Guaranty - ABN AMRO Bank NV, Pittston Co. and BAX Global Inc.
GUARANTY
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce ABN AMRO Bank, N.V. through any of its
offices, subsidiaries or affiliates (hereinafter called the "Bank") to make,
grant, renew, extend or continue to grant allocations, loans, advances,
overdraft facilities, letters of credit or other banking or credit facilities
("Credit Arrangements") from time to time as provided in the Credit Agreement
dated as of December 20, 2002 among the Bank, The Pittston Company, BAX Global,
Inc. ("BAX") and Brink's Incorporated (Brink's) (the "Credit Agreement") to BAX
and its Covered Subsidiaries (as defined in the Credit Agreement) and to Brink's
and its Covered Subsidiaries (as defined in the Credit Agreement) (each a
"Borrower") and in recognition of such Credit Arrangements entered into or
hereafter to be entered into between any Borrower and the Bank, provided such
Credit Arrangements are pursuant to or contemplated by the Credit Agreement, BAX
Global Inc., a corporation organized under the laws of the State of Delaware
(the "Guarantor"), hereby, for itself, its successors and assigns, absolutely
and unconditionally guarantees to the Bank that all obligations now or at any
time hereafter owing by its Covered Subsidiaries to the Bank in respect of all
such Credit Arrangements will be promptly paid in full when due, whether at
maturity or by acceleration, in accordance with their respective terms, together
with any and all expenses and costs (including reasonable attorneys' fees) which
may be paid or incurred by or on behalf of the Bank in collecting or enforcing
such indebtedness or enforcing any rights hereunder or for the preservation and
protection of or in realizing upon any security therefor (the "Guaranteed
Obligations"). All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement. Promptly upon notice by
the Bank to the Guarantor that a Guaranteed Obligation due to the Bank from any
of BAX's Covered Subsidiaries has not been paid and without the necessity of any
demand whatsoever upon any such Borrower, the Guarantor will pay such amount to
the Bank at the Bank's office listed above or at any other address specified in
writing or by telefax by the Bank, without the necessity of any suit, proceeding
or formality of any kind whatsoever on the Bank's part against the Borrower, the
Guarantor or any other person or against any security for the Guaranteed
Obligations of any such Borrower, the Guarantor or any other person to the Bank.
The Guarantor agrees to accept as prima facie evidence of the amount payable by
the Guarantor the balance appearing due to the Bank from any BAX's Covered
Subsidiaries according to the Bank's books and records except in such
jurisdictions where further proofs are required as a matter of law.
No payments by the Guarantor hereunder shall entitle the Guarantor, by
subrogation to the rights of the Bank or otherwise, to any payment by any
Borrower or out of the assets or revenues of any such Borrower, except after
full payment of all Guaranteed Obligations which may be or become payable by
such Borrower to the Bank.
Any payment made hereunder or received by the Bank with respect to the
Guaranteed Obligations of any Borrower may be applied by the Bank to the payment
or reduction, in whole or in part, to the extent same may suffice, in such order
as the Bank may elect at its sole option
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and discretion, of any of the
Guaranteed Obligations of such Borrower to the Bank, whether or not then due,
whether absolute or contingent, and (in the case of payments received from
persons other than the Guarantor), whether or not guaranteed hereby. No
amendment or waiver of any provision of this Guaranty nor consent to any
departure by the Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
If any payment is recovered from, or repaid by, the Bank in whole or in
part in any bankruptcy, insolvency or similar proceeding instituted by or
against any Borrower or the Guarantor, this Guarantee shall continue to be fully
applicable to such Guaranteed Obligation to the same extent as though the
payment so recovered or repaid had never been originally made on such Guaranteed
Obligation.
The Guarantor consents that without notice to it the maturity of any
Guaranteed Obligation of any Borrower may be extended or renewed or the terms
thereof waived, increased, or varied, or any security therefor including but not
limited to guarantees, sureties or collateral of whatever nature and description
whether of any Borrower or the Guarantor, may be released, exchanged or
otherwise dealt with, all as the Bank may determine. The granting of credit from
time to time by the Bank to any Borrower pursuant to, and as contemplated by,
the Credit Agreement and the incurrence of Guaranteed Obligations to the Bank by
any Borrower without notice to the Guarantor are hereby authorized and shall in
no way affect or impair this Guaranty. The Guarantor agrees that, at any time
and from time to time, in accordance with and as contemplated by the Credit
Agreement, the Bank, at its discretion, may increase credit extended to any
Borrower or may make new loans to any Borrower, regardless of whether the
original Guaranteed Obligation hereunder has been paid, and the Guarantor agrees
that this Guaranty shall remain in full force as to any such future increases or
new Guaranteed Obligations, even though the Guaranteed Obligations of any or all
Borrowers to the Bank may, from time to time, be reduced to zero. This Guaranty
shall not be affected by any law (including, without limitation, statutes of
limitation), regulation or order of any governmental or administrative body,
purporting to amend or affect any Guaranteed Obligation of the Borrower or the
terms of payment thereof, including any "Country Risk Event" or "New Money
Event," and shall be absolute and unconditional irrespective of the actual or
alleged invalidity of any such Guaranteed Obligation and of any circumstance
which might otherwise constitute a discharge of a surety or guarantor including
but not limited to extension, modification or renewal and shall not be
discharged except by payment. "Country Risk Event" shall mean (a) the adoption
of any law, rule or regulation or the action or failure of action by any
authority (de facto or de jure) in any Borrower's country which (i) changes the
Guaranteed Obligations of such Borrower to the Bank, (ii) changes the ownership
or control by any Borrower of its business or assets, or (iii) prevents or
restricts the conversion into or transfer of the agreed currency; or (b) the
occurrence of any force majeure or similar event which, directly or indirectly
prevents or restricts the payment or transfer in the agreed currency of amounts
owing into an account designated by the Bank or the free availability of such
payments to the Bank. "New Money Credit Event" shall mean the adoption of any
law, rule or regulation or the action or requirement of any authority (de facto
or de jure) in any Borrower's country pursuant to which the Bank must increase
its credit extension to such Borrower.
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The Guarantor hereby waives notice of acceptance of this Guaranty,
notice of the granting of any credit, and diligence, presentment, protest,
notice of protest or dishonor of any evidences of indebtedness hereby guaranteed
and notice of any other nature whatsoever.
This is a guaranty of payment and not of collection and shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to principles of conflicts of law).
The Guarantor agrees that all payments to be made by it hereunder shall
be made at the places and in the currencies as agreed by the Borrower at the
time credit was extended (or, in case payment in any such currency is prohibited
by applicable law or regulation, then in U.S. dollars, the amount of which shall
be calculated at the Bank's spot buying rate (in U.S. dollars) for such
currency).
No delay by the Bank in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
power or right hereunder preclude other or further exercise thereof or the
exercise of any other power or right, nor shall the Bank be liable for
exercising or failing to exercise any such power or right, nor shall any action
by the Bank omitted hereunder in any way impair or affect this Guaranty.
All notices and other communications under this Guarantee shall be
deemed to have been given when deposited in the mail, first class postage
prepaid, or transmitted by telefax with a confirmation of successful
transmission addressed to the party to which such notice is directed at its
address set forth in the Credit Agreement.
This Guaranty may be executed by one or more of the parties to this
Guaranty 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.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY,
THE GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE IN
PERSONAM JURISDICTION OF THOSE COURTS. THE GUARANTOR 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. THE GUARANTOR WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY AN OTHER MEANS
PERMITTED BY NEW YORK LAW OR BY REGISTERED OR CERTIFIED MAIL TO ITS ADDRESS FOR
NOTICES PURSUANT TO THE CREDIT AGREEMENT.
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EACH OF THE GUARANTOR AND THE BANK 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, 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 GUARANTOR AND THE BANK AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE GUARANTOR FURTHER AGREES THAT ITS RESPECTIVE RIGHTS TO A
TRIAL BY JURY ARE WAIVED BY OPERATION OF THIS PARAGRAPH AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HEREOF.
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IN WITNESS WHEREOF, we have executed this Guaranty and caused our seal
to be affixed hereto as of this 26th day of December, 2002.
BAX GLOBAL INC.
By: /s/ James B. Hartough
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Title: Treasurer and Assistant Secretary
Accepted and Agreed:
ABN AMRO BANK, N.V.
By: /s/ Helen Clarke-Hepp
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Name: Helen Clarke-Hepp
Title: Vice President
By: /s/ James S. Kreitler
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Name: James S. Kreitler
Title: Senior Vice President