FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this
"Amendment Agreement") is dated as of June 24, 2008 by and among Lower Lakes
Towing Ltd., Lower Lakes Transportation Company, Grand River Navigation Company,
Inc., the other Credit Parties signatory hereto, the other Lenders signatory
hereto and General Electric Capital Corporation, as Agent.
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 Amended and Restated Credit Agreement dated as of
February 13, 2008 (the "Credit Agreement");
WHEREAS, the Lenders and the Agent have agreed to amend the Credit
Agreement to effect certain changes thereto requested by the Credit Parties 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. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
2.1. Section 1.1(a)(ii) of the Credit Agreement is hereby amended by
deleting the penultimate sentence thereof and replacing it with the following:
The Cdn. Seasonal Facility shall be in an amount not to exceed (all as
determined in Cdn. Dollars using, where applicable, the Cdn. Dollar
Equivalent Amount) the lesser of: (A) US $8,000,000 (US $10,000,000 for
calendar year 2008 only) less the principal amount outstanding under the
US Seasonal Facility, or (B) 75% of the aggregate Fair Market Value of the
Cdn. Vessels owned by the Cdn. Credit Parties and the US Owned Vessels
less the aggregate of (i) the principal amount outstanding under the Cdn.
Term Loan, the principal amount outstanding under the US Term Loan and the
principal amount outstanding under the Engine Term Loan, (ii) the
aggregate amount of the obligations secured by Liens attaching to the Cdn.
Vessels and the US Owned Vessels that have priority to the Liens securing
the Obligations, and (iii) the principal amount outstanding under the US
Seasonal Facility; provided, that if Lower Lakes has certified to the
Agent in the applicable Cdn. Notice of Revolving Credit Advance that the
all or a portion of the proceeds of the related Cdn. Revolving Credit
Advance will be directly applied to pay any obligation described in clause
(ii) above, then such obligation will not be counted in determining
availability for such Advance.
2.2. Section 1.1(c)(ii) of the Credit Agreement is hereby amended by
deleting the penultimate sentence thereof and replacing it with the following:
The amount outstanding under the US Seasonal Facility shall be in an
amount not to exceed (all as determined in US Dollars using, where
applicable, the US Dollar Equivalent Amount) the lesser of: (A) US
$8,000,000 (US $10,000,000 for calendar year 2008 only) less amounts
outstanding under the Cdn. Seasonal Facility, or (B) 75% of the aggregate
Fair Market Value of the Cdn. Vessels owned by the Cdn. Credit Parties and
the US Owned Vessels less the aggregate of (i) the principal amount
outstanding under the Cdn. Term Loan, the principal amount outstanding
under the US Term Loan and the principal amount outstanding under the
Engine Term Loan, (ii) the aggregate amount of the obligations secured by
Liens attaching to the Cdn. Vessels and the US Owned Vessels that have
priority to the Liens securing the Obligations, and (iii) amounts
outstanding under the Cdn. Seasonal Facility; provided, that if LLTC has
certified to the Agent in the applicable US Notice of Revolving Credit
Advance that the all or a portion of the proceeds of the related US
Revolving Credit Advance will be directly applied to pay any obligation
described in clause (ii) above, then such obligation will not be counted
in determining availability for such Advance.
2.3. Annex A to the Credit Agreement is hereby amended by deleting the
definition of Fixed Charge Coverage Ratio in its entirety and replacing it with
the following:
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any fiscal period, the ratio of EBITDA less Capital Expenditures
(excluding Capital Expenditures financed through specifically arranged
financings approved of by the Lenders in writing) to Fixed Charges;
provided, that for calculations made during the period from June 30, 2008
through March 31, 2009, Capital Expenditures shall not be deducted from
EBITDA.
2.4. Annex G to the Credit Agreement is hereby amended by deleting
paragraph (d) thereof in its entirety and replacing it with the following:
(d) Maximum Capital Expenditures. Rand and its Subsidiaries on a
consolidated basis shall not make Capital Expenditures on each of the test
dates set forth below for the period of four Fiscal Quarters ending on
such date that exceed in the aggregate the amounts set forth opposite each
of such periods:
Test Dates Maximum Capital
---------- Expenditures per Period
-----------------------
June 30, 2009 and June 30, 2010 Cdn.$8,000,000
June 30, 2011 Cdn.$8,500,000
June 30, 2012 Cdn.$8,200,000
Each June 30 thereafter Cdn.$8,600,000
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3. 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) Reaffirmation. Each Credit Party shall have executed and
delivered the Reaffirmation of Guaranty in the form of Exhibit A attached
hereto.
(b) Other Documents. The Borrowers shall provide such other
documents, instruments and agreements as the Agent may reasonably request.
4. Representations and Warranties of the Credit Parties.
4.1. Each of the Credit Parties represents and warrants that the
execution, delivery and performance by each of the Credit Parties of this
Amendment Agreement and the documents and instruments delivered in connection
therewith have been duly authorized by all necessary corporate action and that
this Amendment Agreement is a legal, valid and binding obligation of such Credit
Party, 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).
4.2. Each of the Credit Parties hereby certifies that each of the
representations and warranties contained in the Credit Agreement and the other
Loan Documents (as amended through the date hereof) 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.
5. Reference to and Effect on the Credit Agreement.
5.1. Upon the effectiveness of this Amendment Agreement, 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.
5.2. 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.
5.3. 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 other Loan Documents, or (b)
any Event of Default or Default under the Credit Agreement.
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6. 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.
7. 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.
8. 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.
[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/ Lorraine Barber
-----------------------------------------------
Title: Chief Financial Officer
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LOWER LAKES TRANSPORTATION COMPANY
By: /s/ Laurence Levy
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Title: Vice President
--------------------------------------------
GRAND RIVER NAVIGATION COMPANY, INC.
By: /s/ Laurence Levy
-----------------------------------------------
Title: Vice President
--------------------------------------------
RAND LOGISTICS, INC.
By: /s/ Joseph W. McHugh, Jr.
-----------------------------------------------
Title: Chief Financial Officer
--------------------------------------------
RAND LL HOLDINGS CORP.
By: /s/ Laurence Levy
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Title: President
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RAND FINANCE CORP.
By: /s/ Joseph W. McHugh, Jr.
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Title: Vice President and Chief Financial Officer
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GENERAL ELECTRIC CAPITAL CORPORATION, as Agent, L/C
Guarantor, Documentation Agent and Lender
By: /s/ Joseph Tunney
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Title: Duly Authorized Signatory
--------------------------------------------
NATIONAL CITY BANK, as Co-Syndication Agent and
Lender
By: /s/ Matthew P. Tuohey
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Title: Senior Vice President
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NATIONAL CITY BANK, CANADA BRANCH, as Lender
By: /s/ Nazmin Adatia
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Title: Vice President
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By: /s/ Bill Hines
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Title: Senior Vice President and Principal Officer
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KBC BANK, as Lender
By: /s/ Robert Snauffer
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Title: Managing Director
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By: /s/ Edward Eijlers
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Title: Vice President
--------------------------------------------
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned ("Guarantors") hereby (i) acknowledges receipt of
a copy of the First Amendment to Credit Agreement dated as of June 25, 2008 (the
"First Amendment"); (ii) consents to the execution and delivery thereof by the
Credit Parties; (iii) agrees to be bound thereby; (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
obligations of the Credit Parties to Agent and Lenders pursuant to the terms of
that certain Amended and Restated Guaranty dated as of February 13, 2008 (the
"Guaranty"), and (v) reaffirms that the Guaranty is and shall continue to remain
in full force and effect. Although each of the Guarantors has been informed of
the matters set forth herein and in the First Amendment and has acknowledged and
agreed to same, such Guarantors understand that Agent and Lenders have no
obligation to inform any of the Guarantors of such matters in the future or to
seek any of the Guarantors' acknowledgment or agreement to future amendments or
waivers, and nothing herein shall create such a duty.
This Consent and Reaffirmation shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
principles of conflicts of law.
[signature page follow]
IN WITNESS WHEREOF, each of the undersigned has executed this Consent and
Reaffirmation on and as of the date first above written.
LOWER LAKES TRANSPORTATION COMPANY
By: /s/ Laurence Levy
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Title: Vice President
---------------------------------------
GRAND RIVER NAVIGATION COMPANY, INC.
By: /s/ Laurence Levy
------------------------------------------
Title: Vice President
---------------------------------------
RAND LOGISTICS, INC.
By: /s/ Joseph W. McHugh, Jr.
------------------------------------------
Title: Chief Financial Officer
---------------------------------------
RAND LL HOLDINGS CORP.
By: /s/ Laurence Levy
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Title: President
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RAND FINANCE CORP.
By: /s/ Joseph W. McHugh, Jr.
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Title: Treasurer
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GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
By: /s/ Joseph Tunney
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Title: Duly Authorized Signatory
---------------------------------------