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TIME CHARTER AGREEMENT
BETWEEN
WISCONSIN & MICHIGAN STEAMSHIP COMPANY,
SHIPOWNER
AND
LOWER LAKES TRANSPORTATION COMPANY,
CHARTERER
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Vessels: DAVID Z. NORTON, Official No. 549231;
EARL W. OGLEBAY, Official No. 552395; and
WOLVERINE, Official No. 560339.
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Dated as of August 1, 2006
TIME CHARTER AGREEMENT
This Time Charter Agreement made and entered into as of the 1st day
of August, 2006 (this "Time Charter") by and between WISCONSIN & MICHIGAN
STEAMSHIP COMPANY, a Michigan corporation ("Shipowner"), and LOWER LAKES
TRANSPORTATION COMPANY, a Delaware corporation ("Charterer") (the Shipowner and
Charterer, together the "Parties").
W I T N E S S E T H:
WHEREAS, Shipowner is the owner of three (3) United States flag
vessels, the DAVID Z. NORTON, Official No. 549231, the EARL W. OGLEBAY, Official
No. 552395, and the WOLVERINE, Official No. 560339, described in Schedule A (the
"Vessels"), which are qualified to engage in the United States coastwise and
registry trades from and to various United States and Canadian ports on the
Great Lakes of North America, their connecting and tributary waterways, and the
St. Lawrence River west of Anticosti Island (the "United States Great Lakes
Trades");
WHEREAS, Shipowner desires to make the Vessels available to
Charterer to transport bulk cargoes for which the Vessels are suitable from and
to various United States and Canadian ports on the Great Lakes of North America;
and
WHEREAS, Charterer is willing to utilize the Vessels upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants,
provisions, benefits and agreements hereinafter made and other good and valuable
considerations flowing between the parties, Shipowner and Charterer do hereby
covenant and agree as follows:
SECTION 1. USE AND DOCUMENTATION OF THE VESSELS.
Shipowner agrees to make the Vessels available on an exclusive basis
to Charterer for Charterer's use in providing transportation and storage
services for Cargoes (as defined below) belonging to Charterer and Charterer's
customers in the United States Great Lakes Trades.
The Vessels are currently documented under United States flag, with
their certificates of documentation endorsed with a coastwise endorsement as
authorized by 46 U.S.C. 12106, and with a registry endorsement as authorized by
46 U.S.C. 12105. Shipowner undertakes to maintain such documentation throughout
the duration of this Time Charter.
Shipowner warrants and represents that it is a citizen of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as amended
(the "Act"), entitled to own and operate vessels engaged in the United States
coastwise trade (as defined in Section 27 of the Merchant Marine Act, 1920, as
amended), and Shipowner agrees that it will remain so qualified throughout the
duration of this Time Charter.
For purposes of this Time Charter, "Cargo" and "Cargoes" shall mean
any bulk cargoes for which the Vessels are designed and configured to safely
transport, provided that the Vessels shall not be required to carry any material
not permitted under the insurance protection provided pursuant to Section 16 of
this Time Charter.
SECTION 2. DURATION OF TIME CHARTER.
This Time Charter shall have a basic charter period (the "Basic
Charter Period") which shall commence as of the date set forth above, and shall
expire at 12:00 midnight on December 31, 2008. Provided that Charterer is not in
default under this Time Charter, Charterer shall have the option of extending
the period of this Time Charter at the end of the Basic Charter Period for a
consecutive additional period which shall commence at 12:00 a.m. on January 1,
2009, and shall expire at 12:00 midnight on December 31, 2013 (the "Extension
Charter Period") (the "Basic Charter Period" and, if applicable, the "Extension
Charter Period" and any extension period described in the following paragraph,
together the "Charter Period"). In order to exercise its option for the
Extension Charter Period, Charterer must irrevocably so notify Shipowner in
writing on a date that is not less than one hundred twenty (120) days prior to
the scheduled expiration of the Basic Charter Period. If Charterer does not
extend this Time Charter for the Extension Charter Period, subject to
Shipowner's right to Place the Vessels Back in Service, Shipowner shall, as
promptly as practicable following expiration of the Basic Charter Period, lay-up
the Vessels and wind down its business and operations using its commercially
reasonable efforts to minimize the operating and related costs incurred by it
during such wind down period. In such event, Charterer shall, unless and until
the earlier of (i) determination by Shipowner to Place the Vessels Back in
Service or (ii) the Exercise of Remedies by a Lender, reimburse Shipowner for
such lay-up and wind down costs, which costs shall include, without limitation,
the cost of maintaining insurance during such wind down period on terms required
by the lender(s) under the National City Financing Documentation or any
Replacement Financing Documentation; provided that if such wind down shall not
be completed by the ninetieth (90th) day after the Basic Charter Period,
Shipowner shall thereupon submit an estimate of any costs it anticipates
incurring during completion of such wind down after such ninetieth day, and the
parties shall work in good faith to seek to quantify a final payment to be paid
by Charterer in full satisfaction of its wind down reimbursement obligations
hereunder.
The period of this Time Charter also may be extended at the election
of Shipowner or Charterer for the duration of any voyage of a Vessel in progress
or to accomplish the redelivery of a Vessel. During any such extension,
Shipowner shall have no duty to carry or store Charterer's Cargoes, and
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Charterer's obligation to pay Hire shall be reduced to payment of Capital Hire
and the Variable Costs and Payroll Costs of Operating Hire, as defined in
Section 9.1 and 9.2(a) and (b) of this Time Charter, incident to the redelivery
of such Vessel.
SECTION 3. DELIVERY.
Each Vessel shall be placed at the disposal of Charterer at the
Vessel's then present location. Each Vessel on its delivery shall be tight,
staunch, strong and in every way fitted for ordinary bulk cargo service. At the
time of delivery, each Vessel must be, and must remain during the Charter Period
of this Time Charter, documented (as confirmed by the Vessel's certificate of
documentation) in the name of Shipowner under the laws and flag of the United
States and qualified to operate in the United States Great Lakes Trades.
SECTION 4. ON-OFF HIRE SURVEY.
Upon delivery and redelivery of the Vessels, either party shall have
the right to appoint a surveyor to conduct an on-hire or off-hire survey, as
applicable, for the purpose of ascertaining the quantity of bunkers on board and
the condition of each Vessel. The party electing to have a survey conducted
shall bear the expense of the surveyor. Fuel, consumable stores, and lubricants
aboard at the time of delivery shall become the property of Charterer. Only at
redelivery at the end of the Extended Charter Period, Charterer shall receive
credit, as appropriate, at current prices for net changes in fuel (as determined
by the surveys to the extent obtained in accordance with this Section 4),
consumable stores, and lubricants aboard as of the time of redelivery as
compared to amounts aboard at the time of delivery. Without payment to
Shipowner, Charterer shall have the use of all equipment, pumps, gear, outfit,
shipboard spares, furniture, furnishings, and non-consumable stores at the time
of delivery, all of which shall remain the property of Shipowner and all of
which or the equivalent of which shall be returned to Shipowner on redelivery in
the same good order and condition as on delivery, reasonable wear and tear
excepted.
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SECTION 5. SHIPOWNER TO PROVIDE.
5.1 General Provision. Subject to the provisions for reimbursement
or direct payment contained in Section 9 of this Time Charter, Shipowner shall
provide and pay for the insurance of the Vessels (other than such insurance of
Charterer's interests as Charterer may elect to carry) and for all provisions,
cabin, deck, engine room and other necessary stores; shall pay for wages,
consular shipping and discharging fees of the crew, and charges for port
services pertaining to the crew; shall maintain the Vessels' class and keep them
in a thoroughly efficient state in hull, machinery equipment for and during the
service; and provide a full complement of officers and crew as required by
governmental authorities having jurisdiction over the Vessels.
5.2 Employment of Officers and Crew. Shipowner shall have the
responsibility to select, employ and manage the officers and crew members,
including discipline up to and including discharge. If Charterer becomes aware
of any material fact as to the background, qualification, or experience of an
officer or crew member that would call for his or her replacement, it will
notify Shipowner of such fact and, if appropriate or necessary in the sole
discretion of Shipowner, Shipowner will replace such officer or crew member in a
manner consistent with this Time Charter and any applicable labor agreement.
SECTION 6. CHARTERER TO PROVIDE.
Charterer, while each Vessel is on hire, shall provide and pay for
all bunkers except as otherwise agreed; shall pay for port charges, all
communication expenses pertaining to Charterer's business at cost, pilotages,
towages, agencies, commissions, consular charges except those pertaining to
individual crew members, service charges or tolls for the use of waterways,
harbors, locks, docks, wharves or other shoreside facilities or equipment in
connection with the performance of this Time Charter, and all other usual
expenses.
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SECTION 7. SERVICE AND SCHEDULING; LAY-UP.
During the Charter Period, Shipowner will transport to and from such
ports on the Great Lakes as Charterer shall designate all Cargo as may be
tendered from time to time by Charterer or its customers for shipment within
each Vessel's capacity, subject to the trading limits specified in the
applicable insurance policies covering the Vessels. Charterer will also have the
right to utilize the Vessels as a storage facility for Cargo on reasonable
notice to Shipowner, it being understood that the Vessels may be used for
storage on a seasonal basis and also when Charterer's, or its customers',
requirements for transportation services do not require the use of the Vessels
for transportation, except when Shipowner's maintenance requirements make
storage impossible or inconvenient.
Charterer will advise Shipowner of the quantity of Cargo available
or to be available for transportation or storage, the loading port and the port
or ports of discharge or, where designated, for storage. Such advice may be oral
or written, at Charterer's discretion (but if oral, such direction will be
confirmed in writing). Charterer will provide Shipowner with as much advance
notice of Cargo movements or storage as reasonably possible.
Shipowner will furnish the transportation and storage services
described in this Time Charter in a prompt and efficient manner, using its
commercially reasonable efforts to conform to the scheduling requirements of
Charterer and prosecuting the voyages with all reasonable dispatch. The Vessels
shall work day and night if required by Charterer or when appropriate in
Shipowner's reasonable discretion. During such periods as the Vessels are not
required for transportation, Charterer shall so notify Shipowner and Shipowner
shall use its commercially reasonable efforts to reduce the Variable Costs and
Payroll Costs of Operating Hire that would be for the account of Charterer under
Sections 9.2(a) and (b) of this Time Charter.
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Charterer may, at its sole discretion, instruct the Shipowner to
temporarily remove one or more of the Vessels from service under this Time
Charter and declare any such Vessel off hire. During any such off hire period:
(i) the terms of this Time Charter shall continue to apply to such off-hire
Vessel(s), (ii) the Charter Period shall continue to run; and (iii) Shipowner
shall use its commercially reasonable efforts to minimize the operating and
related costs that would be for the account of Charterer under Sections 9.2(a),
(b), and (c)(i).
SECTION 8. LOADING, TRANSPORTATION AND DISCHARGING.
8.1 Cargo Readiness. Each Vessel shall, at the commencement of
loading, have her holds clean and suitable for the carriage of Cargo of the
type, quantity and quality to be loaded at each particular loading port.
8.2 Acceptance. Charterer, at its own expense, shall inspect the
condition of the hold of each Vessel and shall accept or reject the condition of
each Vessel prior to loading. Upon the loading of Cargo, the condition of the
hold of the Vessel shall be deemed to be fit for the purpose of receiving Cargo.
Shipowner does not assume responsibility for the quality of the Cargo due to the
condition of the hold at the time of loading.
8.3 Draft of Vessels. During periods of low water or other
deviations from normal navigation, Shipowner shall have the right to specify
loading drafts of the Vessels that are tendered to Charterer.
8.4 Charterer's Expense. Cargo shall be loaded, stowed, trimmed and
discharged at the sole expense of Charterer. Charterer shall be responsible for
the payment of all customs duties and fees on imported Cargo and for the
arrangement of customs brokerage and agency services and other administrative
services necessarily incident to the entry of any Vessel from a foreign port.
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8.5 Dispatch. Shipowner shall proceed with reasonable dispatch,
giving due consideration to safety, personnel and equipment, to deliver all
Cargo accepted by Shipowner to the port of destination.
8.6 Liberties. The Vessels shall have the liberty to sail with or
without pilots, to tow and to be towed, to assist vessels in distress, and to
deviate for the purpose of saving life and property.
8.7 Safe Ports and Berths. Charterer warrants and represents that
all loading and unloading berths and ports to which it orders the Vessels to
proceed shall be safe berths and ports and shall have sufficient depth of water
to permit the Vessels to remain always safely afloat for vessels of similar
design and size.
SECTION 9. HIRE.
As payment for the transportation and storage services of the
Vessels during the continuance of this Time Charter, the Charterer shall pay the
Shipowner hire ("Hire") comprising the aggregate of Capital Hire and Operating
Hire (as those terms are defined below).
9.1 Capital Hire. Capital Hire shall be payable consisting of
amounts equal to the following:
(a) Basic Hire: An amount equal to the sum of:
(1) the amount of regularly scheduled principal required to be
repaid under the National City Financing Documentation or any Replacement
Financing Documentation, as applicable, excluding the principal to be repaid
under the National City Financing Documentation on December 31, 2008; plus
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(2) the amount of cash interest payments required to be paid under
the National City Financing Documentation or any Replacement Financing
Documentation, as applicable, through the maturity date of the indebtedness
governed by such financing documentation; plus
(3) the amount of cash interest payments required to be paid under
the Subordinated Debt Financing Documentation or any Replacement Subordinated
Debt Financing Documentation, as applicable, through the maturity date of the
indebtedness governed by such financing documentation.
The amount of basic hire payable during the Charter Period in
accordance with the foregoing shall (i) be decreased to the extent of any
decrease in the amount of principal or interest payable under the referenced
financing documentation in accordance with the terms thereof, including any
decrease on account of the application of any insurance proceeds to the amount
of indebtedness outstanding thereunder, and (ii) be increased by the amount of
any fees payable to the lender under any Replacement Financing Documentation or
Replacement Subordinated Debt Financing Documentation solely to the extent such
fees are not funded with the proceeds of the subject replacement indebtedness.
The amounts payable under this clause (a) of Section 9.1 are
referred to herein as "Basic Hire").
(b) Supplemental Hire: During the Charter Period, amounts
equal to all expenditures and payments, and any financing thereof, incurred in
accordance with Section 17 or as may be agreed upon between the Parties from
time to time (the "Supplemental Hire," together with the Basic Hire, "Capital
Hire").
9.2 Operating Hire. Operating Hire shall be payable consisting of
the following:
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(a) Variable Costs: Subject to the provisions of Section 10.2(a),
amounts equal to all payments required to be made by Shipowner and all
reasonable expenses and costs incurred by Shipowner (other than Payroll Costs
(as that term is defined below)) in carrying out the transportation and storage
services, or in the lay-up of the Vessels, in each case as described in Section
7, and in otherwise performing its obligations under this Time Charter,
including its obligations with respect to maintenance and repair of the Vessels
(the "Variable Costs"); provided that, any individual expenses exceeding $10,000
not otherwise contemplated by the budget provided under Section 9.3, shall
require Charterer's prior written approval, such approval not to be unreasonably
withheld. Such Variable Costs shall be subject to audit by Charterer's
representatives on reasonable notice to Shipowner; and
(b) Payroll Costs: Amounts equal to all salaries, wages, payroll
taxes, costs of fringe benefits and other payroll expenses of the Vessels'
officers, crew, winter workers and shipkeepers employed by Shipowner in carrying
out the transportation and storage services described above and in performing
its obligations under this Time Charter (the "Payroll Costs," together with the
Variable Costs, the "Operating Hire"). Such expenses shall be subject to audit
by Charterer's representatives on reasonable notice to Shipowner.
(c) Administrative Fee: Charterer shall also pay to Shipowner
amounts intended to (i) reimburse Shipowner for its obligation to make payment
of its overhead costs or those of any manager, including, without limitation,
staff salaries, office rental, costs of office supplies and equipment,
communication expenses, premiums and brokerage for general liability and
property insurance, accounting and audit costs, corporate, franchise, and income
taxes, fees and expenses incurred under services agreements, reasonable
out-of-pocket costs incurred by Shipowner in connection with replacement of the
indebtedness under any of the Financing Documentation, the Subordinated Debt
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Financing Documentation, the Replacement Financing Documentation or the
Replacement Subordinated Debt Financing Documentation (in each case solely to
the extent such costs are not funded with the proceeds of the subject
replacement indebtedness), and the cost of legal services and (ii) compensate
Shipowner under this Time Charter (collectively, the "Administrative Fee").
Payments made hereunder shall be prorated for any period less than a full
calendar month included in the Charter Period. The Administrative Fee
contemplated in this Section 9.2(c) shall be:
(A) for the period commencing as of the date of this
Agreement and expiring December 31, 2006, an amount payable monthly in advance
at the rate of $92,400 per month;
(B) for the period commencing January 1, 2007, and
expiring December 31, 2007, an amount payable monthly in advance at the rate of
$94,600 per month;
(C) for the period commencing January 1, 2008, and
expiring December 31, 2008, an amount payable monthly in advance at the rate of
$117,600 per month;
(D) for the period commencing January 1, 2009, and
expiring December 31, 2009, an amount payable monthly in advance at the rate of
$140,750 per month; and
(E) for each twelve-month calendar year period
thereafter, while the Vessels may remain in service, an amount payable monthly
in advance at the rate of $62,500.00 per month (representing the "base fixed
fee") plus $78,250 (representing the "base administrative expense"); provided,
however, that during such period, the base fixed fee shall be adjusted annually,
as of January 1 of each year, based upon the rate of inflation or deflation as
determined by the "Consumer Price Index for All Urban Consumers (CPI-U)"
published by the Bureau of Labor Statistics of the U.S. Department of Labor, not
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to exceed an increase of three percent (3%) per year, and the base
administrative expense shall be adjusted annually, as of January 1 of each year,
in an amount agreed to by Shipowner and Charterer as representing the estimated
increase to Shipowner of the overhead costs intended to be covered by the Fixed
Fee as described in this Section 9.2(c).
9.3 Yearly Budget Estimates. Shipowner and Charterer have agreed on
an estimate of the Variable Costs and Payroll Costs to be incurred by Shipowner
from commencement of this Time Charter through February 28, 2007.
Not later than January 1 of each calendar year commencing after the
date of this Time Charter, Shipowner shall submit to Charterer a written yearly
budget estimate setting out and explaining the Variable Costs and Payroll Costs
that Shipowner expects to incur during the coming twelve-month period commencing
March 1. This estimate shall include itemizations of the estimated operating
costs in reasonable detail, show how such operating costs were determined, and
include at least summary explanations of any operating costs that are
extraordinary; and shall be subject to such additional verifications as
Charterer may request. Not later than February 1, Shipowner and Charterer shall
agree on an estimate of the Variable Costs and Payroll Costs for the coming
twelve-month period.
SECTION 10. FISCAL ADMINISTRATION.
Hire will be billed and paid in accordance with the following
provisions.
10.1 Capital Hire.
(a) Basic Hire. Charterer shall pay Basic Hire directly to, or
as instructed by, the lender under the National City Financing Documentation,
Subordinated Debt Financing Documentation, Replacement Financing Documentation
or Replacement Subordinated Debt Financing Documentation, as applicable, for
Shipowner's account, as and when the principal and interest constituting such
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Basic Hire is due and payable by Shipowner pursuant to the terms of such
financing documentation, and Charterer will advise Shipowner of the making of
such payments. Payments of Basic Hire so made shall satisfy Charterer's
obligations to pay Basic Hire under this Time Charter.
(b) Supplemental Hire. Charterer shall pay Supplemental Hire
directly to, or as instructed by, the appropriate lender or vendor, for
Shipowner's account, as and when the amounts constituting such Supplemental Hire
are due and payable by Shipowner, and Charterer will advise Shipowner of the
making of such payments. Payments of Supplemental Hire so made shall satisfy
Charterer's obligations to pay Supplemental Hire under this Time Charter.
10.2 Operating Hire. Vessel Operating Hire will be budgeted and paid
as follows:
(a) Materials, Supplies and Services. On receipt of invoices
for materials, supplies, services or insurance purchased or contracted for by
Shipowner for the operation of the Vessels, Shipowner shall review and certify
such invoices and submit them to Charterer for review and, if not contemplated
by the budget approved under Section 9.3, approval, providing such additional
detail, explanation or vouchering as Charterer may reasonably require. Charterer
will make weekly payments to Shipowner or its assignee of the amounts due upon
such invoices as certified by Shipowner and, if applicable, approved by
Charterer. Shipowner will thereafter make payment on such invoices in accordance
with customary trade terms.
(b) Crew Payroll Account. At the commencement of the Charter
Period, Charterer shall deposit into a payroll account, Account No. 84865444, at
National City Bank, Cleveland, Ohio (hereinafter, the "Crew Payroll Account"),
an agreed amount not less than the amount of payroll costs reasonably estimated
by Shipowner to be incurred through August 15, 2006. Thereafter, Shipowner will
submit to Charterer on or before the sixteenth (16th) day of each month a budget
for the amount of payroll costs reasonably estimated by Shipowner to be incurred
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between the sixteenth (16th) and last day of such month, and on or before the
first (1st) day of each month, Shipowner will submit to Charterer a budget for
the amount of payroll costs reasonably estimated by Shipowner to be incurred
between the first and the fifteenth (15th) day of such month. Charterer will
promptly deposit the estimated amount into the Crew Payroll Account, and
Shipowner will draw its payroll checks, checks for required tax accounts, checks
for the cost of fringe benefits, and other payroll expenses from the payroll
account as payments become due within the payroll period, advising Charterer on
or before the date of the next bimonthly budget after the close of the period of
any variance of the actual payroll costs from the budgeted amount. Shipowner
shall credit any favorable variance to the next payroll advance. Charterer shall
reimburse Shipowner immediately on being advised of any unfavorable variance.
(c) Discounts. Any and all commissions, discounts, rebates or
other amounts paid to or allowed to Shipowner, or its shareholders, subsidiaries
or affiliates or their respective officers or employees, made by any vendor with
whom Shipowner or its agents shall contract or with whom they may deal on behalf
of the Vessels or in performance of Shipowner's obligations, shall be applied by
Shipowner to reduce amounts otherwise payable by Charterer as Variable Costs.
10.3 Administrative Fee. Charterer shall pay the Administrative Fee
monthly in advance on the first day of each month; provided, that (i) Charterer
shall pay to Shipowner on the date hereof, an amount equal to $250,000 as a
non-refundable advance against the Administrative Fee, with such advance serving
to reduce the Administrative fee otherwise payable during the first twelve
months of this Time Charter by $20,833.33 per month, (ii) Charterer shall pay to
Shipowner on the first anniversary of the date hereof, an amount equal to
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$395,833.34 as a non-refundable advance against the Administrative Fee, with
such advance serving to reduce the Administrative fee otherwise payable during
the second twelve months of this Time Charter by $20,833.33 per month through
December 31, 2007 and $41,666.67 per month through July 31, 2008, and (iii)
Charterer shall pay to Shipowner on the second anniversary of the date hereof,
an amount equal to $208,333.35 as a non-refundable advance against the
Administrative Fee, with such advance serving to reduce the Administrative fee
otherwise payable during the remainder of the Basic Charter Period by $41,666.67
per month.
10.4 General Accounting and Audits. Shipowner shall keep proper
books, records and accounts relating to the Vessels' operations in accordance
with generally accepted accounting principles consistently applied, and make
such books, records and accounts available for inspection during normal business
hours upon Charterer's advance written request. Charterer shall have the right
to cause to be made after the end of each calendar year, by certified public
auditors selected and paid by Charterer, an audit of Shipowner's accounts and
records relating to operating costs. A certified copy of the report of each such
audit shall be delivered to Shipowner as soon as it is completed.
10.5 General Audits. Charterer shall have the right to make general
audits of Shipowner's operation of the Vessels, by authorized employees of
Charterer, at reasonable times and at Charterer's expense, but not more often
than once every calendar year. Such audits may cover all aspects of the Vessels'
operations, including (without limitation) operating costs, the Vessels' voyage
and port performance, Cargo handling, maintenance and dry-docking, and the
Vessels' equipment, spare gear and stores inventories. Shipowner shall maintain
and retain for at least four calendar years (or until the completion of
Charterer's audit, if earlier) complete and accurate records relating to
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Shipowner's operation of the Vessels, including, without limitation, (a) payroll
records, canceled payroll checks and receipts for cash payroll payments, (b)
invoices for all purchases and repairs (including subcontractors' and other
third parties' services) and evidences of payment thereof, (c) receiving and
issuing documents and stock records for equipment, gear and stores, and (d) the
Vessels' logs and other records of their performance.
10.6 Managing Agent. If Shipowner enters into an agreement with
another person providing for operation of any Vessel, other than a labor
agreement, Shipowner shall first have obtained Charterer's consent and
Charterer's approval of the person, and shall cause such agreement to give
Charterer the right to make audits of such other person's operation of such
Vessel under terms and conditions equivalent to those contained in this Time
Charter.
10.7 Affiliate Guaranty. On the date hereof, Charterer shall provide
the unconditional guaranty of the Guarantor, substantially in the form of
Exhibit B attached hereto, under which the Guarantor shall guaranty the payment
of all Supplemental Hire, Operating Hire, and Administrative Fee payable
hereunder.
SECTION 11. FORCE MAJEURE.
If any cause beyond the reasonable control of either party wholly or
partially prevents or limits performance of the transportation or storage
services described in this Time Charter, Shipowner shall use its commercially
reasonable efforts to minimize the operating and related costs that would be for
the account of Charterer under Sections 9.2(a), (b), and (c)(i).
SECTION 12. CONTINUATION OF TIME CHARTER.
In the event that any one or more Vessels shall be declared or
become an actual or constructive total loss or otherwise become unavailable to
Charterer or unsuitable for the transport of Charterer's Cargoes, (i) this Time
Charter shall remain in full force and effect with respect to each Vessel, and
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(ii) Shipowner shall use its commercially reasonable efforts to minimize the
operating and related costs that would be for the account of Charterer under
Sections 9.2(a), (b), and (c)(i). Shipowner shall notify Charterer promptly in
writing of the subsequent availability to Charterer and suitability of any such
Vessel for the transport of Charterer's Cargoes.
SECTION 13. SHIPOWNER'S DUE DILIGENCE AND COMPLIANCE WITH POLICIES
OF INSURANCE AND LAW.
13.1 Due Diligence. Shipowner will use due diligence to maintain the
Vessels in good running order, repair and condition, ordinary wear and tear
excepted, and tight, staunch, strong and well provisioned and in every way
seaworthy and fitted for service for each voyage and for receiving the Cargo on
board during each such voyage.
13.2 Compliance with Policies of Insurance and Applicable Law.
Shipowner will comply with all federal, state and local applicable laws, rules
and regulations, including those governing load lines and concerning the
ownership and operation of the Vessels and the rendering of the contemplated
services, as well as any trading limits contained in policies of insurance
required by this Time Charter, and take no action that would jeopardize
Shipowner's or the Vessels' entitlement to engage in the transportation of
Charterer's Cargoes from and to various United States and Canadian ports in the
United States Great Lakes Trades.
SECTION 14. POLLUTION FINANCIAL RESPONSIBILITY.
Shipowner will comply with all financial capability, responsibility,
security or like laws, regulations and/or other requirements of whatsoever kind
with respect to oil or other pollution damage applicable to any Cargo and/or the
Vessels entering, leaving, remaining at or passing through any ports or places
or waters in the performance of this Time Charter. Shipowner at its sole risk
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will make all arrangements by bond, insurance or otherwise and obtain all such
certificates or other documentary evidence and take all such other action, as
may be necessary, to satisfy such applicable laws.
SECTION 15. BILLS OF LADING.
Bills of lading will be executed by the masters of the Vessels in
the form requested by Charterer. In the event of conflict between the terms of
such bills of lading and this Time Charter, the terms of this Time Charter shall
govern.
SECTION 16. INSURANCE.
16.1 Maintenance of Insurance. Shipowner covenants and agrees that
it will at all times during the Charter Period maintain insurance in respect of
the Vessels against such risks, in such form and with such insurers of
recognized responsibility as shall be reasonably satisfactory to Charterer,
which insurance, in the opinion of the independent insurance brokers placing
such insurance, shall be at least sufficient to protect the interests of
Shipowner to and including redelivery of the Vessels or the termination of this
Time Charter, whichever is later. All insurance policies required by this
Section 16 shall be procured and maintained with marine insurers (including
underwriters associations and underwriting funds) which are approved by
Charterer and shall include as named assureds (in addition to any other parties
with an insurable interest, including any lender to Shipowner), if commercially
possible, Charterer and Shipowner, and any vessel operations manager hired by
Shipowner, as their respective interests may appear, whereby the insurable
interest of such manager is hereby admitted. All such policies shall provide
that Charterer will receive not less than thirty (30) days prior written notice
of any material change, cancellation, reduction, or termination in coverage.
16.2 Required Insurance. Without limiting the foregoing, Shipowner
shall procure the following policies of insurance:
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(a) Hull and Machinery and Increased Value Insurances. Hull
and Machinery and Increased Value Insurances, subject to not less than the terms
and conditions of the American Institute Great Lakes Hull Clauses or their
equivalent extended to include an American Hull Insurance Syndicate Liner
Negligence Clause (including but not limited to the Inchmaree, Collision
Liability and Sistership clauses), and Port Risk Insurance when insurance
covering navigating risks is not required, in forms agreed between Shipowner and
Charterer, in the amount of $10,000,000 for each Vessel or as otherwise agreed
by the Parties. The deductible shall be in the amount of $200,000 per occurrence
per Vessel or as otherwise agreed by the Parties; and
(b) Protection and Indemnity Insurance. Protection and
Indemnity Insurance (including Pollution Liability Insurance which covers,
without limitation, with respect to all Cargoes, clean-up and evacuation costs
and expenses, any then currently applicable foreign, federal, state, county or
local pollution laws or regulations, and any operations ordered by any
governmental authority) with a limit of liability in an amount that is agreed
upon by Shipowner and Charterer as being maintained with regard to vessels of a
similar type owned by Shipowner or Charterer, subject to the terms and
conditions of not less than the most current rules of the American Steamship
Owners' Mutual Protection and Indemnity Association (or its equivalent). The
deductible shall be in the amount of $200,000 per occurrence or as otherwise
agreed by the Parties.
(c) General Policy Terms. In addition to any terms required by
any other parties with an insurable interest, including any lender to Shipowner,
all policies of insurance shall: (i) name Shipowner as named insured and
Charterer as an additional named insured, as their respective interests may
appear, if commercially possible, with respect to the insurance required by
Section 16.2(a) above; (ii) provide that there shall be no recourse against
Charterer for premiums, commissions or club assessments; (iii) provide that in
respect of the interest of Charterer in such policies, the insurance shall not
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be invalidated by any action or inaction of Shipowner, and shall insure
Charterer regardless of any breach or violation of any warranties, declarations
or conditions contained in such provisions by Shipowner or any other person
(other than Charterer with respect to coverage of Charterer); (iv) provide for
the waiver of the insurer's right to subrogation against Charterer and
Shipowner; and (v) provide that such insurance is primary insurance without any
right of contribution with respect to any insurance carried by Charterer or
Shipowner.
16.3 No Suspension of Insurance. Shipowner will not do any act, nor
suffer any act to be done, whereby any insurance required hereunder shall or may
be suspended, impaired or defeated, and will not suffer any Vessel to carry any
Cargo not permitted, or any Vessel to be operated in any geographical area where
she would not be covered, under the insurance policies required.
16.4 Notice of Casualty. Shipowner will give prompt notice as
required by the underwriters of all casualties or other insured loss or damage
to any Vessel and of all damage or injury to Cargo, property, persons or other
third parties in excess of deductible amounts.
16.5 Copies of Policies. Shipowner shall remain responsible during
the Charter Period for promptly furnishing Charterer with certified copies of
all policies, cover notes or other evidences of insurance, reasonably
satisfactory to Charterer evidencing that all insurance required by this Time
Charter is in force and that the premiums have been fully paid.
SECTION 17. STRUCTURAL MODIFICATIONS.
During the Charter Period and subject to any limitations contained
in the National City Financing Documentation or Replacement Financing
Documentation, as applicable, Charterer may propose or approve structural
changes to the Vessels or its propulsion or cargo handling system at Charterer's
expense. Shipowner shall not unreasonably withhold consent to any such proposal
and, upon having consented, shall cooperate in the letting of contracts for the
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work required. Shipowner shall have the right to inspect such Vessel during the
course of structural changes and upon their completion. Any machinery,
structure, or other property placed aboard the Vessel in the course of such
changes shall become the property of Shipowner. Excepting modifications
permitted under this Section 17 and modifications required by applicable laws
and regulations or by the classification society having jurisdiction, Shipowner
may not materially modify the Vessels during the Charter Period.
SECTION 18. LIENS.
18.1 Shipowner's and Charterer's Liens. Shipowner shall have a lien
upon all Cargoes and all sub-freights and/or sub-hire for any amounts due under
this Time Charter, including general average contributions.
18.2 Removal of Liens. Charterer will not directly or indirectly
suffer, or permit to be continued, any lien or encumbrance that might have
priority over the title and interest of Shipowner in the Vessels.
18.3 No Authority to Incur Liens. Charterer and Shipowner covenant
and agree that neither will commit any act or fail to take any action that will
result in any loss, forfeiture, requisition, or seizure of the Vessels or result
in any termination or impairment of the coverage of any insurance policy on the
Vessels. Other than as provided in this Section 18 and in Section 17 above,
neither Shipowner nor Charterer has or shall have any right, power, or authority
to create, incur or permit to be placed or imposed on the Vessels any lien other
than liens for current crew wages and salvage and any lien or mortgage granted
by Shipowner under the National City Financing Documentation or Replacement
Financing Documentation. Shipowner must retain on the Vessels a true copy of
this Time Charter and cause the same to be exhibited by the master, on demand,
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to any person having business with the Vessels or to any authorized
representative of Charterer. Shipowner will place and keep prominently displayed
in the chartroom and in the master's cabin of each Vessel a framed printed
notice reading as follows:
"NOTICE OF MORTGAGE AND CHARTER AND LIMITATION OF AUTHORITY
This Vessel is owned by Wisconsin & Michigan Steamship Company ("Owner") and (i)
is covered by a First Preferred Fleet Mortgage dated as of August 1, 2006 (the
"Mortgage") between the Owner and National City Commercial Capital Company, LLC,
mortgagee, under authority of 46 U.S.C. ss. 31322, and (ii) is under Time
Charter to Lower Lakes Transportation Company ("Charterer"). Under the terms of
the Mortgage and the Time Charter, neither the Owner, Charterer, the master of
this Vessel, nor any other person has any right, power or authority to create,
incur or impose, or permit to be placed, incurred or imposed, upon this Vessel
or its profits, any liens whatsoever, other than the liens of the Mortgage and,
to the extent permitted by the Mortgage, liens for crew's wages and stevedores'
wages, for salvage, for general average, or for, but only to the extent such
liens are subordinate to the lien of the Mortgage, other liens incident to
current operations or repairs."
SECTION 19. NON-PERFORMANCE.
19.1 By Shipowner. (a) In the event of (i) a material default in the
performance of any of Shipowner's obligations under this Time Charter, and, in
the case of a default that interferes with the availability of any Vessel
hereunder, such default shall not be remedied to Charterer's reasonable
satisfaction within five (5) days after written notice from Charterer specifying
such default and demanding same to be remedied, or, in all other cases, such
default shall not be remedied to Charterer's reasonable satisfaction within
thirty (30) days after written notice from Charterer specifying such default, or
(ii) the Exercise of Remedies by a Lender not resulting from any act or failure
to act by Charterer or any of its Affiliates (e.g., Charterer's failure to pay
Basic Hire in accordance with the terms hereof) (each of the foregoing, a
"Shipowner Default"), Charterer shall have the rights and remedies set forth in
Section 19.1(b) hereof. Nothwithstanding clause (ii) of the preceding sentence,
the exercise of remedies by any lender referenced therein at or following the
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stated maturity of the indebtedness owed to such lender shall not constitute a
Shipowner Default, and instead shall constitute a Charterer Default, if, prior
to such stated maturity, Shipowner shall have proposed to Charterer refinancing
or replacement indebtedness on terms commercially reasonable in light of then
prevailing market conditions, and Charterer shall have refused to consent to
such refinancing or replacement indebtedness for purposes of the definitions of
"Replacement Financing Documentation".
(b) In the event of a Shipowner Default, Charterer at its option may
(i) proceed by appropriate court actions, either at law or in equity, to enforce
performance by Shipowner of the applicable obligations of this Time Charter,
(ii) terminate its obligation to pay Operating Hire during the period during
which such Shipowner Default is continuing (or permanently terminate its
obligation to pay Operating Hire in the event of the Exercise of Remedies by a
Lender), and/or (iii) by notice in writing to Shipowner, request Shipowner to
appoint a reputable, independent third party experienced in the operation of
vessels on the Great Lakes as manager for the Vessel, and upon receipt of such
request Shipowner shall, after consultation with Charterer regarding the
qualifications of the manager, appoint the manager to manage the operations of
the Vessels. From and after the appointment of the manager, all payments of
Operating Hire under Section 9.2 shall be paid by Charterer to Shipowner, to be
applied as directed by the manager.
19.2 By Charterer. (a) If (i) a material default occurs in the
performance of any of Charterer's obligations under this Time Charter, and, in
the case of a default in making any payment due and owing under Section 10, such
default shall not be remedied within two (2) Business Days after the due date of
such payment, or, in all other cases, such default shall not be remedied to
Shipowner's reasonable satisfaction within thirty (30) days after written notice
from Shipowner specifying such default, (ii) (A) Charterer makes a general
assignment or general arrangement for the benefit of creditors, or (B) a
petition for adjudication of bankruptcy or for reorganization or rearrangement
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is filed by or against Charterer and is not dismissed within thirty (30) days,
or (iii) any guarantor of all or any portion of Charterer's obligations under
this Time Charter revokes or otherwise terminates, or purports to revoke or
otherwise terminate, its guaranty thereof (each of the foregoing, as well an
event described in the last sentence of Section 19.1(a) hereof, a "Charterer
Default"), Shipowner shall have the rights and remedies set forth in Section
19.2(b) hereof.
(b) In the event of a Charterer Default, subject to Shipowner's
right to Place the Vessels Back in Service, Shipowner shall, as promptly as
practicable following such Charterer Default, lay-up the Vessels and wind down
its business and operations using its commercially reasonable efforts to
minimize the operating and related costs incurred by it during the wind down
period, and Charterer shall, unless and until the earlier of (i) determination
by Shipowner to Place the Vessels Back in Service or (ii) the Exercise of
Remedies by a Lender, reimburse Shipowner for such lay-up and wind down costs,
which costs shall include, without limitation, the cost of maintaining insurance
during such wind down period on terms required by the lender(s) under the
National City Financing Documentation or any Replacement Financing
Documentation; provided that if such wind down shall not be completed by the
ninetieth (90th) day after the Basic Charter Period, Shipowner shall thereupon
submit an estimate of any costs it anticipates incurring during completion of
such wind down after such ninetieth day, and the parties shall work in good
faith to seek to quantify a final payment to be paid by Charterer in full
satisfaction of its wind down reimbursement obligations hereunder. In such
event, other than liability on account of (A) Basic Hire through the expiry of
the Charter Period in effect at the time of the Charterer Default (the amount of
which Basic Hire shall be determined and paid in accordance with the terms of
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this Time Charter), (B) all amounts due and owing under the terms of this Time
Charter with respect to periods of time prior to the Charterer Default, and (C)
Charterer's reimbursement obligation for lay-up and wind down costs, Charterer
shall not have any obligation or liability under this Time Charter for any
amounts owned under this Time Charter or for any action, inaction, event or
condition underlying the Charterer Default.
(c) Following a Charterer Default, Shipowner shall have the right to
Place the Vessels Back in Service.
(d) In the event that following a Charterer Default, either (i)
Shipowner elects to Place the Vessels Back in Service or (ii) the Exercise of
Remedies by a Lender shall occur, then, notwithstanding Section 19.2(b), other
than liability on account of (i) Basic Hire through the expiry of the Charter
Period in effect at the time of the Charterer Default (the amount of which Basic
Hire shall be determined and paid in accordance with the terms of this Time
Charter) and (ii) all amounts due and owning with respect to periods of time
prior to such election or exercise of remedies, Charterer shall not have any
obligation or liability under this Time Charter for any amounts owned under this
Time Charter or for any action, inaction, event or condition underlying the
Charterer Default.
SECTION 20. OPTION TO PURCHASE.
20.1 Purchase Option. Provided that Charterer is not then in default
under this Time Charter, Charterer may, at its option, at any time purchase, or
cause its Affiliate to purchase, all (but not less than all) of the Vessels from
Shipowner in accordance with the terms of the form of Vessel Purchase Agreement
attached as Exhibit A hereto. In order to exercise such option (the "Purchase
Option"), Charterer must so notify Shipowner in writing no later than ninety
(90) days prior to the expiration of the Charter Period. Upon exercise of the
Purchase Option, Charterer and Shipowner shall proceed to close the purchase
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transaction as soon as reasonably practicable and in no event more than ninety
(90) days from the date of exercise of the Purchase Option (the date such
closing occurs, the "Purchase Closing Date").
20.2 Purchase Price. In connection with the exercise of the Purchase
Option and in full consideration for the sale and transfer of the Acquired
Assets, including but not limited to the Vessels, Charterer, or its designee,
shall on the Purchase Closing Date: (a) assume the Assumed Liabilities and (b)
pay to Shipowner an amount equal to (i) the total amount of principal, interest
and other amounts outstanding under the National City Financing Documentation or
Replacement Financing Documentation, as applicable, plus (ii) the total amount
of principal, interest and other amounts outstanding under the Subordinated Debt
Financing Documentation or Replacement Subordinated Debt Financing
Documentation, as applicable, plus (iii) $400,000, plus (iv) an amount equal to
sixteen percent (16%) simple interest per year (based on a 365-day year) on the
amount set forth under clause (iii) of this Section 20.2 for the period
commencing on the date hereof and ending on the Purchase Closing Date. Shipowner
and Charterer shall act in good faith to complete the form of Vessel Purchase
Agreement and the schedules and exhibits thereto (i) with respect to matters
therein requiring completion by or agreement between the parties, and (ii) in
respect of any matters then existing with respect to the Shipowner or the
Vessels that customarily would be addressed in an agreement contemplating
transactions similar to the transactions contemplated by the form of Vessel
Purchase Agreement. Charterer shall have the right to waive inclusion in the
definitive Vessel Purchase Agreement of any provision in the form of Vessel
Purchase Agreement that is for the benefit of the "Buyer" thereunder, and
Shipowner shall have the right to waive inclusion in the definitive Vessel
Purchase Agreement of any provision in the form of Vessel Purchase Agreement
that is for the benefit of the "Company" thereunder.
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20.3 Continuation and Termination of Time Charter. This Time Charter
shall continue as an extension of the Charter Period, with all Hire payments due
and owing, during the period commencing upon the exercise of the Purchase Option
and terminating on the Purchase Closing Date. Shipowner shall, in conjunction
with the exercise of the Purchase Option and the purchase of the Vessels, as
promptly as practicable, wind down its business and operations using its
commercially reasonable efforts to minimize the operating and related costs
incurred by it during such wind down period, and Charterer shall reimburse
Shipowner for such wind down costs; provided that if such wind down shall not be
completed by the ninetieth (90th) day after the Purchase Closing Date, Shipowner
shall thereupon submit an estimate of any costs it anticipates incurring during
completion of such wind down after such ninetieth day, and the parties shall
work in good faith to seek to quantify a final payment to be paid by Charterer
in full satisfaction of its wind down reimbursement obligations hereunder.
SECTION 21. CHARTERER'S COLORS.
Charterer shall have the privilege of flying its own house flag and
painting each Vessel with its own markings. Each Vessel shall be repainted in
Shipowner's colors before termination of this Time Charter. Cost and time of
painting, maintaining and repainting those changes effected by Charterer shall
be for Charterer's account.
SECTION 22. INSPECTIONS.
Charterer shall have the right at any time during the Charter Period
upon two days advance written notice to make such inspection of the Vessels as
Charterer may consider necessary. This right may be exercised as often and at
such intervals as Charterer in its absolute discretion may determine and whether
a Vessel is in port or on passage. Shipowner shall afford all necessary
cooperation and accommodation on board: provided, however, (i) that neither the
exercise nor the non-exercise, nor anything done or not done in the exercise or
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non-exercise, by Charterer of such right shall in any way reduce the Shipowner's
authority over, or responsibility to Charterer or third parties for a Vessel and
every aspect of its operation, nor increase Charterer's responsibilities to
owners or third parties for the same; and (ii) that Charterer shall indemnify
Shipowner against losses incurred by Shipowner as a result of any act, neglect
or default by Charterer or its servants or agents in the exercise of the
aforesaid right.
SECTION 23. NOTICES.
Except as otherwise provided herein, any notices or requests shall
be in writing. All such notices and requests shall be addressed to the parties
at the following addresses:
If to Shipowner, at:
Wisconsin & Michigan Steamship Company
13000 Athens Avenue, Suite 102
Lakewood, Ohio 44107
Attention: President
Fax: (216) 228-2443
with a copy to: Legal Counsel for Shipowner
Dickinson Wright PLLC
500 Woodward Ave., Suite 4000
Detroit, Michigan 48226
Attention: Mark R. High, Esq.
Fax: (313) 223-3598
If to Charterer, at:
Lower Lakes Transportation Company
1207 Delaware Avenue, Suite 217
Buffalo, New York 14209
Attention: President
Fax: (716) 332-6166
with a copy to: Legal Counsel for Charterer
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
Attention: Todd J. Emmerman
Fax: (212) 940-8800
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Notices shall be effective when delivered personally or sent by
telecopy or registered or certified mail, so addressed. A party by notice may
change the address for communications to such party.
SECTION 24. MISCELLANEOUS.
24.1 Persons Bound. This Time Charter shall be binding upon and
shall inure to the benefit of the undersigned parties and their respective
successors, and no assignment of this Time Charter (or of any right or benefit
hereunder), by operation of law or otherwise, shall be made by either party (nor
construed as being of any force or effect as to any third party) without the
prior written consent of the other, and any such purported assignment without
such consent shall be void. A Change of Control of either party hereto shall
constitute an assignment of this Time Charter and require the prior written
consent of the other party hereto. This provision shall not prohibit Shipowner's
collateral assignment of this Time Charter to the lender under the National City
Financing Documentation or Replacement Financing Documentation, each such lender
being a third party beneficiary of this Time Charter, or the enforcement of such
lender's respective rights in connection therewith.
24.2 Governing Law. This Time Charter shall be governed by and
construed in accordance with the maritime laws of the United States of America,
and, to the extent that such law does not apply, the laws of the State of
Michigan.
24.3 Counterparts. This Time Charter may be executed simultaneously
in several counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
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24.4 Headings. The headings in this Time Charter are for purposes of
reference only, and shall in no way limit or otherwise affect any of the terms
or provisions of this Time Charter.
24.5 No Waiver of Performance. The failure of either party to insist
in any one or more instances upon performance of any terms, covenants or
conditions of this Time Charter shall not be construed as a waiver or
relinquishment of such performance of any such term, covenant or condition, but
each party's obligation with respect to such future performance shall remain in
full force and effect.
24.6 Time Charter Not Bareboat Charter. Nothing in this Time Charter
shall be construed or interpreted as creating or intending to create a bareboat
charter of the Vessels to Charterer. All licensed and unlicensed employees
employed by Shipowner on the Vessels shall be and remain solely the employees of
Shipowner and neither this Time Charter nor the performance of the parties under
it shall operate to create a joint- or co-employer relationship between
Shipowner and Charterer with respect to such employees. Charterer shall have no
authority to hire, fire, discipline, establish or modify the terms and
conditions of employment of or direct the work of such employees or to
effectively recommend such actions.
24.7 Assignment of Claims. Shipowner hereby assigns to Charterer for
the duration of the Charter Period all rights of warranty, guaranty, indemnity,
third-party claims, and any other rights which Shipowner may have in respect of
the Vessels under or in respect of the Asset Purchase Agreement by and among
Shipowner, Oglebay Norton Marine Services Company, L.L.C. and Oglebay Norton
Company, dated as of the date hereof (the "Asset Purchase Agreement"). Such
assignment shall be non-exclusive and Charterer may only enforce Shipowner's
rights under the Asset Purchase Agreement if Charterer is not in default under
this Time Charter and if Shipowner shall have failed to exercise such rights for
29
twenty (20) days after Charterer's written request to Shipowner. Shipowner shall
use all reasonable efforts to deliver to Charterer, at Charterer's cost, such
further documents and assurances and to take such other action requested by
Charterer as may be necessary to confirm the assignments made by virtue of the
preceding sentence and to enable Charterer to enforce any rights so assigned in
the name of Shipowner or otherwise. Assignment of Shipowner's rights under the
Asset Purchase Agreement as provided in this Section 24.7 shall be subject to
any assignment for the benefit of the lender under the National City Financing
Documentation or any Replacement Financing Documentation, as applicable.
24.8 Currency. All dollar amounts ($) set forth in this Time Charter
refer to the lawful currency of the United States of America.
SECTION 25. DEFINITIONS.
Except as otherwise stated or required in context, the capitalized
terms used in this Time Charter shall have the meanings set forth in this
Section 25.
"Act" shall have the meaning set forth in Section 1 hereof.
"Acquired Assets" shall have the meaning set forth in the Vessel
Purchase Agreement attached as Exhibit A hereto.
"Administrative Fee" shall have the meaning set forth in Section
9.2(c) hereof.
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by, or is under common control
with such Person.
"Assumed Liabilities" shall have the meaning set forth in the Vessel
Purchase Agreement attached as Exhibit A hereto.
"Basic Hire" shall have the meaning set forth in Section 9.1(a)
hereof.
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"Basic Charter Period" shall have the meaning set forth in Section 2
hereof.
"Business Day" shall mean any day other than a Saturday, Sunday, or
any other day on which national banks are authorized or required to be closed
for business.
"Cargo" and "Cargoes" shall have the meaning set forth in Section 1
hereof.
"Capital Hire" shall have the meaning set forth in Section 9.1
hereof.
"Change in Control" means a change in the ownership or control,
directly or indirectly, of more than 50% of the voting power or ownership
interest of Shipowner.
"Charterer" shall have the meaning set forth in the Preamble to this
Time Charter.
"Charterer Default" shall have the meaning set forth in Section 19.2
hereof.
"Charter Period" shall have the meaning set forth in Section 2
hereof.
"Crew Payroll Account" shall have the meaning set forth in Section
10.2(b) hereof.
" Exercise of Remedies by a Lender" means the exercise of remedies
by a lender under the National City Financing Documentation or Replacement
Financing Documentation, as applicable, following the occurrence of a default or
event of default under such financing documentation.
"Extension Charter Period" shall have the meaning set forth in
Section 2 hereof.
"Great Lakes" means the Great Lakes of North America, their
connecting and tributary waterways, and the St. Lawrence River west of Anticosti
Island.
"Great Lakes Trades" or "United States Great Lakes Trades" means the
United States coastwise and registry trades from and to various United States
and Canadian ports on the Great Lakes of North America, their connecting and
tributary waterways, and the St. Lawrence River west of Anticosti Island.
"Guarantor" shall mean Rand Logistics, Inc., an Affiliate of
Charterer.
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"Hire" shall have the meaning set forth in Section 9 hereof.
"National City Financing Documentation" means the Credit and
Security Agreement, dated as of the date hereof, between Shipowner and National
City Commercial Capital Company, LLC (and its successors and assigns to the
extent permitted under the terms of the Credit and Security Agreement), and the
other "Loan Documents" (as defined in the Credit and Security Agreement), as
such Credit and Security Agreement and Loan Documents exist as of the date
hereof and without giving effect to any amendment, modification or waiver
thereto or thereunder after such date unless such amendment, modification or
waiver has been consented to in writing by Charterer.
"Operating Hire" shall have the meaning set forth in Section 9.2
hereof.
"Payroll Costs" shall have the meaning set forth in Section 9.2(b)
hereof.
"Person" shall mean any individual, sole proprietorship,
partnership, corporation, limited liability company, joint venture,
unincorporated society or association, trust, or other legal entity.
"Place the Vessels Back in Service" means the election by Shipowner
following a Charterer Default, or in the event the Basic Charter Period is not
extended, to operate any or all of the Vessels other than pursuant to the
provisions of this Time Charter.
"Purchase Closing Date" shall have the meaning set forth in Section
20.1 hereof.
"Purchase Option" shall have the meaning set forth in Section 20.1
hereof.
"Replacement Financing Documentation" means such credit, loan,
security and other agreements entered into by Shipowner with the written consent
of Charterer with respect to indebtedness obtained by Shipowner to refinance or
replace, in whole or in part, the indebtedness under the National City Financing
Documentation (directly or through successive refinancings or replacements), as
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such agreements exist as of the date of such refinancing or replacement and
without giving effect to any amendment, modification or waiver thereto or
thereunder after the date of such refinancing or replacement unless such
amendment, modification or waiver has been consented to in writing by Charterer.
"Replacement Subordinated Debt Financing Documentation" means such
credit, loan, security and other agreements entered into by Shipowner with the
written consent of Charterer with respect to indebtedness obtained by Shipowner
to refinance or replace, in whole or in part, the indebtedness under the
Subordinated Debt Financing Documentation (directly or through successive
refinancings or replacements), as such agreements exist as of the date of such
refinancing or replacement and without giving effect to any amendment,
modification or waiver thereto or thereunder after the date of such refinancing
or replacement unless such amendment, modification or waiver has been consented
to in writing by Charterer.
"Shipowner" means Wisconsin & Michigan Steamship Company, a Michigan
corporation.
"Shipowner Default" shall have the meaning set forth in Section 19.1
hereof.
"Subordinated Debt Financing Documentation" means the Senior
Subordinated Note Purchase Agreement, dated as of the date hereof, by and among
Shipowner, Rand Finance Inc. and Oglebay Norton Marine Services Company, L.L.C.,
and the other "Purchase Documents" (as defined in the Senior Subordinated Note
Purchase Agreement), as such Senior Subordinated Note Purchase Agreement and
Purchase Documents exist as of the date hereof and without giving effect to any
amendment, modification or waiver thereto or thereunder after such date unless
such amendment, modification or waiver has been consented to in writing by
Charterer.
"Supplemental Hire" shall have the meaning set forth in Section
9.1(b) hereof.
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"Time Charter" shall have the meaning set forth in the preamble to
this Time Charter.
"United States" means the United States of America.
"United States Great Lakes Trades" or "Great Lakes Trades" means the
United States coastwise and registry trades from and to various United States
and Canadian ports on the Great Lakes of North America, their connecting and
tributary waterways, and the St. Lawrence River west of Anticosti Island.
"Variable Costs" shall have the meaning set forth in Section 9.2(a)
hereof.
"Vessels" shall have the meaning set forth in the recitals to this
Time Charter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Time Charter
as of the day first above written.
WISCONSIN & MICHIGAN STEAMSHIP COMPANY,
Shipowner
By: /s/ Gregory A. Calestraight
Name: Gregory A. Calestraight
Title: President
LOWER LAKES TRANSPORTATION COMPANY
Charterer
By: /s/ Laurence S. Levy
Name: Laurence S. Levy
Title: Vice President
SCHEDULE A
VESSEL DESCRIPTIONS(1)
DAVID Z. NORTON, Official Number 549231
Specific Type: Steel bulk carrier
Date Constructed: 1973
Place Constructed: Lorain, Ohio
Date Reconstructed: N/A
Place Reconstructed: N/A
Date documented: December 15, 1973
Area of Operation: Great Lakes service
Capacity: 20,416 DWT
Gross Tonnage: 9,639 GRT
Net Tonnage: 5,700 NRT
Length: 612.1
Breadth: 68.2
Depth: 34.4
Details of Service: Self-propelled, self-discharging
vessel for the carriage of bulk
materials between United States and
Canadian Ports.
Operational Endorsements: Coastwise and Registry.
EARL W. OGLEBAY, Official Number 552395
Specific Type: Steel bulk carrier
Date Constructed: 1973
Place Constructed: Lorain, Ohio
Date Reconstructed: N/A
Place Reconstructed: N/A
Date documented: December 15, 1973
Area of Operation: Great Lakes service
Capacity: 20,416 DWT
Gross Tonnage: 9,639 GRT
Net Tonnage: 5,700 NRT
Length: 612.1
Breadth: 68.2
Depth: 34.4
Details of Service: Self-propelled, self-discharging
vessel for the carriage of bulk
materials between United States and
Canadian Ports.
Operational Endorsements: Coastwise and Registry.
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(1) Gross and net tonnage, and length, breadth and depth figures are as they are
stated on each Vessel's United States Coast Guard Certificate of Documentation.
2
WOLVERINE, Official Number 560339
Specific Type: Steel bulk carrier
Date Constructed: 1974
Place Constructed: Lorain, Ohio
Date Reconstructed: N/A
Place Reconstructed: N/A
Date documented: December 15, 1974
Area of Operation: Great Lakes service
Capacity: 20,235 DWT
Gross Tonnage: 10,037 GRT
Net Tonnage: 6,269 NRT
Length: 612.1
Breadth: 68.2
Depth: 34.4
Details of Service: Self-propelled, self-discharging
vessel for the carriage of bulk
materials between United States and
Canadian Ports.
Operational Endorsements: Coastwise and Registry.
3