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EXECUTION COPY EXHIBIT 4.16
GUARANTY
Dated February 13, 1997
From
INVESCO, INC.,
INVESCO NORTH AMERICAN HOLDINGS, INC. and
INVESCO CAPITAL MANAGEMENT, INC.
as Guarantors
in favor of
THE LENDERS REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
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TABLE OF CONTENTS
SECTION PAGE
1. Guaranty; Limitation of Liability ......................................... 1
2. Guaranty Absolute ......................................................... 2
3. Waivers and Acknowledgments ............................................... 3
4. Subrogation ............................................................... 3
5. Payments Free and Clear of Taxes, Etc ..................................... 4
6. Representations and Warranties ............................................ 5
7. Amendments, Etc. .......................................................... 5
8. Notices, Etc. ............................................................. 5
9. No Waiver; Remedies ....................................................... 6
10. Right of Set-off ......................................................... 6
11. Indemnification .......................................................... 6
12. Continuing Guaranty; Assignments under the Credit Agreement .............. 6
13. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. .................. 7
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GUARANTY
GUARANTY dated February 13, 1997 made by INVESCO, Inc., a Delaware
corporation, INVESCO North American Holdings, Inc., a Delaware corporation, and
INVESCO Capital Management, Inc., a Delaware corporation (collectively, the
"Guarantors"), in favor of the Lenders (as defined in the Credit Agreement
referred to below).
PRELIMINARY STATEMENT. The Lenders, Citibank, N.A. and NationsBank,
N.A., as Managing Agents, and NationsBank, N.A., as Funding Agent (the Managing
Agents and the Funding Agent are collectively, the "Agents") are parties to a
Credit Agreement dated as of February 13, 1997 (said Agreement, as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement", the terms defined therein are used herein as
therein defined) with INVESCO PLC, a company organized under the laws of England
(the "Borrower"). Each Guarantor may receive a portion of the proceeds of the
Advances under the Credit Agreement and will derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement. It
is a condition precedent to the making of Advances by the Lenders under the
Credit Agreement that the Guarantors shall have executed and delivered this
Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement from time to time, each
of the Guarantors hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all obligations of
each other Loan Party now or hereafter existing under the Loan Documents,
whether for principal, interest, fees, expenses or otherwise (such obligations
being the "Guaranteed Obligations"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by any Agent or any
Lender in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
a Loan Party to the Agents or the Lenders under the Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such Loan Party.
(b) The liability of each Guarantor under this Guaranty shall not
exceed the greater of (i) the net benefit realized by such Guarantor from the
proceeds of the Advances made from time to time by the Borrower to such
Guarantor or any Subsidiary of such Guarantor and (ii) the greater of (x) 95% of
the Adjusted Net Assets of such Guarantor on the date of delivery hereof and (y)
95% of the Adjusted Net Assets of such Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of any Guarantor at any date means the lesser
of (x) the amount by which the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty, of such
Guarantor at such date and (y) the amount by which the present fair salable
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value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts,
excluding debt in respect of this Guaranty, as they become absolute and matured.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Agent or any Lender with respect thereto. The obligations of each Guarantor
under this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any other Loan Party under the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party
is joined in any such action or actions. The liability of each Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and each Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or any of
its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any other Loan Party under the Loan Documents
or any other assets of the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure
or existence of the Borrower or any of its Subsidiaries or of AIM or any of
its Subsidiaries;
(f) any failure of any Lender to disclose to the Borrower or any of the
Guarantors any information relating to the financial condition, operations,
properties or prospects of any other Loan Party now or in the future known
to any Lender (each Guarantor waiving any duty on the part of the Lenders
to disclose such information); or
(g) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Agent or any
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Lender that might otherwise constitute a defense available to, or a
discharge of, the Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Agents or any other Lender protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against the Borrower or any other Person or any collateral.
(b) Each Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in this Section 3 are knowingly made in
contemplation of such benefits.
Section 4. Subrogation. Each Guarantor will not exercise any rights
that it may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Agent or any Lender against any Loan Party or any other
insider guarantor or any collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Loan Party or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash and the
Commitments shall have expired or terminated. If any amount shall be paid to any
such Guarantor in violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, such amount shall
be held in trust for the benefit of the Agents and the Lenders and shall
forthwith be paid to the Funding Agent to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) any Guarantor
shall make payment to any Agent or any other Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Agents and the Lenders will, at such
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Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Except as
otherwise required by law, any and all payments by any Guarantor hereunder shall
be made, in accordance with Section 2.13 of the Credit Agreement, free and clear
of and without deduction for any and all Indemnifiable Taxes. If any Guarantor
shall be required by law to deduct any Indemnifiable Taxes from or in respect of
any sum payable hereunder to any Lender or any Agent or, if any Agent shall be
required by law to deduct any Indemnifiable Taxes from or in respect of any sum
paid or payable hereunder to any Lender, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions for
Indemnifiable Taxes (including deductions, whether by such Guarantor or any
Agent, applicable to additional sums payable under this Section) such Lender or
such Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Guarantor (or, as the
case may be and as required by applicable law, any Agent) shall make such
deductions and (iii) such Guarantor (or, as the case may be and as required by
applicable law, any Agent) shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor shall pay any present or future Other
Taxes.
(c) Each Guarantor shall indemnify each Lender and each Agent for the
full amount of Indemnifiable Taxes or Other Taxes imposed on or paid by such
Lender or such Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
such agent (as the case may be) makes written demand therefor.
(d) The obligations of each Guarantor under this Section are subject in
all respects to the limitations, qualifications and satisfaction of conditions
set forth in Section 2.14 of the Credit Agreement. Without limitation of the
foregoing, the Lenders are subject to the obligations set forth in Section 2.14
of the Credit Agreement to the same extent as if set forth herein.
Section 6. Representations and Warranties. Each Guarantor hereby
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(b) Each Guarantor has, independently and without reliance upon the
Agents or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Guaranty, and such Guarantor has established adequate means of obtaining from
any other Loan Parties on a continuing basis
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information pertaining to, and is now and on a continuing basis will be
completely familiar with, the financial condition, operations, properties and
prospects of such other Loan Parties.
Section 7. Amendments, Etc. (a) Except as provided in subsection (b) to
this Section 9, no amendment or waiver of any provision of this Guaranty and no
consent to any departure by the Guarantors therefrom shall in any event be
effective unless the same shall be in writing and signed by the Agents and the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders, (1) limit the liability of any of the Guarantors
hereunder, (2) postpone any date fixed for payment hereunder or (3) change the
number of Lenders required to take any action hereunder.
(b) Upon the execution and delivery by any Person of an assumption of
guaranty in substantially the form of Exhibit 1 hereto (each, an "Assumption of
Guaranty"), such Person shall be and become a Guarantor hereunder and each
reference in this Guaranty to "Guarantors" shall also mean and be a reference to
such Additional Guarantor.
Section 8. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to any Guarantor, addressed to it at the address of INVESCO PLC specified in
the Credit Agreement, if to any Agent or any Lender, at their addresses
specified in the Credit Agreement, or as to any party at such other address as
shall be designated by such party in a written notice to each other party. All
such notices and other communications shall, when mailed, telegraphed,
telecopied or telexed, be effective when deposited in the mails, delivered to
the telegraph company, transmitted by telecopier or confirmed by telex
answerback, respectively.
Section 9. No Waiver; Remedies. No failure on the part of any Agent or
any Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 10. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Guarantors against any and all of the obligations of the
Guarantors now or hereafter existing under this Guaranty, whether or not such
Lender shall have made any demand under this Guaranty and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Guarantors after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and
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its respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its respective Affiliates may have.
Section 11. Indemnification. Without limitation on any other
obligations of the Guarantors or remedies of the Lenders under this Guaranty,
each Guarantor shall, to the fullest extent permitted by law, indemnify, defend
and save and hold harmless each Lender from and against, and shall pay on
demand, any and all losses, liabilities, damages, costs, expenses and charges
(including the fees and disbursements of such Lender's legal counsel) suffered
or incurred by such Lender as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms.
Section 12. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, (b) be binding upon each Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Agents and the Lenders
and their successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender herein or otherwise, in each case as and to the extent provided
in Section 8.07 of the Credit Agreement.
Section 13. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,
and each Guarantor hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. Each Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party in the courts of any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the
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laying of venue of any suit, action or proceeding arising out of or relating to
this Guaranty or any of the other Loan Documents to which it is or is to be a
party in any New York State or federal court. Each Guarantor hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each Guarantor hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
transactions contemplated thereby or the actions of any Agent or any Lender in
the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
INVESCO, INC.
By
-------------------------------------
Name:
Title:
INVESCO NORTH AMERICAN
HOLDINGS, INC.
By
-------------------------------------
Name:
Title:
INVESCO CAPITAL
MANAGEMENT, INC.
By
-------------------------------------
Name:
Title:
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EXHIBIT 1 - ASSUMPTION OF GUARANTY
ASSUMPTION OF GUARANTY
__________ , 199_
Citibank, N.A., and NationsBank, N.A.
as Managing Agents to the
Credit Agreement
Credit Agreement dated as of February 13, 1997 (as amended or
otherwise modified from time to time, the "Credit Agreement") among
INVESCO PLC, a company organized under the laws of England (the
"Borrower"), the lenders and the co-agents listed on the signature
pages thereof, Citibank, N.A. and NationsBank, N.A., as managing
agents, and NationsBank, N.A., as funding agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Guaranty referred to therein (such Guaranty, as in effect on the date hereof and
as it may hereafter be amended, modified or supplemented from time to time,
being the "Guaranty"). The terms defined in the Guaranty and not otherwise
defined herein are used herein as therein defined.
The undersigned hereby unconditionally guarantees the punctual payment
when due, whether at stated maturity by acceleration or otherwise, of all of the
Guaranteed Obligations and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agents or the Lenders, on
the terms and subject to the limitations set forth in the Guaranty as if it were
an original party thereto. On and after the date hereof, each reference in the
Guaranty to "Guarantor" shall mean and be a reference to the undersigned.
The undersigned hereby agrees to be bound as a Guarantor by all of the
terms and provisions of the Guaranty to the same extent as each other Guarantor
and hereby represents and warrants as follows:
(a) The undersigned (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
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licensed except where the failure to so qualify or be licensed is not
reasonably likely to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted.
(b) The execution, delivery and performance by the undersigned of this
Assumption of Guaranty and each other Loan Document to which the
undersigned is or is to be a party and the performance by the undersigned
of its obligations under the Guaranty, as amended and supplemented by this
Assumption of Guaranty, and each such other Loan Document are within the
corporate powers of the undersigned, have been duly authorized by all
necessary corporate action, and do not (i) contravene the undersigned's
charter or bylaws, (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting the undersigned, any of
its Subsidiaries or any of their properties or (iv) result in or require
the creation or imposition of any Lien upon or with respect to any of the
properties of the undersigned or any of its Subsidiaries. Neither the
undersigned nor any of its Subsidiaries is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or breach
of which is reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by the undersigned of this Assumption of Guaranty or
any other Loan Document to which the undersigned is or is to be a party, or
for the performance by the undersigned of the Guaranty, as amended and
supplemented by this Assumption of Guaranty, and each such other Loan
Document or (ii) the exercise by the Agents or any Lender of its rights
under the Guaranty, as amended and supplemented by this Assumption of
Guaranty, except for the authorizations, approvals, actions, notices and
filings listed on Schedule 1 hereto, all of which have been duly obtained,
taken, given or made and are in full force and effect.
(d) This Assumption of Guaranty has been, and each other Loan Document
to which the undersigned is or is to be a party when delivered pursuant to
the Credit Agreement will have been, duly executed and delivered by the
undersigned. This Assumption of Guaranty and the Guaranty as amended and
supplemented hereby are, and each other Loan Document to which the
undersigned is or is to be a party when delivered pursuant to the Credit
Agreement will be, the legal, valid and binding obligations of the
undersigned, enforceable against the undersigned in accordance with its
terms.
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THIS ASSUMPTION OF GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF ANY OF THE LOAN DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Very truly yours,
[NAME OF ADDITIONAL
GUARANTOR]
By
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Name:
Title:
