FIRST AMENDMENT AGREEMENT
(Time Charter Guaranty)
This FIRST AMENDMENT AGREEMENT (this "Amendment") is made as of the 27th
day of June, 2007 between RAND LL HOLDINGS CORP., a Delaware corporation
("Guarantor"), and WISCONSIN & MICHIGAN STEAMSHIP COMPANY, a Michigan
corporation ("WMS").
WHEREAS, WMS entered into that certain Time Charter Agreement, dated as of
August 1, 2006, with LOWER LAKES TRANSPORTATION COMPANY, a Delaware corporation
(together with its successors and assigns, "Lower Lakes") (as the same may from
time to time be amended, restated or otherwise modified, the "Time Charter");
WHEREAS, Guarantor entered into that certain Time Charter Guaranty for the
benefit of WMS, dated as of August 1, 2006, whereby Guarantor guaranteed the
payment of certain obligations owing from Lower Lakes to WMS pursuant to the
Time Charter (as the same may from time to time be further amended, restated or
otherwise modified, the "Guaranty");
WHEREAS, Guarantor and WMS desire to amend the Guaranty to modify certain
provisions thereof;
WHEREAS, unless otherwise specifically provided herein, the provisions of
the Guaranty revised herein are amended effective as of the date of this
Amendment; and
WHEREAS, each capitalized term used herein and defined in the Guaranty,
but not otherwise defined herein, shall have the meaning given such term in the
Guaranty;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable consideration, Guarantor and WMS agree
as follows:
1. Retroactive Amendment (as of March 31, 2007) to Exhibit A. Exhibit A
(Special Rand Covenants) of the Guaranty is hereby retroactively amended,
effective as of March 31, 2007, to delete the definitions of "Capital
Expenditures", "EBITDA" and "Fixed Charges" therefrom and to insert in place
thereof, respectively, the following:
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of
Indebtedness) by such Person during any measuring period for any fixed
assets or improvements or for replacements, substitutions or additions
thereto, that have a useful life of more than one year and that are
required to be capitalized under GAAP, including all such expenditures
paid pursuant to the WMS Charter; provided that, for the fourth quarter of
Fiscal Year 2007, there shall be excluded therefrom expenditures of
Cdn$9,552,738 by the Credit Parties, to the extent that such expenditures
were made exclusively from the proceeds of a capital contribution made to
one or more of the Credit Parties by Rand Logistics, Inc.
"EBITDA" means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of
such Person for such period, determined in accordance with GAAP, minus (b)
the sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) during such period arising from the sale, exchange
or other disposition of capital assets by such Person (including any fixed
assets, whether tangible or intangible, all inventory sold in conjunction
with the disposition of fixed assets and all securities), (v) any other
non-cash gains that have been added in determining consolidated net
income, in each case to the extent included in the calculation of
consolidated net income of such Person for such period in accordance with
GAAP, but without duplication, and (vi) all winter work, Capital
Expenditures, Interest Expense and scheduled principal payments paid
pursuant to the WMS Charter, plus (c) the sum of (i) any provision for
income taxes, (ii) Interest Expense, (iii) depreciation and amortization
for such period, (iv) amortized debt discount for such period, and (v) the
amount of any deduction to consolidated net income as the result of any
grant to any members of the management of such Person of any Stock, in
each case to the extent included in the calculation of consolidated net
income of such Person for such period in accordance with GAAP, but without
duplication. For purposes of this definition, the following items shall be
excluded in determining consolidated net income of a Person: (1) the
income (or deficit) of any other Person accrued prior to the date it
became a Subsidiary of, or was amalgamated or consolidated into, such
Person or any of such Person's Subsidiaries; (2) the income (or deficit)
of any other Person (other than a Subsidiary) in which such Person has an
ownership interest, except to the extent any such income has actually been
received by such Person in the form of cash dividends or distributions;
(3) the undistributed earnings of any Subsidiary of such Person to the
extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms
of any contractual obligation or requirement of law applicable to such
Subsidiary; (4) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
income accrued during such period; (5) any write-up of any asset; (6) any
net gain from the collection of the proceeds of life insurance policies;
(7) any net gain arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of such Person; (8) in
the case of a successor to such Person by consolidation or amalgamation or
as a transferee of its assets, any earnings of such successor prior to
such consolidation, amalgamation or transfer of assets; and (9) any
deferred credit representing the excess of equity in any Subsidiary of
such Person at the date of acquisition of such Subsidiary over the cost to
such Person of the investment in such Subsidiary.
"Fixed Charges" means, with respect to any Person for any fiscal
period, (a) the aggregate of all Interest Expense paid or accrued during
such period, plus (b) scheduled payments of principal with respect to
Indebtedness during such period, plus (c) Taxes paid or payable in cash
with respect to such fiscal period, plus (d) dividends paid in cash in
such period in respect of the Preferred Equity, plus (e) all Interest
Expense and scheduled principal payments paid pursuant to the WMS Charter.
2. Retroactive Amendment (as of June 1, 2007) to Exhibit A. Exhibit A
(Special Rand Covenants) of the Guaranty is hereby retroactively amended,
effective as of June 1, 2007, to delete the definition of "Senior Funded Debt to
EBITDA Ratio" therefrom and to insert in place thereof the following:
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"Senior Funded Debt to EBITDA Ratio" means, with respect to Parent
and its Subsidiaries, on a consolidated basis, the ratio of (a) Funded
Debt as of any date of determination (including the average daily closing
balance of the revolving loans under the GE Credit Agreement for the
thirty (30) day period ending on (and including) the date of
determination), to (b) EBITDA for the twelve months ending on that date of
determination.
3. Amendment to Exhibit A. Exhibit A (Special Rand Covenants) of the
Guaranty is hereby amended to add the following new definitions thereto:
"Credit Parties" means, collectively, Parent, Borrowers and any
guarantor of the obligations under the GE Credit Agreement and their
respective successors and assigns but shall not include Rand and "Credit
Party" means any one of them.
"WMS Charter" means that certain Time Charter Agreement, by and
between Wisconsin & Michigan Steamship Company, a Michigan corporation,
and LLTC, dated as of August 1, 2006, as the same may from time to time be
amended, restated or otherwise modified.
4. Representations and Warranties. Guarantor hereby represents and
warrants to WMS that (a) Guarantor has the legal power and authority to execute
and deliver this Amendment; (b) the officers executing this Amendment have been
duly authorized to execute and deliver the same and bind Guarantor with respect
to the provisions hereof; (c) the execution and delivery hereof by Guarantor and
the performance and observance by Guarantor of the provisions hereof do not
violate or conflict with the organizational agreements of Guarantor or any law
applicable to Guarantor or result in a breach of any provision of or constitute
a default under any other agreement, instrument or document binding upon or
enforceable against Guarantor; (d) no default, or event that with the passage of
time or the giving of notice or both would constitute a default, exists under
the Time Charter, nor will any occur immediately after the execution and
delivery of this Amendment or by the performance or observance of any provision
hereof; (e) Guarantor is not aware of any claim or offset against, or defense or
counterclaim to, Guarantor's obligations or liabilities under the Guaranty; and
(f) this Amendment constitutes a valid and binding obligation of Guarantor in
every respect, enforceable in accordance with its terms.
5. References to Guaranty. Each reference that is made in the Guaranty
shall hereafter be construed as a reference to the Guaranty as amended hereby.
Except as herein otherwise specifically provided, all terms and provisions of
the Guaranty are confirmed and ratified and shall remain in full force and
effect and be unaffected hereby.
6. Waiver. Guarantor, by signing below, hereby waives and releases WMS,
and its respective directors, officers, employees, attorneys, affiliates and
subsidiaries, from any and all claims, offsets, defenses and counterclaims of
which Guarantor is aware, such waiver and release being with full knowledge and
understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.
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7. Counterparts. This Amendment may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
8. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
9. Severability. Any term or provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
10. Governing Law. The rights and obligations of all parties hereto shall
be governed by the laws of the State of Ohio, without regard to principles of
conflicts of laws.
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JURY TRIAL WAIVER. GUARANTOR AND WMS, TO THE EXTENT PERMITTED BY LAW, EACH
HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN GUARANTOR AND WMS,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AMENDMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first set forth above.
RAND LL HOLDINGS CORP.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: President
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WISCONSIN & MICHIGAN STEAMSHIP COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Chief Finanical Officer
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