TIME CHARTER GUARANTY
This TIME CHARTER 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 LL HOLDINGS CORP., 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
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").
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:
"Collateral" shall mean, collectively, all property, if any, securing the
Guaranteed Obligations or any part thereof at the time in question.
"Guaranteed Obligations" shall mean, collectively, (a) all obligations now
owing or hereafter incurred by Lower Lakes to WMS pursuant to subparts (1) and
(2) of Section 9.1(a) of the Time Charter through and including September 30,
2008, 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.
"Obligor" shall mean any Person that, or any of whose property, is or
shall be obligated on the Guaranteed Obligations or any part thereof in any
manner and includes, without limiting the generality of the foregoing, Lower
Lakes or Guarantor, and any other co-maker, endorser, guarantor of payment,
subordinating creditor, assignor, grantor of a security interest, pledgor,
mortgagor or any hypothecator of property, if any.
"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 or
any other Obligor or Collateral, if any, or any of the foregoing, it being
understood that WMS, in its sole discretion, may proceed against any Obligor and
any Collateral 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 any Obligor, 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
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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, the payment of which is guaranteed hereunder, (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) release any Obligor or Collateral or assent
to any exchange of Collateral, if any, irrespective of the consideration, if
any, received therefor, (e) grant any waiver or consent or forbear from
exercising any right, power or privilege that WMS may have or acquire, (f)
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,
(g) grant any other indulgence to any Obligor, (h) accept any Collateral for, or
any other Obligor upon, the Guaranteed Obligations or any part thereof, and (i)
fail, neglect or omit in any way to realize upon any Collateral, to perfect any
security interest with respect to 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. Covenants.
(a) Special Rand Covenants. Guarantor agrees to deliver to WMS and
National City Commercial Capital Company, LLC, through its National City
Equipment Finance division ("NC Equipment Finance"; references to NC Equipment
Finance in this Agreement shall also include any successors and assign of NC
Equipment Finance and any other financial institution that shall refinance the
senior credit facilities of WMS), within forty-five (45) days after the end of
each fiscal quarter of Guarantor, a compliance certificate in the form of the
attached Exhibit B, certifying compliance with and reflecting calculations of
the financial covenants set forth in Exhibit A hereto (the "Special Rand
Covenants").
(b) Financial Statements and Information; Compliance Certificates.
Guarantor hereby agrees to deliver to WMS and NC Equipment Finance copies of all
compliance certificates, financial statements and notices delivered to General
Electric Capital Corporation ("GE") (contemporaneously with providing such
statements to GE) by Guarantor or any subsidiary of Guarantor pursuant to the
Credit Agreement, dated as of March 3, 2006 among Lower Lakes Towing Ltd., a
Canadian corporation, Lower Lakes Transportation Company, a Delaware
corporation, Grand River Navigation Company, Inc, a Delaware corporation, the
other Credit Parties signatory thereto, GE, as agent, and certain lenders
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signatory thereto from time to time, (the "GE Credit Agreement"). Guarantor
hereby also agrees to deliver to WMS and NC Equipment Finance, within ten days
of their written request, such other information about the financial condition,
properties and operations of Guarantor (and any of its subsidiaries) as WMS or
NC Equipment Finance may from time to time reasonably request, which information
shall be certified by a financial officer of Guarantor.
(c) Modifications to GE Credit Agreement and Related Documents. Guarantor
hereby agrees that Guarantor will not, without prior written notice to WMS and
NC Equipment Finance, amend, restate, replace or otherwise modify any of the
provisions of the GE Credit Agreement and the other documents executed in
connection therewith. Guarantor will provide WMS and NC Equipment Finance with
drafts of any proposed waivers, consents, amendments and similar modification
documents with respect to the GE Credit Agreement and the other documents
executed in connection therewith.
7. 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 LL Companies") for the fiscal year ended March 31, 2006, furnished to NC
Equipment Finance, are true and complete, have been prepared in accordance with
GAAP, and fairly present the financial condition of the Rand LL 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 Rand LL Company's financial condition,
properties or business or any change in any Rand LL Company's accounting
procedures.
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8. 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 or any other
Obligor 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 now has or 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.
9. 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 on the signature pages of 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.
10. Successors and Assigns; Third Party Beneficiary; Collateral
Assignment. This Agreement shall bind Guarantor and Guarantor's successors and
assigns and shall inure to the benefit of WMS and its successors and assigns.
Guarantor acknowledges and agrees that NC Equipment Finance has a lien on all
assets of WMS, and included in such assets are the Time Charter, this Agreement,
and all rights of WMS hereunder and under the Time Charter. NC Equipment Finance
is an intended beneficiary of this Agreement and shall have the right to enforce
this Agreement in accordance with the terms hereof. This Agreement may be
enforced by NC Equipment Finance at any time and without any requirement on the
part of NC Equipment Finance first to exercise any other rights against either
Guarantor or Lower Lakes, or any other Person or to resort to any source or
means of obtaining payment or enforcing performance of the obligations or any of
them. Guarantor agrees to promptly send to NC Equipment Finance copies of all
notices sent or received by Guarantor in connection herewith. On the date
hereof, WMS is making a collateral assignment of all of its rights hereunder to
NC Equipment Finance, and Guarantor hereby consents to such assignment.
11. 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.
12. 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.
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13. Relationship of Parties. WMS shall have no fiduciary obligation toward
Guarantor with respect to this Agreement or the transactions contemplated
hereby.
14. Headings. The headings and subheadings used herein are for convenience
of reference only and shall be ignored in interpreting the provisions of this
Agreement.
15. 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 Ohio law, without regard
to principles of conflict of laws. Guarantor hereby irrevocably submits to the
non-exclusive jurisdiction of any Ohio state or federal court sitting in
Cleveland, Ohio, over any action or proceeding arising out of or relating to
this Agreement, any Loan Document or any Related Writing, and Guarantor hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Ohio state or federal court. Guarantor, on
behalf of itself and its Subsidiaries, 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 Ohio 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.]
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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 OR ANY
NOTE OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION THEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY NC EQUIPMENT FINANCE'S ABILITY
TO PURSUE REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION
CONTAINED IN THIS INSTRUMENT, ANY NOTE OR ANY OTHER GUARANTY OF PAYMENT,
AGREEMENT, INSTRUMENT OR DOCUMENT RELATED THERETO.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Time
Charter Guaranty as of the date first set forth above.
Address: 450 Park Avenue, Suite 1001 RAND LL HOLDINGS CORP.
New York, New York 10022
Attn:
---------------------- By:/s/ Laurence S. Levy
Name:Laurence S. Levy
Title: President
WISCONSIN & MICHIGAN STEAMSHIP COMPANY
By:/s/ Thomas A. Burton
Name:Thomas A. Burton
Title: Chief Financial Officer
Acknowledged by:
NATIONAL CITY COMMERCIAL CAPITAL COMPANY, LLC
By: /s/ Vincent D. Rinaldi
Vincent D. Rinaldi
Chief Executive Officer
Signature Page to
Guaranty of Payment