Execution Copy
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Amendment Agreement") is
dated as of March 23, 2007 by and among Lower Lakes Towing Ltd., Lower Lakes
Transportation Company, 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 and amended
as of August 1, 2006 and February 28, 2007 (the "Credit Agreement");
WHEREAS, Grand River has previously leased the Manistee pursuant to that
certain Bareboat Charter Party Agreement between Lake Service Shipping Co. and
Grand River dated January 14, 2004, and has decided to exercise its purchase
option thereunder;
WHEREAS, in order to finance the acquisition of the Manistee, Grand River
has requested the Agent and the Lenders to increase the US Term Loan by
$2,200,000; and
WHEREAS, the Lenders and the Agent have agreed to provide such additional
financing and to further 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(d) of the Credit Agreement is hereby amended by (a)
deleting the reference to "US $4,000,000" therein and replacing it with a
reference to "US $6,200,000" and (b) replacing the quarterly installment amounts
payable on and after June 2007 set forth in Section 1.1(d)(ii) with the
following:
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Period Quarterly Installment Amounts
---------------------------------------------------------------------------
June, 2007 - December, 2007 US $186,000
March, 2008 - December, 2008 US $186,000
March, 2009 - December, 2009 US $186,000
March, 2010 - December, 2010 US $186,000
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2.2. Section 1.5 of the Credit Agreement is hereby amended by deleting
paragraph (a) thereof in its entirety and replacing it with the following:
(a) Interest. Each Borrower shall pay interest to Agent, for the
ratable benefit of Lenders in accordance with the various Loans being made
by each Lender, in arrears on each applicable Interest Payment Date, at
the following rates: (i) with respect to Cdn. Revolving Credit Advances,
the BA Rate plus two and one-half percent (2.5%) per annum or the Cdn.
Prime Rate plus one and one-half percent (1.5%) per annum, (ii) with
respect to US Revolving Credit Advances, the US Base Rate plus one and
one-half percent (1.5%) per annum or the applicable LIBOR Rate plus two
and one-half percent (2.5%) per annum, as applicable, (iii) with respect
to the Cdn. Term Loan, the BA Rate plus two and one-half percent (2.5%)
per annum or the Cdn. Prime Rate plus one and one-half percent (1.5%) per
annum, and (iv) with respect to the US Term Loan, the US Base Rate plus
one and one-half percent (1.5%) per annum or the applicable LIBOR Rate
plus two and one-half percent (2.5%) per annum.
2.3. Section 3.6 of the Credit Agreement is hereby amended by deleting the
reference to the "Manistee" appearing therein.
2.4. Section 3.30 of the Credit Agreement is hereby amended by deleting
all references to the "Manistee" appearing therein.
2.5. Section 5.11 of the Credit Agreement is hereby amended by deleting
the reference to the "Manistee" appearing therein.
2.6. Annex A to the Credit Agreement is hereby amended by (a) adding the
following definition in alphabetical order:
"Manistee Mortgage" means the statutory ship mortgage of the
Manistee made by Grand River in favor of the Agent, such mortgage to be in
a form satisfactory to the Lenders and Lenders' Counsel and suitable for
registration.
and (b) deleting the definitions of "Bareboat Charter Agreements", "US Owned
Vessels" and "US Term Loan Commitment" in their entirety and replacing them with
the following:
"Bareboat Charter Agreement" means the bareboat charter party
agreement between Lake Service Shipping Co. and Grand River dated March
27, 2000 with respect to the Barge ▇▇▇▇▇.
"US Owned Vessels" means, collectively, the Invincible, the Maumee,
the Calumet and the Manistee.
"US Term Loan Commitment" means (a) as to any Term Lender with a US
Term Loan Commitment, the commitment of such Lender to make its Pro Rata
Share of the US Term Loan as set forth on Annex I to the Agreement or in
the most recent Assignment Agreement executed by such Lender, and (b) as
to all Lenders with a US Term Loan Commitment, the aggregate commitment of
all Lenders to make the US Term Loan, which aggregate commitment shall be
Six Million Two Hundred Thousand US Dollars (US$6,200,000) on the Closing
Date. After advancing the US Term Loan, each reference to a Lender's US
Term Loan Commitment shall refer to that Lender's Pro Rata Share of the
outstanding US Term Loan.
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2.7. Annex E to the Credit Agreement is hereby amended by (a) deleting the
reference to "thirty (30)" in the first sentence of paragraph (a) thereof and
replacing it with a reference to "thirty-five (35)" and (b) adding the following
proviso at the end of such sentence:
; provided, that such financial information shall be delivered within
sixty (60) days after the first month in each Fiscal Year
2.8. Annex E to the Credit Agreement is hereby amended by deleting Annex E
in its entirety and replacing it with the Annex E attached hereto.
2.9. Annex F to the Credit Agreement is hereby amended by deleting Annex F
in its entirety and replacing it with the Annex F attached hereto.
2.10. Annex I to the Credit Agreement is hereby Annex I in its entirety
and replacing it with the Annex I attached hereto.
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) Term Note. Grand River shall provide a duly executed original of
a replacement Term Note dated the date hereof, reflecting the terms set
forth in Section 3 hereof.
(b) Reaffirmation. Each Credit Party shall have executed and
delivered a Reaffirmation of Guaranty in the form of Exhibit A attached
hereto.
(c) Amendment to Fleet Mortgage. An amendment to the Fleet Mortgage
executed by Grand River in favor of Agent, in form and substance
satisfactory to the Agent.
(d) Insurance. Satisfactory evidence that the insurance policies
required by Section 5.4 with respect to the Manistee are in full force and
effect, together with appropriate evidence showing loss payable and
additional insured clauses or endorsements, as reasonably requested by
Agent, in favor of Secured Parties.
(e) Appraisal. Agent shall have received an appraisal of the
Manistee by an appraiser selected by the Agent, which appraisal (including
the asset values reflected therein) shall be in form and substance
reasonably satisfactory to Agent.
(f) Lien Searches. Copies of search reports from the United States
Coast Guard with respect to the Manistee listing all effective notice of
lien filings that name any Credit Party as debtor, none of which shall
cover the Manistee, and such termination statements, releases or other
documents as may be reasonably necessary to confirm that the Manistee is
subject to no other Liens in favor of any Persons.
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(g) Approvals. Agent shall have received satisfactory evidence that
the Credit Parties have obtained all required consents and approvals of
all Persons, including all requisite Governmental Authorities and all
collateral assignments with respect to any customer contracts, to the
execution, delivery and performance of this Amendment Agreement and the
other Loan Documents.
(h) Due Diligence. Agent shall have completed its legal and business
due diligence, with results reasonably satisfactory to Agent.
(i) Opinion. Duly executed originals of an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇
Rosenman LLP, counsel for the Credit Parties, together with any local
counsel opinions reasonably requested by Agent, each in form and substance
reasonably satisfactory to Agent and its counsel, dated the date hereof.
(j) Fees. Borrower shall have paid all fees, costs and expenses due
and payable on the date hereof, including the reasonable fees and out of
pocket expenses of counsel for the Agent with respect to this Amendment
Agreement.
(k) Secretary's Certificate. Agent shall have received from each
Credit Party, such Person's (i) charter (or similar formation document),
certified by the appropriate governmental authority, (ii) good standing
certificates in its state of incorporation (or formation) and in each
other state requested by Agent, (iii) bylaws (or similar governing
document), (iv) resolutions of its board of directors (or similar
governing body) approving and authorizing such Person's execution,
delivery and performance of this Amendment Agreement and the transactions
contemplated thereby, and (v) signature and incumbency certificates of its
officers executing this Amendment Agreement and the documents contemplated
hereby, all certified by its secretary or an assistant secretary (or
similar officer) as being in full force and effect without modification.
(l) Amendment to Pledge Agreement. An amendment to the Pledge
Agreement, in form and substance acceptable to Agent.
(m) Other Documents. The Borrowers shall provide such other
documents, instruments and agreements as the Agent may reasonably request.
4. Consent. Each Lender hereby consents to the termination of the bareboat
charter party agreement between Lake Service Shipping Co. and Grand River dated
January 14, 2004 with respect to the Manistee.
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
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).
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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, 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.
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 other Loan Documents, or (b)
any Event of Default or Default under the Credit Agreement.
7. 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.
8. 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.
9. 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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
LOWER LAKES TRANSPORTATION COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
GRAND RIVER NAVIGATION COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
RAND LL HOLDINGS CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: President
---------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as a US Lender and as Agent
By: /s/ ▇▇▇▇▇ L'Homme
------------------------------------
Title: Duly Authorized Signatory
GE CANADA FINANCE HOLDING COMPANY,
as Cdn. Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Duly Authorized Signatory
GE CANADA FINANCE HOLDING COMPANY,
as L/C Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Duly Authorized Signatory
ANNEX E (Section 4.1(a))
to
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING
The Borrowers shall deliver, or cause to be delivered to Agent or to Agent
and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent and Lenders, within thirty (30) days
after the end of each Fiscal Month, financial information regarding Parent and
its Subsidiaries, certified by the Chief Financial Officer of Parent, consisting
of consolidated and consolidating (i) unaudited balance sheets as of the close
of such Fiscal Month and the related statements of income and cash flows for
that portion of the Fiscal Year ending as of the close of such Fiscal Month;
(ii) unaudited statements of income and cash flows for such Fiscal Month,
setting forth in comparative form the figures for the corresponding period in
the prior year and the figures contained in the Projections for such Fiscal
Year, all prepared in accordance with GAAP (subject to normal year-end
adjustments); and (iii) a summary of the outstanding balance of all Permitted
Intercompany Debt as of the last day of that Fiscal Month. Such financial
information shall be accompanied by the certification of the Chief Financial
Officer of Parent that (i) such financial information presents fairly in
accordance with GAAP (subject to normal year-end adjustments and the absence of
footnotes) the financial position and results of operations of Parent and its
Subsidiaries, on an unconsolidated and combined basis, in each case as at the
end of such Fiscal Month and for that portion of the Fiscal Year then ended and
(ii) any other information presented is true, correct and complete in all
material respects and that there was no Default or Event of Default in existence
as of such time or, if a Default or Event of Default shall have occurred and be
continuing, describing the nature thereof and all efforts undertaken to cure
such Default or Event of Default.
(b) Quarterly Financials. To Agent and Lenders, within forty-five (45)
days after the end of each Fiscal Quarter, consolidated and consolidating
financial information for Parent and its Subsidiaries, certified by the Chief
Financial Officer of Parent, including (i) unaudited balance sheets as of the
close of such Fiscal Quarter and the related statements of income and cash flow
for that portion of the Fiscal Year ending as of the close of such Fiscal
Quarter and (ii) unaudited statements of income and cash flows for such Fiscal
Quarter, in each case setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the
Projections for such Fiscal Year, all prepared in accordance with GAAP (subject
to normal year-end adjustments and the absence of footnotes). Such financial
information shall be accompanied by (A) a statement in reasonable detail (each,
a "Compliance Certificate") showing the calculations used in determining
compliance with each of the Financial Covenants that is tested on a quarterly
basis and (B) the certification of the Chief Financial Officer of Parent that
(i) such financial information presents fairly in accordance with GAAP (subject
to normal year-end adjustments) the financial position, results of operations
and statements of cash flows of Parent and its Subsidiaries, as at the end of
such Fiscal Quarter and for that portion of the Fiscal Year then ended, (ii) any
other information presented is true, correct and complete in all material
respects, (iii) all current and special payments required to have been made
pursuant to applicable law in respect of Canadian Pension Plans and all ERISA
Plans have been made and (iv) that there was no Default or Event of Default in
existence as of such time or, if a Default or Event of Default has occurred and
is continuing, describing the nature thereof and all efforts undertaken to cure
such Default or Event of Default. In addition, Parent shall deliver to Agent and
Lenders, within forty-five (45) days after the end of each Fiscal Quarter, a
management discussion and analysis that includes a comparison to budget for that
Fiscal Quarter and a comparison of performance for that Fiscal Quarter to the
corresponding period in the prior year.
(c) Operating Plan. To Agent and Lenders, as soon as available, but not
later than thirty (30) days after the end of each Fiscal Year, an annual
combined operating plan (the "Operating Plan") for Parent and its Subsidiaries,
approved by the Board of Directors of Parent, for the following Fiscal Year,
which (i) includes a statement of all of the material assumptions on which such
plan is based, (ii) includes projected monthly income statement, balance sheets
and source and use of funds for the following year and (iii) Borrowing
Availability projections, all prepared on the same basis and in similar detail
as that on which operating results are reported (and in the case of cash flow
projections, representing management's good faith estimates of future financial
performance based on historical performance), and including plans for personnel,
Capital Expenditures and facilities.
(d) Annual Audited Financials. To Agent and Lenders, within ninety (90)
days after the end of each Fiscal Year, audited consolidated Financial
Statements for Rand Logistics, Inc. and the unaudited management prepared
Financial Statements of Parent and its Subsidiaries on a consolidating basis,
consisting of balance sheets and statements of income and retained earnings and
cash flows, setting forth in comparative form in each case the figures for the
previous Fiscal Year, which Financial Statements shall be prepared in accordance
with U.S. GAAP; provided, that if Rand Logistics, Inc. acquires any operating
entity that is not a Subsidiary of Parent, then the audited Financial Statements
shall be delivered with respect to Parent and its Subsidiaries. The consolidated
Financial Statements shall be certified annually without qualification, by an
independent accounting firm of national standing or otherwise acceptable to
Agent. Such Financial Statements shall be accompanied by (i) a statement
prepared in reasonable detail showing the calculations used in determining
compliance with each of the Financial Covenants, (ii) a report from such
accounting firm to the effect that, in connection with their audit examination,
nothing has come to their attention to cause them to believe that an Event of
Default has occurred with respect to the Financial Covenants (or specifying
those Events of Default that they became aware of), it being understood that
such audit examination extended only to accounting matters and that no special
investigation was made with respect to the existence of Events of Default, (iii)
the annual letters to such accountants in connection with their audit
examination detailing contingent liabilities and material litigation matters,
and (iv) the certification of the Chief Executive Officer or Chief Financial
Officer of Parent that all such Financial Statements present fairly in
accordance with GAAP the financial position, results of operations and
statements of cash flows of Parent and its Subsidiaries, as at the end of such
Fiscal Year and for the period then ended, and that there was no Event of
Default in existence as of such time or, if an Event of Default has occurred and
is continuing, describing the nature thereof and all efforts undertaken to cure
such Event of Default.
(e) Management Letters. To Agent and Lenders, within five (5) Business
Days after receipt thereof by any Credit Party, copies of all management
letters, exception reports or similar letters or reports received by such Credit
Party from its independent chartered accountants.
(f) Default Notices. To Agent and Lenders, as soon as practicable, and in
any event within five (5) Business Days after an executive officer of a Borrower
has actual knowledge of the existence of any Default, Event of Default or other
event which has had a Material Adverse Effect, telephonic or telecopied notice
specifying the nature of such Default or Event of Default or other event,
including the anticipated effect thereof, which notice, if given telephonically,
shall be promptly confirmed in writing on the next Business Day.
(g) Securities Filings and Press Releases. To Agent and Lenders, promptly
upon their becoming available, copies of: (i) all Financial Statements, reports,
notices and proxy statements made publicly available by any Credit Party to its
security holders; (ii) all regular and periodic reports and all prospectuses and
registration statements, if any, filed by any Credit Party with any securities
exchange or securities commission or any governmental or private regulatory
authority; and (iii) all press releases and other statements made available by
any Credit Party to the public concerning material changes or developments in
the business of any such Person.
(h) Subordinated Debt and Equity Notices. To Agent, as soon as
practicable, copies of all material written notices given or received by any
Credit Party with respect to any Subordinated Debt or Stock of such Person, and,
within two (2) Business Days after any Credit Party obtains knowledge of any
matured or unmatured event of default with respect to any Subordinated Debt,
notice of such event of default.
(i) Supplemental Schedules. To Agent, supplemental disclosures, if any,
required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon learning thereof,
notice of any Litigation commenced or threatened against any Credit Party that
(i) seeks damages in excess of US$500,000, (ii) seeks injunctive relief, (iii)
is asserted or instituted against any Canadian Pension Plan or ERISA Plan, its
fiduciaries or its assets or against any Credit Party or ERISA Affiliate in
connection with any Canadian Pension Plan or ERISA Plan, (iv) alleges criminal
misconduct by any Credit Party, or (v) alleges the violation of any law
regarding, or seeks remedies in connection with, any Environmental Liabilities.
(k) Insurance Notices. To Agent, disclosure of losses or casualties
required by Section 5.4.
(l) Lease Default Notices. To Agent, (i) within two (2) Business Days
after receipt thereof, copies of any and all default notices received under or
with respect to any leased location or public warehouse where Collateral is
located, and (ii) such other notices or documents as Agent may reasonably
request.
(m) Lease Amendments. To Agent, within two (2) Business Days after receipt
thereof, copies of all material amendments to real estate leases.
(n) Hedging Agreements. To Agent within two (2) Business Days after
entering into such agreement or amendment, copies of all interest rate,
commodity or currency hedging agreements or amendments thereto.
(o) Other Documents. To Agent and Lenders, such other financial and other
information respecting any Credit Party's business or financial condition as
Agent or any Lender shall, from time to time, reasonably request.
ANNEX F (Section 4.1(b))
to
CREDIT AGREEMENT
COLLATERAL REPORTS
Parent shall deliver or cause to be delivered the following:
(a) With each revolving borrowing request, a Notice of Revolving Credit
Advance with respect to Lower Lakes and LLTC, accompanied by such supporting
detail and accommodation as shall be requested by the Agent in its reasonable
discretion.
(b) To Agent, upon its reasonable request, and in any event at least once
every month (together with a copy of all or any part of the following reports
requested by any Lender in writing after the Closing Date), at the time of
delivery of each of the monthly Financial Statements delivered pursuant to Annex
E, each of the following reports, each of which shall be prepared by the
applicable Borrower as of the last day of the immediately preceding month or the
date two (2) days prior to the date of any such request:
(i) a Borrowing Base Certificate with respect to Lower Lakes and
LLTC, accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion;
(ii) with respect to each Borrower, a monthly trial balance showing
Accounts outstanding aged from invoice date as follows: 1 to 30 days past
due, 31 to 60 days past due, 61 to 90 days past due and 91 days or more
past due, accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion.
(iii) with respect to each Borrower, a monthly trial balance showing
payables outstanding aged from invoice date as follows: 1 to 30 days past
due, 31 to 60 days past due, 61 to 90 days past due and 91 days or more
past due, accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion.
(c) To Agent, at the time of delivery of each of the monthly Financial
Statements delivered pursuant to Annex E (or as otherwise requested by Agent in
its reasonable discretion):
(i) a reconciliation of the most recent Borrowing Base and general
ledger of Lower Lakes and LLTC to their respective general ledger and
monthly Financial Statements delivered pursuant to such Annex E, in each
case accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion;
(ii) an aging of accounts payable and a reconciliation of that
accounts payable aging to each Borrower's general ledger and monthly
Financial Statements delivered pursuant to Annex E in the form set out in
Exhibit 4.1(b), in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable discretion;
(iii) an aging of accounts receivable and a reconciliation of that
accounts receivable aging to each Borrower's general ledger and monthly
Financial Statements delivered pursuant to Annex E in the form set out in
Exhibit 4.1(b), in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable discretion;
(iv) a reconciliation of the outstanding Loans as set forth in the
monthly Loan Account statement provided by Agent to each Borrower's
general ledger and monthly Financial Statements delivered pursuant to
Annex E, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable discretion;
(d) To Agent, at the time of delivery of each of the quarterly Financial
Statements delivered pursuant to Annex E, (i) a list of government contracts of
the Borrowers subject to any of the requirements or procedures applicable to
assignments of accounts under the Financial Administration Act (Canada), as
amended, the Federal Assignment of Claims Act of 1940 (31 U.S.C. Section 3727),
as amended, or any similar provincial, local or foreign law; and (ii) a list of
any applications for the registration of any Intellectual Property with the
Canadian or US Industrial Design Office, Canadian or US Patent Office, Canadian
or US Intellectual Property Office, Canadian or US Copyright Office or any
similar office or agency in which a Borrower has filed during the prior Fiscal
Month; and a statement as to the amount of each Account owed by such Account
Debtor that is insured by a credit insurance provider, and if so insured, the
name of such insurance provider;
(e) Prior to the occurrence of an Event of Default, the Agent and the
Lenders shall be entitled at the expense of the Agent and the Lenders, to cause
one (1) appraisal by an Appraiser to be conducted of the Collateral. The
appraisal shall determine the Fair Market Value (and any other valuation as may
be required by the Lenders) of the Collateral and the Vessels for the period
from the date on which such appraisal is accepted by the Agent until the date on
which the Agent accepts the next such appraisal. In addition, prior to the
occurrence of an Event of Default, the Agent and the Lenders shall be entitled
to cause semi-annual desktop appraisals to be conducted of the Vessels by an
Appraiser acceptable to the Agent, one at the expense of the Borrowers and a
second at the expense of the Agent and the Lenders. Following the occurrence of
an Event of Default, the Borrowers shall be responsible for the cost of all such
appraisals and there shall be no limit on the number of appraisals that may be
conducted at the request of the Agent; and
(f) Such other reports, statements and reconciliations with respect to the
Borrowing Base or Collateral or Obligations of any or all Credit Parties as
Agent shall from time to time request in its reasonable discretion.
ANNEX I (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lender(s):
US Term Loan Commitment: US$6,200,000
General Electric Capital Corporation US$6,200,000
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
EXHIBIT A
CONSENT AND REAFFIRMATION
Each of the undersigned ("Guarantors") hereby (i) acknowledges receipt of
a copy of the Third Amendment to Credit Agreement dated as of March 23, 2007
(the "Third 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 Guaranty dated as of March 3, 2006 (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 Third 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]
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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:
---------------------------------
Title:
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GRAND RIVER NAVIGATION COMPANY, INC.
By:
---------------------------------
Title:
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RAND LL HOLDINGS CORP.
By:
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Title:
------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By:
---------------------------------
Title:
------------------------------