EXHIBIT 99
CREDIT AGREEMENT
Dated as of July 13, 2005
among
THE BRINK'S COMPANY,
CERTAIN OF ITS SUBSIDIARIES
and
ABN AMRO BANK N.V.
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................1
1.01 Defined Terms.........................................................1
1.02 Accounting Principles................................................15
ARTICLE II LOANS AND OVERDRAFTS...............................................15
2.01 Amounts and Terms of Commitment......................................15
2.02 Procedure for Incurring Loans........................................17
2.03 Conversion and Continuation Elections with Respect to Outstanding
Loans..............................................................17
2.04 Termination or Reduction of the Commitment...........................18
2.05 Optional Prepayments.................................................18
2.06 Repayment of Principal...............................................18
2.07 Interest and Utilization Fee.........................................19
2.08 Fees.................................................................20
2.09 Computation of Fees and Interest.....................................21
2.10 Payments by the Borrowers............................................21
ARTICLE III LETTERS OF CREDIT.................................................22
3.01 The Letters of Credit Commitment.....................................22
3.02 Terms of the Letters of Credit.......................................23
3.03 Procedure for Issuance of the Letters of Credit......................23
3.04 Drawings and Reimbursements..........................................24
3.05 Reimbursement Obligations Absolute...................................24
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY.............................25
4.01 Taxes................................................................25
4.02 Illegality...........................................................27
4.03 Increased Costs and Reduction of Return; Additional Interest
on LIBOR Rate Loans................................................27
4.04 Funding Losses.......................................................28
4.05 Inability to Determine Rates.........................................29
4.06 Certificate of the Bank..............................................29
4.07 Survival.............................................................29
ARTICLE V CONDITIONS PRECEDENT................................................30
5.01 Conditions to Effectiveness of this Agreement........................30
5.02 Conditions to Subsequent Advances and Allocations....................31
ARTICLE VI REPRESENTATIONS AND WARRANTIES.....................................31
6.01 Corporate Existence..................................................31
6.02 Non-Contravention....................................................32
6.03 No Consent...........................................................32
6.04 Binding Obligations..................................................32
6.05 Title to Properties..................................................32
6.06 Subsidiaries.........................................................32
6.07 Financial Statements.................................................32
6.08 Litigation...........................................................33
6.09 Taxes................................................................33
6.10 ERISA................................................................33
6.11 No Default...........................................................34
6.12 Federal Reserve Regulations..........................................34
(i)
6.13 Investment Company Act...............................................34
6.14 Environmental Matters................................................34
6.15 Priority of Debt.....................................................35
ARTICLE VII AFFIRMATIVE COVENANTS.............................................35
7.01 Payment of Taxes.....................................................35
7.02 Maintenance of Insurance.............................................35
7.03 Preservation of Corporate Existence..................................35
7.04 Compliance with Laws, etc............................................35
7.05 Compliance with ERISA and the Code...................................36
7.06 Compliance with Contracts, etc.......................................36
7.07 Access to Properties.................................................36
7.08 Conduct of Business..................................................36
7.09 Use of Proceeds......................................................36
7.10 Financial Statements.................................................36
7.11 Books and Records....................................................37
7.12 Additional Information...............................................38
7.13 SEC Filings..........................................................38
7.14 Change in Debt Rating................................................38
7.15 Notice of Environmental Matters......................................38
7.16 Notice of Litigation and Other Matters...............................38
ARTICLE VIII NEGATIVE COVENANTS...............................................39
8.01 Financial Covenants..................................................39
8.02 Limitations on Liens.................................................39
8.03 Disposition of Debt and Shares of Restricted Subsidiaries;
Issuance of Shares by Restricted Subsidiaries; Consolidation,
Merger or Disposition of Assets....................................41
8.04 Transaction with Affiliates..........................................42
8.05 Compliance with Regulations..........................................42
8.06 Hedging Agreements...................................................42
8.07 ERISA................................................................43
8.08 Limitations on Acquisitions..........................................43
8.09 Sale Leaseback Transactions..........................................43
8.10 Limitations on Investments...........................................44
ARTICLE IX GUARANTY...........................................................45
9.01 Guaranty of Payment..................................................45
9.02 Obligations Unconditional............................................46
9.03 Modifications........................................................47
9.04 Waiver of Rights.....................................................47
9.05 Reinstatement........................................................47
9.06 Remedies.............................................................47
9.07 Limitation of Guaranty...............................................48
9.08 Termination of Guaranty Upon Divestiture.............................48
9.09 Guaranty of Payment..................................................48
ARTICLE X EVENTS OF DEFAULT...................................................48
10.01 Event of Default.....................................................48
10.02 Remedies.............................................................50
10.03 Rights Not Exclusive.................................................51
(ii)
ARTICLE XI MISCELLANEOUS......................................................51
11.01 Amendments and Waivers..............................................51
11.02 Notices.............................................................51
11.03 No Waiver; Cumulative Remedies......................................52
11.04 Costs and Expenses..................................................52
11.05 Indemnities.........................................................52
11.06 Successors and Assigns..............................................53
11.07 Assignments.........................................................53
11.08 Confidentiality.....................................................54
11.09 Counterparts........................................................54
11.10 Severability........................................................54
11.11 Governing Law and Jurisdiction......................................54
11.12 Waiver of Jury Trial................................................55
11.13 Entire Agreement....................................................55
11.14 USA Patriot Act.....................................................55
11.15 Termination of Commitments under 2002 Facility......................56
(iii)
CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT is entered into as of July 13, 2005 among (i) THE
BRINK'S COMPANY, a Virginia corporation, (the "Parent"), (ii) BAX GLOBAL INC., a
Delaware corporation ("BAX"), (iii) BRINK'S, INCORPORATED, a Delaware
corporation ("Brink's") (BAX, Brink's and the Parent being 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 $55,000,000
revolving credit facility for a five-year period ( the "Facility"), in part to
refinance facilities currently extended by the Bank;
WHEREAS, upon the written request of the Parent and upon written advice
from the Bank to the Parent 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 of the Guarantors under Article IX
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 20, 2002, as
renewed and amended from time to time thereafter, the Bank has extended a
revolving credit facility (the "2002 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 being replaced with the Facility provided
hereunder; and
WHEREAS, the Facility provided hereunder shall be available immediately and
the 2002 Facility shall be terminated, 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 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.
"Applicable LT Rating" means as to each of Moody's and S&P, its rating
of the Parent's senior, unsecured, long-term, non-credit-enhanced debt for
borrowed money (or of the unsecured long-term debt of any other Person, the
rating of which by Moody's and S&P is based upon a senior unsecured,
non-credit-enhanced guarantee by the Parent).
"Applicable Percentage" means, for purposes of calculating (a) the
interest rate available to the LIBOR Rate Loans; (b) the interest rate
applicable to Base Rate Loans; (c) the facility fee; and (d) letter of
credit fees, the applicable percentage set forth below opposite the
Applicable LT Rating:
-------------------------------------------------------------------------------------------------------
| Pricing | Applicable | LIBOR Rate | Base Rate | Utilization | Facility | Performance |
| Level | LT Rating | Loans/ | Loans | Fee with | Fee | LC Fee |
| | | Financial LC | | Utilization | | |
| | | Fee | | >50% | | |
|----------|--------------|-----------------|------------|---------------|-------------|--------------|
| I. | A-/A3 | 0.300% | 0.00% | 0.125% | 0.100% | 0.150% |
| | or above | | | | | |
|-------------------------|-----------------|------------|---------------|-------------|--------------|
| II. | BBB+/Baa1 | 0.500% | 0.00% | 0.125% | 0.125% | 0.250% |
|----------|--------------|-----------------|------------|---------------|-------------|--------------|
| III. | BBB/Baa2 | 0.600% | 0.00% | 0.125% | 0.150% | 0.300% |
|----------|--------------|-----------------|------------|---------------|-------------|--------------|
| IV. | BBB-/Baa3 | 0.800% | 0.00% | 0.125% | 0.200% | 0.400% |
|----------|--------------|-----------------|------------|---------------|-------------|--------------|
| V. | BB+/Ba1 | 1.000% | 0.00% | 0.125% | 0.250% | 0.500% |
| | or below | | | | | |
-------------------------------------------------------------------------------------------------------
For purposes of the foregoing, (i) if the Applicable LT Ratings established
by Moody's and S&P are different but correspond to consecutive Pricing
Levels, then the pricing will be based on the higher Applicable LT Rating
(e.g., if Moody's Applicable LT Rating corresponds to Level I and S&P's
Applicable LT Rating corresponds to Level II, then the pricing will be
based on Level I), and (ii) if the Applicable LT Ratings established by
Moody's and S&P's are more than one Pricing Level apart, then the pricing
will be based on the rating which is one level higher than the lower rating
(e.g., if Moody's and S&P's Applicable LT Ratings corresponds to pricing
Level I an IV, respectively, then the pricing will be based on pricing
Level III. The Applicable Percentage shall be adjusted on the date five (5)
Business Days after the date of any change in the Applicable LT Ratings
(each such adjustment rate a "Rate Determination Date"). Each Applicable
Percentage shall be effective from a Rate Determination Date until the next
such Rate Determination Date. Adjustments in the Applicable Percentages
shall be effective as to existing Loans and Letters of Credit as well as
any new Loans or Letters of Credit made or issued thereafter.
"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.
2
"Assignee" has the meaning assigned thereto in Section 11.07.
"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.
"Capital Lease" means any lease of property which should be
capitalized on the lessee's balance sheet in accordance with GAAP.
"Capital Lease Obligation" means the amount of liability that is
capitalized in respect of any Capital Lease in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended.
3
"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 under the Facility in an aggregate principal amount not to
exceed $55,000,000, at any time outstanding as such amount may be reduced
from time to time pursuant to the terms of this Agreement.
"Consolidated Debt" means the Debt of the Parent 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 the Parent 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
the Parent 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 the Parent 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 the Parent 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) any
non-cash impairment, valuation allowance, write-down or write-off in the
book value of any assets and (c) any non-cash loss in connection with the
disposition of any assets.
"Consolidated Net Worth" means, as of any date, as applied to the
Parent 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
4
Restricted Subsidiaries, provided that in determining "Consolidated Net
Worth" there shall be (a) included any issuance of preferred stock by the
Parent and (b) excluded (i) any extraordinary gains and losses, (ii) any
non-cash impairment, valuation allowance, 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 (iii) any non-cash loss in connection with the
disposition of any assets, provided further, that the items referred to in
clauses (i), (ii) and (iii), shall be excluded only to the extent that such
items are recorded following the date hereof.
"Consolidated Total Assets" means, as of any date, the assets and
properties of the Parent 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.
"Covered Subsidiaries" means the Subsidiaries of BAX and Brink's
listed on Schedule B-1 of this Agreement, together with any other
Subsidiaries of BAX and Brink's that are designated as such from time to
time after the Effective Date with the prior written consent of the Bank in
accordance with Section 2.01(b)(ii).
"Credit Parties" means the Borrowers and the Guarantors.
"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.
5
"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, judgments, 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, and
the rules and regulations thereunder, each as amended, supplemented or
otherwise modified from time to time.
"ERISA Affiliate" means any Person who together with the Parent is
treated as a single employer within the meaning of Section 414(b), (c), (m)
or (o) of the Code or Section 4001(b) of ERISA.
"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
6
"Composite 3:30 p.m. Quotation") for such day 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 Letters of Credit" has the meaning assigned thereto in
Section 3.01(a).
"Fiscal Year" means the fiscal year of the Parent 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 the Parent or any one
or more of its Subsidiaries primarily for the benefit of employees of the
Parent 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.
"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.
"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
7
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.
"Interest Period" has the meaning assigned thereto in Section 4.1.2.
"JPM Credit Agreement" means that certain $400,000,000 Credit
Agreement, dated as of October 15, 2004, among the Parent, certain of its
subsidiaries, the lenders party thereto, the Documentation Agent and the
Syndication Agents referred to therein and JPMorganChase Bank, as
Administrative Agent, as it may be amended, supplemented or otherwise
modified or replaced from time to time hereafter.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of indebtedness, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership, joint
ventures or other ownership interests or other securities of such Person,
(b) any deposit with, or advance, loan or other extension of credit to,
8
such Person (other than deposits made in connection with the purchase of
equipment or other assets in the ordinary course of business) or (c) any
other capital contribution to or investment in such Person.
"Labor Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments 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.
"L/C Application" has the meaning assigned thereto in Section 3.03(b).
"L/C Related Documents" has the meaning assigned thereto in 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 office of the Bank at which
it shall make, issue and maintain Base Rate Loans, Letters of Credit or
LIBOR Rate Loans for the various Borrowers. The Bank may have different
Lending Offices for extensions of credit of different types (including
Loans that bear interest according to different formulas) and/or for
different Borrowers and may change such Lending Office or Lending Office at
any time or from time to time.
"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 with
respect to the Parent, 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
the Parent or any of its Subsidiaries, discounted to such December 31 to
present value at 10% and net of aggregate minimum non-cancelable sublease
rentals, determined on a basis consistent with Note 15 to the Parent's
9
consolidated financial statements at and for the period ended December 31,
2004, included in the Parent's 2004 annual report to shareholders, exceeds
(B) $400,000,000, 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 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.
10
"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, any L/C Related Documents, any other
documentation executed at the request of any Lending Office and any
documentation executed by any Covered Subsidiary with or for the benefit of
the Bank or any branch or Affiliate of the Bank in connection with any
extensions of credit made pursuant to allocations of the Commitment
contemplated by Section 2.01(b).
"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 effect on the
financial condition or results of operations of the Parent and its
Restricted Subsidiaries taken as a whole that would impair the ability of
the Credit Parties to perform their obligations under the Loan Documents or
(b) a material adverse effect on the rights or remedies of the Bank under
the Loan Documents.
"Material Domestic Subsidiary" means any Subsidiary of the Parent
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 or Covered Subsidiary to the Bank, any Lending
Office or any other Person required to be paid or indemnified by that
Borrower or Covered Subsidiary 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
11
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 or Covered
Subsidiary 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.
"Outstanding Letter of Credit" means a letter of credit listed on
Schedule B-2.
"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 provisions of Title IV of ERISA or Section 412 of the
Code and is maintained for the employees of the Parent or any of its ERISA
Affiliates.
"Performance Letters of Credit" has the meaning assigned thereto in
Section 3.01(a).
"Person" means an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
"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 Guarantors.
"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.
12
"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 the Parent, or any other officer
having substantially the same authority and responsibility.
"Restricted Subsidiary" means:
(i) any Subsidiary of the Parent at the date of this Agreement other
than a Subsidiary designated as an Unrestricted Subsidiary in Schedule A-3
(ii) any Material Domestic Subsidiary of the Parent;
(iii) any Subsidiary of the Parent that is a Guarantor;
(iv) any Subsidiary of the Parent that owns, directly or indirectly,
any of the capital stock of any Guarantor; and
(v) any Person that becomes a Subsidiary of the Parent after the date
hereof unless prior to such Person becoming a Subsidiary a Responsible
Officer 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
a Responsible Officer as an Unrestricted Subsidiary by written notice to
the Bank, but only if (a) the Subsidiary owns no shares, directly or
indirectly, of the Parent or any Restricted Subsidiary and (b) immediately
after such designation, the Leverage Ratio is not greater than 0.60 to 1.00
and the Interest Coverage Ratio is at least 3.00 to 1.00. An Unrestricted
Subsidiary may be designated by a Responsible Officer as a Restricted
Subsidiary by written notice to the Bank, but only if immediately after
such designation (x) the Parent shall be in compliance with Section 9.2 and
(y) the Leverage Ratio is not greater than 0.60 to 1.00 and the Interest
Coverage Ratio is at least 3.00 to 1.00.
"Sale and Leaseback Transaction" means the sale by the Parent 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 the Parent 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).
13
"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 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 the Parent.
"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
8.10).
"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.
"Utilization" means, at any time, a fraction (expressed as a
percentage) the numerator of which is the sum of (i) the aggregate amount
of Letter of Credit Obligations in respect of all Letters of Credit at such
time plus (ii) the aggregate principal amount of all Loans outstanding at
such time plus (iii) the aggregate amount of the Commitment allocated to
Covered Subsidiaries at such time, and the denominator of which is the
Commitment amount at such time
"Withholding Taxes" has the meaning assigned thereto in Section
4.01(a).
14
1.02 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 7.10 consistent with the annual audited financial statements
referenced in Section 6.07); provided, however, if (a) the Parent 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 the
Parent to the Bank as to which no such objection shall have been made.
ARTICLE II
LOANS AND ALLOCATIONS
---------------------
2.01 Amounts and Terms of Commitment. Bank agrees to make available to the
Borrowers, including the Parent, from the Effective Date until the fifth
anniversary of the date hereof or until such earlier date on which the Bank
terminates the Commitment pursuant to Section 8.02(a) or the Parent terminates
the Commitment pursuant to Section 2.05(a) (the "Termination Date"), committed
funds in an aggregate amount of $55,000,000 at any time outstanding (subject to
reduction pursuant to Section 2.05(a)) on the terms and conditions set forth in
this Agreement, as follows:
(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 $55,000,000 (subject to reduction pursuant to Section
2.05(a)) at any time outstanding.
(b) Facility Allocations
(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.
(ii) As of the Effective Date, those Subsidiaries of BAX and
Brink's listed on Schedule B-1 have been designated by the Parent and
accepted by the Bank as Covered Subsidiaries with such allocations of the
unused Commitment as are specified on such Schedule B-1. At any time and
from time to time after the Effective Date, the Parent, may by written
notice to the Bank request that any other Subsidiary of BAX or Brink's
15
(other than Pittston Minerals Group, Inc., Pittston Coal Company and any of
their respective Subsidiaries) be designated as a Covered Subsidiary and/or
that the allocation of the Commitment among the Borrowers and the Covered
Subsidiaries be modified. Any such request shall state the name and address
of, as applicable, the Covered Subsidiary or the Subsidiary of BAX or
Brink's proposed to be designated as an additional Covered Subsidiary and
the country in which a credit extension is contemplated. The Bank, after
consultation with the relevant branch or Affiliate, shall notify the Parent
as soon as reasonably practicable whether it accepts such additional
designation and/or re-allocation and shall advise the Parent in writing of
the acceptance of such designation and/or such re-allocation. Any
Subsidiary of BAX or Brink's so accepted by the Bank as an additional
Covered Subsidiary in accordance with the immediately preceding sentence
shall be deemed to be a Covered Subsidiary for all purposes under this
Agreement, including Schedule B-1 effective on the date of such acceptance.
Upon request of the Parent at any time and from time to time, the Bank
shall furnish revised versions of Schedule A-1, Schedule A-2 and Schedule
B-1, as amended or supplemented, listing all Covered Subsidiaries and
specifying the allocated portion of the unused Commitment applicable to
such Covered Subsidiaries. The Bank shall not be obligated in any way to
accept any such additional designation of a Covered Subsidiary or any such
re-allocation. 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 Parent; 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 Parent
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 under Article IX shall apply to all
such 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 Parent
of reinstated availability. The Bank shall be entitled to demand cash
collateral from the relevant Guarantors 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 to the Parent, be an Event of Default hereunder.
16
(c) Documentation 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.
2.02 Procedure for Incurring Loans. Each Loan shall be made in Dollars 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.
2.03 Conversion and Continuation Elections with Respect to Outstanding
Loans.
(a) Any Borrower may upon irrevocable written notice to the applicable
Lending Office in accordance with Section 2.03(b):
(i) elect to convert, on any Business Day, any Base Rate Loan made to
such Borrower into a LIBOR Rate Loan; or
(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
(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.
(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:
(A) the proposed date of conversion or continuation;
17
(B) the aggregate amount of Loans to be converted or continued;
(C) the nature of the proposed conversion or continuation; and
(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.
(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.
2.04 Termination or Reduction of the Commitment.
(a) The Parent 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 Article IX 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 facility 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.
(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.
2.05 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.
18
2.06 Repayment of Principal.
(a) Each Borrower shall repay on the Termination Date the principal
amount of the Loans made to it.
(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 Parent 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 Parent receives such notice, the Borrower 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.
2.07 Interest.
(a) Subject to Sections 2.07(c) and (e), 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 Percentage for the LIBOR Rate Loans or the Base
Rate Loans per annum.
(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.
(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
19
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%.
(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.
(e) In the case of all Loans, on each day that Utilization is greater
than 50%, the otherwise applicable interest rate shall be increased by the
Applicable Percentage for utilization fee.
2.08 Fees.
(a) Facility Fee. The Parent shall pay to the Bank a facility fee in
Dollars computed at a rate per annum equal to the Applicable Percentage on
the average amount of the Commitment (whether used or unused, allocated or
unallocated), computed on a quarterly basis in arrears on the last day of
each calendar quarter. Such facility 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
facility 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.
(b) Letter of Credit Fees.
(i) Subject to Section 2.08(e), 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 the Applicable Percentage 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 Applicable
Percentage 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
20
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.
(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.
(c) Arrangement Fee. The Borrowers shall pay to the Bank an
arrangement fee in the amount of $100,000 on the Effective Date.
(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 the Parent 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.
(e) Utilization Fee. In the case of all Letters of Credit, on each day
that Utilization is greater than 50%, the otherwise applicable fee payable
under Section 2.08(b)(i) shall be increased by the Applicable Percentage
for utilization fee.
2.09 Computation of Fees and Interest.
(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.
(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.
2.10 Payments by the Borrowers.
(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
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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.
(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.
ARTICLE III
LETTERS OF CREDIT
-----------------
3.01 The Letters of Credit Commitment.
(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.
(b) The Letter of Credit Obligations set forth on Schedule B-2 hereto
are outstanding under the 2002 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; provided that (i) BAX shall
only be jointly and severally liable for such Letter of Credit Obligations
owing by the Covered Subsidiaries of BAX set opposite its name on Schedule
B-2, (ii) Brink's shall only be jointly and severally liable for such
Letter of Credit Obligations owing by the Covered Subsidiaries of Brink's
set opposite its name on Schedule B-2, (iii) Brink's shall not be jointly
and severally liable for such Letter of Credit Obligations owing by any
Covered Subsidiary of BAX set opposite BAX's name on Schedule B-2 and (iv)
BAX shall not be jointly and severally liable for such Letter of Credit
Obligations owing by any Covered Subsidiary of Brink's set opposite Brink's
name on Schedule B-2 and (v) notwithstanding the preceding clauses (i)
22
through (iv), (a) if any Covered Subsidiary of Brink's becomes a Subsidiary
of BAX, BAX shall become, and Brink's shall cease to be, jointly and
severally liable for such Letter of Credit Obligations owing by such
Covered Subsidiary and (b) if any Covered Subsidiary of BAX becomes a
Subsidiary of Brink's, Brink's shall become, and BAX shall cease to be,
jointly and severally liable for such Letter of Credit Obligations owing by
such Covered Subsidiary.
3.02 Terms of the Letters of Credit.
(a) Performance Letters of Credit issued after the Effective Date
shall not have a term exceeding one year.
(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.
3.03 Procedure for Issuance of the Letters of Credit.
(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.
(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
23
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.
(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.
(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.
3.04 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.
3.05 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");
(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;
(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;
(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;
(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;
(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
(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.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
4.01 Taxes.
(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
25
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:
(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;
(ii) shall make such deductions; and
(iii) shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law.
(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.
(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.
(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.
26
(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.
4.02 Illegality.
(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 Parent, 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.
(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.
(c) The Bank shall immediately notify the Parent of any event
described in (a) or (b) above.
4.03 Increased Costs and Reduction of Return; Additional Interest on LIBOR
Rate Loans.
(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.
27
(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.
(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 the Parent 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.
(d) The Bank will notify the Parent 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 Parent may, by notice to the Bank, require that: (x) the Bank furnish
to the Parent 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.
4.04 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:
(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);
28
(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;
(c) the failure by such Borrower to make any prepayment after such
Borrower has given a notice in accordance with Section 2.05;
(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
(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;
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.
4.05 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 Parent. 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 by
the Parent, 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.
4.06 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.
4.07 Survival. The agreements and obligations of the Borrowers in this
Article IV shall survive the payment of all other Obligations.
29
ARTICLE V
CONDITIONS PRECEDENT
--------------------
5.01 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:
(a) Credit Agreement. This Agreement shall be duly executed and
delivered by each Credit Party;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of each
Credit Party approving and authorizing the execution, delivery and
performance of this Agreement 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 Credit Party; and
(ii) A certificate of the Secretary or Assistant Secretary of
each Credit Party as of the Effective Date certifying the names and
true signatures of the officers of such Credit Party authorized to
execute and deliver this Agreement and all other Loan Documents to be
delivered by it hereunder.
(c) Reserved.
(d) Legal Opinions. Opinions in form and substance reasonably
satisfactory to the Bank of the general counsel of the Parent (and in such
capacity, acting as counsel for the Credit Parties) and, as to matters of
New York law, of Hunton & Williams LLP.
(e) 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, (ii) all fees and expenses and
other amounts owing under the 2002 Facility and (iii) the arrangement fee
of $100,000.
(f) Certificates. A certificate signed by a Responsible Officer, dated
as of the Effective Date, stating that:
(i) the representations and warranties in Article VI are true and
correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists as of the Effective
Date; and
30
(iii) since December 31, 2004, there has occurred no event or
circumstance that could reasonably be expected to result in a Material
Adverse Effect.
(g) Financial Statements. A copy of the audited and unaudited
financial statements of the Parent 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, in the case of the unaudited financial statements.
5.02 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:
(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;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Credit Parties in Article VI
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, except for any
representation and warranty made as of an earlier date, which
representation and warranty shall remain true and correct in all material
respects as of such earlier date; and
(c) No 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.
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.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Credit Party (or, as specifically provided below, the Parent
only), represents and warrants to the Bank, as follows:
6.01 Corporate Existence. (a) Such Credit Party and each of its Restricted
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (b) such Credit Party and each of its
Restricted Subsidiaries (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. Such Credit Party has the corporate power to execute and deliver
and to perform its obligations under the Loan Documents to which it is party and
(in the case of the Borrowers) to borrow hereunder.
31
6.02 Non-Contravention. The execution, delivery and performance by such
Credit Party 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 such Credit Party, (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 such Credit Party or of the charter or by-laws of such Credit
Party, (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 such Credit Party 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 such Credit Party; and such Credit Party 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.
6.03 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 such Credit Party of the Loan Documents to which it is party.
6.04 Binding Obligations. Each of the Loan Documents to which such Credit
Party is party constitute legal, valid, and binding obligations of such Credit
Party enforceable against such Credit Party 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.
6.05 Title to Properties. Such Credit Party and each of its Restricted
Subsidiaries 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 this Agreement.
6.06 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.
6.07 Financial Statements. The Parent hereby represents and warrants that:
(a) The consolidated balance sheet of the Parent and its Subsidiaries
as at December 31, 2004, 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
32
in all material respects the consolidated financial condition of the Parent
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.
(b) The unaudited consolidated balance sheet of the Parent and its
Subsidiaries as at March 31, 2005, the related unaudited consolidated
statement of operations of the Parent and its Subsidiaries for the fiscal
quarter year then ended, and the related unaudited consolidated statement
of cash flows of the Parent 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 the Parent 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 March 31,
2005.
6.08 Litigation. There are no actions, suits, or proceedings pending or, to
the knowledge of the Parent, threatened against or affecting the Parent, any of
its Restricted Subsidiaries or the properties of the Parent or any of its
Restricted Subsidiaries before any Governmental Authority or arbitrator that
would have a Material Adverse Effect, and neither the Parent nor any of its
Restricted Subsidiaries is in default (in any respect which would have a
Material Adverse Effect) with respect to any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect and
applicable to the Parent or any of its Restricted Subsidiaries.
6.09 Taxes. The Parent and its Restricted Subsidiaries have 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.
6.10 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
Parent 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 Parent. 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.
Neither the Parent 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 Parent nor any ERISA Affiliate has received notice that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241 of
33
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 Parent, 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 Parent 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).
6.11 No Default. No Default and no Event of Default has occurred and is
continuing.
6.12 Federal Reserve Regulations. (a) Neither the Parent nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock.
(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.
6.13 Investment Company Act. None of the Credit Parties is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940.
6.14 Environmental Matters. In the ordinary course of its business, the
Parent 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 the Parent and its Restricted 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, the Parent represents and warrants that applicable Environmental Laws
and laws relating to occupational health and safety do not and would not have a
Material Adverse Effect and it and each of its Restricted Subsidiaries 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 would have a Material Adverse Effect.
34
6.15 Priority of Debt. Each Credit Party 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.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
Until all of the Obligations have been paid and satisfied in full, all
Letters of Credit have expired or been terminated and the Aggregate Commitment
has expired or been terminated, unless consent has been obtained in the manner
provided for in Section 11.01, the Parent will:
7.01 Payment of Taxes, etc. Pay and discharge, and cause each Restricted
Subsidiary to pay and discharge, all material 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 material claims which, if unpaid, might become a lien or
charge upon any properties of the Parent or any Restricted Subsidiary; provided,
however, that neither the Parent nor any Restricted Subsidiary shall 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.
7.02 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 the
Parent or such Restricted Subsidiary operates.
7.03 Preservation of Corporate Existence, etc. Preserve and maintain, and
cause each Restricted Subsidiary to preserve and maintain, its corporate
existence and material rights, franchises and privileges; provided, however,
that nothing herein contained shall prevent any merger or consolidation
permitted by Section 8.3; and provided further that the Parent shall not be
required to preserve or to cause any Restricted Subsidiary to preserve its
corporate existence or any such rights, franchises or privileges if the Parent
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Parent and its Restricted Subsidiaries taken as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Parent and its Restricted Subsidiaries taken as a whole.
7.04 Compliance with Laws, etc. Comply, and cause each Restricted
Subsidiary to 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),
noncompliance with which would have a Material Adverse Effect.
35
7.05 Compliance with ERISA and the Code. Comply, and cause each of its
ERISA Affiliates to comply, with the minimum funding standards under ERISA with
respect to its Pension Plans and use its best efforts, and cause each ERISA
Affiliates to use its best efforts, to comply in all material respects with all
other applicable provisions of ERISA and the Code and the regulations and
interpretations promulgated thereunder.
7.06 Compliance with Contracts, etc. Perform, and cause each Restricted
Subsidiary to perform, all of its obligations under the terms of each mortgage,
indenture, security agreement, loan agreement or credit agreement and each other
agreement, contract or instrument by which it is bound, except where the failure
to do so would not have a Material Adverse Effect.
7.07 Access to Properties. Permit, and cause its Restricted Subsidiaries to
permit, any representatives designated by the Bank, upon reasonable prior notice
to the Parent, to visit the properties of the Parent or any Restricted
Subsidiary at reasonable times and as often as reasonably requested.
7.08 Conduct of Business. Engage in, and cause its Restricted Subsidiaries
to engage in, only those businesses in which the Parent and its Restricted
Subsidiaries are engaged on the Effective Date and such other businesses
reasonably related or complementary thereto or in furtherance thereof, or in
other lines of business which are insignificant when viewed in the overall
context of the businesses then engaged in by the Parent and its Restricted
Subsidiaries taken as a whole.
7.09 Use of Proceeds. Use the proceeds of the Loans solely for the purposes
set forth in Section 2.01.
7.10 Financial Statements. Furnish or cause to be furnished to the Bank at
its address as set forth in Section 11.02 or such other office as may be
designated in writing by the Bank:
(a) annually, as soon as available, but in any event within 120 days
after the last day of each Fiscal Year, a consolidated balance sheet of the
Parent and its Subsidiaries, as at such last day of such Fiscal Year, and
consolidated statements of operations, shareholders' equity and cash flow for
the Parent and its Subsidiaries for such Fiscal Year, each prepared in
accordance with GAAP, in reasonable detail, and audited by KPMG LLP or any other
firm of independent certified public accountants of recognized national standing
and whose opinion shall not be qualified with respect to scope limitations
imposed by the Parent or any Subsidiary, the status of the Parent and its
Subsidiaries as a going concern or the accounting principles followed by the
Parent or any Subsidiary not in accordance with GAAP;
(b) as soon as available, but in any event within 60 days after the
end of each of the first three fiscal quarterly periods of each Fiscal Year, a
consolidated balance sheet of the Parent and its Subsidiaries as at the last day
of such fiscal quarter and consolidated statements of operations and cash flows
for the Parent and its Subsidiaries for such fiscal quarter, and for the then
current Fiscal Year through the end of such fiscal quarter, prepared in
accordance with GAAP (except for omission of notes and subject to year-end
adjustments);
36
(c) substantially concurrently with the delivery of financial
statements pursuant clause (a) above (but in any event, no later than the time
such financial statements are required to be delivered pursuant to clause (a)
above), a certificate signed by the chief financial officer or the chief
executive officer of the Parent 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 the Parent is a party or by which it is bound, or by which
any of its properties or assets may be affected, which would have a Material
Adverse Effect and specifying in reasonable detail the exceptions, if any, to
such statements;
(d) substantially concurrently with the delivery of financial
statements pursuant clauses (a) and (b) above (but in any event, no later than
the time such financial statements are required to be delivered pursuant to
clauses (a) and (b) above), a statement of a financial officer of the Parent
showing the Leverage Ratio and Interest Coverage Ratio by reasonably detailed
calculation thereof as of the last day of the fiscal period to which such
financial statements relate;
(e) substantially concurrently with the delivery of financial
statements pursuant clause (b) above (but in any event, no later than the time
such financial statements are required to be delivered pursuant to clause (b)
above), a certificate signed by a financial officer of the Parent and stating
that such officer has made due inquiry and that to the best of his knowledge no
Default or Event of Default has occurred and is continuing, or, if a Default or
Event of Default has occurred and is continuing, specifying the nature and
extent thereof;
(f) immediately, but in any event within three (3) Business Days
after a Responsible Officer obtains knowledge of the occurrence of any Default
or Event of Default, a certificate of a Responsible Officer setting forth the
details thereof and the action which the Parent is taking or proposes to take
with respect thereto; and
Any financial statement required to be delivered pursuant to this Section
7.10 shall be deemed to have been delivered on the date on which the Parent
posts such financial statement on its website on the Internet at
www.brinkscompany.com (or a successor website) or when such financial statement
is posted on the SEC's website on the Internet at www.sec.gov (or a successor
website) and, in each case, such financial statement is readily accessible to
the Bank on such date; provided that the Parent shall give notice of any such
posting to the Bank; provided, further, that the Parent shall deliver paper
copies of any such financial statement to the Bank if the Bank requests the
Parent to deliver such paper copies until notice to cease delivering such paper
copies is given by the Bank.
7.11 Books and Records. Keep, and cause each Restricted Subsidiary to 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 the business and activities of its Restricted
Subsidiaries.
37
7.12 Additional Information. Furnish, and cause each Restricted Subsidiary
to furnish, with reasonable promptness such other financial information as the
Bank may reasonably request, provided that the Parent shall not 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.
7.13 SEC Filings. Promptly after the same are available, furnish or make
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 the Parent or any Subsidiary may be
required to file with the Securities and Exchange Commission (excluding
registration statements filed pursuant to employee stock option or benefit
plans); provided that any reports required to be furnished pursuant to this
Section 7.13 shall be deemed to have been furnished on the date on which the
Parent posts such report on its website on the Internet at www.brinkscompany.com
(or a successor website) or when such report is posted on the SEC's website on
the Internet at www.sec.gov and, in each case, such report is readily accessible
to the Bank on such date; provided that the Parent shall give notice of any such
posting to the Bank; provided, further, that the Parent shall deliver paper
copies of any such report to the Bank if the Bank requests the Parent to deliver
such paper copies until notice to cease delivering such paper copies is given by
the Bank.
7.14 Change in Debt Rating. Within three (3) Business Days after any
Responsible Officer receives notice of any change in the Applicable LT Rating,
furnish written notice of such change and the new Applicable LT Rating to the
Bank.
7.15 Notice of Environmental Matters. Furnish, and cause each Restricted
Subsidiary to furnish, to the Bank, as soon as reasonably practicable after
receipt by the Parent or any Restricted Subsidiary, a copy of any written notice
or claim to the effect that the Parent or any Restricted Subsidiary is liable to
any Person as a result of the presence or release of any Contaminant which claim
would have a Material Adverse Effect.
7.16 Notice of Litigation and Other Matters. Promptly (but in no event
later than three (3) Business Days after a Responsible Officer obtains knowledge
thereof) the Parent shall furnish telephonic (confirmed in writing to the Bank)
or written notice to the Bank:
(a) the commencement of all proceedings by or before any Governmental
Authority and all actions and proceedings in any court or before any arbitrator
against any of the Credit Parties or any Restricted Subsidiary thereof or any of
their respective properties, assets or businesses (i) which in the reasonable
judgment of the Credit Parties would have a Material Adverse Effect, (ii) with
respect to any material Debt of the Credit Parties or any of their Restricted
Subsidiaries or (iii) with respect to any Loan Document;
(b) any notice of any violation received by any of the Credit Parties
or any Restricted Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws, which in the
reasonable judgment of the Credit Parties in any such case would have a Material
Adverse Effect; and
38
(c) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of a Plan under Section 401(a) of the Code
(along with a copy thereof) which would have a Material Adverse Effect, (ii) all
notices received by any of the Credit Parties or any ERISA Affiliate of the
PBGC's intent to terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan, (iii) all notices received by any of the Credit
Parties or any ERISA Affiliate from any Multiemployer Plan sponsor concerning
the imposition or amount of withdrawal liability pursuant to Section 4202 of
ERISA which would have a Material Adverse Effect, (iv) the Credit Parties
obtaining knowledge or reason to know that the Credit Parties or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA, (v) the occurrence of a Reportable Event, (vi) a failure to make any
required contribution to a Pension Plan which would have a Material Adverse
Effect, and (vii) the creation of any lien in favor of the PBGC or a Pension
Plan which would have a Material Adverse Effect.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
Until all of the Obligations have been paid and satisfied in full and
Aggregate Commitment has expired or been terminated unless consent has been
obtained hi the manner set forth in Section 11.01, the Parent will not:
8.01 Financial Covenants.
(a) Maximum Leverage Ratio. Commencing with the end of the first
fiscal quarter ending after the Effective Date, permit the Leverage Ratio as of
the end of each fiscal quarter to be greater than 60%.
(b) Minimum Interest Coverage Ratio. Commencing with the end of the
first fiscal quarter ending after the Effective Date, permit the Interest
Coverage Ratio as of the end of each fiscal quarter to be less than 3.00 to
1.00.
8.02 Limitations on Liens. 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:
(a) Liens existing on the Effective Date and set forth on Schedule
8.02;
39
(b) 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;
(c) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts, or (ii) 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;
(e) 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;
(f) Liens in favor of the Bank for the benefit of the Bank;
(g) Liens on the property or assets of any Restricted Subsidiary
existing at the time such Restricted Subsidiary becomes a Subsidiary of the
Parent 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 the Parent;
(h) Liens on the property or assets of the Credit Parties or any
Restricted Subsidiary securing Debt which is incurred to finance the
acquisition, construction or improvement on such property or assets, provided
that (i) each such Lien shall be created simultaneously with, or within twelve
months after, the acquisition (or the completion of the construction or
improvement) of the related property or assets; (ii) each such Lien does not at
any time encumber any property other than the related property or assets
financed by such Debt; (iii) the principal amount of Debt secured by each such
Lien is not increased; and (iv) 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 and the costs of any such
construction or improvements on such property or assets, as applicable;
40
(i) Liens consisting of judgment or judicial attachment Liens,
provided that (i) the claims giving rise to such Liens are being diligently
contested in good faith by appropriate proceedings, (ii) adequate reserves for
the obligations secured by such Liens have been established and (iii)
enforcement of such Liens has been stayed;
(j) 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;
(k) Liens on property or assets of the Parent or any Restricted
Subsidiary securing indebtedness owing to the Parent or any other Credit Party;
(l) Liens on coal reserves leased by the Parent or by any Restricted
Subsidiary as lessee, securing Debt to the lessors thereof, arising out of such
leases;
(m) Liens on any Margin Stock purchased or carried by the Parent or
any of its Subsidiaries;
(n) The extension, renewal or replacement of any Lien permitted by
clauses (a), (g), or (h), 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
(o) In addition to any Lien permitted by clauses (a) through
(m), immediately after giving effect to any concurrent repayment of secured
Debt, Liens securing Debt of the Parent 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, 2004 (and any renewal,
extension or replacement thereof) and Leases with respect to property not owned
by the Parent on such date), discounted to present value at ten percent (10%),
compounded annually, arising out of all Sale and Leaseback Transactions to which
the Parent or any of its Restricted Subsidiaries is then a party (including Sale
and Leaseback Transactions, if any, entered into pursuant to Section 8.09), does
not exceed 15% of Consolidated Net Worth; provided that the sale or transfer of
(i) 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 (ii) 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.
8.03 Disposition of Debt and Shares of Restricted Subsidiaries; Issuance of
Shares by Restricted Subsidiaries; Consolidation, Merger or Disposition of
Assets.
(a) 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, (b) 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
41
Parent or another Restricted Subsidiary, (c) 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 (d) 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 to
any Person, unless, after giving effect thereto, all of the following conditions
shall be met:
(i) the Leverage Ratio shall not be greater than 0.60 to 1.00 and the
Interest Coverage Ratio shall not be less than 3.00 to 1.00;
(ii) in the case of a merger or consolidation, (A) if the Parent is a
party thereto, the Parent shall be the surviving corporation, (B) if the
Parent is not a party thereto and another Borrower is a party thereto, a
Borrower shall be the surviving corporation and (C) if no Borrower is a
party thereto, a Restricted Subsidiary shall be the surviving corporation;
(iii) in the case of a liquidation, winding-up or dissolution, any
Borrower (other than the Parent) or any Restricted Subsidiary may
liquidate, wind up or dissolve itself into a Borrower or a Restricted
Subsidiary; and
(iv) no Default or Event of Default has occurred and is continuing.
Provided that the conditions of this Section 8.03 are satisfied, none of
the foregoing provisions shall be deemed to prohibit the Parent 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
8.02(j).
8.04 Transactions with Affiliates. Except as permitted in Section 8.10(j),
engage, or permit any Restricted Subsidiary to engage, directly or indirectly,
in any material 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.
8.05 Compliance with Regulations T. U and X. In the case of the Parent and
any Subsidiary of the Parent, 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.
8.06 Hedging Agreements. Enter into or permit to exist, 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 the Parent and its Restricted Subsidiaries.
42
8.07 ERISA. 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 Parent 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; (b) 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 Parent or any of
its Restricted Subsidiaries; (c) 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 (d) 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 (e) 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 Parent or any ERISA
Affiliate. For purposes of this Section 8.07, an amount is material if it would
have a Material Adverse Effect after aggregation with all other liabilities
described in this Section 8.07.
8.08 Limitations on Acquisitions. 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:
(a) the aggregate consideration paid by the acquirer in such
transaction does not exceed 20% of Consolidated Total Assets as of the end of
the Fiscal Year most recently ended; or
(b) in the event that the aggregate consideration to be paid by
the acquirer in such transaction exceeds 20% of Consolidated Total Assets as of
the end of the Fiscal Year most recently ended, (i) the Parent shall have
notified the Bank at least five (5) 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 8.01), and (ii) after giving effect to
such acquisition on a pro forma basis, no Default or Event of Default would
exist under Section 8.01. Any notice delivered to the Bank pursuant to this
Section 8.08 shall be kept confidential by the Bank in accordance with Section
11.08 below.
8.09 Sale Leaseback Transactions. Sell or transfer, or permit any
Restricted Subsidiaries to sell or transfer, any material property or assets
owned by the Parent or any Restricted Subsidiary on the Effective Date 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
43
(excluding Consolidated Lease Rentals under Leases in effect as of December 31,
2003 (and any renewal, extension or replacement thereof) and Leases with respect
to property not owned by the Parent on such date), discounted to present value
at ten percent (10%), compounded annually, arising out of all other Sale and
Leaseback Transactions to which the Parent or any of its Restricted Subsidiaries
is then a party, plus (C) the aggregate principal amount of all Debt of the
Parent or any Restricted Subsidiary secured by Liens incurred in reliance on
Section 8.02(o), would exceed 15% of Consolidated Net Worth.
Section 8.10 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:
(a) cash and Cash Equivalents;
(b) current assets generated in the ordinary course of business;
(c) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;
(d) 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;
(e) advances to employees for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business;
(f) advances or loans to directors, officers and employees that do not
exceed $25,000,000 in the aggregate at any one time outstanding;
(g) 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;
(h) loans to shareholders intended to constitute dividends on, or
payment on account of, any capital stock;
(i) Investments or Support Obligations by the Parent and its
Restricted Subsidiaries existing on the Effective Date;
(j) Investments by the Parent or its Restricted Subsidiaries in any
Borrower or any other Subsidiary (provided that such Investment would not
otherwise constitute a breach of Section 8.08);
(k) Support Obligations of the Parent or its Restricted Subsidiaries
for the benefit of any Borrower or any other Subsidiary;
44
(l) acquisitions permitted by Section 8.08 and Investments consisting
of capital stock, obligations, securities or other property received in
connection with any merger or sale permitted by Section 8.03;
(m) Investments in connection with the management of Pension Plans and
other benefit plans of the Parent and its Subsidiaries (including without
limitation The Pittston Company Employee Welfare Benefit Trust);
(n) Hedging Agreements permitted by Section 8.06;
(o) advances or loans to any Person with respect to the deferred
purchase price of property, services or other assets in dispositions permitted
by Section 8.03; and
(p) Investments of a nature not contemplated in the foregoing
subsections in an amount not to exceed 15% of Consolidated Net Worth.
ARTICLE IX
GUARANTY
--------
9.01 Guaranty of Payment.
(a) The Parent hereby unconditionally and irrevocably guarantees to the
Bank the prompt payment in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise) of all Obligations owing by
BAX, Brink's and all Covered Subsidiaries. Any such payment shall be made at
such place and in the same currency as such relevant Obligation is payable.
(b) Subject to Section 9.07 below, BAX hereby unconditionally and
irrevocably guarantees to the Bank the prompt payment in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration or otherwise) of
all Obligations owing by the Parent (solely in its capacity as a Borrower and
not in its capacity as a Guarantor) and the Covered Subsidiaries of BAX. Any
such payment shall be made at such place and in the same currency as such
relevant Obligation is payable.
(c) Subject to Section 9.07 below, Brink's hereby unconditionally and
irrevocably guarantees to the Bank the prompt payment in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration or otherwise) of
all Obligations owing by the Parent (solely in its capacity as a Borrower and
not in its capacity as a Guarantor) and the Covered Subsidiaries of Brink's. Any
such payment shall be made at such place and in the same currency as such
relevant Obligation is payable.
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(d) If any Covered Subsidiary of BAX becomes a Subsidiary of Brink's, the
guarantee by BAX under this Article IX of such Covered Subsidiary's Obligations
shall thereupon automatically and without further action be assumed by Brink's,
Brink's shall be fully liable therefor under this Article IX, and the
obligations of BAX with respect to such guarantee shall cease. If any Covered
Subsidiary of Brink's becomes a Subsidiary of BAX, the guarantee by Brink's
under this Article IX of such Covered Subsidiary's Obligations shall thereupon
automatically and without further action be assumed by BAX, BAX shall be fully
liable therefor under this Article IX, and the obligations of Brink's with
respect to such guarantee shall cease.
9.02 Obligations Unconditional. The obligations of the Guarantors hereunder
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of this Agreement, or any other agreement
or instrument referred to herein, to the fullest extent permitted by Applicable
Law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this guaranty may be enforced by the Bank without the
necessity at any time of resorting to or exhausting any security or collateral
and without the necessity at any time of having recourse to this Agreement or
any other Loan Document or any collateral, if any, hereafter securing the
Obligations or otherwise and each Guarantor hereby waives the right to require
the Bank to proceed against any other Guarantor or any other Person (including a
co-guarantor) or to require the Bank to pursue any other remedy or enforce any
other right. Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against any other
Guarantor (or any other guarantor of the Obligations) for amounts paid under
this guaranty until such time as the Bank has been paid in full, all commitments
under this Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Bank in connection with monies received under this Agreement. Each
Guarantor further agrees that nothing contained herein shall prevent the Bank
from suing in any jurisdiction on this Agreement or any other Loan Document or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Obligations or from exercising any other rights available to it under this
Agreement or any instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any Guarantor's obligations hereunder; it being the
purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances. Neither
a Guarantor's obligations under this guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever (i) by an impairment, modification, change, release or limitation of
the liability of any other Guarantor, (ii) by reason of the bankruptcy or
insolvency of such other Guarantor, (iii) by reason of the application of the
laws of any foreign jurisdiction or (iv) by reason of the location of such other
Guarantor in any foreign jurisdiction. Each Guarantor waives any and all notice
of the creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance of by the Bank upon this guaranty or acceptance
of this guaranty. The Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this guaranty. All dealings between the Parent and the
Guarantors, on the one hand, and the Bank, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
guaranty.
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9.03 Modifications. Each Guarantor agrees that (a) all or any part of the
security which hereafter may be held for the Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Bank shall not
have any obligation to protect, perfect, secure or insure any such security
interests or Liens which hereafter may be held, if any, for the Obligations or
the properties subject thereto; (c) the time or place of payment of the
Obligations may be changed or extended, in whole or in part, to a time certain
or otherwise, and may be renewed or accelerated, in whole or in part; (d) the
Parent and any other party liable for payment under this Agreement may be
granted indulgences generally; (e) any of the provisions of this Agreement or
any other Loan Document may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Parent or any other party liable for the payment of the Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Obligations, all
without notice to or further assent by such Guarantor, which shall remain bound
thereon, notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence or release.
9.04 Waiver of Rights. Each Guarantor expressly waives to the fullest
extent permitted by applicable law: (a) notice of acceptance of this guaranty by
the Bank and of all Loans to the Parent by the Bank; (b) presentment and demand
for payment or performance of any of the Obligations; (c) protest and notice of
dishonor or of default (except as specifically required in this Agreement) with
respect to the Obligations or with respect to any security therefor; (d) notice
of the Bank obtaining, amending, substituting for, releasing, waiving or
modifying any Lien, if any, hereafter securing the Obligations, or the Bank's
subordinating, compromising, discharging or releasing such Liens, if any; (e)
all other notices to which the Parent might otherwise be entitled in connection
with the guaranty evidenced by this Article IX; and (f) demand for payment under
this guaranty.
9.05 Reinstatement. The obligations of each Guarantor under this Article IX
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Obligations is rescinded
or must be otherwise restored by any holder of any of the Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the Bank on demand for all
reasonable costs and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by the Bank in connection with such rescission
or restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
9.06 Remedies. Each Guarantor agrees that, as between such Guarantor, on
the one hand, and the Bank, on the other hand, the Obligations may be declared
to be forthwith due and payable as provided in Section 10.02 (and shall be
deemed to have become automatically due and payable in the circumstances
47
provided in Section 10.02) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such declaration (or such Obligations being deemed to have become
automatically due and payable), such Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by such Guarantor.
9.07 Limitation of Guaranty. Notwithstanding any provision to the contrary
contained herein, to the extent the obligations of BAX or Brink's in their
capacities as Guarantors shall be adjudicated to be invalid or unenforceable for
any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the
obligations of such Guarantors hereunder shall be limited to the maximum amount
that is permissible under Applicable Law (whether federal or state and
including, without limitation, the Federal Bankruptcy Code (as now or
hereinafter in effect)).
9.08 Termination of Guaranty Upon Divestiture. The obligations of any
Guarantor under this Article IX shall automatically terminate as to such
Guarantor upon any consolidation, merger, sale or other disposition made in
accordance with Section 8.03 as a result of which such Guarantor is no longer a
Subsidiary of the Parent, BAX or Brink's, as applicable, immediately after the
consummation of such transaction and any outstanding amounts owing in respect of
such obligations shall have been paid in full.
9.09 Guaranty of Payment. This guaranty is a guaranty of payment and not
solely of collection, is a continuing guaranty and, subject to Sections 9.01 and
9.07 above, shall apply to all Obligations whenever arising.
ARTICLE X
EVENTS OF DEFAULT
-----------------
10.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(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;
(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 any
Responsible Officer, 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;
48
(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
gives written notice of such failure to the Bank or (ii) the date upon
which written notice thereof is given to the Parent by the Bank;
(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;
(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;
(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;
(g) Guarantor Defaults. Any Guarantor shall fail in any material
respect to perform or observe any term, covenant or agreement herein; or
the obligations of any Guarantor under Article IX 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 under such Article; or
49
(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 Brinks'
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).
(i) Payment Cross-Defaults. Any Borrower or 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 JPM Credit Agreement) and the aggregate amount of such
Debt is at least $25,000,000 (or the equivalent thereof).
(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 the Parent.
10.02 Remedies. If any Event of Default occurs, the Bank may:
(a) declare the Commitment to be terminated, whereupon the Commitment
shall forthwith be terminated;
(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;
(c) exercise all rights and remedies available to it under the Loan
Documents or applicable law;
(d) require the Borrowers to pay to the Bank in immediately available
funds, in the respective currencies of the applicable Letter of Credit
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
50
(e) require the relevant Guarantors to deposit in cash collateral
accounts maintained by the Bank amounts equal to any outstanding
Obligations then guaranteed by such Guarantors and remaining outstanding
and unterminated in accordance with Section 2.01(b)(ii).
provided, however, that upon the occurrence of any event specified in Sections
10.01(d) or Section 10.01(e) (in the case of Section 10.01(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.
10.03 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.
ARTICLE XI
MISCELLANEOUS
-------------
11.01 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, and then
such waiver shall be effective only in the specific instance and for the
specific purpose for which given.
11.02 Notices.
(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 11.02; or to such other address as shall be
designated by such party in a written notice to the other parties.
(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.
(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
51
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.
11.03 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.
11.04 Costs and Expenses. The Borrowers shall, whether or not the
transactions contemplated hereby shall be consummated:
(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(e)) 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
(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.
11.05 Indemnities. Whether or not the transactions contemplated hereby
shall be consummated:
(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
52
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
11.05(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.
(b) The obligations in this Section 11.05 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 11.05 shall be paid within 30 days after demand.
(c) If any sum due from a Credit Party 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 Credit
Party 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 Credit Party 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.
11.06 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 11.07.
11.07 Assignments. The Bank, with the prior written consent of the Parent,
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
53
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.
11.08 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.
11.09 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.
11.10 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.
11.11 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
54
(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 11.02.
11.12 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 11.12 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.
11.13 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 2002
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 the Parent is hereby acknowledged to be
separate and apart and shall not be affected in any way by this Agreement.
55
11.14 USA Patriot Act. The Bank hereby notifies each Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow the Bank to
identify each Borrower in accordance with said Act.
11.15 Termination of Commitments under 2002 Facility. Each of the
signatories hereto that is also a party to the 2002 Facility hereby agrees that,
as of the Effective Date, the commitment to extend credit under the 2002
Facility will be terminated automatically. The provisions of Section 9.05 under
the 2002 Facility shall survive and remain in full force and effect regardless
of the termination of the 2002 Facility or any provision hereof. This Agreement
constitutes notice thereof and pursuant hereto the requirement contained in
Section 2.04(a) of the 2002 Facility that three Business Days' (as defined
therein) notice of the termination of such commitments be given to the Bank is
waived.
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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.
BORROWERS
---------
THE BRINK'S COMPANY
By: /s/ James B. Hartough
---------------------------
Name: James B. Hartough
Title: Vice President - Corporate Finance
and Treasurer
BAX GLOBAL INC.
By: /s/ James B. Hartough
---------------------------
Name: James B. Hartough
Title: Treasurer and Assistant Secretary
BRINK'S, INCORPORATED
By: /s/ James B. Hartough
---------------------------
Name: James B. Hartough
Title: Treasurer
57
GUARANTORS:
-----------
THE BRINK'S COMPANY
a Virginia corporation
By: /s/ James B. Hartough
-------------------------
Name: James B. Hartough
Title: Vice President - Corporate Finance
and Treasurer
Notice Address: The Brink's Company
1801 Bayberry Court
P.O. Box 18100
Richmond, VA 23226
Attn: James B. Hartough
BAX GLOBAL INC.
a Delaware corporation
By: /s/ James B. Hartough
-------------------------
Name: James B. Hartough
Title: Treasurer and Assistant Secretary
Notice Address: BAX Global Inc.
1801 Bayberry Court
P.O. Box 18100
Richmond, VA 23226
Attn: James B. Hartough
BRINK'S, INCORPORATED
a Delaware corporation
By: /s/ James B. Hartough
-------------------------
Name: James B. Hartough
Title: Treasurer
Notice Address: Brink's, Incorporated
1801 Bayberry Court
P.O. Box 18100
Richmond, VA 23226
Attn: James B. Hartough
BANK
----
ABN AMRO BANK N.V.
By: /s/ Eric Oppenheimer
-------------------------
Name: Eric Oppenheimer
Title: Director
By: /s/ Kevin LeGallo
-------------------------
Name: Kevin LeGallo
Title: Assistant Vice President