Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment Agreement") is
dated as of August 1, 2006 by and among Lower Lakes Towing Ltd. ("Lower Lakes"),
Lower Lakes Transportation Company ("LLTC"), Grand River Navigation Company,
Inc., ("Grand River") the other Credit Parties signatory hereto, General
Electric Capital Corporation, as a US Lender and as Agent, and GE Canada Finance
Holding Company, as a Cdn. Lender.
W I T N E S S E T H :
WHEREAS, the Credit Parties, the lenders party thereto, and the Agent
entered into that certain Credit Agreement dated as of March 3, 2006 (the
"Credit Agreement"); and
WHEREAS, LLTC has agreed to charter three vessels from Wisconsin &
Michigan Steamship Company, a Michigan corporation ("WMS"), and has requested
the Agent and the Lenders to consent to such transaction; and
WHEREAS, the Credit Parties, the Lenders and the Agent have agreed to
consent to such transaction and to amend the Credit Agreement as set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to such terms in the Credit Agreement,
as amended hereby.
2. Consent. Each Lender hereby consents to (a) the charter by LLTC of
three vessels pursuant to the WMS Charter and (b) the guaranty by Parent of
certain of WMS's obligations under the WMS Charter pursuant to the Parent
Guaranty, in each case as such document is in effect as of the date hereof or
amended in accordance with the terms of the Credit Agreement, as amended hereby.
3. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
3.1. Section 1.1(a) of the Credit Agreement is hereby amended by (a)
deleting the reference therein to "Cdn. $2,300,000" and replacing it with a
reference to "Cdn. $3,000,000", and (b) deleting each reference in Section
1.1(a)(ii) to "US $2,000,000" and replacing it with a reference to "US
$4,000,000".
3.2. Section 1.1(c) of the Credit Agreement is hereby amended by (a)
deleting the reference to "US $3,500,000" therein and replacing it with a
reference to "US $6,500,000", (b) deleting the reference in Section 1.1(c)(ii)
to "US $2,000,000" and replacing it with a reference to "US $4,000,000" and (c)
adding the following at the end of Section 1.1(c)(ii):
Notwithstanding the foregoing, the US Seasonal Facility shall also be in
effect from August 1, 2006 through September 29, 2006.
3.3. Section 5.11 is hereby amended by deleting the parenthetical in the
second sentence of paragraph (a) thereof in its entirety and replacing it with
the following:
(and shall ensure that the owner of each US Vessel not owned by it
maintains the documentation of such US Vessels under the laws of the
United States of America).
3.4. Section 6.6 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
6.6 Guaranteed Indebtedness.
No Credit Party shall create, incur, assume or permit to exist any
Guaranteed Indebtedness except (a) by endorsement of instruments or items
of payment for deposit to the general account of any Credit Party, (b) for
Guaranteed Indebtedness incurred for the benefit of any other Credit Party
if the primary obligation is expressly permitted by this Agreement and (c)
the entry by Parent into the Parent Guaranty.
3.5. Section 6.18 of the Credit Agreement is hereby amended by adding
paragraph (c) thereto as follows:
(c) No Credit Party shall (i) (A) consent to or enter into any
amendment, modification or supplement of the WMS Charter or the Parent
Guaranty, (B) consent to any modification to either such agreement or to
the terms of the WMS/NC Debt or the WMS Subordinated Debt, or (C) consent
to any change to the insurance coverage of any of the vessels covered by
the WMS Charter, which in any such case could be materially adverse to the
rights of the Agent, any Lender or any Credit Party, (ii) consent to any
refinancing of the WMS/NC Debt or the WMS Subordinated Debt, (iii)
exercise any purchase option under the WMS Charter (unless solely for the
benefit of an assignee purchaser which is not a Credit Party), or (iv)
agree to an extension of the initial term of the WMS Charter, absent, in
any such case, the prior written consent of Agent and Requisite Lenders.
3.6. Section 8.1 of the Credit Agreement is hereby amended by deleting
paragraph (o) thereto in its entirely and replacing it with the following:
(o) Any event occurs, whether or not insured or insurable, as
a result of which revenue-producing activities generating more than 15% of
such Borrower's revenues for the Fiscal Year preceding such event cease or
are substantially curtailed and such cessation or curtailment continues
for more than thirty (30) days. For greater certainty, neither (i) the
commencement of the winter season and the cessation of the operation of
the Vessels by the Credit Parties in accordance with past practice as a
consequence thereof or (ii) the temporary lay-up from service of one or
two Vessels in the ordinary course of business shall constitute an Event
of Default.
3.7. Annex A to the Credit Agreement is hereby amended by (a) adding the
following definitions in alphabetical order:
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"NC" means National City Commercial Capital Company, LLC, an Indiana
limited liability company.
"Norton" means the David Z. Norton, a documented vessel of the
United States bearing U.S. Official Number 549231.
"Oglebay" means the Earl W. Oglebay, a documented vessel of the
United States bearing U.S. Official Number 552395.
"Parent Guaranty" means that certain Time Charter Guaranty dated as
of August 1, 2006 by Parent in favor of WMS, as in effect as of such date
or as amended in accordance with the terms of this Agreement.
"WMS" means Wisconsin & Michigan Steamship Company, a Michigan
corporation.
"WMS Charter" means that certain Time Charter Agreement dated as of
August 1, 2006 between WMS and LLTC, as in effect as of such date or as
amended in accordance with the terms of this Agreement.
"WMS/NC Debt" means all Indebtedness evidenced or governed by that
certain Loan and Security Agreement dated as of August 1, 2006 between WMS
and NC, as in effect as of such date or as amended in accordance with the
terms of this Agreement.
"WMS Subordinated Debt" means all Indebtedness evidenced or governed
by that certain Senior Subordinated Note Purchase Agreement dated as of
August 1, 2006 between WMS and Rand Finance Corp. and Oglebay Norton
Marine Services Company, LLC, as in effect as of such date or as amended
in accordance with the terms of this Agreement.
"Wolverine" means the Wolverine, a documented vessel of the United
States bearing U.S. Official Number 560339.
(b) deleting the definitions of "Cdn. Revolving Loan Commitment", "US Revolving
Loan Commitment", and "US Vessels" in their entirety and replacing them with the
following:
"Cdn. Revolving Loan Commitment" means (a) as to any Cdn. Revolving
Lender, the aggregate commitment of such Cdn. Revolving Lender to make
Cdn. Revolving Credit Advances or incur Letter of Credit Obligations as
set forth on Annex I to the Agreement or in the most recent Assignment
Agreement executed by such Cdn. Revolving Lender and (b) as to all Cdn.
Revolving Lenders, the aggregate commitment of all Cdn. Revolving Lenders
to make Cdn. Revolving Credit Advances or incur Letter of Credit
Obligations, which aggregate commitment shall be Three Million Canadian
Dollars (Cdn.$3,000,000), as such amount may be adjusted, if at all, from
time to time in accordance with this Agreement.
"Time Charter Agreement" means (i) the time charter agreements dated
as of September 22, 2004 between Grand River and LLTC in respect of the
Invincible and Barge McKee, (ii) the time charter agreements dated as of
September 22, 2004 between Grand River and LLTC in respect of Maumee and
Calumet, (iii) the time charter agreement dated as of September 22, 2004
between Grand River and LLTC in respect of the Manistee and (d) the WMS
Charter.
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"US Revolving Loan Commitment" means (a) as to any US Revolving
Lender, the aggregate commitment of such US Revolving Lender to make US
Revolving Credit Advances as set forth on Annex I to the Agreement or in
the most recent Assignment Agreement executed by such US Revolving Lender
and (b) as to all US Revolving Lenders, the aggregate commitment of all US
Revolving Lenders to make US Revolving Credit Advances, which aggregate
commitment shall be Six Million Five Hundred Thousand US Dollars
(US$6,500,000), as such amount may be adjusted, if at all, from time to
time in accordance with the Agreement.
"US Vessels" means, collectively, the Invincible, the Maumee, the
Calumet, the Barge McKee, the Manistee, the Wolverine, the Norton and the
Oglebay.
and (c) adding the following to the end of the definition of "Operating Lease":
"and other than any time charter or bareboat charter".
3.8. Annex E to the Credit Agreement is hereby amended by deleting
paragraph (l) thereof in its entirety and replacing it with the following:
(l) Other Default Notices. To Agent, within two (2) Business Days
after receipt thereof, copies of any and all default notices received
under or with respect to (i) any leased location or public warehouse where
Collateral is located, and (ii) that certain Loan and Security Agreement
dated as of August 1, 2006 between WMS and NC.
3.9. Annex I to the Credit Agreement is hereby amended by deleting Annex I
in its entirety and replacing it with the Annex I attached hereto.
3.10. Schedule 3.24 to the Credit Agreement is hereby amended by deleting
Schedule 3.24 in its entirety and replacing it with the Schedule 3.24 attached
hereto.
4. Conditions to Effectiveness. The effectiveness of this Amendment
Agreement is expressly conditioned upon the execution of this Agreement by the
Credit Parties, the Agent and each Lender and the satisfaction of the following
conditions:
(a) Revolving Notes. Lower Lakes and LLTC shall provide duly
executed originals of replacement Revolving Notes dated the date hereof,
reflecting the terms set forth in Section 3 hereof.
(b) Other Documents. The Borrowers shall provide such other
documents, instruments and agreements as the Agent may reasonably request.
5. Representations and Warranties of the Credit Parties.
5.1. Each of the Credit Parties represents and warrants that the
execution, delivery and performance by each of the Credit Parties of this
Amendment Agreement have been duly authorized by all necessary corporate action
and that this Amendment Agreement is a legal, valid and binding obligation of
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each of the Credit Parties, enforceable against such Credit Party in accordance
with its terms, except as the enforcement thereof may be subject to (a) the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (b) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law).
5.2. Each of the Credit Parties hereby certifies that each of the
representations and warranties contained in the Credit Agreement is true and
correct in all material respects on and as of the date hereof as if made on the
date hereof, except to the extent that any such representation or warranty is
stated to relate solely to an earlier date, in which case such representation or
warranty shall be true and correct on and as of such earlier date.
6. Reference to and Effect on the Credit Agreement.
6.1. Upon the effectiveness of this Amendment Agreement, (a) each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import and each reference to the Credit Agreement in
each Loan Document shall mean and be a reference to the Credit Agreement as
amended hereby, and (b) each reference to the GE Capital Fee Letter shall mean
and be a reference to the GE Capital fee letter as amended hereby.
6.2. Except as specifically amended above, all of the terms, conditions
and covenants of the Credit Agreement and the other Loan Documents shall remain
unaltered and in full force and effect and shall be binding upon the Credit
Parties in all respects and are hereby ratified and confirmed.
6.3. The execution, delivery and effectiveness of this Amendment Agreement
shall not operate as a waiver of (a) any right, power or remedy of any Lender or
the Agent under the Credit Agreement or any of the Loan Documents, or (b) any
Event of Default or Default under the Credit Agreement.
7. Costs and Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, execution and delivery
of this Amendment Agreement, including the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto.
8. CHOICE OF LAW. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
9. Execution in Counterparts. This Amendment Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
10. Headings. Section headings in this Amendment Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Amendment Agreement for any other purposes.
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[signature page follows]
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IN WITNESS WHEREOF, the Credit Parties, the Agent and the Lenders have
executed this Amendment Agreement as of the date first above written.
LOWER LAKES TOWING LTD.
By: /s/ Laurence S. Levy
Title: Vice President
LOWER LAKES TRANSPORTATION COMPANY
By: /s/ Laurence S. Levy
Title: Vice President
GRAND RIVER NAVIGATION COMPANY, INC.
By: /s/ Laurence S. Levy
Title: Vice President
PORT DOVER STEAMSHIP COMPANY INC.
By: /s/ Laurence S. Levy
Title: Vice President
RAND LL HOLDINGS CORP.
By: /s/ Laurence S. Levy
Title: President
GENERAL ELECTRIC CAPITAL CORPORATION,
as a US Lender and as Agent
By: /s/ David L'Homme
Title: Senior Vice President
GE CANADA FINANCE HOLDING COMPANY,
as Cdn. Lender
By: Dan Billard
Title: Duly Authorized Signatory
GE CANADA FINANCE HOLDING COMPANY,
as L/C Guarantor
By: Dan Billard
Title: Duly Authorized Signatory
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ANNEX I (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lender(s):
US Term Loan Commitment: US$4,000,000
General Electric Capital Corporation US$4,000,000
Cdn. Term Loan Commitment: Cdn$21,200,000
GE Canada Finance Holding Company Cdn$21,200,000
US Revolving Loan Commitment: US$6,500,000
General Electric Capital Corporation US$6,500,000
Cdn. Revolving Loan Commitment: Cdn$3,000,000
GE Canada Finance Holding Company Cdn$3,000,000