of the vessels, the repairs and remediations
required in connection with such classification society surveys and other
inspections may be extensive and require significant expenditures. Additionally,
until such time as certain repairs and remediations required in connection with
such surveys and inspections are completed (or if any vessel fails such a survey
or inspection), the vessel may be unable to trade between ports and, therefore,
would be unemployable. Any such loss of the use of a vessel could have an
adverse impact on Rand's revenues, results of operations and liquidity, and any
such impact may be material.
Lower Lakes' business would be adversely affected if Lower Lakes failed to
comply with U.S. maritime laws or the Coasting Trade Act (Canada) provisions on
coastwise trade, or if those provisions were modified or repealed.
Upon the closing of the acquisition, Rand will be subject to the Shipping
Act, 1916, and the Merchant Marine Act, 1920, commonly referred to as the Jones
Act, and other U.S. laws and the Coasting Trade Act (Canada) that restrict
domestic maritime transportation to vessels operating under the flag of the
subject state. In the case of the United States, in addition, the vessels must
have been built in the United States, be at least 75% owned and operated by U.S.
citizens and manned by U.S. crews. Compliance with the foregoing legislation
increase the operating costs of the vessels. With respect to its U.S. flag
vessels, Rand will be responsible for monitoring the ownership of its capital
stock to ensure compliance with U.S. maritime laws. If Rand does not comply with
these restrictions, Rand would be prohibited from operating its vessels in U.S.
coastwise trade, and under certain circumstances Rand would be deemed to have
undertaken an unapproved foreign transfer, resulting in severe penalties,
including permanent loss of U.S. coastwise trading rights for its vessels, and
fines or forfeiture of the vessels.
Over the past decade, interest groups have lobbied Congress to modify or
repeal U.S. maritime laws so as to facilitate foreign flag competition. Foreign
vessels generally have lower construction costs and generally operate at
significantly lower costs than vessels in the U.S. markets, which would likely
result in reduced charter rates. Rand believes that continued efforts will be
made to modify or repeal these laws. If these efforts are successful, it could
result in significantly increased competition and have a material adverse effect
on our business, results of operations and financial condition.
We may be unable to maintain or replace our vessels as they age.
As of December 31, 2005, the average age of the vessels operated by Lower
Lakes was approximately 60 years. The expense of maintaining, repairing and
upgrading Lower Lakes' vessels typically increases with age, and after a period
of time the cost necessary to satisfy required marine certification standards
may not be economically justifiable. There can be no assurance that Lower Lakes
will be able to maintain its fleet by extending the economic life of existing
vessels, or that our financial resources will be sufficient to enable us to make
expenditures necessary for these purposes. In addition, the supply of
replacement vessels is very limited and the costs associated with acquiring a
newly constructed vessel are prohibitively high. In the event that Lower Lakes
were to lose the use of any its vessels, our financial performance would be
adversely affected.
Lower Lakes is subject to environmental laws that could require significant
expenditures both to maintain compliance with such laws and to pay for any
uninsured environmental liabilities resulting from a spill or other
environmental disaster.
The shipping business and vessel operation are materially affected by
government regulation in the form of international conventions, United States
and Canadian treaties, national, state, provincial, and local laws, and
regulations in force in the jurisdictions in which vessels operate. Because such
conventions, treaties, laws and regulations are often revised, Rand cannot
predict the ultimate cost of compliance or its impact on the resale price or
useful life of Lower Lakes' vessels. Additional conventions, treaties, laws and
regulations may be adopted which could limit Rand's ability to do business or
increase the cost of its doing business, which may materially adversely affect
its operations, as well as the shipping industry generally. Lower Lakes is
required by various governmental and quasi-governmental agencies to obtain
certain permits, licenses, and certificates with respect to its operations and
any increased cost in connection with obtaining such permits, licenses and
certificates, or the imposition on Lower Lakes of the obligation to obtain
additional permits, licenses and certificates, could adversely affect Rand's
results of operations.
Canada has adopted a regime of strict liability for oil pollution damage
coming out of ships (Part 6 of the Marine Liability Act). In case of non-tanker
vessels, such as Lower Lakes' vessels, a vessel's registered owner is strictly
liable for pollution damage caused on the Canadian territory, in Canadian
territorial waters or in Canada's exclusive economic zone by oil of any kind or
in any form including petroleum, fuel oil, sludge, oil refuse and oil mixed with
wastes, subject to certain defenses. The liability of the shipowner is, however,
limited in accordance with the provisions of the Convention on Limitation of
Liability for Maritime Claims, 1976, as amended by the Protocol of 1996.
Pursuant to this Convention, the shipowner can limit its liability to (i) 1
million Special Drawing Right, or SDR, as defined by the International Monetary
Fund for the first 2,000 tons of tonnage, (ii) 400 SDR for each additional ton
up to 30,000 tons of tonnage, (iii) 300 SDR for each additional ton up to 70,000
tons of tonnage and (iv) 200 SDR for each additional ton of tonnage. In addition
to the Marine Liability Act, Lower Lakes' vessels are also subject to other
Canadian laws and regulations that contain significant fine and penalty
provisions relating to the marine environment, pollution and discharges of
hazardous substances, including the Migratory Birds Convention Act, the Canadian
Environmental Protection Act, 1999, and the Fisheries Act.
The United States Oil Pollution Act of 1990, or OPA, established an
extensive regulatory and liability regime for the protection and cleanup of the
environment from oil spills. OPA affects all owners and operators whose vessels
trade in United States waters, which includes the Great Lakes and their
connecting and tributary waterways. Under OPA, vessel owners, operators and
bareboat charterers are "responsible parties" and are jointly, severally and
strictly liable (unless the spill results solely from the act or omission of a
third party, an act of God or an act of war) for all containment and clean-up
costs and other damages arising from vessel discharges of oil of any kind or in
any form.
Lower Lakes currently maintains pollution liability coverage insurance.
However, if the damages from a catastrophic incident exceed this insurance
coverage, it could have a significant adverse impact on Rand's cash flow,
profitability and financial position.
Lower Lakes is subject to vessel security regulations and will incur costs to
comply with recently adopted regulations and may be subject to costs to comply
with similar regulations which may be adopted in the future in response to
terrorism.
Since the terrorist attacks of September 11, 2001, there have been a
variety of initiatives intended to enhance vessel security. On November 25,
2002, the Maritime Transportation Security Act of 2002, or MTSA, came into
effect. To implement certain portions of the MTSA, in July 2003, the U.S. Coast
Guard issued regulations requiring the implementation of certain security
requirements aboard vessels operating in waters subject to the jurisdiction of
the United States. Similarly, in December 2002, amendments to the International
Convention for the Safety of Life at Sea, or SOLAS, created a new chapter of the
convention dealing specifically with maritime security. The new chapter went
into effect in July 2004, and imposes various detailed security obligations on
vessels and port authorities, most of which are contained in the newly created
ISPS Code. Among the various requirements are:
o on-board installation of automatic information systems, or AIS, to
enhance vessel-to-vessel and vessel-to-shore communications;
o the development of vessel security plans; and
o compliance with flag state security certification requirements.
The U.S. Coast Guard regulations are intended to be aligned with these
international maritime security standards. Although Rand does not believe these
additional requirements will have a material financial impact on Lower Lakes'
operations, Rand cannot assure you that there will be no interruption in
operations to bring vessels into compliance with the applicable requirements and
any such interruption could cause a decrease in revenues.
The operation of Lower Lakes' vessels is dependent on the price and availability
of fuel. Continued periods of historically high fuel costs may materially
adversely affect Rand's operating results.
Rand's operating results may be significantly impacted by changes in the
availability or price of fuel for Lower Lakes' vessels. Fuel prices have
increased substantially since 2004. Although price escalation clauses form part
of substantially all of Lower Lakes' contracts of affreightment, which enable
Lower Lakes to pass the majority of its increased fuel costs on to its
customers, these measures may not be sufficient to enable Lower Lakes to fully
recoup increased fuel costs or assure the continued availability of its fuel
supplies. Although we are currently able to obtain adequate supplies of fuel, it
is impossible to predict the price of fuel. Political disruptions or wars
involving oil-producing countries, changes in government policy, changes in fuel
production capacity, environmental concerns and other unpredictable events may
result in fuel supply shortages and additional fuel price increases in the
future. There can be no assurance that Lower Lakes will be able to fully recover
its increased fuel costs by passing these costs on to its customers. In the
event that Lower Lakes is unable to do so, Rand's operating results will be
adversely affected.
Governments could requisition Lower Lakes' vessels during a period of war or
emergency, resulting in loss of revenues and earnings from such requisitioned
vessels.
The United States or Canada could requisition title or seize Lower Lakes'
vessels during a war or national emergency. Requisition of title occurs when a
government takes a vessel and becomes the owner. A government could also
requisition Lower Lakes vessels for hire, which would result in the government's
taking control of a vessel and effectively becoming the charterer at a dictated
charter rate. Requisition of one or more of Lower Lakes' vessels would have a
substantial negative effect on Rand, as Rand would potentially lose all or
substantially all revenues and earnings from the requisitioned vessels and
permanently lose the vessels. Such losses might be partially offset if the
requisitioning government compensated Rand for the requisition.
The operation of Great Lakes-going vessels entails the possibility of marine
disasters including damage or destruction of the vessel due to accident, the
loss of a vessel due to piracy or terrorism, damage or destruction of cargo and
similar events that may cause a loss of revenue from affected vessels and damage
Lower Lakes' business reputation, which may in turn, lead to loss of business.
The operation of Great Lakes-going vessels entails certain inherent risks
that may adversely affect Lower Lakes' business and reputation, including:
o damage or destruction of vessel due to marine disaster such as a
collision;
o the loss of a vessel due to piracy and terrorism;
o cargo and property losses or damage as a result of the foregoing or
less drastic causes such as human error, mechanical failure and bad
weather;
o environmental accidents as a result of the foregoing; and
o business interruptions and delivery delays caused by mechanical
failure, human error, war, terrorism, political action in various
countries, labor strikes or adverse weather conditions.
Any of these circumstances or events could substantially increase Lower
Lakes' costs, as for example, the costs of replacing a vessel or cleaning up a
spill, or lower its revenues by taking vessels out of operation permanently or
for periods of time. The involvement of Lower Lakes' vessels in a disaster or
delays in delivery or damages or loss of cargo may harm its reputation as a safe
and reliable vessel operator and cause it to lose business.
If Lower Lakes' vessels suffer damage, they may need to be repaired at
Lower Lakes' cost at a drydocking facility. The costs of drydock repairs are
unpredictable and can be substantial. Lower Lakes may have to pay drydocking
costs that insurance does not cover. The loss of earnings while these vessels
are being repaired and repositioned, as well as the actual cost of these
repairs, could decrease its revenues and earnings substantially, particularly if
a number of vessels are damaged or drydocked at the same time.
Maritime claimants could arrest Lower Lakes' vessels, which could interrupt its
cash flow.
Crew members, suppliers of goods and services to a vessel, shippers of cargo,
and other parties may be entitled to a maritime lien against a vessel for
unsatisfied debts, claims or damages against such vessel. In many jurisdictions,
a maritime lienholder may enforce its lien by arresting a vessel through
foreclosure proceedings. The arrest or attachment of one or more of Lower Lakes'
vessels could interrupt its cash flow and require it to pay large sums of funds
to have the arrest lifted.