Continuing Disclosure Undertaking - Brink's Co. and Wachovia Bank NA
CONTINUING DISCLOSURE UNDERTAKING
This Continuing Disclosure Undertaking (the "Disclosure Undertaking") is
executed and delivered by The Brink's Company (the "Company") and Wachovia Bank,
National Association (the "Trustee") in connection with the issuance of
$43,160,000 aggregate principal amount of Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project--Brink's Issue), Series 2003 (the "Bonds")
of Peninsula Ports Authority of Virginia (the "Issuer"). The Bonds are being
issued pursuant to an Indenture of Trust, dated as of September 1, 2003, between
the Issuer and the Trustee (the "Indenture"). The Issuer and Dominion Terminal
Associates (the "Partnership") have entered into a Loan Agreement that has been
pledged and assigned by the Issuer to the Trustee for purposes of enforcement.
Pittston Coal Terminal Corporation ("Pittston"), an indirect wholly-owned
subsidiary of the Company, has agreed to make payments to the Partnership of
amounts sufficient to enable it to pay the principal of and premium, if any, and
interest on the bonds ("Debt Service") pursuant to an Amended and Restated
Throughput and Handling Agreement dated as of July 1, 1987, as amended, among
Pittston, the Partnership and certain other companies named therein (the
"Throughput Agreement"). Payment of Debt Service has been guaranteed by the
Company to the Trustee, for the benefit of the Bondholders, pursuant to a Parent
Company Guaranty Agreement dated as of September 1, 2003 (the "Guaranty
Agreement") between the Company and the Trustee. The Company and the Trustee
covenant and agree as follows:
SECTION 1. Purpose of the Disclosure Undertaking. This Disclosure
Undertaking is being executed and delivered by the Company and the Trustee for
the benefit of the Beneficial Owners of the Bonds and in order to assist the
Participating Underwriters, as defined in Rule 15c2-12 of the Securities and
Exchange Commission (the "SEC"), in complying with Section (b)(5) of the Rule.
The Company is an "obligated person" within the meaning of the Rule. As required
by the Rule, this Disclosure Undertaking is enforceable by Beneficial Owners of
the Bonds pursuant to Section 10 of this Disclosure Undertaking.
SECTION 2. Definitions. In addition to the definitions set forth in the
Indenture, which apply to any capitalized term used in this Disclosure
Undertaking, the following capitalized terms shall have the following meanings:
"Virginia State Repository" shall mean any public or private
repository or entity as may be designated by the Commonwealth of Virginia
as a state repository for the purpose of the Rule and recognized as such by
the SEC. Currently there is no Virginia State Repository.
"Annual Financial Information" shall mean the annual financial
information provided by the Company pursuant to, and as described in,
Sections 3 and 4 of this Disclosure Undertaking.
"Beneficial Owner" shall mean any person which has the power, directly
or indirectly, to vote or consent with respect to, or to dispose of
ownership of, any Bonds, including persons holding Bonds through nominees
or depositories.
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"Company Disclosure Representative" shall mean an authorized officer
of the Company or a designee, or such other officer or employee as the
Company shall designate in writing to the Trustee from time to time.
"MSRB" shall mean the Municipal Securities Rulemaking Board
established in accordance with the provisions of Section 15B(b(1) of the
1934 Act.
"National Repository" shall mean any Nationally Recognized Municipal
Securities Information Repository for purposes of the Rule. Currently, the
following are National Repositories:
Bloomberg Municipal Repository
100 Business Park Drive
Skillman, New Jersey 08558
Phone: (609) 279-3225
Fax: (609) 279-5962
http://www.bloomberg.com/markets/muni_contactinfo.html
Email: munis@bloomberg.com
DPC Data Inc.
One Executive Drive
Fort Lee, NJ 07024
Phone: (201) 346-0701
Fax: (201) 947-0107
http://www.dpcdata.com
Email: nrmsir@dpcdata.com
FT Interactive Data
Attn: NRMSIR
100 Williams Street
New York, New York 10038
Phone: (212) 771-6999
Fax: (212) 771-7390 (Secondary Market Information)
(212) 771-7391 (Primary Market Information)
http://www.interactivedata.com Email: nrmsir@ftid.com
Standard & Poor's J. J. Kenny Repository
55 Water Street
45th Floor
New York, NY 10041
Phone: (212) 438-4595
Fax: (212) 438-3975
www.jjkenny.com/jjkenny/pser_descrip_data_rep.html
Email: nrmsir_repository@sandp.com
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"Repository" shall mean each National Repository and the Virginia
State Repository, if any.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the SEC under the
Securities Exchange Act of 1934, as the same may be amended from time to
time ("1934 Act").
"Specified Events" shall mean any of the events with respect to the
Bonds listed in Section 5(a) of this Disclosure Undertaking.
SECTION 3. Provision of Annual Financial Information.
(a) The Company shall provide to each Repository and to the
Trustee its Annual Financial Information in compliance with the requirements of
Section 4 of this Disclosure Undertaking no later than 10 days after the time it
is required to file its Form 10-K with the SEC (as such time may be extended),
or 120 days after the end of its fiscal year (whichever is later) subject to the
grace period provided in subsection (c), for so long as the Company is required
to file reports under the 1934 Act. The Company Disclosure Representative shall
advise the Trustee of the Company's calculation of the applicable due date in
order for the Trustee to comply with subsection (c). The Company may satisfy
such obligations by providing to each National Repository and the Virginia State
Repository, if any, an annual written notice indicating that the annual filing
of Form 10-K filed with the SEC in accordance with SEC rules under the 1934 Act
constitute the Company's Annual Financial Information for such year.
(b) The Company will prepare its Annual Financial Information in
accordance with those accounting principles applicable to the periodic reports
it is required to file with the SEC.
(c) If, on the date specified in subsection (a) for providing
the Annual Financial Information to Repositories, the Trustee has not received a
copy of the Annual Financial Information, the Trustee shall contact the Company
Disclosure Representative to determine if the Company is in compliance with
subsection (a). If the Company advises the Trustee that it has not filed its
Annual Financial Information within a grace period of 10 Business Days after
being contacted by the Trustee, the Trustee shall file a notice with the
Repositories generally as set forth in Exhibit A and as required by Rule
15c2-12(b)(5)(i)(D) and with a copy to the Issuer.
SECTION 4. Content of Annual Financial Information. The Company's Annual
Financial Information shall consist of financial information and operating data
contained in Form 10-K referenced in the Official Statement including audited
financial statements which the Company has filed or is permitted to file under
the 1934 Act.
SECTION 5. Reporting of Specified Events.
(a) This Section 5 shall govern the giving of notices of the
occurrence of any of the following events with respect to the Bonds, if
material:
1. principal and interest payment delinquencies;
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2. non-payment related defaults;
3. unscheduled draws on debt service reserves reflecting
financial difficulties;
4. unscheduled draws on credit enhancements reflecting financial
difficulties;
5. substitution of credit or liquidity providers, or their
failure to perform;
6. adverse tax opinions or events affecting the tax-exempt status
of the security;
7. modifications to rights of security holders;
8. bond calls;
9. defeasances;
10. release, substitution, or sale of property securing repayment
of the securities; and
11. rating changes.
(b) The Trustee, upon obtaining actual knowledge of the occurrence
of any of the Specified Events, shall promptly contact the Company Disclosure
Representative, shall inform such person of any Specified Event that has
occurred, and shall request that the Company promptly notify the Trustee in
writing whether to report the event pursuant to subsection (e).
(c) If the Company determines that the occurrence of a Specified
Event is material, the Company Disclosure Representative shall promptly notify
the Trustee in writing. Such notice shall instruct the Trustee to report the
occurrence pursuant to subsection (e).
(d) If the Company determines that the occurrence of a Specified
Event is not material, the Company Disclosure Representative shall so notify the
Trustee in writing and instruct the Trustee not to report the occurrence
pursuant to subsection (e).
(e) If the Trustee has been instructed by the Company
Disclosure Representative to report the occurrence of a Specified Event, the
Trustee shall file a notice of such occurrence with each National Repository or
the MSRB and the Virginia State Repository, if any. The Trustee shall not be
obligated to report the occurrence of a Specified Event if there is no
instruction from the Company Disclosure Representative. Notwithstanding the
foregoing:
(i) notice of the occurrence of a Specified Event described in
subsections (a)(1), (4) or (5) shall be given by the Trustee unless
the Company Disclosure Representative gives the Trustee affirmative
instructions not to disclose such occurrence; and
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(ii) notice of Specified Events described in subsections (a)(8)
and (9) need not be given under this subsection any earlier than the
notice (if any) of the underlying event is given to Beneficial Owners
of affected Bonds pursuant to the Indenture.
SECTION 6. Termination of Reporting Obligation. The Company's obligations
under this Disclosure Undertaking shall terminate if the Company is no longer an
obligated person within the meaning of the Rule. The Company's obligations under
this Disclosure Undertaking shall terminate upon the maturity, defeasance, prior
redemption or payment in full of all of the Bonds.
SECTION 7. Substitution of Obligated Person. The Company shall not transfer
its obligations under the Guaranty Agreement unless the transferee agrees to
assume all the obligations of the Company under this Disclosure Undertaking.
SECTION 8. Amendment: Waiver. Notwithstanding any other provision of this
Disclosure Undertaking, the Company and the Trustee may amend this Disclosure
Undertaking (and the Trustee shall consent in its discretion (such consent not
to be unreasonably withheld) to any amendment so requested by the Company), and
any provision of this Disclosure Undertaking may be waived, if such amendment or
waiver is supported by an opinion of counsel reasonably acceptable to each of
the Company and the Trustee, to the effect that such amendment or waiver would
not, in and of itself, cause the undertakings herein to violate the Rule taking
into account any subsequent change in or official interpretation of the Rule.
SECTION 9. Additional Information. Nothing in this Disclosure Undertaking
shall be deemed to prevent the Company from disseminating any other information,
using the means of dissemination set forth in this Disclosure Undertaking or any
other means of communication, or including any other information in any Annual
Financial Information or notice of occurrence of a Specified Event, in addition
to that which is required by this Disclosure Undertaking. If the Company chooses
to include any information in any Annual Financial Information or notice of
occurrence of a Specified Event in addition to that which is specifically
required by this Disclosure Undertaking, the Company shall have no obligation
under this Agreement to update such information or include it in any future
Annual Financial Information or notice of occurrence of a Specified Event.
SECTION 10. Default. (a) In the event of a failure of the Company to
provide to the Repositories the Annual Financial Information as undertaken by
the Company in this Disclosure Undertaking, the Beneficial Owner of any Bonds
may take such actions as may be necessary and appropriate, including seeking
mandamus or specific performance by court order, to cause the Company to comply
with its obligations to provide Annual Financial Information or notices under
this Disclosure Undertaking.
(b) Notwithstanding the foregoing, no Beneficial Owner of the
Bonds shall have the right to challenge the content or adequacy of the
information provided pursuant to Sections 3, 4 or 5 of this Disclosure
Undertaking by mandamus, specific performance or other equitable proceedings
unless the Company shall have been given ninety (90) days written notice by a
Beneficial Owner of the Bonds to remedy the alleged inadequacy of the
information provided and unless Beneficial Owners of Bonds representing at least
25% aggregate principal amount of Outstanding Bonds shall join in such
proceedings.
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(c) A default under this Disclosure Undertaking shall not be
deemed an Event of Default under the Indenture or the Bonds, and the sole remedy
under this Disclosure Undertaking in the event of any failure of the Company or
the Trustee to comply with this Disclosure Undertaking shall be an action to
compel performance.
SECTION 11. Duties, Immunities and Liabilities of Trustee. Article IX of
the Indenture is hereby made applicable to this Disclosure Undertaking as if
this Disclosure Undertaking were (solely for this purpose) contained in the
Indenture. The Trustee shall have only such duties as are specifically set forth
in this Disclosure Undertaking, and the Company agrees to indemnify and save the
Trustee, its officers, directors, employees and agents, harmless against any
liabilities which it may incur arising out of or in the exercise or performance
of its powers and duties hereunder, including the costs and expenses (including
attorneys fees and expenses) of defending against any claim of liability, but
excluding liabilities due to its own negligence or willful misconduct.
SECTION 12. Beneficiaries. This Disclosure Undertaking shall inure solely
to the benefit of the Company, the Trustee and Beneficial Owners from time to
time of the Bonds, and shall create no rights in any other person or entity.
SECTION 13. Counterparts. This Disclosure Undertaking may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 14. Governing Law. This Disclosure Undertaking shall be governed by
the laws of the State of New York.
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Date: September 24, 2003
THE BRINK'S COMPANY
By /s/ James B. Hartough
---------------------------------------------
Name: James B. Hartough
Title: Vice President--Corporate Finance
and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By /s/ Elizabeth A. Boyd
---------------------------------------------
Name: Elizabeth A. Boyd
Title: Corporate Trust Officer
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EXHIBIT A
NOTICE TO REPOSITORIES REGARDING
FINANCIAL INFORMATION
Name of Issuer: Peninsula Ports Authority of Virginia
Name of Bond Issue: $43,160,000 Coal Terminal Revenue Refunding Bonds
(Dominion Terminal Associates Project--Brink's
Issue) Series 2003
Name of Company: The Brink's Company
Date of Issuance: September 24, 2003
NOTICE IS HEREBY GIVEN that the Company has not yet provided Annual
Financial Information with respect to the above-named Bonds. The Company
anticipates that the Annual Financial Information will be filed by [date].
Dated:
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Wachovia Bank, National Association,
on behalf of THE BRINK'S COMPANY