GUARANTY
GUARANTY, dated as of November 12, 2002 made by THE PITTSTON COMPANY, a Virginia
corporation (the "Guarantor"), in favor of BAYERISCHE HYPO- UND VEREINSBANK AG
(the "Bank"), and each Assignee under the Credit Agreement referred to below
(collectively, the "Lenders").
W I T N E S S E T H :
WHEREAS, the Bank is willing, subject to the conclusion of satisfactory
documentation and the satisfaction of other conditions, to extend credit, and to
facilitate the extension of credit by certain of the Bank's foreign lending
offices (as Lending Offices), from time to time to BAX Global Inc., a Delaware
corporation ("BAX") and Brink's, Incorporated, a Delaware corporation
("Brink's"), subsidiaries of the Guarantor, and to certain subsidiaries of BAX
and Brink's which are now or later become parties to the Credit Agreement dated
as of November 12, 2002, among BAX, BRINK'S, BRINK'S DEUTSCHLAND GMBH, a German
limited liability company, BRINK'S BETEILIGUNGSGESELLSCHAFT MBH, a German
limited liability company, BRINK'S DIAMOND & JEWELRY SERVICE NV, a Belgium
corporation, BRINK'S NEDERLAND B.V., a Dutch corporation, and BRINK'S AUSTRALIA
PTY LTD., an Australian corporation and the Covered Subsidiaries that become
parties thereto from time to time as Borrowers, the Guarantor, the Bank and the
other financial institutions that become parties from time to time thereto as
Assignees, as the same may be amended from time to time thereafter (the "Credit
Agreement"); and it is a condition precedent to the extension of credit from
time to time to the Borrowers under the Credit Agreement that the Guarantor
shall have executed and delivered and keep in full force and effect this
Guaranty.
NOW, THEREFORE, in consideration of the premises and to induce the Bank and its
Lending Offices to extend credit from time to time to the Borrowers under the
Credit Agreement, the Guarantor hereby agrees with the Bank as follows:
1. DEFINED TERMS. Capitalized terms not otherwise defined herein
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shall have the same meaning given to such terms in the Credit Agreement.
2. GUARANTY. The Guarantor hereby unconditionally and irrevocably
guarantees to the Lenders the prompt and complete payment in full and
performance by the Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations in the currency or currencies in
which the Obligations are denominated from time to time. The Guarantor further
agrees to pay any and all expenses, including, without limitation, all
reasonable fees and disbursements of counsel (including, without limitation,
allocated costs of staff counsel) which may be paid or incurred by the Lenders
in enforcing and preserving any of their respective rights under this Guaranty
and such as may be incurred by the Bank in connection with the preparation,
negotiation, execution, delivery and administration hereof. This Guaranty shall
remain in full force and effect until the Obligations are paid in full and the
Commitment is terminated, notwithstanding that from time to time prior thereto
any Borrowers may have been free from any Obligations.
The Guarantor agrees that whenever, at any time, or from time to time, it shall
make any payment to the Bank or any Lending Office on account of its liability
hereunder, it will notify the Bank and such relevant Lending Office in writing
that such payment is made under this Guaranty for such purpose. No payment or
payments made by a Borrower or any other Person or received or collected by any
Lender from a Borrower or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application, at any time or from time to
time, in reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such payment or payments, remain
liable for the amount of the Obligations as aforesaid until the Obligations are
paid in full and the Commitment is terminated.
3. SUBROGATION. The Guarantor expressly waives any and all rights of
subrogation, reimbursement and contribution (contractual, statutory or
otherwise), including any claim or right of subrogation under the Bankruptcy
Code (Title 11 of the U.S. Code) or any successor statute, arising from the
existence or performance of this Guaranty, and the Guarantor irrevocably waives
any right to enforce any remedy, which any Lender now has or may hereafter have
against any Borrower, and waives any benefit of, and any right to participate
in, any security now or hereafter held by any of them. The provisions of this
paragraph 0 shall survive the termination of this Guaranty and the payment in
full of the Obligations; provided, however, that the foregoing waiver shall be
of no force and effect 370 days following the termination of this Guaranty and
the payment in full of the Obligations, but only if during such 370-day period
no Borrower nor the Guarantor shall have commenced or have commenced against it
a bankruptcy proceeding under the Bankruptcy Code or similar law under any state
or foreign jurisdiction.
4. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by any Lender
may be rescinded, and any of the obligations continued, and the Obligations, or
the liability of any other party upon or for any part thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Lender, and any agreement or
instrument relating to the extension of credit by any Lender to any Borrower,
any Note, and any other document in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as any Lender may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. No Lender
shall have any obligation to protect, secure, perfect or insure any lien at any
time held by it as security for the Obligations or for this Guaranty or any
property subject thereto.
5. WAIVER OF RIGHTS; GUARANTEE ABSOLUTE AND UNCONDITIONAL. The
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 by the
Lenders 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 in reliance upon this Guaranty; and all dealings between any Borrower
or the Guarantor, on the one hand, and any Lender, on the other, shall likewise
be conclusively presumed to have been had or consummated in reliance upon this
Guaranty.
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The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Borrower or the
Guarantor with respect to the Obligations. This Guaranty shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of any of the Loan Documents, any of the
Obligations or any collateral security therefor or guarantee or right of offset
with respect thereto at any time or from time to time held by any Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any
Borrower against any Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of any Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of any Borrower for the Obligations, or of the Guarantor under this
Guaranty, in bankruptcy or in any other instance, and the Obligations may be
declared to be forthwith due and payable as provided under Article VIII of the
Credit Agreement (and shall be deemed to have become automatically due and
payable in case of defaults arising under Sections 8.01(d) or (e) of the Credit
Agreement) notwithstanding any stay, injunction or other prohibition preventing
such declaration as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due
and payable), the Obligations shall forthwith become due and payable by the
Guarantor. When pursuing its rights and remedies hereunder against the
Guarantor, any Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against any Borrower or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by such Lender to pursue such other
rights or remedies or to collect any payments from any Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of any Borrower or any such
other Person or any such collateral security, guarantee or right of offset,
shall not relieve the Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of any Lender against the Guarantor.
6. REINSTATEMENT. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for any
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
7. PAYMENTS. The Guarantor hereby agrees that the Obligations will be
paid to the Lenders without set-off or counterclaim in the currency or
currencies in which such Obligations are denominated from time to time at the
Lending Office identified in the documentation governing such Obligations, at
such office of the Bank.
8. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that:
(a) the Guarantor (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of the
Commonwealth of Virginia, (ii) has the corporate power and authority
and the legal right to own and operate its property, to lease the
property it operates under lease and to conduct the business in which
it is currently
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engaged, and (iii) is qualified to do business in every
jurisdiction where such qualification is required, except where the
failure to so qualify would not have a Material Adverse Effect;
(b) the Guarantor has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under,
this Guaranty, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guaranty;
(c) this Guaranty constitutes a legal, valid and binding obligation of
the Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of this Guaranty will not
(i) violate any provision of any law or regulation or of any judgment,
order, decree, determination or award of any court, arbitrator or
governmental authority, bureau or agency or of the charter, by-laws or
other corporate rules of, or any securities issued by, the Guarantor,
(ii) result in a breach of or constitute a default under any mortgage,
indenture, loan or security agreement, lease, contract or other
agreement, instrument or undertaking to which the Guarantor is a party
or which purports to be binding upon it or any of its properties or
assets, or (iii) result in or require the creation or imposition of any
lien on any of the properties or revenues of the Guarantor pursuant to
the provisions of any of the foregoing;
(e) no consent or authorization of, filing with, or other act by or in
respect of, any Governmental Authority, and no consent of any other
person (including, without limitation, any stockholder or creditor of
the Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty; and
(f) except as disclosed to the Bank in writing (including disclosure by
delivery of financial statements to the Bank pursuant to Section
5.01(i) of the Credit Agreement), no litigation, investigation or
proceeding of or before any arbitrator or governmental authority,
bureau or agency is pending or, to the knowledge of the Guarantor,
threatened by or against the Guarantor or against any of its properties
or revenues (i) with respect to this Guaranty or any of the
transactions contemplated hereby or (ii) the probable outcome of which
would have a Material Adverse Effect;
9. STATUS OF BORROWERS. The Guarantor represents and warrants as of the
date hereof that the Guarantor directly or indirectly owns and has the power to
vote at least 51% of the voting interests of each of BAX and Brink's, that BAX
directly or indirectly owns at least 51% of the voting interests of each of the
BAX Covered Subsidiaries that are party to the Credit Agreement, and that
Brink's directly or indirectly owns at least 51% of the voting interests of each
of the Brink's Covered Subsidiaries that are party to the Credit Agreement.
Notwithstanding any sale or transfer of any ownership interest in any Borrower,
the Guarantor will continue to be bound by the terms of this Guaranty in all
respects including without limitation to guaranty the Obligations of each
Minority Owned Borrower.
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The Guarantor hereby acknowledges and agrees that the
representations and warranties contained in the first sentence of this paragraph
0 shall be deemed repeated as of the date of each Advance made after the
Effective Date and as of the date of effectiveness of each Election to
Participate requesting that an additional Covered Subsidiary be made a party to,
and a Borrower under, the Credit Agreement after the Effective Date.
10. SEVERABILITY. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. PARAGRAPH HEADINGS. The paragraph headings used in this
Guaranty are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
12. NO WAIVER: CUMULATIVE REMEDIES. Neither the Bank nor any Lending
Office affiliates, branches or subsidiaries shall by any act (except by a
written instrument pursuant to paragraph 0 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Bank or any Lending Office, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the Bank or any
Lending Office of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Bank or such Lending Office
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
13. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS: GOVERNING LAW.
Except as otherwise set forth in paragraph 0 hereof, none of the terms or
provisions of this Guaranty may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Guarantor and the Bank;
provided that any provision of this Guaranty may be waived by the Bank in a
letter or agreement executed by the Bank or by telex or fax transmission by the
Bank. This Guaranty shall be binding upon the successors and assigns of the
Guarantor and shall inure to the benefit of the Bank, all Lending Offices and
their respective successors and assigns. THIS GUARANTY IS A GUARANTEE OF PAYMENT
AND NOT SOLELY OF COLLECTION AND SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14. JUDGMENT CURRENCY.
(a) The Guarantor's obligations under this Guaranty to make payments to
any Lenders in the currency or currencies in which the Obligations are
denominated in the documentation governing such Obligations (the
"Obligations Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in
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or converted into any other currency, except to the extent that such
tender or recovery results in the effective receipt by the Lenders of
the full amount of the Obligations Currency payable to the Lenders
under this Guaranty, and the Guarantor shall indemnify the Lenders
(and the Lenders shall have an additional legal claim) for any
difference between such full amount and the amount effectively received
by such Person pursuant to any such tender or recovery. The
determination by any Lender of amounts effectively received by it shall
be conclusive absent manifest error.
(b) (i)i If for the purpose of obtaining or enforcing any
judgment against the Guarantor in any court in any
jurisdiction, it becomes necessary to convert into any
currency other than the Obligations Currency (such currency
being hereinafter in this paragraph 0 referred to as the
"Judgment Currency") an amount due in the Obligations Currency
under this Guaranty, the conversion shall be made, at the
option of the Bank or the relevant Lending Office, at the rate
of exchange prevailing on the business day immediately
preceding the day on which the judgment is given (such
business day being hereinafter in this paragraph 0 referred to
as the "Conversion Date").
(ii)ii If there is a change in the rate of exchange prevailing
between the Conversion Date and the date of actual payment of
the amount due, the Guarantor covenants and agrees to pay such
additional amounts (if any, but in any event not a lesser
amount) as may be necessary to ensure that the amount paid in
the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of
the Obligations Currency which could have been purchased with
the amount of Judgment Currency stipulated in the judgment of
judicial award at the rate of exchange prevailing on the
Conversion Date.
(c) Any amount due from the Guarantor under the foregoing paragraph
will be due as a separate debt and shall not be affected by judgment
being obtained for any other sums due under or in respect of this
Guaranty.
(d) The term "rate of exchange" in this paragraph 0 means the Bank's or
the relevant Lending Office's rate of exchange on the relevant date
applicable to the purchase of the Obligations Currency with the
Judgment Currency or, if such rate is not so published by the Bank or
such Lending Office, such term shall mean the spot rate at which the
Bank or such Lending Office in accordance with its normal practices is
able on the relevant date to purchase the Obligations Currency with the
Judgment Currency and includes in either case any premium and costs of
exchange payable in connection with such purchase.
15. SUBMISSION TO JURISDICTION. The Guarantor hereby irrevocably agrees
that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Guaranty or for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding may be brought in the United
States Courts for the Southern District of New York, or in the courts of the
State of New York, as the Bank or, if applicable, any Lending Office may elect,
and, by execution and delivery of this Guaranty, the Guarantor hereby
irrevocably accepts and submits to the non-
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exclusive jurisdiction of each of the
aforesaid courts in personam generally and unconditionally with respect to any
such action, suit or proceeding for itself and in respect of its property. The
Guarantor further agrees that final judgment against it in any action, suit or
proceeding referred to herein shall be conclusive and may be enforced in any
other jurisdiction, within or outside the United States of America, by suit on
the judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of its indebtedness. The Guarantor hereby
irrevocably designates and appoints Brink's, Incorporated at the address of its
registered agent in the State of New York (which, as of the date hereof, is CT
Corporation System, currently located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000) as the designee, appointee and agent of the Guarantor to receive, accept
and acknowledge for and on behalf of the Guarantor and its property service of
any and all legal process, summons, notices and documents which may be served in
any such action, suit or proceeding in the case of United States Courts for the
Southern District of New York and the courts of the State of New York, which
service may be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts. It is agreed that if any legal
process, summons, notice or document shall be served upon Brink's, Incorporated
at the address of such registered agent with respect to the Guarantor in
connection herewith, notice thereof shall promptly be provided to the Guarantor
at the address set forth on the signature page hereof; provided, that the
failure to provide any such notice shall not affect the validity of such service
upon Brink's, Incorporated as agent for and on behalf of Guarantor, at the
address of such registered agent. The Guarantor agrees to take any and all such
action necessary to continue such designation in full force and effect and to
advise the Bank on its behalf and on behalf of each other Lender of any change
of address of such designee, appointee and agent; and should said designee,
appointee and agent become unavailable for this purpose for any reason, the
Guarantor will forthwith irrevocably designate a new designee, appointee and
agent within the City of New York, New York, which shall irrevocably consent to
act as such, with the powers and for the purposes specified in this paragraph.
The Guarantor further irrevocably consents and agrees to the service of any and
all legal process, summons, notices, and documents out of any of the aforesaid
courts in any such action, suit or proceeding by mailing copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth with its signature below or to its then designee, appointee and agent
for service. The Guarantor agrees that service upon it or any such designee,
appointee, and agent as provided for herein shall constitute a valid and
effective personal service upon it and that the failure of any such designee,
appointee and agent to give any notice of such service to it shall not impair or
affect in any way the validity of such service. Nothing herein contained shall,
or shall be construed so as to, limit the right of the Bank or any other Lender
to bring actions, suits or proceedings with respect to the obligations and
liabilities of the Guarantor under, or any other matter arising out of or in
connection with, this Guaranty, or for recognition or enforcement of any
judgment rendered in any such action, suit or proceeding, in the courts of
whatever jurisdiction in which the office of the Bank or such Lending Office or
Assignee deems appropriate, or to affect the right to service of process in any
jurisdiction in any other manner permitted by the law.
In addition, the Guarantor hereby irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings arising out of or in connection with
this Guaranty brought in any of the aforesaid courts, and hereby further
irrevocably and unconditionally waives and agrees not to plead any
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claim that any such action, suit or proceeding brought in any such court has
been broughtin an inconvenient forum.
Each party 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 Guaranty, or the
transactions contemplated hereby or thereby, in any action, proceeding or other
litigation of any type brought by any party against the other party.
16. NOTICES. All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context expressly
otherwise provides, telex or fax) and mailed, sent by overnight delivery
service, telexed or faxed, to the address or number specified for notices to the
applicable party set forth on Schedule 9.02 to the Credit Agreement or to such
other address as shall be designated by such party in a written notice to the
other parties.
All such notices, requests and other communications shall, when transmitted by
overnight delivery service, telex or fax, be effective the day after delivered
to the overnight delivery service, when confirmed by telex answerback or when
transmitted by fax with machine transmittal confirmation, respectively, or, if
transmitted by mail, upon delivery, except that notices pursuant to Article II
or Article III of the Credit Agreement shall not be effective until actually
received by the Bank.
The Guarantor acknowledges and agrees 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 Guarantor. Each Lender shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the
Guarantor to give such communications and no Lender shall have any liability to
Guarantor or any other Person on account of any action taken or not taken by
such Lender in reliance upon such fax communication. The obligations of the
Guarantor hereunder shall not be affected in any way or to any extent by any
failure by the Bank or any other Lender to receive written confirmation of any
fax communication or by the receipt of a confirmation which is at variance with
the terms understood by such Lender to be contained in the fax communication.
17. COUNTERPARTS; FACSIMILE SIGNATURES. This Guaranty may be executed
by one or more of the parties in 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. The
parties hereto confirm that any facsimile copy of another party's executed
counterpart of this Guaranty (or its signature page thereof) will be deemed to
be an executed original thereof.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
and delivered as of the date first above written.
THE PITTSTON COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President - Corporate Finance
and Treasurer
ACKNOWLEDGED:
BAYERISCHE HYPO- UND VEREINSBANK AG
By: /s/ Xxxxxxx Xxxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx Xxxxxxx-Xxxxx
-----------------------------------------------------
Name: Xxxxxxxxx Xxxxxxx-Xxxxx
Title: Senior Credit Analyst
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