CREDIT AGREEMENT
DATED AS OF DECEMBER 20, 2002
AMONG
BAX GLOBAL INC.,
BRINK'S, INCORPORATED,
THE PITTSTON COMPANY
AND
ABN AMRO BANK N.V.
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 20, 2002 among (i)
BAX GLOBAL INC., a Delaware corporation formerly known as Burlington Air Express
Inc. ("BAX"), (ii) BRINK'S, INCORPORATED, a Delaware corporation ("Brink's"),
and (iii) THE PITTSTON COMPANY, a Virginia corporation, (the "Pittston") (BAX,
Brink's and Pittston are sometimes hereinafter referred to as "Borrowers" and
"Guarantors"), and (iv) ABN AMRO BANK N.V. (the "Bank").
WHEREAS, the parties enter into this Agreement to set forth the terms
and conditions upon which the Bank will extend to the Borrowers, a $45,000,000
(the "Commitment") revolving credit facility for a three-year period ( the
"Facility"), in part to refinance facilities currently extended by the Bank;
WHEREAS, upon the written request of any Borrower and upon
written advice from the Bank to the requesting Borrower agreeing thereto, any
portion of the then unused Commitment may be allocated for use by any Subsidiary
of BAX listed on Schedule A-1 hereto or by any Subsidiary of Brink's listed on
Schedule A-2 hereto, as the same may be supplemented and amended from time to
time with the written consent of the Bank, at a branch or Affiliate (as
hereinafter defined) of the Bank, provided, that at all times the Guaranties (as
hereinafter defined) of the Guarantors shall apply to all such extensions of
credit by all such branches and Affiliates of the Bank;
WHEREAS, pursuant to a Credit Agreement, dated as of December 22, 1999,
as renewed and amended from time to time thereafter, the Bank has extended a
revolving credit facility (the "1999 Revolving Facility") to BAX, Brink's and
certain of the BAX Covered Subsidiaries and Brink's Covered Subsidiaries (as
both terms are defined therein), which facility is terminating and expiring in
accordance with its terms;
WHEREAS, the Facility provided hereunder shall be available immediately
upon the termination of the 1999 Revolving Facility in accordance with its
terms, provided the conditions precedent set forth below have been satisfied;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms1.01 Defined Terms.01 Defined Terms.01 Defined
Terms. In addition to the terms defined in the recitals to this Agreement,
the following terms have the following meanings:
"Advances" has the meaning assigned thereto in Section 2.01.
"Affiliate" means, with respect to any Person, any other
Person (other than a Subsidiary) which directly or indirectly through
one or more intermediaries, controls,
or is controlled by, or is under
common control with, such first Person or any of its Subsidiaries. The
term "control" means the possession, directly or indirectly, of any
power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting securities, by
contract or otherwise.
"Agreement" means this Credit Agreement, as it may be amended,
supplemented or modified from time to time hereafter.
"Approved Currencies" means Dollars and other currencies as
are available to a Borrower for Loans and Letters of Credit or a
Covered Subsidiary for credit extensions by a branch or Affiliate of
the Bank and which are freely transferable and convertible into
Dollars.
"Assignee" has the meaning assigned thereto in Section 9.07.
"Bankruptcy Code" means Title 11 of the United States Code,
entitled "Bankruptcy", as now or hereinafter in effect and any
successor thereto.
"Base Rate" means the higher of:
(a) the rate of interest publicly announced from time
to time by the Bank as its "reference rate" or its "prime
rate" (which publicly announced rate is a rate set by the Bank
based upon various factors including the Bank's costs and
desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate); and
(b) one-half percent per annum above the latest
Federal Funds Rate. Any change in the reference rate or prime rate
announced by the Bank shall take effect at the
opening of business on the day specified in the public announcement of
such change."Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City and Chicago are
authorized or required by law to close except in the case of LIBOR Rate
Loans, "Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York, Chicago and London,
England are authorized or required by law to close.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
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"Capital Lease" means any lease of property which should be
capitalized on the lessee's balance sheet in accordance with GAAP; and
"Capital Lease Obligation" means the amount of the liability so
capitalized.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Letter of Credit" means a documentary letter of
credit which is drawable upon presentation of documents evidencing the
sale or shipment of goods purchased by a Borrower or any Covered
Subsidiary in the ordinary course of its business.
"Commitment" means the commitment of the Bank under this
Agreement to make Advances pursuant to the Facility in an aggregate
principal amount not to exceed $45,000,000, as such amount may be
reduced from time to time pursuant to the terms of this Agreement.
"Commitment Fee Rate" means the applicable percentage set
forth below based upon the higher of the S&P Rating or the Moody's
Rating on the last day of the calendar quarter with respect to which
the commitment fee is being calculated, provided, that if on any such
date the S&P Rating and the Moody's Rating do not fall into contiguous
columns under the following grid, then the applicable percentage set
forth below based upon the lower of the S&P or the Moody's Rating on
the last day of such calendar quarter (but no lower than the applicable
percentage in the column contiguous with the higher of the S&P or the
Moody's Rating):
----------- ------------- ------------- --------------- --------------- --------------
S&P A-
Rating BBB+ BBB BBB- BB+ Below BB+
or higher
- ----------------- ----------- ------------- ------------- --------------- --------------- --------------
Moody's Rating A3 Baa1 Baa2 Baa3 Ba1 Below Ba1
or higher
- ----------------- ----------- ------------- ------------- --------------- --------------- --------------
Commitment Fee 0.125% 0.15% 0.175% 0.225% 0.30% 0.40%
Rate
- ------------------ ------------ -------------- -------------- ---------------- ---------------- ---------------
If the rating system used to ascribe either the S&P Rating or
the Moody's Rating shall change prior to the Termination Date, the
Borrowers and the Bank shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such
changed rating system.
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"Consolidated Debt" means the Debt of Pittston and its
Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP after giving appropriate effect to any outside
minority interests in Restricted Subsidiaries.
"Consolidated EBITDA" means, for Pittston and its Restricted
Subsidiaries for any period, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b) to the extent deducted
in determining Consolidated Net Income for such period, (i)
Consolidated Interest Expense, (ii) income tax expense, (iii)
depreciation, depletion and amortization, and (iv) all other non-cash
charges, determined on a consolidated basis in accordance with GAAP
after giving appropriate effect to any outside minority interests in
the Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, as
applied to Pittston and its Restricted Subsidiaries, all interest
expense (whether paid or accrued) and capitalized interest, including
without limitation (a) the amortization of debt discount and premium,
(b) the interest component under Capital Leases, and (c) the implied
interest component, discount or other similar fees or charges in
connection with any asset securitization program in each case
determined on a consolidated basis in accordance with GAAP after giving
appropriate effect to any outside minority interests in the Restricted
Subsidiaries.
"Consolidated Lease Rentals" means Lease Rentals of Pittston
and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP after giving appropriate effect to any outside
minority interests in the Restricted Subsidiaries.
"Consolidated Net Income" means, for any period, the net
income, after taxes, of Pittston and its Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP
after giving appropriate effect to any outside minority interests in
the Restricted Subsidiaries, but excluding, to the extent reflected in
determining such net income, (a) any extraordinary gains and losses for
such period, (b) for any period ending before January 1, 2003, any loss
arising from or relating to the initial classification of any portion
of the Pittston Minerals Group as discontinued operations and any
subsequent adjustments associated with the disposition of such
discontinued operations, (c) any impairment, write-down or write-off in
the book value of any assets and (d) any loss in connection with the
disposition of any assets.
"Consolidated Net Worth" means, as of any date, as applied to
Pittston and its Restricted Subsidiaries, shareholders' equity or net
worth as determined and computed on a consolidated basis in accordance
with GAAP after giving appropriate effect to any outside minority
interests in the Restricted Subsidiaries, provided that in determining
"Consolidated Net Worth" there shall be (a) included any issuance of
preferred stock by Pittston and (b) excluded (i) any extraordinary
gains and losses, (ii) any loss arising from or relating to the initial
classification of any portion of the Pittston Minerals Group as
discontinued operations and any subsequent adjustments associated with
the disposition of such discontinued operations, to the extent any such
loss or adjustment occurs before
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January 1, 2003, (iii) any impairment,
write-down or write-off in the book value of any assets (including any
reduction in shareholders' equity in connection with a reduction in the
value of a prepaid Pension Plan or Foreign Pension Plan) and (iv) any
loss in connection with the disposition of any assets.
"Consolidated Total Assets" means, as of any date, the assets
and properties of Pittston and its Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP after giving
appropriate effect to any outside minority interests in the Restricted
Subsidiaries.
"Contaminant" shall mean any waste, hazardous material,
hazardous substance, toxic substance, hazardous waste, special waste,
petroleum or petroleum-derived substance or waste, including any such
pollutant, material, substance or waste regulated under any
Environmental Law.
"Control", "Controlling" and "Controlled" means the power,
direct or indirect, of one Person to direct or cause the direction of
the management and policies of another, whether by contract, through
voting securities or otherwise.
"Covered Subsidiaries" means the Subsidiaries of BAX and
Brink's listed on Schedule B-1, as the same may be supplemented and
amended with the written consent of the Bank.
Debt" of any Person means at any date, without duplication,
the sum of the following determined and calculated in accordance with
GAAP: (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person issued or assumed as the deferred purchase
price of property or services purchased by such Person (other than
trade debt incurred in the ordinary course of business and due within
six months of the incurrence thereof) which would appear as liabilities
on a balance sheet of such Person, (c) all Debt of others secured by
(or for which the holder of such Debt has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
provided that for purposes hereof the amount of such Debt shall be
calculated at the greater of (i) the amount of such Debt as to which
there is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (d) all Support Obligations of
such Person with respect to Debt of others, (e) the principal portion
of all obligations of such Person under Capital Leases, (f) the maximum
amount of all drafts drawn under standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person
(to the extend unreimbursed), and (g) the outstanding attributed
principal amount under any asset securitization program of such Person.
The Debt of any Person shall include the Debt of any partnership or
joint venture in which such Person is a general partner or a joint
venturer, but only to the extent to which there is recourse to such
Person for payment of such Debt.
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"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied) constitute an Event of Default.
"Dollar Equivalent" means (a) in relation to an amount
denominated in Dollars, the amount thereof and (b) in relation to an
amount denominated in any Approved Currency other than Dollars, the
amount of Dollars that can be purchased with such Approved Currency at
the spot rate of exchange determined by the Bank in accordance with its
customary practices on the date of determination.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Effective Date" means the date on which all conditions
precedent set forth in Section 5.01 are satisfied or waived by the
Bank.
Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgements,
orders, decrees, permits, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or
releases of pollutants, contaminants, petroleum products, or toxic or
hazardous substances or wastes into the environment, including ambient
air, surface water, groundwater, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum
or petroleum products, or toxic or hazardous substances or wastes or
the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any entity or trade or business,
whether or not incorporated, that, together with any Borrower, is
treated as a single employer under Section 414 of the Code.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)". If on any relevant day such rate
is not yet published in H.15(519), the rate for such day will be the
rate set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day
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under the caption "Federal Funds Effective
Rate". If on any relevant day the appropriate rate for such previous
day is not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such day will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected by the
Bank.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereof.
"Financial Letter of Credit" has the meaning assigned thereto
in Section 3.01(a).
"Fiscal Year" means the fiscal year of Pittston ending on
December 31 in any year.
"Foreign Pension Plan" means any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by
Pittston or any one or more of its Subsidiaries primarily for the
benefit of employees of Pittston or such Subsidiaries residing outside
the United States of America, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"GAAP" means generally accepted accounting principles in the
United States, as recognized by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis throughout
the period indicated, subject to Section 1.02(a).
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranties" mean the Guaranty of Pittston, substantially in
the form of Exhibit A-1 hereto, the Guaranty of BAX, substantially in
the form of Exhibit A-2 hereto, and the Guaranty of Brink's,
substantially in the form of Exhibit A-3 hereto.
"Hedging Agreements" means interest rate protection
agreements, foreign currency exchange agreements, other interest or
exchange rate hedging, cap or collar arrangements or arrangements
designed to protect the Guarantor or any of its Subsidiaries against
fluctuations in the prices of commodities.
-7-
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshaling of
assets for creditors or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; and,
in each case, undertaken under United States federal or State or
foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means, as of the last day of any
fiscal quarter, the ratio of (a) Consolidated EBITDA to (b)
Consolidated Interest Expense, in each case for the period of four (4)
consecutive fiscal quarters ending as of such day.
"Interest Payment Date" means (i) the Termination Date , (ii)
with respect to LIBOR Rate Loans, the last day of the Interest Period
applicable to each such Loan, and, if any such Interest Period exceeds
three months, interest shall also be paid on the date which falls three
months after the beginning of such Interest Period, and (iii) with
respect to Base Rate Loans, the last Business Day of each calendar
quarter.
"Interest Period" means, with respect to any LIBOR Rate Loan,
the period commencing on the Business Day such Loan is disbursed,
continued or converted to a Base Rate Loan, and in each case ending on
the date one, two, three or six months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion or
continuation, provided that:
(i) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend beyond the Termination
Date.
"Labor Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgements and
orders relating to employment, equal employment opportunity,
nondiscrimination, immigration, wages, hours, benefits, collective
bargaining, the payment of social security and similar taxes,
occupational safety and health, and plant closing.
-8-
"L/C Application" has the meaning assigned thereto in Section
3.03(b).
Section 3.05(a). "Lease" means a lease, other than a Capital
Lease, of real or personal property.
"Lease Rentals" for any period means the sum of the rental and
other obligations to be paid by the lessee under a Lease during the
remaining term of such Lease (excluding any extension or renewal
thereof at the option of the lessor or the lessee unless such option
has been exercised), excluding any amount required to be paid by the
lessee (whether or not therein designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges.
"Lending Office" shall mean the particular Chicago office of
the Bank for Base Rate Loans, Letters of Credit or for LIBOR Rate Loans
at its respective address set forth on Schedule 9.02 hereto.
"Letter of Credit" means any stand-by letter of credit issued
by a Lending Office pursuant to Section 3.03 and may be a Financial
Letter of Credit or a Performance Letter of Credit.
"Letter of Credit Obligations" means, in respect of any Letter
of Credit as at any date of determination, the sum of (a) the maximum
aggregate amount which is then available to be drawn under such Letter
of Credit plus (b) the aggregate amount of all Reimbursement
Obligations then outstanding with respect to such Letter of Credit.
"Leverage Ratio" means, as of the date of any determination,
the ratio of (a) the sum of (i) Consolidated Debt as of such date, plus
(ii) the amount by which (A) the aggregate amount, as of the preceding
December 31 (or as of such date if such date is December 31), of
Consolidated Lease Rentals under non-cancelable Leases entered into by
Pittston or any of its Subsidiaries, discounted to present value at 10%
and net of aggregate minimum non-cancelable sublease rentals,
determined on a basis consistent with Note 12 to Pittston's
consolidated financial statements at and for the period ended December
31, 2001, included in Pittston's 2001 Annual Report to shareholders,
exceeds (B) $350,000,000, to (b) the sum of (i) the amount determined
pursuant to clause (a), plus (ii) Consolidated Net Worth as of such
date.
"LIBOR Rate" means, for each Interest Period in respect of any
LIBOR Rate Loan:
(a) the rate per annum (carried out to the fifth
decimal place) equal to the rate determined by the relevant
Lending Office to be the offered rate that appears on the page
of the Telerate Screen that displays an average British
Bankers
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Association Interest Settlement Rate (such page
currently being page number 3750) for deposits in dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per
annum (carried to the fifth decimal place) equal to the rate
determined by the Bank to be the offered rate on such other
page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in dollars
(for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(c) in the event the rates referenced in the
preceding subsections (a) and (b) are not available, the rate
per annum determined by the Bank as the rate of interest at
which dollar deposits (for delivery on the first day of such
Interest Period) in same day funds in the approximate amount
of the applicable LIBOR Rate Loan and with a term equivalent
to such Interest Period would be offered by the Bank's London
Branch to major banks in the offshore dollar market at their
request at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period.
"LIBOR Rate Loan" means a Loan that bears interest based on
the LIBOR Rate.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be
deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention
agreement relating to such asset.
"Loan" means an advance of funds by a Lending Office to a
Borrower pursuant to Section 2.03, and may be a Base Rate Loan or a
LIBOR Rate Loan.
"Loan Documents" means this Agreement and all documents
delivered to the Bank or any other Lending Office in connection
herewith, including without limitation, the Notes, the Guaranty, any
L/C Related Documents and any other documentation executed at the
request of any Lending Office.
"Long Term Debt" of any Person means all Debt which would, in
accordance with GAAP, be classified upon its balance sheet as long term
debt, excluding any portion thereof which would, in accordance with
GAAP, be classified thereon as a current
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liability, and in any event
includes (a) any obligation for borrowed money outstanding under a
revolving credit or similar agreement providing for borrowing (and
renewals and extensions thereof) over a period of more than one year
after the creation of such agreement notwithstanding that any
obligation thereunder may be payable on demand or within one year after
the creation thereof, (b) any Capital Lease Obligation and 8 any
guarantee or equivalent or similar obligation under any agreement
specified in subsection (a) of the definition of Debt with respect to
Debt of another Person of the kind otherwise described in this
definition.
"Margin" means the applicable percentage set forth below based
upon the higher of the S&P Rating or the Moody's Rating on the last day
of the calendar quarter, or other due date, with respect to which
interest is being calculated, provided, that if on any such date the
S&P Rating and the Moody's Rating do not fall into contiguous columns
under the following grid, then the applicable percentage set forth
below based upon the lower of the S&P Rating or the Moody's Rating (but
no lower than the applicable percentage in the column contiguous with
the higher of the S&P Rating or the Moody's Rating) shall be used:
- ----------------- ----------- ------------- ------------- --------------- --------------- --------------
bla 0 0 0 0 0 0
S&P
A- BBB+ BBB BBB- BB+ Below BB+
Rating
- ---------------- or higher
----------- ------------- ------------- --------------- --------------- --------------
Moody's
Rating A3 Baa1 Baa2 Baa3 Ba1 Below Ba1
or higher
- ---------------- ------------- ------------- --------------- --------------- ------------- --------------
Margin 0.625% 0.875% 1.125% 1.375% 1.625% 1.875%
- ------------------------------------------------------------------------------------------------------------------
If the rating system used to ascribe either the S&P Rating or
the Moody's Rating shall change prior to the Termination Date, the
Borrowers and the Bank shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such
changed rating system.
"Margin Stock" shall have the meaning given such term in
Regulation U promulgated by the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in,
or a material adverse effect upon the financial condition or results of
operations of Pittston and its Subsidiaries taken as a whole that would
impair the Borrowers' and Pittston's ability to perform their
respective obligations under this Agreement and the Guaranties.
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"Material Domestic Subsidiary" means any Subsidiary of
Pittston which (a) is organized under the laws of the United States,
any state thereof or the District of Columbia and (b) together with its
Subsidiaries, (i) owns more than twenty percent (20%) of Consolidated
Total Assets or (ii) accounts for more than twenty percent (20%) of
Consolidated EBITDA.
"Multiemployer Plan" shall mean a Multiemployer plan within
the meaning of Section 4001(a) (3) of ERISA to which any Borrower or
any ERISA Affiliate is making, has made, is accruing or has accrued an
obligation to make, contributions within the preceding six years.
"Moody's Rating" means the rating ascribed by Moody's
Investors Service, Inc. to the Guarantor's unsecured, non
credit-enhanced long-term debt for borrowed money (whether
senior or subordinated).
"Note" means any promissory note executed by a Borrower in
favor of the Bank or any other Lending Office pursuant to Section
2.01(e).
"Obligations" means all Loans, Letter of Credit Obligations
and other indebtedness, advances, Debts, liabilities, obligations,
covenants and duties owing by a Borrower to the Bank, any Lending
Office or any other Person required to be indemnified by that Borrower
under any Loan Document, of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument,
arising under this Agreement, under any other Loan Document, whether
arising under, out of, or in connection with, any checks, notes,
drafts, bills of exchange, acceptances, orders, instruments of
guarantee and indemnity or other instruments for the payment of money,
or in any other manner and also including any other document made,
delivered or given in connection therewith, and each other obligation
and liability, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, of any
Borrower to the Bank or any other Lending Office arising under any Loan
Document, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Bank,
including, without limitation, allocated costs of staff counsel) or
otherwise, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification or in
any other manner, whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means any employee pension benefit plan (within
the meaning of Section 3(2) of ERISA), other than a Multiemployer Plan,
which is subject to the
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provisions of Title IV of ERISA or Section 412
of the Code and is maintained for the employees of Pittston or any of
its ERISA Affiliates.
"Person" means an individual, partnership, limited liability
company, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Pittston Credit Agreement" means that certain $350,000,000
Credit Agreement, dated as of September 6, 2002, among Pittston (as
borrower), certain of its subsidiaries, as guarantors, the lenders
party thereto, and JPMorganChase, as administrative agent, as it may be
amended, supplemented or otherwise modified from time to time
hereafter.
"Pittston Minerals Group" means Pittston Minerals Group, Inc.,
and its Subsidiaries.
"Plan" shall mean a pension plan within the meaning of Section
3 (2) of ERISA subject to Title IV of ERISA which any Borrower or any
ERISA Affiliate maintains or to which any Borrower or any ERISA
Affiliate contributes other than a Multiemployer Plan.
"Reimbursement Obligation" means in respect of any Letter of
Credit at any date of determination, the aggregate amount of all
drawings under such Letter of Credit honored by the issuing Lending
Office and not theretofore reimbursed by the relevant Borrower or by
the Guarantor.
"Reportable Event" shall have the meaning attributed thereto
in Section 4043 of ERISA but shall not include any event for which the
30-30 requirement in Section 4043 of ERISA has been waived under
regulations of the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of a
court or an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer,
president, chief financial officer or treasurer of a Borrower or the
Guarantor, or any other officer having substantially the same authority
and responsibility.
"Restricted Subsidiary" means:
(i) any Subsidiary of Pittston at the date of this Agreement other than a
Subsidiary designated as an Unrestricted Subsidiary in Schedule 1.1(b) to the
Pittston Credit Agreement;
(ii) any Material Domestic Subsidiary of the Borrower;
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(iii) any Subsidiary of Pittston that is a Guarantor;
(iv) any Subsidiary of Pittston that owns, directly or indirectly, any of
the capital stock of any Guarantor; and
(v) any Person that becomes a Subsidiary of Pittston
after the date hereof unless prior to such Person becoming a Subsidiary
the board of directors of Pittston designates such Subsidiary as an
Unrestricted Subsidiary, in accordance with the following paragraph.
A Restricted Subsidiary (other than any Material Domestic Subsidiary,
any Subsidiary that is a Guarantor or any Subsidiary that owns,
directly or indirectly, any of the capital stock of any Guarantor) may
be designated by the board of directors of Pittston as an Unrestricted
Subsidiary by written notice to the Bank, but only if (a) the
Subsidiary owns no shares, directly or indirectly, of Pittston or any
Restricted Subsidiary and (b) immediately after such designation, the
Leverage Ratio is not greater than 0.55 to 1.00 and the Interest
Coverage Ratio is at least 3.00 to 1.00. An Unrestricted Subsidiary may
be designated by the board of directors of Pittston as a Restricted
Subsidiary by written notice to the Bank, but only if immediately after
such designation (x) the Borrower shall be in compliance with Section
7.02(b) and (y) the Leverage Ratio is not greater than 0.55 to 1.00 and
the Interest Coverage Ratio is at least 3.00 to 1.00.
"Sale and Leaseback Transaction" means the sale by Pittston or
a Restricted Subsidiary to any Person (other than the Borrowers) of any
property or asset and, as part of the same transaction or series of
transactions, the leasing as lessee by Pittston or any Restricted
Subsidiary of the same or another property or asset which it intends to
use for substantially the same purpose.
"S&P Rating" means the rating ascribed by Standard & Poor's
Corporation to the Guarantor's unsecured, non credit-enhanced long-term
debt for borrowed money (whether senior or subordinated).
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of
which securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%) of
the ordinary voting power or, in the case of a partnership, more than
fifty percent (50%) of the general partnership interests are, as of
such date, owned, controlled or held, or (b) that is, as of such date,
otherwise controlled, by the parent or one or more subsidiaries of the
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parent or by the parent and one or more subsidiaries of the parent.
Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of Pittston.
"Support Obligation" means, with respect to any person, at any
date without duplication, any Debt of another Person that is
guaranteed, directly or indirectly in any manner, by such Person or
endorsed (otherwise than for collection or deposit in the ordinary
course of business) or discounted with recourse by such Person or any
Debt of another Person that has the substantially equivalent or similar
economic effect of being guaranteed by such Person or of otherwise
making such Person contingently liable therefor, through an agreement
or otherwise, including, without limitation, an agreement (i) to
purchase, or to advance or supply funds for the payment or purchase of,
such Debt, or (ii) to make any loan, advance, capital contribution or
other investment in such other Person to assure a minimum equity, asset
base, working capital or other balance sheet condition for any date, or
to provide funds for the payment of any liability, dividend or stock
liquidation payment, or otherwise to supply funds to or in any manner
invest in such other Person (unless such investment is expected to
constitute a permitted investment under Section 7.02(j)).
"Taxes" has the meaning assigned thereto in Section 4.01(a).
"Termination Date" has the meaning assigned thereto in Section 2.01.
"United States" and "U.S." each means the United States of America.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"Withholding Taxes" has the meaning assigned thereto in Section 4.01(a).
1.02 Accounting Principles.02 Accounting Principles.02 Accounting
Principles.02 Accounting Principles. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Bank hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to Section 7.03, consistent with the annual audited financial statements
referenced in Section 6.07); provided, however, if (a) the Borrower shall object
to determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Bank shall so object in writing within 60 days after
delivery of such financial statements, then such calculations shall be made on a
basis consistent with the most recent financial statements delivered by Pittston
to the Bank as to which no such objection shall have been made.
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ARTICLE
LOANS AND ALLOCATIONS
2.01 Amounts and Terms of Commitment.01 Amounts and Terms of
Commitment.01 Amounts and Terms of Commitment.01 Amounts and Terms of
Commitment. Bank agrees to make available to the Borrowers, including Pittston,
from the Effective Date until December 20, 2005 or until such earlier date on
which the Bank terminates the Commitment pursuant to Section 8.02(a) or BAX,
Brink's and Pittston terminate the Commitment pursuant to Section 2.05(a) (the
"Termination Date"), committed funds in an aggregate amount of $45,000,000
(subject to reduction pursuant to Section 2.05(a) and Section 7.01) on the terms
and conditions set forth in this Agreement, as follows:
(a) Facility Advances(a) Facility Advances(a) Facility
Advances(a) Facility Advances. The Facility may be drawn upon by the
Borrowers for Loans or Letters of Credit (collectively, "Advances")
from the Effective Date until the Termination Date in an aggregate
principal amount not to exceed $45,000,000 (subject to reduction
pursuant to Section 2.05(a)) at any time outstanding.
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(b) Facility Allocations
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(i) The initial allocations of the Commitment among
the Covered Subsidiaries on Schedule B-1 attached hereto in the amounts
set forth thereon. The allocation of a portion of the Commitment to a
Covered Subsidiary shall not affect the availability to the Borrowers
of any unused and unallocated portion of the Commitment.
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(ii) At any time and from time to time after the
Effective Date, BAX and Brink's may by written notice to the Bank
request the amendment of Schedule B-1 to modify the allocation of the
Commitment among the Borrowers and Covered Subsidiaries, as Schedule
B-1 may be amended or supplemented by the Borrowers from time to time.
Any such request shall state the name and address of the relevant
Subsidiary and the country in which a credit extension is contemplated.
The Bank, after consultation with the relevant branch or Affiliate,
shall notify the requesting Borrower as soon as reasonably practicable
whether it accepts such re-allocation and shall advise the Borrowers in
writing of the amount of such re-allocation. The Bank shall not be
obligated in any way to accept any requested amendment to Schedule B-1.
The determination by the Bank of the Dollar Equivalent with respect to
any credit extensions in a currency other than US Dollars shall be
conclusive and binding upon the Borrowers; the Bank may readjust the
Dollar Equivalent periodically as provided in Section 2.04 (b) and
Section 2.06(b)(provided it agrees not to make any such readjustment
unless the Dollar Equivalent of Loans, Letter of Credit Obligations and
allocations exceeds the Commitment by 3% or more and the Bank agrees to
give the Borrowers prompt written notice of any such readjustment). The
Bank's relevant branch or Affiliate and the relevant Covered Subsidiary
shall be free to structure each individual credit transaction in
accordance with all relevant law, local custom and practice, including
pricing and collateral, provided the Guaranties of the relevant
Guarantors shall apply to all such
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extensions of credit. Any portions
of the Commitment allocated as hereinabove provided shall be
unavailable for use by any of the Borrowers and for further allocation
until such time as the Bank notifies the Borrowers of reinstated
availability. The Bank shall be entitled to demand cash collateral from
the relevant Guarantor with respect to the principal of any obligations
of any Covered Subsidiaries (but not with respect to interest, fees and
the like with respect to any such obligations) incurred in respect to
credit extensions contemplated by this Agreement which the Bank
reasonably determines may be outstanding beyond the Termination Date or
outstanding after any such Covered Subsidiary ceases to qualify as a
Subsidiary (in the latter case, the providing of cash collateral shall
not be required until 30 days after the Bank so requests). Cash
collateral shall be by means of a deposit of immediately available
funds in an amount equal to the aggregate principal amount of any such
obligations in a non-interest bearing account with the Bank. Any
failure to provide cash collateral in accordance with this Section
2.01(b)(ii) shall, upon written notice from the Bank, be an Event of
Default hereunder.
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(c) Documentation for LoansDocumentation for
LoansDocumentation for LoansDocumentation for Loans. Each Loan may be
evidenced by (a) one or more master promissory notes in form and
substance acceptable to the relevant Lending Office or (b) by loan
accounts maintained by such Lending Office. The records attached as
grids to the promissory notes and the loan account and account records
shall be conclusive evidence, absent manifest error, of the amount of
the Loans and the interest and payments thereon. Any failure to record
or any error in doing so shall not, however, increase, limit or
otherwise affect the obligation hereunder of any Borrower to pay any
amount owing with respect to the Loans.
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2.02 Procedure for Incurring Loans.02 Procedure for Incurring Loans.02
Procedure for Incurring Loans.02 Procedure for Incurring Loans. Each Loan shall
be made upon the request of a Borrower to the relevant Lending Office (which
request must be received by such Lending Office not later than 11:00 a.m. (local
time), unless otherwise agreed by such Lending Office, (a) on the requested
borrowing date, in the case of Base Rate Loans, and (b) three Business Days
prior to the requested borrowing date, in the case of LIBOR Rate Loans,
specifying (i) the principal amount of the Loan, (ii) the requested borrowing
date, which shall be a Business Day; (iii) whether the Loan is to be a Base Rate
Loan or a LIBOR Rate Loan; and (iv) if the requested Loan is a LIBOR Rate Loan,
the duration of the Interest Period applicable to such Loan. If the notice of
borrowing shall fail to specify the duration of the Interest Period for any
LIBOR Rate Loan, such Interest Period shall be one month.
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2.03 Conversion and Continuation Elections with Respect to Outstanding
Loans.
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(a) Any Borrower may upon irrevocable written notice to the
applicable Lending Office in accordance with Section 2.03(b):
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(i) elect to convert, on any Business Day, any Base Rate Loan
made to such Borrower into a LIBOR Rate Loan; or
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(ii) elect to convert, on the last day of any Interest Period
therefor, any LIBOR Rate Loan made to such Borrower into a
Base Rate Loan; or
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(iii) elect, on the last day of the Interest Period with
respect to any LIBOR Rate Loan made to such Person, to
continue such Loan as a LIBOR Rate Loan denominated in the
same currency for an additional Interest Period.
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(b) Any Borrower wishing to convert or continue a Loan as
described in Section 2.03(a) shall deliver by fax, a notice of
conversion or continuation (which notice must be received by the
applicable Lending Office not later than 11:00 a.m. (local time),
unless otherwise agreed by such Lending Office) (i) on the date of
conversion of a LIBOR Rate Loan into a Base Rate Loan, (ii) four
Business Days prior to the date of conversion of a LIBOR Rate Loan; and
(iii) four Business Days prior to the date of continuation of a LIBOR
Rate Loan, specifying:
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(A) the proposed date of conversion or continuation;
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(B) the aggregate amount of Loans to be converted or continued;
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(C) the nature of the proposed conversion or continuation; and
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(D) the duration of any requested Interest Period. If
the notice of conversion or continuation shall fail to specify
the duration of the Interest Period for any LIBOR Rate Loan,
such Interest Period shall be one month.
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(c) During the existence of a Default or Event of Default,
the Bank may demand that any or all of the then-outstanding LIBOR Rate
Loans be converted upon their expiration into Base Rate Loans. Such
conversion shall continue to be in effect so long as such Default or
Event of Default continues to exist.
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2.04 Termination or Reduction of the Commitment.04 Termination or
Reduction of the Commitment.04 Termination or Reduction of the Commitment.04
Termination or Reduction of the Commitment.
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(a) The Borrowers may, upon not less than three Business Days'
prior notice to the Bank (i) terminate the Commitment upon full
prepayment of all outstanding Advances and upon the termination of all
allocations theretofore accepted by the Bank or the providing of cash
collateral in all respects satisfactory to the Bank in order to fully
collateralize the obligations of the Guarantors under the Guaranties or
(ii) permanently reduce the Commitment to an amount not less than the
Dollar Equivalent of the principal amount of all Advances outstanding
on the reduction date and all allocations of Commitment not theretofore
terminated. If the Commitment is terminated in its entirety under this
Section 2.04(a), all accrued and unpaid commitment fees to, but not
including, the effective date of such termination shall be payable on
the effective date of such termination without any premium or penalty.
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(b) For the purpose of ensuring compliance with the maximum
amount available under the Commitment, the Bank shall on each date of a
voluntary reduction of the Commitment under Section 2.04(a) and on the
last Business Day of each calendar quarter, determine the Dollar
Equivalent of the principal amount of all existing allocations and
then-outstanding Advances.
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2.05 Optional Prepayments.05 Optional Prepayments.05 Optional
Prepayments.05 Optional Prepayments. Subject to Section 4.04, any Borrower may,
at any time or from time to time, upon at least three Business Days' notice to
the applicable Lending Office, prepay Loans made to it in whole or in part. Such
notice of prepayment shall specify the date and amount of such prepayment and
whether such prepayment is of Base Rate Loans, LIBOR Rate Loans or any
combination thereof. No such notice shall be revocable by any Borrower after
being given. Once such notice is given by any Borrower, such Borrower shall make
such prepayment, and the payment amount specified in such notice shall be due
and payable, on the date specified therein, together (only in the case of
prepayments of LIBOR Rate Loans) with accrued interest to each such date on the
amount prepaid and the amounts, if any, required pursuant to Section 4.04.
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2.06 Repayment of Principa
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(a) Each Borrower shall repay on the Termination Date the
principal amount of the Loans made to it.
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(b) In the event that the Bank determines, based on its
computation made in accordance with Section 2.04(b) or at any other
time that the Dollar Equivalent of the then-outstanding Loans, Letter
of Credit Obligations and allocations exceeds the Commitment, the Bank
shall give notice to the Borrowers of such fact and of the amount of
such excess (provided that the Bank agrees that no such notice shall be
given unless the Dollar Equivalent of the Loans, Letter of Credit
Obligations and allocations exceeds the Commitment by 3% or more).
Within 30 days after the date on which the Borrowers receive such
notice, they shall prepay Loans or collateralize the Letter of Credit
Obligations or allocations with cash (as set forth below), in the
aggregate amount of such excess. Any such prepayment of LIBOR Rate
Loans shall be made together with interest on the principal amount
thereof and any amount required to be paid in connection therewith
pursuant to Section 4.04. Any prepayments pursuant to this Section
2.06(b) shall be applied, first, to any Base Rate Loans then
outstanding, second, to LIBOR Rate Loans having Interest Periods ending
on the date of such prepayment, and third, to the extent that the
amounts referred to in clauses "first" and "second" are not sufficient
to satisfy the entire prepayment requirement under this Section 2.06(b)
or there are no such Loans outstanding on the date such prepayment
would be required, then the remaining amount that would be required to
be prepaid under this Section 2.06(b) shall be deposited in a cash
collateral account maintained by the Bank, to be held as security for
the Obligations hereunder pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the Bank
and the Borrowers, and to be applied to the prepayment of LIBOR Rate
Loans at the end of the respective Interest Periods therefor and to the
payment of Reimbursement Obligations as the same become due.
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2.07 Interest.07 Interest.07 Interest.07 Interest.
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(a) Subject to Section 2.07(c), each Loan made by the Bank
shall bear interest on the outstanding principal amount thereof from
the date when made until it becomes due at a rate per annum equal to
the LIBOR Rate plus the applicable Margin or the Base Rate per annum.
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(b) Interest on each Loan shall be payable in arrears on each
Interest Payment Date. Interest shall also be payable on the date of
any prepayment of LIBOR Rate Loans pursuant to Section 2.05 for the
portion of such Loans so prepaid and upon payment (including
prepayment) in full of LIBOR Rate Loans; provided, however, that
interest payable pursuant to Section 2.07(c) shall be payable on
demand.
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(c) While there shall be any default hereunder in the payment
of principal, interest, fees or any other amount owing hereunder or
after acceleration, each Borrower shall pay interest (after as well as
before entry of judgment thereon to the extent permitted by law) on the
principal amount of all Obligations of such Person that are due and
unpaid, at a rate per annum determined by adding 2% per annum to the
interest rate then in effect for the applicable type of Loan and in the
case of Obligations other than Loans, at a rate per annum equal to the
Base Rate plus 2%; provided, however, that, on and after the expiration
of any Interest Period applicable to any LIBOR Rate Loan outstanding on
the date of occurrence of such Event of Default or acceleration, the
principal amount of such Loan shall, during the continuation of such
Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2%.
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(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrowers hereunder shall be subject to the
limitation that payments of interest shall not be required, for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
the relevant Lending Office would be contrary to the provisions of any
applicable law limiting the highest rate of interest which may be
lawfully contracted for, charged or received by the relevant Lending
Office, and in such event the Borrowers shall pay the relevant Lending
Office interest at the highest rate permitted by applicable law.
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2.08 Fees.
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(a) Commitment Fee(a) Commitment Fee(a) Commitment Fee(a)
Commitment Fee. Pittston shall pay to the Bank a commitment fee in
Dollars computed at a rate per annum equal to the Commitment Fee Rate
on the average daily unused and unallocated portion of the Commitment,
computed on a quarterly basis in arrears on the last day of each
calendar quarter. Such commitment fees shall accrue from the Effective
Date to the Termination Date and shall be due and payable quarterly in
arrears on the fifth Business Day following receipt of an invoice from
the Bank, with the final payment to be made on the Termination Date.
The commitment fee shall accrue at all times after the Effective Date,
including at any time during which one or more conditions in Article V
are not met. For purposes of computing utilization and allocations of
the Commitment, the Dollar Equivalent of any outstanding amount that is
not denominated in Dollars shall be determined as of the last day of
each calendar quarter.
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(b) Letter of Credit Fees
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(i) Each Borrower shall pay to the Bank a letter of
credit fee equal to (A) in the case of a Performance Letter of
Credit issued by the Bank for the account of such Borrower, an
amount equal to one half of the Margin per annum on the amount
from time to time available to be drawn under such Performance
Letter of Credit, and (B) in the case of a Financial Letter of
Credit issued by the Bank for the account of such Borrower,
equal to the Margin per annum on the amount from time to time
available to be drawn under such Financial Letter of Credit.
Such fee shall accrue on such amount from the date of issuance
of each Letter of Credit (with such issuance date being deemed
to be the Effective Date in the case of the Outstanding
Letters of Credit that are to be continued hereunder as
Performance Letters of Credit or Financial Letters of Credit)
until its expiration date, taking into account any extensions
of the expiration date beyond the initial expiration date.
Such fee shall be payable quarterly in arrears on the last day
of each calendar quarter and on the date each Letter of Credit
expires or is fully drawn.
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(ii) In addition to the letter of credit fees due the
Bank hereunder, each Borrower shall pay to any Lending Office
issuing a Letter of Credit any standard amendment, negotiation
or other fees as such Lending Office may request at the time
such Letter of Credit is issued or amended.
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(c) Arrangement Fee. The Borrowers shall pay
to the Bank an arrangement fee in the amount of $115,000 on the
Effective Date.
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(d) Administrative Fee. In the event the Bank permits
Obligations of any of the Guarantors to be cash collateralized as
contemplated in Section 2.01(b) or to permit any Letter of Credit to
expire after the Termination Date as contemplated in Section 3.02(b),
the Bank may in its discretion notify Pittston in writing that it
elects to collect an administrative fee of up to $5000 for each such
collateralized Obligation and each extension of a Letter of Credit
beyond the Termination Date. All such administrative fees shall be
payable upon demand and prior to the Bank's acceptance of cash
collateral or any such extension.
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2.09 Computation of Fees and Interest.
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(a) All computations of interest payable in respect of Base
Rate Loans at all times as the Base Rate is determined by the Bank's
"reference" or "prime" rate shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made on
the basis of a 360-day year and actual days elapsed. Interest and fees
shall accrue during each period during which interest or such fees are
computed from and including the first day thereof to but excluding the
last day thereof.
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(b) Each determination of an interest rate by the Bank
pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers in the absence of manifest error.
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2.10 Payments by the Borrowers.
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(a) All payments (including prepayments) to be made by any
Borrower on account of Obligations shall be made without set-off or
counterclaim and shall, except as otherwise expressly provided herein,
be made to the relevant Lending Office, in the currency in which the
relevant type of Obligation was denominated and in immediately
available funds, no later than 12:00 noon (local time) unless otherwise
agreed, on the date specified herein. Any payment which is received by
a Lending Office later than 12:00 noon (local time) shall be deemed to
have been received on the immediately succeeding Business Day and any
applicable interest or fee shall continue to accrue.
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(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or fees, as the case
may be, subject to the provisions set forth in the definition of
"Interest Period" herein.
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2.11 Certain Obligations Guaranteed.
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ARTICLE III
LETTERS OF CREDIT
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3.01 The Letters of Credit Commitment.
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(a) Letters of Credit denominated in Dollars or any other
Approved Currency may be issued under the Commitment for the following
purposes: (i) "Financial Letters of Credit" may be issued to any Person
other than an Affiliate to secure the payment by any Person of its
financial obligations, or to provide counter or "back-up" guarantees in
support of bank guarantees, Letters of Credit or other credit
facilities afforded to a Borrower, or to support local currency
borrowings outside the United States, and (ii) "Performance Letters of
Credit" may be issued to secure the performance by any Person of its
obligations, or to guaranty or otherwise secure any Person's
obligations relating to a bid, advance payment or security deposit,
retention release, custom and duty deferment guaranty or bond, warranty
or performance bond or other guaranty and shall include Commercial
Letters of Credit.
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(b) The Letter of Credit Obligations set forth on Schedule B-2
hereto are outstanding under the 1999 Revolving Facility. All such
Letter of Credit Obligations shall be deemed outstanding hereunder upon
the Effective Date. With respect to any such Letter of Credit
Obligations that are not Letter of Credit Obligations of a Borrower
hereunder, they shall, upon the effectiveness of this Agreement, become
joint and several obligations of BAX or Brink's, as the case may be,
upon the terms and conditions hereof and as particularly set forth on
Schedule B-2. It is understood and agreed by the Bank and by Brink's
and BAX, respectively, that Brink's shall only be jointly and severally
liable with the entities set opposite its name on Schedule B-2 and that
BAX shall only be jointly and severally liable with the entities set
opposite its name on Schedule B-2; Brink's shall not be jointly and
severally liable with any entity set opposite BAX's name and BAX shall
not be jointly and severally liable with any entity set opposite
Brink's name; nor shall BAX be jointly and severally liable with
Brink's.
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3.02 Terms of the Letters of Credit.02 Terms of the Letters of
Credit.02 Terms of the Letters of Credit.02 Terms of the Letters of Credit.
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(a) Performance Letters of Credit issued after the Effective
Date shall not have a term exceeding one year.
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(b) No Letter of Credit may expire (including all rights of
renewal) later than the Termination Date, provided, however, that the
Bank in its discretion may elect to, issue Letters of Credit that
expire after the Termination Date, upon terms and conditions acceptable
to the Bank, including without limitation, cash collateral provisions,
it being understood and agreed that this Agreement shall remain in full
force and effect with respect to all such Letters of Credit until they
have expired and all related Letter of Credit Obligations have been
paid in full. Without limiting the generality of the foregoing, the
applicable Borrower will cash collateralize each Letter of Credit that
remains outstanding and undrawn as of the Termination Date by deposit
of immediately available funds in an amount equal to the undrawn amount
of such Letter of Credit in a non-interest-bearing account maintained
with the Bank; provided, however, that subject to the proviso in
Section 8.02, the obligation to so cash collateralize any Letter of
Credit having a stated expiry date occurring after the Termination Date
shall arise only upon the Bank's request to the applicable Borrower. If
any Letter of Credit that is to be cash collateralized is denominated
in an Approved Currency other than Dollars, the amount so deposited
shall, if requested by the Bank, be the Dollar Equivalent of the
undrawn amount of such Letter of Credit as of the Termination Date. The
Bank may, at any time and from time to time after the initial deposit
of cash collateral, require that additional cash collateral be provided
in order to protect against the results of exchange rate fluctuations.
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3.03 Procedure for Issuance of the Letters of Credit.03 Procedure for
Issuance of the Letters of Credit.03 Procedure for Issuance of the Letters of
Credit.03 Procedure for Issuance of the Letters of Credit.
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(a) Each Letter of Credit to be issued after the Effective
Date shall be issued upon the request of a Borrower received by the
Bank and any other relevant Lending Office not later than 12:00 noon
(local time), three (3) Business Days prior to the requested date of
issuance.
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(b) Each request for issuance of a Letter of Credit shall be
made in writing by fax and confirmed by delivery of the original
executed Letter of Credit Application and Agreement, in the Bank's
standard form or a similar form if the relevant Lending Office uses a
different form (each, an "L/C Application"), not later than one (1)
Business Day thereafter. Each request for issuance of a Letter of
Credit and each L/C Application shall specify, among other things: (i)
the proposed date of issuance (which shall be a Business Day); (ii) the
face amount of the Letter of Credit; (iii) the date of expiration of
the Letter of Credit; (iv) the name and address of the beneficiary
thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text
of any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) whether the Letter of Credit is to be a
Financial Letter of Credit or a Performance Letter of Credit.
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(c)Any request for an amendment to any previously-issued
Letter of Credit shall be received by the Lending Office which issued
the Letter of Credit not later than 12:00 noon (local time), unless
otherwise agreed by the Lending Office, two (2) Business Days prior to
the date of the proposed amendment in writing by fax. Each written
request for an amendment to a previously-issued Letter of Credit made
by fax shall be in the form of the relevant L/C Application signed by
the relevant Borrower and, unless otherwise agreed by the Lending
Office which issued the Letter of Credit in accordance with the
provisions of Section 3.02(b), shall not request an extension beyond
the relevant Termination Date described in said Section. Amendments and
extensions shall be at the sole discretion of the Lending Office which
issued the Letter of Credit.
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(d) Notwithstanding any provision of any L/C Application to
the contrary, in the event of any conflict between the terms of any
such L/C Application and the terms of this Agreement, the terms of this
Agreement shall control with respect to payment obligations, events of
default, representations and warranties, and covenants, except that
such L/C Application may provide for further warranties relating
specifically to the transaction or affairs underlying such Letter of
Credit.
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3.04 Drawings and Reimbursements..04 Drawings and Reimbursements..04
Drawings and Reimbursements..04 Drawings and Reimbursements. Each Borrower
hereby unconditionally and irrevocably agrees to reimburse the relevant Lending
Office for each payment made by such Lending Office under any Letter of Credit
issued for the account of such Borrower; such reimbursement shall be due and
payable on the date the relevant Lending Office makes such payment under such
Letter of Credit. If such reimbursement payment is not made when due, the
Borrower shall be deemed to have timely made a request to the Bank for a Base
Rate Loan on such date in an amount equal to the Dollar Equivalent of the amount
of such draft paid, together with any fees owing to the Bank pursuant to Section
2.08(b) (to the extent such drawn amount and fees, when aggregated with the
principal amount of all other Advances then outstanding and allocations then
existing, do not exceed the Commitment) and, regardless of whether or not the
conditions precedent specified in Article V (except 5.02(c)) have been
satisfied, the Bank shall be deemed to have made a Base Rate Loan in such
amount, the proceeds of which shall be deemed to have satisfied the related
Reimbursement Obligations. Interest shall be payable on any such Base Rate Loan
at the Base Rate.
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3.05 Reimbursement Obligations Absolute.05 Reimbursement Obligations
Absolute.05 Reimbursement Obligations Absolute.05 Reimbursement Obligations
Absolute. The obligations of the Borrowers to reimburse the Lending Office for
payments made by such Lending Office under any Letter of Credit honoring a
demand for payment by the beneficiary thereunder shall be irrevocable, absolute
and unconditional under any and all circumstances, including the following
circumstances:
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(a) any lack of validity or enforceability of this Agreement, any Letter of
Credit, any L/C Application or any other agreement or instrument relating
thereto (collectively, the "L/C Related Documents");
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(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the obligations of any Borrower in respect of any Letter
of Credit or any other amendment or waiver of or any consent to or departure
from all or any of the L/C Related Documents;
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(c) the existence of any claim, set-off, defense or other right that any
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Bank, any Lending Office or any other Person,
whether in connection with this Agreement, the transactions contemplated by the
L/C Related Documents or any unrelated transaction;
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(d) any draft, certificate, statement or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect
other than if such payment resulted from the gross negligence or willful
misconduct of the relevant Lending Office;
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(e) payment by the relevant Lending Office under any Letter of Credit
against presentation of a draft or certificate that does not comply with the
terms of the Letter of Credit other than if such payment resulted from the gross
negligence or willful misconduct of the relevant Lending Office;
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(f) any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the obligations of any Borrower in respect of any
Letter of Credit; or
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(g) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Borrower or any
account party other than a circumstance constituting gross negligence or willful
misconduct on the part of the relevant Lending Office.
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ARTICLE IV
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TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
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(a) Payments made hereunder and under any instrument executed
hereunder shall be made free and clear of, and without deduction for,
any and all present or future taxes, levies, imposts, duties,
deductions, withholding and similar charges ("Taxes") excluding, in the
case of the Bank, each Lending Office and each Assignee, Taxes
(including franchise or receipts taxes) imposed on or in respect of its
net income, capital, or receipts, by the jurisdiction (or any political
subdivision thereof) under the laws of which the Bank or such Lending
Office or Assignee (as the case may be) (A) is organized, (B) has its
principal place of business, or (C) is, through an office or other
fixed place of business, deemed to be doing business or maintaining a
permanent establishment under any applicable income tax treaty (such
non-excluded Taxes being "Withholding Taxes"). If any Borrower shall be
required by law to deduct any Withholding Taxes from or in respect of
any sum payable hereunder or under any instrument executed hereunder,
such Borrower:
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(i) shall pay to the Bank, Lending Office or Assignee an additional amount
so that the net amount received and retained by the Bank, Lending Office or
Assignee after taking into account such Withholding Taxes (and any additional
Withholding Taxes payable on account of any additional payment called for by
this sentence) will equal the full amount which would have been received and
retained by the Bank, Lending Office or Assignee as if no such Withholding Taxes
been paid, deducted, or withheld;
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(ii) shall make such deductions; and
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(iii) shall pay the full amount deducted to the relevant taxing authority
or other authority in accordance with applicable law.
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(b) Each Borrower will furnish the Bank, Lending Office or
Assignee original Withholding Tax receipts, notarized copies of
Withholding Tax receipts or such other appropriate documentation as
will prove payment of tax in a court of law applying U.S. Federal Rules
of Evidence for all Taxes paid by such Borrower pursuant to Section
4.01(a). The relevant Borrower will deliver such receipts within a
reasonable period after payment of any Withholding Taxes, but in no
event later than 60 days after the due date for the related Withholding
Tax.
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(c) If the Bank, Lending Office or Assignee is entitled to a
refund or credit of Withholding Tax, it shall use reasonable efforts to
pursue such refund (and interest with respect thereto), and if it
receives such refund or credit, shall pay to the relevant Borrower the
amount of the refund or credit (and interest with respect thereto)
actually received.
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(d) The Bank, Lending Office or Assignee shall use reasonable
efforts (consistent with its internal policies, and legal and
regulatory restrictions) to change the jurisdiction of its relevant
Lending Office if such change would avoid or reduce any Withholding
Tax; provided that no such change of jurisdiction shall be made if, in
the reasonable judgment of the Bank, such Lending Office or such
Assignee, such change would be disadvantageous to the Bank, such
Lending Office or such Assignee, as the case may be.
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(e) The Bank agrees that it will deliver to the Borrowers,
within 30 days after the execution of this Agreement (unless
theretofore so delivered) and as may be reasonably required from time
to time by applicable law or regulation, United States Internal Revenue
Service Forms W-8BEN and/or W-8EC1 (or successor Forms) or such other
form, if any, as from time to time may permit the Borrowers to
demonstrate that payments made by the Borrowers to the Bank under this
Agreement either are exempt from United States Federal Withholding
Taxes or are payable at a reduced rate (if any) specified in any
applicable tax treaty or convention.
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4.02 Illegality.02 Illegality.02 Illegality.02 Illegality.
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(a) If the Bank shall determine that the introduction of any Requirement of
Law, or any change in any Requirement of Law or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for the Bank or any
other relevant Lending Office to make LIBOR Rate Loans or to issue Letters of
Credit, then, on notice thereof by the Bank to the Borrowers, the obligation of
the Bank to make LIBOR Rate Loans or to issue Letters of Credit, as the case may
be, shall be suspended until the Bank shall have notified the Borrowers that the
circumstances giving rise to such determination no longer exist.
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(b) If the Bank shall determine that it is unlawful to maintain any LIBOR
Rate Loan, the affected Borrowers shall prepay in full all LIBOR Rate Loans then
outstanding, together with interest accrued thereon, either on the last day of
the Interest Period thereof if the Bank may lawfully continue to maintain such
LIBOR Rate Loans to such day, or immediately, if the Bank may not lawfully
continue to maintain such LIBOR Rate Loans, together with any amounts required
to be paid in connection therewith pursuant to Section 4.04.
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(c) The Bank shall immediately notify the Borrowers of any event described
in (a) or (b) above.
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4.03 Increased Costs and Reduction of Return; Additional Interest on
LIBOR Rate Loans.03 Increased Costs and Reduction of Return; Additional Interest
on LIBOR Rate Loans.03 Increased Costs and Reduction of Return; Additional
Interest on LIBOR Rate Loans.03 Increased Costs and Reduction of Return;
Additional Interest on LIBOR Rate Loans.
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(a) If the Bank shall determine that, due to either (i) the
introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or administration thereof
or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force
of law), there shall be any increase in the cost to the Bank or any
Lending Office of agreeing to make or making, funding or maintaining
any LIBOR Rate Loans, then the relevant Borrowers shall be liable for,
and shall from time to time, upon written request therefor by the Bank,
pay to the Bank additional amounts as are sufficient to compensate the
Bank or such Lending Office for such increased costs.
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(b) If the Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Bank (or other
relevant Lending Office) or any corporation controlling the Bank, with
any Capital Adequacy Regulation affects or would affect the amount of
capital required or expected to be maintained by the Bank, any Lending
Office or any corporation controlling the Bank and (taking into
consideration the Bank's and such controlling corporation's policies
with respect to capital adequacy and the Bank's desired return on
capital) and determines that the amount of such capital is increased as
a consequence of Advances under this Agreement, then, upon written
request of the Bank, the Borrowers shall immediately pay to the Bank or
the relevant Lending Office, from time to time as specified by the
Bank, additional amounts sufficient to compensate the Bank or such
Lending Office for such increase.
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(c) Each Borrower shall pay to the Bank, as long as the Bank
shall be required under Federal Reserve Board regulations to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal
amount of all LIBOR Rate Loans made by the Bank to such Borrower equal
to the actual costs of such reserves allocated to each such Loan by the
Bank (as determined by the Bank in good faith, which determination
shall be conclusive absent manifest error), payable on each Interest
Payment Date with respect to each such Loan, provided that such
Borrower shall have received at least 15 days' prior written notice of
such additional costs from the Bank. If the Bank fails to give notice
15 days prior to the relevant Interest Payment Date, such additional
interest shall accrue and be payable 15 days from receipt of such
notice.
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(d) The Bank will notify each Borrower of any event occurring
after the date hereof which will entitle the Bank or any Lending Office
to compensation from such Borrower pursuant to this Section 4.03 as
promptly as practicable after it obtains knowledge thereof and
determines to request such compensation, and will designate a different
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation. If the Bank requests compensation
under this Section 4.03, the relevant Borrowers may, by notice to the
Bank, require that: (x) the Bank furnish to the relevant Borrowers a
statement setting forth the basis for requesting such compensation and
the method for determining the amount thereof or (y) the Loans of the
type with respect to which such compensation is requested be either
prepaid or converted into another type.
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4.04 Funding Losses.04 Funding Losses.04 Funding Losses.04 Funding
Losses. Each Borrower agrees to reimburse the Bank and to hold the Bank and any
relevant Lending Office harmless from any loss or expense which the Bank may
sustain or incur as a consequence of:
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(a) the failure by such Borrower to make any payment or prepayment of
principal of any LIBOR Rate Loan when due (including payments made after any
acceleration thereof);
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(b) the failure by such Borrower to borrow, continue or convert a Loan
after such Borrower has given (or is deemed to have given) a notice of borrowing
or a notice of conversion or continuation;
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(c) the failure by such Borrower to make any prepayment after such Borrower
has given a notice in accordance with Section 2.05;
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(d) the prepayment of a LIBOR Rate Loan on a day which is not the last day
of the Interest Period with respect thereto; or
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(e) the conversion pursuant to Section 2.03 of any LIBOR Rate Loan to a
Base Rate Loan on a day that is not the last day of the Interest Period with
respect to the LIBOR Rate Loan;
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including any such loss or expense arising from the liquidation or reemployment
of funds obtained by any Lending Office to maintain its LIBOR Rate Loans
hereunder or from fees payable to terminate the deposits from which such funds
were obtained.
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4.05 Inability to Determine Rates.05 Inability to Determine Rates.05
Inability to Determine Rates.05 Inability to Determine Rates. If the Bank shall
have determined that for any reason adequate and reasonable means do not exist
for ascertaining the LIBOR Rate for any requested Interest Period with respect
to a LIBOR Rate Loan or that the LIBOR Rate for any requested Interest Period
with respect thereto does not adequately and fairly reflect the cost to the Bank
or any relevant Lending Office of funding such Loan, the Bank will forthwith
give notice of such determination to the relevant Borrowers. Thereafter, the
obligation of the Bank or any relevant Lending Office to make or continue LIBOR
Rate Loans or to convert Base Rate Loans to LIBOR Rate Loans hereunder, as the
case may be, shall be suspended until the Bank revokes such notice in writing.
Upon receipt of such notice, the relevant Borrower may revoke any notice of
borrowing or notice of conversion or continuation then submitted by it. If the
relevant Borrower does not revoke such notice with respect to a LIBOR Rate Loan,
the Bank shall make, convert or continue the Loan, as proposed by such Borrower,
in the amount specified in the applicable notice submitted by such Borrower, but
such Loan shall be made, converted or continued as a Base Rate Loan instead of a
LIBOR Rate Loan.
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4.06 Certificate of the Bank.06 Certificate of the Bank.06 Certificate
of the Bank.06 Certificate of the Bank. If claiming reimbursement or
compensation pursuant to this Article IV, the Bank shall deliver to each
relevant Borrower a certificate setting forth in reasonable detail the amount
payable to the Bank or any relevant Lending Office hereunder, and such
certificate shall be conclusive and binding on each recipient Borrower in the
absence of manifest error.
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4.07 Survival.
The agreements and obligations of the Borrowers in this Article IV shall
survive the payment of all other Obligations.
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ARTICLE V
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CONDITIONS PRECEDENT
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5.01 Conditions to Effectiveness of this Agreement.01 Conditions to
Effectiveness of this Agreement.01 Conditions to Effectiveness of this
Agreement.01 Conditions to Effectiveness of this Agreement. The effectiveness of
this Agreement is subject to the condition that the Bank shall have received on
or before the Effective Date all of the following, in form and substance
satisfactory to the Bank and its counsel:
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(a) Credit Agreement
This Agreement shall be duly executed and delivered by each Borrower ;
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(b) Resolutions; Incumbency
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(i) Copies of the resolutions of the board of
directors of BAX, Brink's and Pittston approving and
authorizing the execution, delivery and performance of this
Agreement, its respective Guaranty and the other Loan
Documents to be delivered by it hereunder, certified as of the
Effective Date by the Secretary or an Assistant Secretary of
such Borrower or the Guarantor, as the case may be; and
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(ii) A certificate of the Secretary or Assistant
Secretary of BAX, Brink's and Pittston as of the Effective
Date certifying the names and true signatures of the officers
of such Borrower authorized to execute and deliver this
Agreement, its respective Guaranty and all other Loan
Documents to be delivered by it hereunder.
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(c) 1999 Revolving Facility. The 1999 Revolving Facility shall
have terminated or expired in accordance with its terms.
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(d) Guaranties.
The Guaranties duly executed and delivered by BAX, Brink's and Pittston.
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(e) Legal Opinions(e) Legal Opinions(e) Legal Opinions(e)
Legal Opinions. Opinions in form and substance reasonably satisfactory
to the Bank of the general counsel of Pittston (and in such capacity,
acting as counsel for Borrowers) and, as to matters of New York law, of
Hunton & Williams.
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(f) Payment of Costs and Fees(f) Payment of Costs and Fees(f)
Payment of Costs and Fees(f) Payment of Costs and Fees. The Borrowers
shall have paid (i) all costs, accrued and unpaid fees and expenses
incurred by the Bank, to the extent due and payable on the Effective
Date, including the fees and expenses of outside counsel to the Bank,
and (ii) the arrangement fee of $115,000.
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(g) Certificates.
A certificate signed by a Responsible Officer of each Borrower, dated as of
the Effective Date, stating that:
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(i) the representations and warranties made by such Person in Article VI,
and the representations and warranties made in the respective Guaranty, are true
and correct on and as of such date, as though made on and as of such date;
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(ii) no Default or Event of Default exists as of the Effective Date; and
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(iii) since December 31, 2001, there has occurred no event or circumstance
that could reasonably be expected to result in a Material Adverse Effect.
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(h) Financial Statements(h) Financial Statements(h) Financial
Statements(h) Financial Statements. A copy of the audited and unaudited
financial statements of the Guarantor and its Subsidiaries referred to
in Section 6.07, accompanied by a copy of the related auditor's report,
in the case of the audited financial statements, and a certificate of a
Responsible Officer of the Guarantor, in the case of the unaudited
financial statements.
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5.02 Conditions to Subsequent Advances and Allocations.02 Conditions to
Subsequent Advances and Allocations.02 Conditions to Subsequent Advances and
Allocations.02 Conditions to Subsequent Advances and Allocations. The obligation
of the Bank to make any Advance and accept any allocation request after the
Effective Date is subject to the satisfaction of the following conditions
precedent on the date of the relevant extension of credit:
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(a) Notice of Advance or Allocation.
The Bank shall have received a notice of borrowing pursuant to Section
2.02, an allocation request pursuant to Section 2.01(b) or an L/C Application
pursuant to Section 3.03;
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(b) Continuation of Representations and Warranties(b)
Continuation of Representations and Warranties(b) Continuation of
Representations and Warranties(b) Continuation of Representations and
Warranties. The representations and warranties made by the Borrowers in
Article VI and the representations and warranties made by each
Guarantor in its Guaranty shall be true and correct on and as of the
date of such extension of credit with the same effect as if made on and
as of such date;
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(c) No Existing Default No Existing DefaultNo Existing
DefaultNo Existing Default. No Default or Event of Default shall exist
on the date of such Advance or acceptance of any allocation request or
shall result from such Advance or acceptance of any allocation request;
and
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(d) Additional Documentation.
The relevant Borrower shall have delivered any Note or other document as
the relevant Lending Office may reasonably require.
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Each request for an Advance or allocation shall constitute a
representation and warranty by the requesting Borrower that, as of the date of
such request and as of the date that the Advance is made or allocation is
accepted by the Bank, the conditions in this Section 5.02 are satisfied.
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ARTICLE VI
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REPRESENTATIONS AND WARRANTIES
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Each Borrower (or, as specifically provided below, Pittston only),
represents and warrants to the Bank, as follows:
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6.01 Corporate Existence6.01 Corporate Existence.01 Corporate
Existence.01 Corporate Existence. (a) The Borrower is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation; (b) the Borrower (i) has the requisite power and authority to own
its property and assets and to carry on its business as now conducted and (ii)
is qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not have a Material
Adverse Effect. The Borrower has the corporate power to execute and deliver and
to perform its obligations under the Loan Documents to which it is party and to
borrow hereunder and to provide its Guaranty.
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6.02 Non-Contravention6.02 Non-Contravention.02 Non-Contravention.02
Non-Contravention. The execution, delivery and performance by the Borrower of
the Loan Documents to which it is party have been duly authorized by all
necessary corporate action and do not and will not (i) require any consent or
approval of the shareholders of the Borrower, (ii) violate any provision of any
law, rule, regulation (including, without limitation, Regulation G, U or X of
the Federal Reserve Board), order, writ, judgment, injunction, decree,
determination, or award presently in effect having applicability to the Borrower
or of the charter or by-laws of the Borrower, (iii) result in a material breach
of or constitute a material default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which the Borrower is
a party or by which it or its properties may be bound or affected, or (iv)
result in the creation of a Lien of any nature upon or with respect to any of
the properties now owned or hereafter acquired by the Borrower; and the Borrower
is not in default under any such order, writ, judgment, injunction, decree,
determination, or award or any such indenture, agreement, lease, or instrument
or in default under any such law, rule, or regulation, which default would have
a Material Adverse Effect.
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6.03 No Consent6.03 No Consent.03 No Consent.03 No Consent. No
authorization, consent, approval, license, exemption of, or filing or
registration with, or any other action in respect of any Governmental Authority
is or will be necessary for the valid execution, delivery or performance by the
Borrower of the Loan Documents to which it is party.
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6.04 Binding Obligations6.04 Binding Obligations.04 Binding
Obligations.04 Binding Obligations.. Each of the Loan Documents to which the
Borrower is party constitute legal, valid, and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
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6.05 Title to Properties6.05 Title to Properties.05 Title to
Properties.05 Title to Properties. The Borrower has good and marketable title to
all of the material assets and properties purported to be owned by it, free and
clear of all liens except those permitted by the Pittston Credit Agreement.
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6.06 Subsidiaries6.06 Subsidiaries.06 Subsidiaries.06 Subsidiaries. As
of the Effective Date, each BAX Subsidiary listed on Schedule A-1 is a
Subsidiary of BAX, each Brink's Subsidiary listed on Schedule A-2 is a
Subsidiary of Brink's, and all of such Subsidiaries' shares which are owned,
directly or indirectly, by BAX or Brink's have been duly authorized and validly
issued, are fully paid and nonassessable and are free and clear of any Lien.
Pittston represents and warrants that no member of the Pittston Minerals Group
is direct or indirect Subsidiary of BAX or Brink's and agrees that it will not
request that any be added as a Covered Subsidiary on Schedule B-1.
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6.07 Financial Statements.
Pittston hereby represents and warrants that:
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(a) The consolidated balance sheet of Pittston and its
Subsidiaries as at December 31, 2001, and the related consolidated
statements of operations, shareholders' equity and cash flows for the
year then ended, certified by KPMG Peat Marwick, independent public
accountants, copies of which will be delivered to the Bank on the
Effective Date, fairly present in all material respects the
consolidated financial condition of Pittston and its Subsidiaries as at
such date and the consolidated results of their operations for the year
then ended, all prepared in accordance with GAAP applied on a
consistent basis.
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(b) The unaudited consolidated balance sheet of Pittston and
its Subsidiaries as at September 30, 2002, the related unaudited
consolidated statement of operations of Pittston and its Subsidiaries
for the fiscal quarter year then ended, and the related unaudited
consolidated statement of cash flows of Pittston and its Subsidiaries
for the fiscal quarter then ended, copies of which will be delivered to
the Bank on the Effective Date, fairly present in all material respects
the consolidated financial condition of Pittston and its Subsidiaries
as at such date and their consolidated results of operations for the
quarter then ended, all prepared in accordance with GAAP (except for
the omission of notes and subject to year-end adjustments) applied on a
consistent basis; and there has been no material adverse change in such
condition or operations since September 30, 2002.
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6.08 Litigation6.08 Litigation.08 Litigation.08 Litigation. Except as
otherwise disclosed in writing to the Bank, including through the delivery to
the Bank of copies of reports and statements filed by Pittston with the
Securities and Exchange Commission, there are no material actions, suits, or
proceedings pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or the properties of the Borrower before any Governmental
Authority or arbitrator, and the Borrower is not in default (in any respect
which might have a material adverse effect on the ability of the Borrower to
perform its obligations under the Loan Documents to which it is party) with
respect to any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect and applicable to the Borrower.
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6.09 Taxes6.09 Taxes.09 Taxes.09 Taxes. The Borrower has filed all
material tax returns (federal, state, and local) required to be filed and paid
all taxes shown thereon to be due, including interest and penalties, or provided
adequate reserves, in accordance with GAAP, for the payment thereof.
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6.10 ERISA6.10 ERISA.10 ERISA.10 ERISA. Each Plan has complied with and
has been administered in all material respects in accordance with the applicable
provisions of ERISA and the Code. No Plan has terminated under circumstances
giving rise to liability of the Borrower of any ERISA Affiliate to the PBGC
under Section 4062, 4063 or 4064 of ERISA, which liability remains unpaid in
whole or in part, and no lien under Section 4068 of ERISA exists with respect to
the assets of the Borrower. No Reportable Event has occurred with respect to any
Plan, except for Reportable Events previously disclosed in writing to the Bank
that would not have a Material Adverse Effect. No accumulated funding deficiency
within the meaning of Section 302 of ERISA or Section 412 of the Code (whether
or not waived) exists with respect to any Plan, nor does any lien under Section
302 of ERISA or Section 412 of the Code exist with respect to any Plan.
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Neither the Borrower nor any ERISA Affiliate has completely or
partially withdrawn from any one or more Multiemployer Plans under circumstances
which would give rise to withdrawal liability which, in the aggregate, could
have a Material Adverse Effect and which has not been fully paid as of the date
hereof. Neither the Borrower nor any ERISA Affiliate has received notice that
any Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has
terminated under Title IV of ERISA, nor, to the best knowledge of the Borrower,
is any such reorganization, insolvency or termination reasonably likely to
occur, where such reorganization, insolvency or termination has resulted or can
reasonably be expected to result in an increase in the contributions required to
be made to such Multiemployer Plan in an amount that would have a Material
Adverse Effect. Neither the Borrower nor any ERISA Affiliate has failed to make
any contribution to a Multiemployer Plan which is required under ERISA or an
applicable collective bargaining agreement in an amount which is material in the
aggregate (except to the extent there is a good faith dispute as to whether any
contribution is owed, the amount owed or the existence of facts that would give
rise to a withdrawal).
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6.11 No Default
The Borrower represents and warrants that no Default and no Event of
Default has occurred and is continuing.
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6.12 Federal Reserve Regulations.
(a) The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
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(b) No part of the proceeds of any Advances will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any
purpose which entails a violation of, or which is inconsistent with, the
provisions of the Regulations promulgated by the Federal Reserve Board,
including, without limitation, Regulations G, U or X.
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6.13 Investment Company Act6.13 Investment Company Act.13 Investment
Company Act.13 Investment Company Act. None of the Borrowers is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940.
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6.14 Environmental Matters6.14 Environmental Matters.14 Environmental
Matters.14 Environmental Matters. In the ordinary course of its business,
Pittston conducts an ongoing review of the effect of Environmental Laws and laws
relating to occupational safety and health on the business, operations and
properties of Pittston and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including any capital
or operating expenditures required for clean-up, closure or restoration of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection and
occupational health and safety standards imposed by law or as a condition of any
license, permit or contact, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, each Borrower represents and
warrants that applicable Environmental Laws and laws relating to occupational
health and safety do not have a material adverse effect on its business,
financial condition or results of operations, and it has obtained and holds all
material permits, licenses and approvals required under Environmental Laws which
are necessary for the conduct of its business and the operation of its
facilities, and it has not received any written notice of any failure to be in
compliance with the terms and conditions of such permits, licenses and
approvals, which failure could reasonably be expected to have a material adverse
effect on it.
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6.15 Priority of Debt6.15 Priority of Debt.15 Priority of Debt.15
Priority of Debt. Each Borrower hereby represents and warrants that all Debt
created under this Agreement for which it is or may be liable ranks pari passu
with all other Debt for borrowed money which such person owes or may be liable
for to any Person other than the Bank.
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ARTICLE VII
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COVENANTS
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7.01 Affirmative Covenants7.01 Affirmative Covenants.01 Affirmative
Covenants.01 Affirmative Covenants. For the benefit of the Bank, so long as any
Advance remains outstanding hereunder or the Commitment remains in effect, each
Borrower shall, unless the Bank otherwise consents in writing:
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(a) Payment of Taxes, etc.(a) Payment of Taxes, etc.(a)
Payment of Taxes, etc.(a) Payment of Taxes, etc. Pay and discharge all
taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to it,
prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or charge upon any of its
properties; provided, however, that neither it shall not be required to
pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings and against which it
is maintaining adequate reserves in accordance with GAAP.
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(b) Maintenance of Insurance(b) Maintenance of Insurance(b)
Maintenance of Insurance(b) Maintenance of Insurance. Maintain, and
cause each Restricted Subsidiary to maintain, insurance with
responsible and reputable insurance companies or associations (or, to
the extent consistent with prudent business practice, through its own
program of self-insurance) in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which it
operates.
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(c) Preservation of Corporate Existence, etc.8 Preservation of
Corporate Existence, etc. Preservation of Corporate Existence,
etc.Preservation of Corporate Existence, etc. Preserve and maintain its
corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation; provided, however, that nothing
herein contained shall prevent any merger or consolidation permitted by
Section 7.03(ii).
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(d) Compliance with Laws, etc.(d) Compliance with Laws,
etc.(d) Compliance with Laws, etc.(d) Compliance with Laws, etc. Comply
with the requirements of all applicable laws, rules, regulations and
orders (other than laws, rules, regulations, and orders which are not
final and are being contested in good faith by proper proceedings) of
any Governmental Authority (including Labor Laws and Environmental
Laws) applicable to or binding upon it or its property, noncompliance
with which would materially adversely affect its business or credit.
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(e) Compliance with ERISA(e) Compliance with ERISA(e)
Compliance with ERISA(e) Compliance with ERISA. Comply with the minimum
funding standards under ERISA with respect to its Plans and use its
best efforts to comply in all material respects with all other
applicable provisions of ERISA and the regulations and interpretations
promulgated thereunder.
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(f) Access to Properties(f) Access to Properties(f) Access to
Properties(f) Access to Properties. Permit any representatives
designated by the Bank, upon reasonable prior notice to it, to visit
its properties at reasonable times and as often as reasonably
requested.
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(g) Use of Proceeds(g) Use of Proceeds(g) Use of Proceeds(g)
Use of Proceeds. Use the Advances, and any proceeds thereof, for
working capital and other general corporate purposes not in
contravention of any Requirement of Law or the provisions of Section
6.12(b).
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7.02 Negative Covenants.02 Negative Covenants.02 Negative Covenants.02
Negative Covenants. So long as any Advance remains outstanding hereunder or any
of the Commitment remains in effect, Pittston will not, unless the Bank
otherwise consents in writing:
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(a) Financial Covenants.
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(i) Maximum Leverage Ratio. Commencing with the end of the first fiscal
quarter ending after the date hereof, permit the Leverage Ratio as of the end of
each fiscal quarter to be greater than 55%.
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(ii) Minimum Interest Coverage Ratio. Commencing with the end of the first
fiscal quarter ending after the date hereof, permit the Interest Coverage Ratio
as of the end of each fiscal quarter to be less than 3.00 to 1.00.
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(b) Limitations on Liens.
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Create, incur, assume or suffer to exist, or permit any
Restricted Subsidiary to create, incur, assume or suffer to exist, any
Lien on, or with respect to, any of their assets or properties
(including without limitation shares of capital stock or other
ownership interests), real or personal, whether now owned or hereafter
acquired, except:
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(i) Liens existing on the date hereof and set forth on Schedule 9.2 to the
Pittston Agreement;
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(ii) Liens for taxes, assessments and other governmental charges or levies
not yet due or as to which the period of grace, if any, related thereto has not
expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
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(iii) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (A) which are not overdue for a period of more
than thirty (30) days or (B) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
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(iv) Liens consisting of deposits or pledges made in the ordinary course of
business (A) in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts, or (B) to secure (or to obtain
letters of credit that secure) the performance of tenders, statutory
obligations, surety bonds, appeal bonds, bids, leases (other than Capital
Leases), performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment of the
deferred purchase price of property.
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(v) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use
of real property, which in the aggregate are not substantial in amount
and which do not, in any case, detract from the value of any material
parcel of real property or impair the use thereof in the ordinary
conduct of business.
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(vi) Liens in favor of the Bank;
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(vii) Liens on the property or assets of any Restricted
Subsidiary existing at the time such Restricted Subsidiary becomes a
Subsidiary of a Borrower and not incurred in contemplation thereof, as
long as the outstanding principal amount of the Debt secured thereby is
not voluntarily increased by such Restricted Subsidiary after the date
such Restricted Subsidiary becomes a Subsidiary of Borrower;
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(viii) Liens on the property or assets of the Borrowers or any
Restricted Subsidiary securing Debt which is incurred to finance the
acquisition of such property or assets, provided that (A) each such
Lien shall be created simultaneously with, or within twelve months
after, the acquisition of the related property or assets; (B) each such
Lien does not at any time encumber any property other than the related
property or assets financed by such Debt; (C) the principal amount of
Debt secured by each such Lien is not increased; and (D) the principal
amount of Debt secured by each such Lien shall at no time exceed 100%
of the original purchase price of such related property or assets at
the time acquired.
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(ix) Liens consisting of judgment or judicial attachment Liens, provided
that (A) the claims giving rise to such Liens are being diligently contested in
good faith by appropriate proceedings, (B) adequate reserves for the obligations
secured by such Liens have been established and (C) enforcement of such Liens
has been stayed;
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(x) Liens created or deemed to exist in connection with any asset
securitization program (including any related filings of any financing
statements), but only to the extent that such Liens attach to the assets
actually sold, contributed, financed or otherwise conveyed or pledged in
connection with such securitization program;
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(xi) Liens on property or assets of any Borrower or any Restricted
Subsidiary securing indebtedness owing to any Borrower;
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(xii) Liens on coal reserves leased by any Borrower or by any Restricted
Subsidiary as lessee, securing Debt to the lessors thereof, arising out of such
leases; (xiii) Liens on any Margin Stock purchased or carried by Pittston or any
of its Subsidiaries;
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(xiv) The extension, renewal or replacement of any Lien
permitted by clauses (i), (vii), (viii) or (xii), but only if the
principal amount of Debt secured by the Lien immediately prior thereto
is not increased and the Lien is not extended to other property; and
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(xv) In addition to any Lien permitted by clauses (i) through
(xiv), immediately after giving effect to any concurrent repayment of
secured Debt, Liens securing Debt of Pittston or any Restricted
Subsidiary so long as the sum of (A) the aggregate principal amount of
all such secured Debt plus (B) the aggregate amount of Consolidated
Lease Rentals (excluding Consolidated Lease Rentals under Leases in
effect as of December 31, 2001 (and any renewal, extension, or
replacement thereof) and Leases with respect to property not owned by
the Borrower on such date), discounted to present value at ten percent
(10%), compounded annually, arising out of all Sale and Leaseback
Transactions to which Pittston or any of its Restricted Subsidiaries is
then a party (including Sale and Leaseback Transactions, if any,
entered into pursuant to Section 7.02(i)), does not exceed 10% of
Consolidated Net Worth; provided that the sale or transfer of (x) coal,
oil, gas or other minerals in place for a period of time until, or in
an amount such that, the transferee will realize therefrom a specified
amount of money (however determined) or a specified amount of such coal
or other minerals or (y) any other interest in property of the
character commonly referred to as a "production payment" shall not be
deemed to constitute Debt secured by a Lien.
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(c) Disposition of Debt and Shares of Restricted Subsidiaries; Issuance of
Shares by Restricted Subsidiaries; Consolidation, Merger or Disposition of
Assets.
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(i) Sell or otherwise dispose of, or permit any Restricted
Subsidiary to sell or otherwise dispose of, any capital stock or any
Debt of any Restricted Subsidiary, other than the sale of the capital
stock of any member of the Pittston Minerals Group, (ii) in the case of
any Restricted Subsidiary, issue, sell or otherwise dispose of any of
such Restricted Subsidiary's capital stock (other than directors'
qualifying shares, to satisfy preemptive rights or in connection with a
split or combination of shares or a dividend in shares) except to the
Borrower or another Restricted Subsidiary, (iii) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) or permit
any Restricted Subsidiary to liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution), or (iv) directly or indirectly,
or permit any Restricted Subsidiary to directly or indirectly,
consolidate with or merge with or into or sell, lease or otherwise
dispose of all or substantially all of its assets (other than the sale
of all or any part of the assets of any member of the Pittston Minerals
Group) to any Person, unless, after giving effect thereto, all of the
following conditions shall be met:
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(A) the Leverage Ratio shall not be greater than .55
to 1.00 and the Interest Coverage Ratio shall not be less than
3.00 to 1.00;
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(B) in the case of a merger or consolidation (x) if
Pittston is a party thereto, Pittston shall be the surviving
corporation, (y) if Pittston is not a party thereto and
another Borrower is a party thereto, a Borrower shall be the
surviving corporation and (z) if no Borrower is a party
thereto, a Restricted Subsidiary shall be the surviving
corporation;
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(C) in the case of a liquidation, winding-up or
dissolution, any Borrower (other than Pittston) or any
Restricted Subsidiary may liquidate, wind-up or dissolve
itself into a Borrower or a Restricted Subsidiary; and
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(D) no Default or Event of Default has occurred and
is continuing.
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Provided that the conditions of this Section 7.02(c) are satisfied,
none of the foregoing provisions shall be deemed to prohibit Pittston
or any of its Restricted Subsidiaries from selling, transferring
assigning or otherwise disposing of Margin Stock for fair market value
or selling, contributing, financing or otherwise conveying or pledging
assets in connection with any asset securitization program permitted by
Section 7.02(b)(x).
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(d) Transactions with Affiliates.
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Engage, or permit any Restricted Subsidiary to engage,
directly or indirectly, in any transaction with an Affiliate (other
than a Borrower) on terms more favorable to the Affiliate than would
have been obtainable in arm's-length dealing.
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(e) Compliance with Regulations T, U and X.
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In the case of Pittston and any Subsidiary of the Borrower,
purchase or carry any Margin Stock or incur, create or assume any
obligation for borrowed money or other liability or make any
investment, capital contribution, loan, advance or extension of credit
or sell or otherwise dispose of any assets or pay any dividend or make
any other distribution to its shareholders or take or permit to be
taken any other action or permit to occur or exist any event or
condition if such action, event or condition would result in this
Agreement, the Loans, the use of the proceeds thereof or the other
transactions contemplated hereby violating Regulation T, U or X.
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(f) Hedging Agreements.
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Enter into or permit any Restricted Subsidiary to enter into
or permit to exist, Hedging Agreements for the purpose of speculation
and not for the purpose of hedging risks associated with the businesses
of Pittston and its Restricted Subsidiaries.
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(g) ERISA.
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(i) Terminate, or permit any of its ERISA Affiliates to
terminate any Pension Plan under circumstances which would reasonably
result in a material liability of the Borrower or any ERISA Affiliate
to the PBGC, or permit to exist the occurrence of any Reportable Event
or any other event or condition which presents a material risk of such
a termination by the PBGC; (ii) engage, or permit any of its
Subsidiaries or any Pension Plan to engage, in a "prohibited
transaction" (within the meaning of Section 406 of ERISA or Section
4975 of the Code) that would reasonably result in material liability of
the Borrower or any of its Restricted Subsidiaries; (iii) fail, or
permit any of its Restricted Subsidiaries to fail, to make any
contribution to a Multiemployer Plan which is required by ERISA or an
applicable collective bargaining agreement in an amount which is
material (except to the extent there is a good faith dispute as to
whether any contribution is owed, the amount owed or the existence of
facts that would give rise to a withdrawal); or (iv) completely or
partially withdraw, or permit any of its ERISA Affiliates to completely
or partially withdraw from a Multiemployer Plan, if such complete or
partial withdrawal will result in any material withdrawal liability
under Title IV of ERISA; or (v) enter into any new Plan or modify any
existing Plan so as to increase its obligations thereunder which could
result in any material liability to the Borrower or any ERISA
Affiliate. For purposes of this Section 7.02(g), an amount is material
if it would have a Material Adverse Effect after aggregation with all
other liabilities described in this Section 7.02(g).
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(h) Limitations on Acquisitions.
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Acquire, or permit any Restricted Subsidiary to acquire, all
or any portion of the capital stock or other ownership interest in any
Person which is not then a Restricted Subsidiary or any assets
collectively constituting a business unit of a Person which is not then
a Restricted Subsidiary, unless:
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(i) the aggregate consideration paid by the acquiror in such
transaction does not exceed 20% of Consolidated Total Assets as of the
end of the Fiscal Year most recently ended; or
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(ii) in the event that the aggregate consideration to be paid
by the acquiror in such transaction exceeds 20% of Consolidated Total
Assets as of the end of the Fiscal Year most recently ended, (A)
Pittston shall have notified the Bank at least five Business Days prior
to the consummation thereof that such an acquisition is pending
(furnishing with such information reasonably acceptable to the Bank
demonstrating pro forma compliance with the financial covenants set
forth in Section 7.02(a)), and (B) after giving effect to such
acquisition on a pro forma basis, no Default or Event of Default would
exist under Section 7.02(a). Any notice delivered to the Bank pursuant
to this Section 7.02(h) shall be kept confidential by the Bank in
accordance with Section 9.08 below.
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(i) Sale Leaseback Transactions.
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Sell or transfer, or permit any Restricted Subsidiaries to
sell or transfer, any material property or assets owned by Pittston or
any Restricted Subsidiary on the date hereof to any Person (other than
any Borrower) with the intention of taking back a lease of such
property or assets or any similar property or assets, if the sum of (A)
the amount of Consolidated Lease Rentals, discounted to present value
at 10%, compounded annually, which would arise out of such proposed
Sale and Leaseback Transaction, plus (B) the aggregate amount of
Consolidated Lease Rentals (excluding Consolidated Lease Rentals under
Leases in effect as of December 31, 2001 (and any renewal, extension or
replacement thereof) and Leases with respect to property not owned by
the Borrower on such date), discounted to present value at ten percent
(10%), compounded annually, arising out of all other Sale and Leaseback
Transactions to which Pittston or any of its Restricted Subsidiaries is
then a party, plus (C) the aggregate principal amount of all Debt of
Pittston or any Restricted Subsidiary secured by Liens incurred in
reliance on Section 7.02(b)(o), would exceed 15% of Consolidated Net
Worth.
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7.03 Reporting Requirements of PittstonSell or transfer, or permit any
Restricted Subsidiaries to sell or transfer, any material property or assets
owned by Pittston or any Restricted Subsidiary on the date hereof to any Person
(other than any Borrower) with the intention of taking back a lease of such
property or assets or any similar property or assets, if the sum of (A) the
amount of Consolidated Lease Rentals, discounted to present value at 10%,
compounded annually, which would arise out of such proposed Sale and Leaseback
Transaction, plus (B) the aggregate amount of Consolidated Lease Rentals
(excluding Consolidated Lease Rentals under Leases in effect as of December 31,
2001 (and any renewal, extension or replacement thereof) and Leases with respect
to property not owned by the Borrower on such date), discounted to present value
at ten percent (10%), compounded annually, arising out of all other Sale and
Leaseback Transactions to which Pittston or any of its Restricted Subsidiaries
is then a party, plus 8 the aggregate principal amount of all Debt of Pittston
or any Restricted Subsidiary secured by Liens incurred in reliance on Section
7.02(b)(o), would exceed 15% of Consolidated Net Worth.(j) Limitations on
Investments.Make or permit to exist, or permit any Restricted Subsidiary to make
or permit to exist, any Investment, other than Investments which are:(i) cash
and Cash Equivalents;(ii) current assets generated in the ordinary course of
business;(iii) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;(iv) Investments consisting of capital stock, obligations,
securities or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors;(v) advances
to employees for moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;(vi) advances or loans to
directors, officers and employees that do not exceed $25,000,000 in the
aggregate at any one time outstanding;(vii) advances or loans to customers and
suppliers in the ordinary course of business in an aggregate amount consistent
with the past practice of the Person making such advance or loan;(viii) loans to
shareholders intended to constitute dividends on, or payment on account of, any
capital stock;(ix) Investments or Support Obligations by Pittston and its
Restricted Subsidiaries existing on the date hereof;(x) Investments by Pittston
or its Restricted Subsidiaries in any Borrower or any other Subsidiary (provided
that such Investment would not otherwise constitute a breach of Section
7.02(h));(xi) Support Obligations of Pittston or its Restricted Subsidiaries for
the benefit of any Borrower or any other Subsidiary;(xii) acquisitions permitted
by Section 7.02(h) and Investments consisting of capital stock, obligations,
securities or other property received in connection with any merger or sale
permitted by Section 7.02(o);(xiii) Investments in connection with the
management of Pension Plans and other benefit plans of Pittston and its
Subsidiaries (including without limitation The Pittston Company Employee Welfare
Benefit Trust);(xiv) Hedging Agreements permitted by Section 7.02(b); and(xv)
Investments of a nature not contemplated in the foregoing subsections in an
amount not to exceed 15% of Consolidated Net Worth.7.03 Reporting Requirements
of PittstonSell or transfer, or permit any Restricted Subsidiaries to sell or
transfer, any material property or assets owned by Pittston or any Restricted
Subsidiary on the date hereof to any Person (other than any Borrower) with the
intention of taking back a lease of such property or assets or any similar
property or assets, if the sum of (A) the amount of Consolidated Lease Rentals,
discounted to present value at 10%, compounded annually, which would arise out
of such proposed Sale and Leaseback Transaction, plus (B) the aggregate amount
of Consolidated Lease Rentals (excluding Consolidated Lease Rentals under Leases
in effect as of December 31, 2001 (and any renewal, extension or replacement
thereof) and Leases with respect to property not owned by the Borrower on such
date), discounted to present value at ten percent (10%), compounded annually,
arising out of all other Sale and Leaseback Transactions to which Pittston or
any of its Restricted Subsidiaries is then a party, plus 8 the aggregate
principal amount of all Debt of Pittston or any Restricted Subsidiary secured by
Liens incurred in reliance on Section 7.02(b)(o), would exceed 15% of
Consolidated Net Worth.(j) Limitations on Investments.Make or permit to exist,
or permit any Restricted Subsidiary to make or permit to exist, any Investment,
other than Investments which are:(i) cash and Cash Equivalents;(ii) current
assets generated in the ordinary course of business;(iii) accounts receivable
created, acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;(iv) Investments
consisting of capital stock, obligations, securities or other property received
in settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors;(v) advances to employees for moving and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business;(vi) advances or loans to directors, officers and employees that do not
exceed $25,000,000 in the aggregate at any one time outstanding;(vii) advances
or loans to customers and suppliers in the ordinary course of business in an
aggregate amount consistent with the past practice of the Person making such
advance or loan;(viii) loans to shareholders intended to constitute dividends
on, or payment on account of, any capital stock;(ix) Investments or Support
Obligations by Pittston and its Restricted Subsidiaries existing on the date
hereof;(x) Investments by Pittston or its Restricted Subsidiaries in any
Borrower or any other Subsidiary (provided that such Investment would not
otherwise constitute a breach of Section 7.02(h));(xi) Support Obligations of
Pittston or its Restricted Subsidiaries for the benefit of any Borrower or any
other Subsidiary;(xii) acquisitions permitted by Section 7.02(h) and Investments
consisting of capital stock, obligations, securities or other property received
in connection with any merger or sale permitted by Section 7.02(o);(xiii)
Investments in connection with the management of Pension Plans and other benefit
plans of Pittston and its Subsidiaries (including without limitation The
Pittston Company Employee Welfare Benefit Trust);(xiv) Hedging Agreements
permitted by Section 7.02(b); and(xv) Investments of a nature not contemplated
in the foregoing subsections in an amount not to exceed 15% of Consolidated Net
Worth.7.03 Reporting Requirements of PittstonSell or transfer, or permit any
Restricted Subsidiaries to sell or transfer, any material property or assets
owned by Pittston or any Restricted Subsidiary on the date hereof to any Person
(other than any Borrower) with the intention of taking back a lease of such
property or assets or any similar property or assets, if the sum of (A) the
amount of Consolidated Lease Rentals, discounted to present value at 10%,
compounded annually, which would arise out of such proposed Sale and Leaseback
Transaction, plus (B) the aggregate amount of Consolidated Lease Rentals
(excluding Consolidated Lease Rentals under Leases in effect as of December 31,
2001 (and any renewal, extension or replacement thereof) and Leases with respect
to property not owned by the Borrower on such date), discounted to present value
at ten percent (10%), compounded annually, arising out of all other Sale and
Leaseback Transactions to which Pittston or any of its Restricted Subsidiaries
is then a party, plus 8 the aggregate principal amount of all Debt of Pittston
or any Restricted Subsidiary secured by Liens incurred in reliance on Section
7.02(b)(o), would exceed 15% of Consolidated Net Worth.(j) Limitations on
Investments.Make or permit to exist, or permit any Restricted Subsidiary to make
or permit to exist, any Investment, other than Investments which are:(i) cash
and Cash Equivalents;(ii) current assets generated in the ordinary course of
business;(iii) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;(iv) Investments consisting of capital stock, obligations,
securities or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors;(v) advances
to employees for moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;(vi) advances or loans to
directors, officers and employees that do not exceed $25,000,000 in the
aggregate at any one time outstanding;(vii) advances or loans to customers and
suppliers in the ordinary course of business in an aggregate amount consistent
with the past practice of the Person making such advance or loan;(viii) loans to
shareholders intended to constitute dividends on, or payment on account of, any
capital stock;(ix) Investments or Support Obligations by Pittston and its
Restricted Subsidiaries existing on the date hereof;(x) Investments by Pittston
or its Restricted Subsidiaries in any Borrower or any other Subsidiary (provided
that such Investment would not otherwise constitute a breach of Section
7.02(h));(xi) Support Obligations of Pittston or its Restricted Subsidiaries for
the benefit of any Borrower or any other Subsidiary;(xii) acquisitions permitted
by Section 7.02(h) and Investments consisting of capital stock, obligations,
securities or other property received in connection with any merger or sale
permitted by Section 7.02(o);(xiii) Investments in connection with the
management of Pension Plans and other benefit plans of Pittston and its
Subsidiaries (including without limitation The Pittston Company Employee Welfare
Benefit Trust);(xiv) Hedging Agreements permitted by Section 7.02(b); and(xv)
Investments of a nature not contemplated in the foregoing subsections in an
amount not to exceed 15% of Consolidated Net Worth.7.03 Reporting Requirements
of Pittston. For the benefit of the Bank, so long as any Advance remains
outstanding hereunder or the Commitment remains in effect, Pittston will, unless
the Bank otherwise consents in writing:
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(a) furnish to the Bank:
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(i) annually, as soon as available, but in any event within 120 days after
the last day of each of Pittston's fiscal years, consolidated balance sheets of
Pittston and its Subsidiaries as at the last day of such fiscal year, and the
related consolidated statements of operations, shareholders' equity and cash
flows for the fiscal year then ended, prepared in accordance with GAAP, in
reasonable detail, and setting forth in comparative form corresponding figures
from the preceding annual financial statements, certified by independent
certified public accountants of recognized national standing as fairly
presenting in all material respects the consolidated financial condition and
results of operations for Pittston and its Subsidiaries;
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(ii) as soon as available, but in any event within 60 days after the end of
each of the first three fiscal quarters of each of Pittston's fiscal years,
consolidated balance sheets as at the last day of such quarter and the related
consolidated statements of operations and cash flows for the quarter then ended,
and for the then-current fiscal year through the end of such quarter, for
Pittston and its Subsidiaries, prepared in accordance with GAAP (except for
omission of notes and subject to year-end adjustments) and setting forth in
comparative form figures for the corresponding period in the prior fiscal year,
and certified by a Responsible Officer of Pittston as fairly presenting in all
material respects the consolidated financial condition and results of operations
for Pittston and its Subsidiaries;
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(iii) at the same time as it delivers the financial statements required
under the provisions of clause (i) above, a certificate signed by a Responsible
Officer of Pittston to the effect that such Officer has made due inquiry and
that to the best of the knowledge of such Officer except as stated therein no
Default or Event of Default has occurred hereunder and that such officer has
made due inquiry and that to the best of the knowledge of such Officer except as
stated therein no default has occurred under any other agreement to which
Pittston or any Borrower is a party or by which it is bound, or by which any of
its properties or assets may be affected, which could have a Material Adverse
Effect and specifying in reasonable detail the exceptions, if any, to such
statements;
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(iv) at the same time as it delivers the financial statements required
under the provisions of clauses (i) and (ii) above, a statement of a Responsible
Officer of Pittston showing the Leverage Ratio and Interest Coverage Ratio as of
the last day of the fiscal period to which such financial statements relate;
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(v) at the same time as it delivers the financial statements required under
the provisions of clause (ii) above, a certificate signed by a Responsible
Officer of Pittston and stating that such Officer has made due inquiry and that
to the best of his knowledge no Default has occurred and is continuing, or, if
such Default has occurred and is continuing, specify the nature and extent
thereof; and
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(vi) forthwith upon the occurrence of any Default or Event of Default, a
certificate of a Responsible Officer of Pittston setting forth the details
thereof and the action which Pittston or any Borrower, as the case may be, is
taking or proposes to take with respect thereto;
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(b) furnish to the Bank, promptly after the same are
available, copies of all current reports on Form 8-K, quarterly reports
on Form 10-Q, annual reports on Form 10-K (or similar corresponding
reports) and registration statements or statements which Pittston or
any Restricted Subsidiary may be required to file with the Securities
and Exchange Commission (excluding registration statements filed
pursuant to employee stock option or benefit plans); and
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(c) furnish to the Bank, as soon as reasonably practicable
after receipt by Pittston or any of its Subsidiaries, a copy of any
written notice or claim to the effect that Pittston or any of its
Subsidiaries is liable to any Person as a result of the presence or
release of any Contaminant which claim could reasonably be expected to
have a Material Adverse Effect.
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7.04 Additional Requirements of the Guarantor and the Borrowers7.04
Additional Requirements of the Guarantor and the Borrowers.04 Additional
Requirements of the Guarantor and the Borrowers.04 Additional Requirements of
the Guarantor and the Borrowers. For the benefit of the Bank, so long as any
Advance remains outstanding hereunder or the Commitment remains in effect,
Pittston and each Borrower will, unless the Bank otherwise consents in writing:
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(a) keep proper books of record and accounts in which full,
true and correct entries in accordance with GAAP shall be made of all
dealings or transactions in relation to its business and activities;
and
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(b) furnish with reasonable promptness such other financial
information as the Bank may reasonably request, provided that no
Borrower shall be required to furnish any information that would result
in violation of any confidentiality agreement by which it is bound but,
at the request of the Bank, shall use its reasonable best efforts to
obtain a waiver of such agreement to permit furnishing of such
information under this provision.
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ARTICLE VIII
EVENTS OF DEFAULT
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8.01 Event of Default
Any of the following shall constitute an "Event of Default":
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(a) Non-Payment.
Any Borrower fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan, any Reimbursement Obligation, or (ii) within
three (3) business days after the same shall become due, any interest, fee or
any other amount payable hereunder or pursuant to any other Loan Document to
which such Borrower is a party;
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(b) Breach of Representation or Warranty. Any representation or warranty by
any Borrower or any Guarantor made or deemed made herein or in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by any Borrower or any Guarantor, or their respective
Responsible Officers, furnished at any time under this Agreement, or in or under
any other Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made;
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(c) Other Defaults. Any Borrower or any Guarantor fails to perform or
observe any other term or covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of 30 days
after the earlier of (i) the date upon which a Responsible Officer of such
Borrower or any Guarantor gives written notice of such failure to the Bank or
(ii) the date upon which written notice thereof is given to such Borrower or any
Guarantor by the Bank;
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(d) Insolvency; Voluntary Proceedings. Any Guarantor or any Borrower (i)
ceases or fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases operations as a going concern; (iii) commences any Insolvency Proceeding
with respect to itself; or (iv) takes any action to effectuate or authorize any
of the foregoing;
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(e) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against any Guarantor or any Borrower, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of the property of any Guarantor, any Borrower or any of
their respective Subsidiaries, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) any Guarantor, any Borrower or any of their
respective Subsidiaries admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar order under the
laws of any jurisdiction other than the United States of America or a political
subdivision thereof) is ordered in any Insolvency Proceeding; or (iii) any
Guarantor, any Borrower or any of their respective Subsidiaries acquiesces in
the appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for itself
or a substantial portion of its property or business;
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(f) Monetary Judgments. One or more final (non-interlocutory) and
nonappealable judgments, orders or decrees shall be entered against any
Borrower, any Guarantor or any of their respective Subsidiaries involving in the
aggregate a liability (not fully covered by insurance) as to any single or
related series of transactions, incidents or conditions that have a reasonable
likelihood of having a Material Adverse Effect (which, solely for the purposes
hereof, shall be deemed to mean at least $25,000,000 ) and the same shall remain
undischarged, unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof;
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(g) Guarantor Defaults. Any Guarantor shall fail in any material respect to
perform or observe any term, covenant or agreement herein or in its Guaranty; or
any Guaranty shall for any reason be partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise cease to be in full
force and effect, or any Guarantor or any other Person shall contest in any
manner the validity or enforceability thereof or deny that it has any further
liability or obligation thereunder; or
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(h) Guarantor Cross-Acceleration. There shall be any default under any
agreement or instrument evidencing or securing Debt of any Borrower or any
Guarantor (including, without limitation, Debt incurred under the Pittston
Credit Agreement), if the effect of such default is to permit the holder or
holders of such Debt (or a trustee on its or their behalf) to cause, and such
holder or holders (or trustee) do cause, such Debt to become due prior to its
stated maturity, and the aggregate amount of such Debt so accelerated equals or
exceeds $25,000,000 (or the equivalent thereof).
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(i) Payment Cross-Defaults. Any Borrower or the Guarantor shall default in
the payment when due, after giving effect to any grace period permitted from
time to time, of any Debt (including, without limitation, Debt incurred under
the Pittston Credit Agreement) and the aggregate amount of such Debt is at least
$25,000,000 (or the equivalent thereof).
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(j) Cross Default to Subsidiary Obligations. Any Subsidiary shall default
in any payment obligation to the Bank or any branch or Affiliate thereof and any
such default shall continue beyond any period of grace applicable thereto and
the aggregate of all such defaulted payment obligations shall be equal to or
greater than $5,000,000, or any such Subsidiary shall be in material breach of
any agreement between any such Subsidiary and the Bank or any branch or
Affiliate thereof; and, in either event, either such condition shall continue to
exist 30 days after written notice thereof is given by the Bank to Pittston, BAX
and Brink's.
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8.02 Remedies(j) Cross Default to Subsidiary Obligations. Any
Subsidiary shall default in any payment obligation to the Bank or any branch or
Affiliate thereof and any such default shall continue beyond any period of grace
applicable thereto and the aggregate of all such defaulted payment obligations
shall be equal to or greater than $5,000,000, or any such Subsidiary shall be in
material breach of any agreement between any such Subsidiary and the Bank of any
branch or Affiliate thereof; and, in either event, either such condition shall
continue to exist 30 days after written notice thereof is given by the Bank to
Pittston, BAX and Brink=s.8.02 Remedies(j) Cross Default to Subsidiary
Obligations. Any Subsidiary shall default in any payment obligation to the Bank
or any branch or Affiliate thereof and any such default shall continue beyond
any period of grace applicable thereto and the aggregate of all such defaulted
payment obligations shall be equal to or greater than $5,000,000, or any such
Subsidiary shall be in material breach of any agreement between any such
Subsidiary and the Bank of any branch or Affiliate thereof; and, in either
event, either such condition shall continue to exist 30 days after written
notice thereof is given by the Bank to Pittston, BAX and Brink=s.8.02
Remedies(j) Cross Default to Subsidiary Obligations. Any Subsidiary shall
default in any payment obligation to the Bank or any branch or Affiliate thereof
and any such default shall continue beyond any period of grace applicable
thereto and the aggregate of all such defaulted payment obligations shall be
equal to or greater than $5,000,000, or any such Subsidiary shall be in material
breach of any agreement between any such Subsidiary and the Bank of any branch
or Affiliate thereof; and, in either event, either such condition shall continue
to exist 30 days after written notice thereof is given by the Bank to Pittston,
BAX and Brink=s.8.02 Remedies. If any Event of Default occurs, the Bank may:
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(a) declare the Commitment to be terminated, whereupon the Commitment shall
forthwith be terminated;
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(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder (including all Reimbursement Obligations) or under any other Loan
Document to be immediately due and payable; without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by the
Borrowers;
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(c) exercise all rights and remedies available to it under the Loan
Documents or applicable law;
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(d) require the Borrowers to pay to the Bank in immediately available
funds, in the respective currencies of the applicable Obligations, an amount
equal to the maximum amount then available to be drawn under all Letters of
Credit then outstanding, for deposit in a cash collateral account maintained by
the Bank, as security for the Letters of Credit then outstanding, and
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(e) require the Guarantors to deposit in cash collateral accounts
maintained by the Bank amounts equal to any outstanding Obligations then
guaranteed and remaining outstanding and unterminated.
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provided, however, that upon the occurrence of any event specified in Sections
8.01(d) or Section 8.01(e) (in the case of Section 8.01(e)(i), upon the
expiration of the 60-day period mentioned therein), the Commitment shall
automatically terminate and the unpaid principal amount of all outstanding
Loans, Reimbursement Obligations and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Bank.
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8.03 Rights Not Exclusive.03 Rights Not Exclusive.03 Rights Not
Exclusive.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE IX
MISCELLANEOUS
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9.01 Amendments and Waivers.01 Amendments and Waivers.01 Amendments and
Waivers.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document to which any Borrower or any Guarantor
is party, and no consent with respect to any departure by any Borrower or any
Guarantor therefrom, shall be effective unless the same shall be in writing and
signed by the Bank, the Borrowers party thereto and the Guarantors, if party
thereto, and then such waiver shall be effective only in the specific instance
and for the specific purpose for which given.
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9.02 Notices.
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(a) All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context
expressly otherwise provides fax) and mailed, sent by overnight
delivery service or faxed, to the address or number specified for
notices to the applicable party set forth on Schedule 9.02; or to such
other address as shall be designated by such party in a written notice
to the other parties.
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(b) All such notices, requests and other communications shall,
when transmitted by overnight delivery service or fax, be effective the
day after delivered to the overnight delivery service, when transmitted
by fax with machine transmittal confirmation or, if transmitted by
mail, upon delivery, except that notices pursuant to Article II or
Article III shall not be effective until actually received by the Bank.
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(c) The Borrowers acknowledge and agree that the Bank's
agreement to receive notices, requests and other communications by fax
is solely for the convenience and at the request of the Borrowers. The
Bank shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the applicable Borrower to give
such communications and the Bank shall not have any liability to any
Borrower or other Person on account of any action taken or not taken by
the Bank in reliance upon such fax communication. The obligation of the
Borrowers to repay the Obligations shall not be affected in any way or
to any extent by any failure by the Bank to receive written
confirmation of any fax communication or by the receipt by the Bank of
a confirmation which is at variance with the terms understood by the
Bank to be contained in the fax communication.
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9.03 No Waiver; Cumulative Remedies.03 No Waiver; Cumulative
Remedies.03 No Waiver; Cumulative Remedies.03 No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of the Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
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9.04 Costs and Expenses.04 Costs and Expenses.04 Costs and Expenses.04
Costs and Expenses. The Borrowers shall, whether or not the transactions
contemplated hereby shall be consummated:
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(a) pay or reimburse the Bank within five Business Days after
demand (or on the Effective Date to the extent provided in Section
5.01(f)) for all reasonable costs and expenses incurred by the Bank in
connection with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or modification
to, this Agreement, any other Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including reasonable
counsel fees, incurred by the Bank with respect thereto; and
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(b) pay or reimburse the Bank within five Business Days after
demand for all reasonable costs and expenses incurred by it in
connection with the enforcement, attempted enforcement, or preservation
of any rights or remedies (including in connection with any "workout"
or restructuring regarding the Obligations) under this Agreement or any
other Loan Document, including reasonable counsel fees (including the
allocated cost of staff counsel) incurred by the Bank.
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9.05 Indemnities.05 Indemnities.05 Indemnities.05 Indemnities. Whether or
not the transactions contemplated hereby shall be consummated:
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(a) The Borrowers shall pay, indemnify, and hold the Bank and
each of its officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or
disbursements (including reasonable counsel fees, including the
allocated cost of staff counsel) of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement and any other Loan Document, or the
transactions contemplated hereby and thereby, and with respect to any
investigation, litigation or proceeding related to this Agreement, the
Loans or the Letters of Credit, or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, no
Borrower shall have any obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities arising from the or gross
negligence or willful misconduct of such Indemnified Person, and,
provided, further, no Borrower shall have any indemnity obligation to
the Bank under this Section 9.05(a) with respect to Indemnified
Liabilities arising as a result of the failure of the Bank to make an
Advance notwithstanding the full satisfaction of the conditions
precedent contained in Section 5.02.
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(b) The obligations in this Section 9.05 shall survive payment
of all other Obligations. At the election of the Borrowers, one or more
Borrowers shall defend such Indemnified Person using legal counsel
satisfactory to such Indemnified Person in such Person's sole
discretion, at the sole cost and expense of the Borrowers, provided
that no conflict between the interests of the Bank and such Borrowers
exists with respect to the Indemnified Liabilities, and provided,
further that no Borrower may settle any Indemnified Liability without
the Bank's consent (which consent shall not be unreasonably withheld or
delayed). All amounts owing under this Section 9.05 shall be paid
within 30 days after demand.
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(c) If any sum due from a Borrower under this Agreement or
another Loan Document or under any order or judgment given or made in
relation hereto or thereto has to be converted from the currency (the
"first currency") in which the same is payable hereunder or thereunder
or under such order or judgment into another currency (the "second
currency") for the purpose of (i) making or filing a claim or proof
against such Borrower with any Governmental Authority or in any court
or tribunal or (ii) enforcing any order or judgment given or made in
relation hereto, such Borrower shall indemnify and hold harmless each
of the Persons to whom such sum is due from and against any loss
actually suffered as a result of any discrepancy between (a) the rate
of exchange used to convert the amount in question from the first
currency into the second currency and (b) the rate or rates of exchange
at which such Person, acting in good faith in a commercially reasonable
manner, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in
whole or in part, of any such order, judgment, claim or proof. The
foregoing indemnity shall constitute a separate obligation of each
Borrower distinct from its other obligations hereunder and shall
survive the giving or making of any judgment or order in relation to
all or any of such other obligations.
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9.06 Successors and Assigns.06 Successors and Assigns.06 Successors and
Assigns.06 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no Borrower nor any Guarantor may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Bank and any assignment by the Bank must be in compliance
with Section 9.07.
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9.07 Assignments.07 Assignments.07 Assignments.07 Assignments. The
Bank, with the prior written consent of Pittston, may at any time assign and
delegate to one or more Persons (each an "Assignee") all, or any ratable part of
all, of the Advances, the Commitment and the other rights and obligations of the
Bank hereunder; provided, however, that the Borrowers may continue to deal
solely and directly with the Bank in connection with the interest so assigned to
an Assignee until written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Borrowers by the Bank and the Assignee.
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9.08 Confidentiality.08 Confidentiality.08 Confidentiality.08
Confidentiality. The Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public information
provided to it by any Guarantor, any Borrower or any of their respective
Subsidiaries, in connection with this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information for any
purpose or in any manner other than pursuant to the terms contemplated by this
Agreement, except to the extent such information (i) was or becomes generally
available to the public other than as a result of a disclosure by the Bank, or
(ii) was or becomes available on a non-confidential basis from a source other
than a Guarantor or a Borrower, provided that such source is not bound by a
confidentiality agreement with such Guarantor or such Borrower to the knowledge
of the Bank; provided further, however that the Bank may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with an
examination of the Bank by any such authority; (B) pursuant to subpoena or other
court process; (C) when required to do so in accordance with the provisions of
any applicable Requirement of Law; and (D) to the Bank's independent auditors
and other professional advisors. Notwithstanding the foregoing, the Borrowers
and the Guarantors authorize the Bank to disclose to any Assignee, and to any
prospective Assignee, such financial and other information in the Bank's
possession concerning the Guarantors, the Borrowers or their respective
Subsidiaries which has been delivered to the Bank pursuant to this Agreement or
which has been delivered to the Bank by a Guarantor, a Borrower, or any of their
respective Subsidiaries in connection with the Bank's credit evaluation of the
Guarantors and the Borrowers prior to entering into, or upon review or renewal
of, this Agreement; provided that, unless otherwise agreed by the Guarantors and
the Borrowers, such Assignee or prospective Assignee agrees in writing to the
Bank to keep such information confidential to the same extent required of the
Bank hereunder.
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9.09 Counterparts.09 Counterparts.09 Counterparts.09 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument (notwithstanding that the Brink's
Thailand counterpart shall be delivered after the Effective Date).
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9.10 Severability.10 Severability.10 Severability.10 Severability. The
illegality or unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or
any instrument or agreement required hereunder.
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9.11 Governing Law and Jurisdiction.11
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(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE IN PERSONAM JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW OR BY REGISTERED OR CERTIFIED
MAIL TO SUCH PARTY'S ADDRESS FOR NOTICES PURSUANT TO SECTION 9.02.
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9.12 Waiver of Jury Trial.12 Waiver of Jury Trial.12 Waiver of Jury
Trial.12 Waiver of Jury Trial. EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE
PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY ARE WAIVED BY OPERATION OF
THIS SECTION 9.12 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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9.13 Entire Agreement.13 Entire Agreement.13 Entire Agreement.13 Entire
Agreement. This Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding between the Borrowers, the Guarantors and the
Bank, and supersedes all prior or contemporaneous agreements and understandings
of such Persons, oral or written, relating to the subject matter hereof and
thereof, except that (i) the 1999 Revolving Facility shall continue in effect
pursuant to its terms until the Effective Date, and (ii) that certain
$20,000,000 uncommitted credit facility extended by the Bank to various
subsidiaries of Pittston is hereby acknowledged to be separate and apart and
shall not be affected in any way by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York by their proper and duly authorized
officers as of the day and year first above written.
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BORROWERS
BAX GLOBAL INC.
By: /s/ James B. Hartough
--------------------------
Name: James B. Hartough
Title: Treasurer and Assistant Secretary
BRINK'S, INCORPORATED
By: /s/ Michael T. Dan
-----------------------
Name: Michael T. Dan
Title: Chairman and CEO
THE PITTSTON COMPANY
By: /s/ James B. Hartough
------------------------
Name: James B. Hartough
Title: Vice President - Corporate Finance
and Treasurer
BANK
ABN AMRO BANK N.V.
By: /s/ Helen Clarke-Hepp
----------------------
Name: Helen Clarke-Hepp
Title: Vice President
By: /s/ James S. Kreitler
------------------------
Name: James S. Kreitler
Title: Senior Vice President
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