EXHIBIT 10.3
GUARANTY (LESSOR)
THIS GUARANTY (Lessor) (this "GUARANTY") is made as of
December 9, 1997 by THE VINCAM GROUP, INC., a Florida corporation (the
"COMPANY"), in favor of FLEET NATIONAL BANK, as Agent (the "AGENT"), for the
ratable benefit of the Lenders from time to time (the "LENDERS"), under the
Credit Agreement referred to below.
RECITALS
WHEREAS, Fleet Real Estate, Inc. (the "LESSOR") has acquired a
fee simple interest in certain real property located in Dade County, Florida(the
"SITE"), and intends to construct on the Site a corporate headquarters building
and related enhancements and improvements; and
WHEREAS, the Lessor has leased the Site, and the corporate
headquarters building and other enhancements and improvements thereon, after
completion, to the Company, as lessee, pursuant to a Lease Agreement of even
date herewith (as the same may be amended, supplemented or otherwise modified
from time to time, the "LEASE"); and
WHEREAS, in order to finance the acquisition of the Lessor's
fee simple estate in the Site and the construction of the corporate headquarters
building and related enhancements and improvements on the Site for the ultimate
use and benefit of the Company in accordance with the Lease, the Company, the
Lessor, the Agent, and the Lenders have entered into a certain Credit and
Investment Agreement of even date herewith (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
whereby the Company has requested that the Lenders extend certain Loans to the
Lessor in an aggregate principal amount of up to $11,640,000, and that the
Lessor make certain Lessor Investments in an aggregate principal amount of up to
$360,000; and
WHEREAS, to induce the Agent, the Lenders and the Lessor to
enter into the Credit Agreement and other Transaction Documents, the Company has
agreed to guarantee certain obligations of the Lessor to the Agent and the
Lenders under the Credit Agreement, the Notes and the other Transaction
Documents; and
WHEREAS, the Lenders have agreed to extend the requested Loans
upon the terms and conditions set forth in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company hereby agrees as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement
or in Schedule 1.02 to the Credit Agreement and not otherwise defined herein
have, as used herein, the respective meanings provided for therein.
SECTION 2. THE GUARANTY. The Company, as primary obligor and
not merely as surety, hereby irrevocably and unconditionally guarantees (a) the
full and punctual payment (whether at stated maturity, upon acceleration or
otherwise) when due of the Loans, including, without limitation, any and all
renewals, extensions for any period, rearrangements or enlargements thereof, all
interest (pre-petition or post-petition) accruing on the Loans (pre-petition or
post-petition) and all indemnities, expenses and other amounts payable by the
Lessor to the Agent or any Lender under the Credit Agreement, the Notes and the
other Transaction Documents and (b) the punctual performance of all obligations
and agreements of the Lessor to or in favor of the Agent or the Lenders under
the Credit Agreement, the Notes and the other Transaction Documents (all of the
foregoing obligations in clauses (a) and (b) above being referred to
collectively as the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including reasonable attorneys' fees and expenses) incurred by the
Agent and the Lenders and their respective successors, transferees and assigns
in enforcing any rights under this Guaranty (Lessor); PROVIDED that, if the
Company shall have paid the Final Rent Payment or Completion Costs Payment, as
applicable, and returned the Facility to the Lessor in accordance with Section
16 of the Lease, the Company shall have no obligation under this Guaranty
(Lessor) or otherwise to pay any portion of the principal amount of the Tranche
B Loans.
Without limiting the generality of the foregoing, the
Company's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Lessor to the Agent or the
Lenders but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the
Lessor. For purposes of determining when an obligation is "due" for purposes of
this Guaranty (Lessor), such term shall be interpreted to mean due in accordance
with the terms of this Guaranty (Lessor) and without regard to the amendment,
modification or rejection of any Guaranteed Obligation in any bankruptcy or
other reorganization proceeding.
SECTION 3. GUARANTY UNCONDITIONAL. The Company guarantees that
the Guaranteed Obligations will be paid and performed strictly in accordance
with their terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Lessor with respect thereto. The obligations of the Company under this Guaranty
are independent of the Guaranteed Obligations and a separate action or actions
may be brought and prosecuted against the Company to enforce this Guaranty
(Lessor),
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irrespective of whether any action is brought against the Lessor or any
affiliate of the Lessor or whether the Lessor or any affiliate of the Lessor is
joined in any such action or actions. The obligations of the Company hereunder
shall be irrevocable, unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
a. any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Lessor under the
Credit Agreement, any Note or any other Transaction Document,
by operation of law or otherwise, or any obligation of any
other guarantor of any of the Guaranteed Obligations;
b. any modification or amendment of or supplement to the
Credit Agreement, any Note or any other Transaction
Document;
c. any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Lessor under the
Credit Agreement, any Note or any other Transaction Document
or any obligations of any other guarantor of any of the
Guaranteed Obligations;
d. any change in the corporate existence, structure or
ownership of the Lessor, or any other guarantor of any
of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting the Lessor, or any other guarantor of the
Guaranteed Obligations, or its assets or any resulting
release or discharge of any obligation of the Lessor,
or any other guarantor of any of the Guaranteed
Obligations;
e. the existence of any claim, set-off or other rights
which the Company may have at any time against the
Lessor, any other guarantor of any of the Guaranteed
Obligations, the Agent, any Lender or any other Person,
whether in connection herewith or any unrelated
transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
f. any invalidity or unenforceability relating to or
against the Lessor, or any other guarantor of any of
the Guaranteed Obligations, for any reason related to
the Credit Agreement, any Note or any other Transaction
Document or any other guaranty of the Guaranteed
Obligations, or any provision of applicable law or
regulation purporting to prohibit the payment by the
Lessor or any other guarantor of the Guaranteed
Obligations, of amounts payable by the Lessor under the
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Credit Agreement, any Note or any other Transaction
Document; or
g. any other act or omission to act or delay of any kind
by the Lessor, any other guarantor of the Guaranteed
Obligations or any other Person or any other
circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or
equitable discharge of the Company's obligations
hereunder, including, without limitation, any failure,
omission, delay or inability on the part of the Agent
or the Lenders to enforce, assert or exercise any
right, power or remedy conferred on the Agent or the
Lenders under the Credit Agreement, any Note or any
other Transaction Document.
SECTION 4. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Lessor under the Credit Agreement or any
other Transaction Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Lessor or
otherwise, the Company's obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
SECTION 5. WAIVER OF NOTICE BY THE COMPANY. The Company
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Lessor, any other guarantor of the Guaranteed Obligations or any other Person.
SECTION 6. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Lessor under the Credit Agreement, any
Note or any other Transaction Document is stayed upon the insolvency, bankruptcy
or reorganization of the Lessor, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other
Transaction Document shall nonetheless be payable by the Company hereunder
forthwith on demand by the Agent or any Lender.
SECTION 7. NOTICES. All notices and other communications
provided for hereunder shall be in writing (including by telecopier and other
readable communication) and mailed by certified mail, return receipt requested,
telecopied or otherwise transmitted or delivered: if to the Company, any Lender,
the Agent or the Lessor, at its address set forth under its name on the
signature page to the Credit Agreement; or, as to
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each party at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
if so mailed, telecopied or otherwise transmitted, be effective when received,
if mailed, or when the appropriate answerback or other evidence of receipt is
given, if telecopied or otherwise transmitted, respectively.
SECTION 8. NO WAIVERS. No failure or delay by the Agent or the
Lenders in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Guaranty, the Credit
Agreement, the Notes and the other Transaction Documents shall be cumulative and
shall not be exclusive of any other rights or remedies provided by law.
SECTION 9. SUCCESSORS AND ASSIGNS. This Guaranty (Lessor) is
for the benefit of the Agent and the Lenders and their successors and assigns.
In the event of an assignment of any amounts payable under the Credit Agreement,
the Notes or the other Transaction Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty (Lessor) may not be assigned by the Company without
the prior written consent of the Agent and each Lender and shall be binding upon
the Company and its successors and permitted assigns.
SECTION 10. CHANGES IN WRITING. Neither this Guaranty (Lessor)
nor any provision hereof may be changed, waived, discharged or terminated
orally, but only in writing signed by the Company, the Agent and the Lenders.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. THIS GUARANTY (LESSOR) SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE COMPANY HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YOR, NEW YORK AND FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
THE COMPANY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
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RELATING TO THIS GUARANTY (LESSOR) OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 12. TAXES, ETC. All payments required to be made by
the Company hereunder shall be made without set-off or counterclaim and free and
clear of, and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political or taxing authority as required
pursuant to Section 4.06 of the Credit Agreement.
SECTION 13. SUBROGATION. The Company hereby agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Guaranty (Lessor), by any payment made hereunder or otherwise, unless and
until all of the Guaranteed Obligations shall have been paid in full. If any
amount shall be paid to the Company on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held in trust for the benefit of the Agent and the Lenders
and shall forthwith be paid to the Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Agreement.
IN WITNESS WHEREOF, the Company has caused this Guaranty
(Lessor) to be duly executed, under seal, by its authorized officer as of the
date first above written.
[SEAL] THE VINCAM GROUP, INC., a Florida
corporation
By: /s/ ELIZABETH J. KEELER
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Name: Elizabeth J. Keeler
Title: Vice President
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