Parent Company Guaranty Agreement - Brink's Co. and Wachovia Bank NA
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PARENT COMPANY GUARANTY AGREEMENT
by
THE BRINK'S COMPANY
to
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
September 1, 2003
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$43,160,000
Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project - Brink's Issue)
Series 2003
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PARENT COMPANY GUARANTY AGREEMENT
THIS PARENT COMPANY GUARANTY AGREEMENT, dated as of September 1, 2003, is
entered into by THE BRINK'S COMPANY, a Virginia corporation (the "Parent
Company"), to WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association with a corporate trust office in Richmond, Virginia (the "Trustee").
The Peninsula Ports Authority of Virginia (the "Issuer") has issued its
Coal Terminal Revenue Refunding Bonds (Dominion Terminal Associates Project)
Series 1992 in the aggregate principal amount of $43,160,000 (the "1992 Bonds")
for the purpose of refunding revenue bonds previously issued by the Issuer to
finance the cost of the acquisition and construction of certain port facilities
located in the City of Newport News, Virginia, to be used in the transshipment
of coal (the "Project") by Dominion Terminal Associates ("DTA").
The Issuer now intends to issue its Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project - Brink's Issue) Series 2003 in the
aggregate principal amount of $43,160,000 (the "2003 Bonds") pursuant to an
Indenture of Trust, dated as of September 1, 2003 (the "Indenture"), between the
Issuer and the Trustee. The proceeds of the 2003 Bonds are to be used to redeem
the 1992 Bonds.
In connection with issuance of the 2003 Bonds, DTA and the Issuer have
entered into a Loan Agreement, dated as of September 1, 2003 (the "Loan
Agreement"), pursuant to which DTA has agreed to make payments to the Issuer
sufficient to permit the Issuer to pay the principal of, premium, if any, and
interest on the 2003 Bonds. DTA, the Partners and Pittston Terminal have entered
into a Sixth Amendment to Amended and Restated Throughput and Handling
Agreement, dated as of August 15, 2003, to provide sufficient revenues to DTA to
permit it to perform its obligation under the Loan Agreement. Pursuant to a
Throughput Assignment, dated as of September 1, 2003 (the "Assignment"), among
DTA, the Trustee and Pittston Terminal, DTA has assigned to the Trustee payments
to be made by Pittston Terminal with respect to the 2003 Bonds under Section
3.2(a)(ix) of the Throughput Agreement.
Pittston Terminal is a wholly owned indirect subsidiary of the Parent
Company and the Parent Company will receive direct financial benefits as a
result of the issuance of the 2003 Bonds by the Issuer. The Parent Company
desires that the Issuer issue the 2003 Bonds and is willing to enter into this
Agreement in order to induce the Issuer to issue and sell the 2003 Bonds and as
an inducement to the purchase of the 2003 Bonds by all who may become owners of
them.
Accordingly, the parties agree as follows:
1. Definitions. Unless otherwise defined, the capitalized terms used
in this Agreement have the meanings set forth in the Indenture.
2. Guaranty of Obligations. The Parent Company unconditionally
guarantees to the Issuer and to the Trustee for the benefit of the holders from
time to time of the 2003 Bonds the full and punctual payment when due of the
principal and purchase price of and premium, if any, and interest on the 2003
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Bonds (all such amounts being called the "Obligations"), and agrees to pay
any and all expenses incurred by the Trustee or the Issuer in enforcing any
rights under this Agreement.
This guaranty is a primary and original obligation of the Parent Company
and is an absolute, unconditional, continuing and irrevocable guaranty of
payment and not of collectibility or performance and is in no way conditioned or
contingent upon any attempt to collect from any person or to realize upon any
property held as security or from any other source. If any of the Obligations
are not paid when and as they become due and payable, the Parent Company will
forthwith pay such Obligations, in immediately available funds, in accordance
with the terms of the 2003 Bonds directly to the Trustee. The Parent Company
waives diligence, presentment, demand, notice or protest of any kind. Each
default in payment of any of the Obligations will give rise to a separate cause
of action under this Agreement and separate suits may be brought as each cause
of action arises.
3. Character of Obligations. The right of the Trustee to enforce the
obligations of the Parent Company under this Agreement by any proceedings,
whether by action at law, suit in equity or otherwise, will not be impaired by
any right, claim or defense against any person or entity of any character
whatsoever (other than indefeasible payment of the amount claimed), including,
without limitation, any right, claim or defense of rescission, recoupment,
reduction, limitation, termination, setoff, counterclaim, waiver, frustration,
surrender, alteration or compromise. Without limiting the generality of the
foregoing, the obligations of the Parent Company under this Agreement will not
be discharged, released or impaired or otherwise affected by: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from the 2003 Bonds, the Indenture, the Loan Agreement, the Throughput
Agreement, the Assignment (collectively, the "Operative Documents"), or any
assignment, transfer or other disposition of any of them; (ii) any inability or
failure on the part of Pittston Terminal, DTA or the Issuer to perform their
obligations under or comply with the terms of the Operative Documents; (iii) any
waiver, consent, extension, indulgence or other action or inaction (including,
without limitation, any lack of diligence or failure to mitigate damages) under
or in respect of any Operative Document or any obligation or liability of the
Issuer, DTA, Pittston Terminal or any other person or entity, or any exercise or
nonexercise of any right, power or remedy under or in respect of any Operative
Document, obligation or liability; (iv) any limitation on any party's obligation
or liability under any Operative Document or any termination, cancellation,
frustration, invalidity or unenforceability, in whole or in part, of any
Operative Document or any such obligation or liability; (v) any transfer of its
interest in Pittston Terminal by the Parent Company, including any change in
ownership of all or any part of the capital stock of Pittston Terminal; (vi) any
invalidity or irregularity in any statutory or other proceedings relating to the
formation or existence of the Issuer, the issuance of the 2003 Bonds or the
execution and delivery of any Operative Document; (vii) any bankruptcy,
insolvency, moratorium, reorganization, arrangement, or the like, relating to
Pittston Terminal, DTA or the Issuer; (viii) any impossibility or illegality of
performance on the part of the Issuer, DTA or Pittston Terminal of any of their
obligations under or in connection with any Operative Document; (ix) force
majeure; (x) reason of destruction, whether partial or complete, of the Project,
whether on account of its abandonment or otherwise, or the curtailment or
cessation of the operation of the Project or failure or inability of DTA to
operate it; or (xi) any other circumstance or occurrence, whether similar or
dissimilar to any of the foregoing.
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This Agreement will continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded or
must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Issuer, DTA or Pittston Terminal or otherwise, all as
though such payment had not been made.
4. Subrogation. So long as the Parent Company is in full compliance
with its obligations under this Agreement, the Parent Company will be entitled
to be subrogated to any rights of the Trustee against DTA or Pittston Terminal,
and DTA or Pittston Terminal may reimburse the Parent Company for, and the
Parent Company may demand, sue for and receive all amounts paid by the Parent
Company pursuant to this Agreement. No payment under this Agreement by the
Parent Company will give rise to any claim of the Parent Company against the
Trustee. Unless and until the 2003 Bonds are paid, or deemed under the Indenture
to be paid in full, and all obligations of the Parent Company under this
Agreement have been discharged by payment in full, the Parent Company will not
assign or otherwise transfer any such claim against DTA or Pittston Terminal to
any other person, unless the assignee or transferee of such claim accepts such
assignment or transfer subject to the provisions of this Agreement.
5. Certain Rights and Powers of the Trustee. The Trustee has all of
the rights and remedies available under applicable law and may proceed by
appropriate court action to enforce the terms of this Agreement and to recover
damages for the breach of this Agreement. Each and every remedy of the Trustee
is, to the extent permitted by law, cumulative and in addition to any other
remedy given under this Agreement or under the Operative Documents or now or
hereafter existing at law or in equity.
At the option of the Trustee and upon notice to the Parent Company, the
Parent Company may be joined in any action or proceeding commenced by the
Trustee in respect of any Obligation, and recovery may be had against the Parent
Company in such action or proceeding or in any independent action or proceeding
against the Parent Company, without any requirement that the Trustee first
assert, prosecute or exhaust any remedy or claim against any person.
6. Representations and Warranties. The Parent Company makes the
following representations and warranties to the Trustee:
(a) Due Incorporation, etc. The Parent Company and Pittston
Terminal are corporations duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of their incorporation and have all
requisite power and authority, corporate or otherwise, to conduct their
business, to own their properties and to execute, deliver and perform all of
their obligations under this Agreement and the Operative Documents.
(b) Due Authorization. The execution, delivery and performance by
the Parent Company of this Agreement have been duly authorized by all necessary
corporate action.
(c) Enforceability. This Agreement when executed and delivered by
its parties, will constitute the legal, valid and binding obligation of the
Parent Company enforceable against the Parent Company in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors rights generally
or by general equitable principles.
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(d) Company Stock. The Parent Company is the owner directly
or indirectly of all of the issued and outstanding capital stock of Pittston
Terminal.
7. Covenant of Parent Company. The Parent Company covenants that it
will not consolidate with or merge into any other corporation or convey,
transfer or lease substantially all its assets as an entirety to any person,
unless the corporation formed by such consolidation or into which the Parent
Company is merged or the person which acquires by conveyance, transfer or lease
substantially all of the assets of the Parent Company as an entirety has assumed
the due and punctual performance and observance of each obligation of the Parent
Company under this Agreement.
8. Events of Default. The following events will constitute Events of
Default under this Agreement:
(a) The Parent Company fails to make any payment required to be
made by it under this Agreement which results in a failure to make a payment due
on the 2003 Bonds;
(b) Any representation or warranty made by the Parent Company
in this Agreement proves to have been incorrect in any material respect when
made and it remains unremedied for 90 days;
(c) The Parent Company fails to perform or observe any other term,
covenant or agreement (other than those referred to in subsections (a) and (b)
above) contained in this Agreement and the failure remains unremedied for 90
days after the date on which written notice of the failure, requiring that it be
remedied, is given to the Parent Company by the Trustee; provided, however, if
the failure cannot with due diligence be cured within such 90 day period, the
failure will not constitute an Event of Default under this Agreement so long as
the Parent Company proceeds promptly to cure the failure with due diligence to
completion;
(d) The Parent Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the
appointment of a Custodian for the Parent Company or any substantial part of its
property, or (iv) makes a general assignment for the benefit of its creditors;
or
(e) A court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (i) is for relief against the Parent Company in an
involuntary case, (ii) appoints a Custodian for the Parent Company or any
substantial part of its property, or (iii) orders the winding up or liquidation
of the Parent Company, and the decree or order remains unstayed and in effect
for 90 days.
9. Amendment and Waiver. This Agreement and each of its provisions
may be amended, changed, waived, discharged or terminated only by an instrument
in writing signed by the parties.
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10. Governing Law. This Agreement and the rights and obligations of
the parties under it will be construed in accordance with and governed by the
laws of the Commonwealth of Virginia.
11. Notices. All notices, requests, demands or other communications
to or upon the parties to this Agreement will be sufficiently given and deemed
given when delivered by hand or mailed by first-class mail, postage prepaid,
addressed as follows:
(a) If to the Parent Company to:
The Brink's Company
1801 Bayberry Court
Richmond, VA 23226
Attention: Treasurer and General Counsel
(b) If to the Trustee to:
Wachovia Bank, National Association, as Trustee
1021 East Cary Street
Richmond, Virginia 23219
Attention: Corporate Trust Department
12. Waivers. No failure or delay on the part of the Trustee in
exercising any right, power or privilege under this Agreement and no course of
dealing among the parties will operate as a waiver; nor will any single or
partial exercise of any right, power or privilege preclude any other or further
exercise of it or the exercise of any other right, power or privilege. No notice
to or demand on the Parent Company in any case will entitle the Parent Company
to any other or further notice or demand in similar or other circumstances or
constitute a waiver of the right of the Trustee to any other or further action
in any circumstances without notice or demand.
13. Captions. The captions in this Agreement are for convenience only
and do not define or limit the scope or intent of any of its provisions or
Sections.
14. Benefit of Agreement. This Agreement will be binding upon the
Parent Company and its successors and assigns, and will be binding upon and
inure to the benefit of the Trustee and its successors and assigns.
15. Counterparts. This Agreement may be executed in any number
of counterparts and all of such counterparts will together constitute one and
the same instrument.
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16. Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or nonauthorization without invalidating the remaining provisions of this
Agreement or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
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THE BRINK'S COMPANY
By: /s/ James B. Hartough
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Title: Vice President - Corporate Finance and Treasurer
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WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By: /s/ Elizabeth A. Boyd
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Title: Corporate Trust Officer
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