Execution Copy
GUARANTY
This GUARANTY (as the same may from time to time be amended, restated or
otherwise modified, this "Agreement") is made as of the 1st day of August, 2006,
by RAND LOGISTICS, INC., a Delaware corporation ("Guarantor"), in favor of
WISCONSIN & MICHIGAN STEAMSHIP COMPANY, a Michigan corporation ("WMS").
1. Recitals.
WMS is entering into that certain Time Charter Agreement, dated as of the
date hereof, 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").
Guarantor desires that Lower Lakes obtain the benefits as described in the Time
Charter. Except as specifically defined herein, capitalized terms used herein
that are defined in the Time Charter shall have their respective meanings
ascribed to them in the Time Charter.
Guarantor deems it to be in the direct pecuniary and business interests of
Guarantor that Lower Lakes enter into the Time Charter with WMS.
Guarantor understands that WMS is willing to enter into the Time Charter
only upon certain terms and conditions, one of which is that Guarantor guarantee
the payment of the Guaranteed Obligations, as hereinafter defined, and this
Agreement is being executed and delivered in consideration of each financial
accommodation granted to Lower Lakes by WMS and for other valuable
consideration.
2. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Guaranteed Obligations" shall mean, collectively, (a) all obligations now
owing or hereafter incurred by Lower Lakes to WMS to pay Supplemental Hire,
Operating Hire and the Administrative Fee pursuant to the Time Charter, and (b)
costs and expenses, including attorneys' fees, incurred in connection with the
collection of any portion of the obligations described in subpart (a) hereof.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.
3. Guaranty of the Guaranteed Obligations. Guarantor hereby absolutely and
unconditionally guarantees (as a guaranty of payment and not merely a guaranty
of collection) the prompt payment in full of all of the Guaranteed Obligations
as and when the respective parts thereof become due and payable. If the
Guaranteed Obligations, or any part thereof, shall not be paid in full when due
and payable, WMS (or a designee of WMS), in each case, shall have the right to
proceed directly against Guarantor under this Agreement to collect the payment
in full of the Guaranteed Obligations, regardless of whether or not WMS shall
have theretofore proceeded or shall then be proceeding against Lower Lakes, it
being understood that WMS, in its sole discretion, may proceed against Lower
Lakes and may exercise each right, power or privilege that WMS may then have,
either simultaneously or separately, and, in any event, at such time or times
and as often and in such order as WMS, in its sole discretion, may from time to
time deem expedient to collect the payment in full of the Guaranteed
Obligations. Guarantor agrees that all payments made by Guarantor under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of any taxes.
4. Payments Conditional. Whenever WMS shall credit any payment to the
Guaranteed Obligations or any part thereof, whatever the source or form of
payment, the credit shall be conditional as to Guarantor unless and until the
payment shall be final and valid as to all the world. Without limiting the
generality of the foregoing, Guarantor agrees that if any check or other
instrument so applied shall be dishonored by the drawer or any party thereto, or
if any proceeds of Collateral or payment so applied shall thereafter be
recovered by any trustee in bankruptcy or any other Person, WMS, in each case,
may reverse any entry relating thereto on its books and Guarantor shall remain
liable therefor, even if WMS may no longer have in its possession any instrument
evidencing the Guaranteed Obligations to which the payment in question was
applied.
5. Guarantor's Guaranteed Obligations Absolute and Unconditional.
Regardless of the duration of time, regardless of whether Lower Lakes may from
time to time cease to be indebted to WMS and irrespective of any act, omission
or course of dealing whatever on the part of WMS, Guarantor's liabilities and
other obligations under this Agreement shall remain in full effect until the
payment in full of the Guaranteed Obligations. Without limiting the generality
of the foregoing:
5.1. Guarantor's Waiver of Notice, Presentment. Guarantor waives (a)
notice of the incurring of obligations by Lower Lakes to WMS or the terms and
conditions thereof, (b) presentment, demand for payment and notice of dishonor
of obligations incurred by Lower Lakes to WMS, (c) notice of any indulgence
granted to Lower Lakes, and (d) any other notice to which Guarantor might, but
for this waiver, be entitled;
5.2. WMS's Rights Not Prejudiced by Action or Omission. WMS (or a designee
of WMS), in its sole discretion, may, without any prejudice to its rights under
this Agreement, at any time or times, without notice to or the consent of
Guarantor, (a) grant Lower Lakes whatever financial accommodations that WMS may
from time to time deem advisable, even if Lower Lakes might be in default in any
respect and even if those financial accommodations might not constitute
Guaranteed Obligations, (b) assent to any renewal, extension, consolidation or
refinancing of the Guaranteed Obligations or any part thereof, (c) forbear from
demanding security, if WMS shall have the right to do so, (d) grant any waiver
or consent or forbear from exercising any right, power or privilege that WMS may
have or acquire, (e) assent to any amendment, deletion, addition, supplement or
other modification in, to or of any writing evidencing or securing any of the
Guaranteed Obligations or pursuant to which any of the Guaranteed Obligations
are created, (f) grant any other indulgence to Lower Lakes, (g) accept any
2
collateral for, or any other obligor upon, the Guaranteed Obligations or any
part thereof, and (h) fail, neglect or omit in any way to realize upon any such
collateral, to perfect any security interest with respect to any such
collateral, or to protect the Guaranteed Obligations or any part thereof or any
collateral therefor;
5.3. Liabilities Survive Guarantor's Dissolution. Guarantor's liabilities
and other obligations under this Agreement shall survive any dissolution of
Guarantor; and
5.4. Liabilities Absolute and Unconditional. Guarantor's liabilities and
other obligations under this Agreement shall be absolute and unconditional
irrespective of any lack of validity or enforceability of the Time Charter or
any other agreement, instrument or document related thereto, the existence of
any claim, set-off or other rights that Guarantor may have against Lower Lakes
or any other Person, or any other defense available to Guarantor in respect of
this Agreement (other than the payment in full of the Guaranteed Obligations).
6. Representations and Warranties.
(a) Generally. Guarantor represents and warrants that (i) Guarantor is a
duly organized and validly existing corporation, in good standing under the laws
of the state of its incorporation (as referenced in the first paragraph of this
Agreement), and is qualified to do business in each state where a failure to so
qualify would have a material adverse effect on Guarantor; (ii) Guarantor has
legal power and right to execute and deliver this Agreement and to perform and
observe the provisions hereof; (iii) the officers executing and delivering this
Agreement on behalf of Guarantor have been duly authorized to do so, and this
Agreement, when executed, is legal and binding upon Guarantor in every respect;
(iv) except for matters described or referenced in the Time Charter or any
schedule or exhibit thereto, no litigation or proceeding is pending or
threatened against Guarantor before any court or any administrative agency that,
in Guarantor's opinion, after consultation with Guarantor's counsel, is
reasonably expected to have a material adverse effect on Guarantor; (v)
Guarantor has received consideration that is the reasonable equivalent value of
the obligations and liabilities that Guarantor has incurred to WMS; (vi)
Guarantor is not insolvent, as defined in any applicable state or federal
statute, nor will Guarantor be rendered insolvent by the execution and delivery
of this Agreement to WMS; (vii) Guarantor is not engaged or about to engage in
any business or transaction for which the assets retained by Guarantor are or
will be an unreasonably small amount of capital, taking into consideration the
obligations to WMS incurred hereunder; and (viii) Guarantor does not intend to,
nor does Guarantor believe that Guarantor will, incur debts beyond Guarantor's
ability to pay such debts as they mature.
(b) Financial Statements. Guarantor represents and warrants that the
audited consolidated financial statements of Guarantor and its subsidiaries (the
"Rand Companies") included in Guarantor's filings with the Securities and
Exchange Commission are true and complete, have been prepared in accordance with
GAAP, and fairly present the financial condition of the Rand Companies as of the
date of such financial statements and the results of their operations for the
period then ending. Since the date of such statements, there has been no
material adverse change in any of the Rand Company's financial condition,
properties or business or any change in any Rand LL Company's accounting
procedures.
3
7. Waiver of Guarantor's Rights Against Lower Lakes and Collateral. To the
extent permitted by law, Guarantor hereby waives any claim or other right that
Guarantor might now have or hereafter acquire against Lower Lakes that arises
from the existence or performance of Guarantor's liabilities or other
obligations under this Agreement, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy of WMS against Lower Lakes or any
collateral that WMS hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, until
irrevocable payment in full of all obligations of Lower Lakes under the Time
Charter.
8. Notice. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Guarantor, mailed or
delivered to it, addressed to it at the address specified on the signature page
of this Agreement, if to WMS, mailed or delivered to it, addressed to the
address of WMS specified in the Time Charter, or, as to each party, at such
other address as shall be designated by such party in written notice to each of
the other parties. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or made when
delivered or two Business Days after being deposited in the mails with postage
prepaid by registered or certified mail, addressed as aforesaid, or sent by
facsimile with telephonic confirmation of receipt, except that notices from
Guarantor to WMS pursuant to any of the provisions hereof shall not be effective
until received by WMS.
9. Successors and Assigns; Third Party Beneficiary; Termination. This
Agreement shall bind Guarantor and Guarantor's successors and assigns and shall
inure to the benefit of WMS and its successors and assigns. This Agreement may
not be assigned by either party hereto without the consent of the other party
hereto. No third party shall have any rights under this Agreement, as a third
party beneficiary or otherwise. This Agreement shall terminate in the event that
either (i) WMS makes a general assignment or general arrangement for the benefit
of creditors, or if a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against WMS and is not dismissed
within thirty (30) days, (ii) a Change of Control of WMS shall occur, or (iii)
the Exercise of Remedies by a Lender shall occur, and, in each case, thereupon
Guarantor shall have no further liability hereunder, except as set forth in
Section 19.2(d) of the Time Charter.
10. Invalidity. If, at any time, one or more provisions of this Agreement
is or becomes invalid, illegal or unenforceable in whole or in part, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
11. Entire Agreement. This Agreement constitutes a final written
expression of all of the terms of this Agreement, is a complete and exclusive
statement of those terms and supersedes all oral representations, negotiations
and prior writings, if any, with respect to the subject matter hereof.
12. Relationship of Parties. WMS shall have no fiduciary obligation toward
Guarantor with respect to this Agreement or the transactions contemplated
hereby.
4
13. Headings. The headings and subheadings used herein are for convenience
of reference only and shall be ignored in interpreting the provisions of this
Agreement.
14. Governing Law; Submission to Jurisdiction. The provisions of this
Agreement and the respective rights and duties of Guarantor and WMS hereunder
shall be governed by and construed in accordance with Michigan law, without
regard to principles of conflict of laws. Guarantor hereby irrevocably submits
to the non-exclusive jurisdiction of any Michigan state or federal court sitting
in Detroit, Michigan, over any action or proceeding arising out of or relating
to this Agreement, and Guarantor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such
Michigan state or federal court. Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, any objection it may now or hereafter have to
the laying of venue in any such action or proceeding in any such court as well
as any right it may now or hereafter have to remove such action or proceeding,
once commenced, to another court on the grounds of FORUM NON CONVENIENS or
otherwise. Guarantor agrees that a final, nonappealable judgment in any such
action or proceeding in any state or federal court in the State of Michigan
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
[Remainder of page intentionally left blank.]
5
JURY TRIAL WAIVER. GUARANTOR, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG WMS, LOWER LAKES AND GUARANTOR,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first set forth above.
Address: 450 Park Avenue, 10th Floor RAND LOGISTICS, INC.
New York, NY 10022
By: /s/ Laurence S. Levy
Name:Laurence S. Levy
Title:Chief Executive Officer
WISCONSIN & MICHIGAN STEAMSHIP
COMPANY
By: /s/ Thomas A. Burton
Name: Thomas A. Burton
Title: Chief Financial Officer