**Exhibit4.4**

 

GUARANTY AGREEMENT

 

This GUARANTYAGREEMENT dated as of April 14, 2003 is made by WYNNCHURCH CAPITAL PARTNERS,L.P., a Delaware limited partnership (“Wynnchurch USA”, and WYNNCHURCHCAPITAL PARTNERS CANADA, L.P., an Alberta, Canada limited partnership (“WynchurchCanada”, and collectively with Wynnchurch USA, the “Guarantors”),jointly and severally, to FLEET CAPITAL CORPORATION (the “Lender”).

 

W I T N E S S E TH

 

WHEREAS, AlternativeResources Corporation (“ARC”), ARC Service, Inc., ARC Solutions, Inc.,ARC Midholding, Inc., Writers Inc., ARC Technology Management LLC, ARC StaffingManagement LLC, and ARC Shared Services LLC (collectively, the “Borrowers”)and the Lender are parties to a Credit and Security Agreement dated as ofJanuary 31, 2002 (as amended, supplemented or otherwise modified from time totime, including, without limitation, by the Fifth Amendment described below)the “Credit Agreement”), pursuant to which the Lender has agreed,subject to the terms and conditions set forth therein, to make loans and otherextensions of credit to the Borrowers;

 

WHEREAS, as a result of a dispute that has arisenbetween the Borrowers and Bluecurrent, Inc. (“Bluecurrent”), regardingaccounts receivable owing from Bluecurrent to the Borrowers, the entire amountof accounts receivable owing from Bluecurrent to the Borrowers no longersatisfy the criteria of “Eligible Accounts” as set forth in the CreditAgreement;

 

WHEREAS, after giving effect to the exclusion of theaccounts owing from Bluecurrent, the Revolving Credit Exposure exceeds theBorrowing Base, and, as a result of the Borrowers’ failure to cause theRevolving Credit Exposure to be less than or equal to the Borrowing Base, anEvent of Default is currently continuing under the Credit Agreement (the “OveradvanceEvent of Default”);

 

WHEREAS, as a result of the adverse effect of thedispute between the Borrowers and Bluecurrent on the Borrower’s financialresults, the Borrowers have advised the Lender that they have failed to complywith the certain financial covenants set forth in the Credit Agreement for thefiscal period ending December 31, 2002 (the “December 31, 2002 Events ofDefault”) and that they anticipate that they will be unable to satisfy thefinancial covenants contained in the Credit Agreement for the fiscal quarterending March 31, 2003;

 

WHEREAS, the Borrowershave requested that the Lender enter into a Fifth Amendment to Credit Agreementand Waiver dated as of the date thereof (the “Fifth Amendment”) wherebythe Lender would agree, subject to the terms and conditions contained therein,to waive the Overadvance Event of Default and the December 31, 2002 Events ofDefault, and to amend the Credit Agreement revise certain financial covenantsrelating to the fiscal quarter ending March 31, 2003 and thereafter, and toprovide for the Lender to continue to make overadvances for the account of theBorrower until December 31, 2003, or such later date as the Lender may agree inwriting, of up to $2,000,000 in the aggregate outstanding at any time, and toreset certain financial covenants; and

 

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WHEREAS, each of the Guarantors is the holder of 15%Secured Subordinated Convertible Promissory Notes (the “ARC SubordinatedNotes”) issued by ARC (the parent company of the other Borrowers) and willbenefit from the continued liquidity of the Borrowers resulting from theLender’s overadvances for the account of the Borrowers;

 

NOW, THEREFORE, in order to induce the Lender to waivethe Overadvance Event of Default and the December 31, 2002 Events of Defaultand to agree to amend the financial covenants contained in the Credit Agreementand to continue to make Loans and overadvances to the Borrowers as provided inthe Credit Agreement, and for other good and valuable consideration, receipt ofwhich is hereby acknowledged by the Guarantors, the Guarantors hereby agree asfollows:

 

1.                                       DefinedTerms.  Terms used herein as definedterms and not otherwise defined herein shall have the meanings ascribed theretoin the Credit Agreement.  As usedherein, the following terms have the following meanings:

 

(a)                                  “BluecurrentReceivables” means accounts receivable owing from Bluecurrent to theBorrowers.

 

(b)                                 “CapitalCommitments” means, in respect of any Guarantor, the commitment of eachInvestor in such Guarantor to fund such Guarantor in the amount set forth in,and pursuant to the terms of, such Investor’s subscription agreement and suchGuarantor’s partnership agreement, as such documents may be amended from timeto time.

 

(c)                                  “CapitalCall” means, in respect of any Guarantor, a call upon the Investors in suchGuarantor to fund all or a portion of the Capital Commitments of such Investorsto such Guarantor.

 

(d)                                 “GeneralPartner” means, in respect of Wynnchurch USA, Wynnchurch Partners, L.P.,and in respect of Wynnchurch Canada, Wynnchurch Partners Canada, L.P.

 

(e)                                  “Investor” means, in respect of any Guarantor, the General Partner ofsuch Guarantor and each of the other constituent partners of such Guarantor.

 

(f)                                    “UncalledCapital Commitments” means, in respect of any Guarantor, at any time, theremaining obligations of the Investors in such Guarantor to pay their CapitalCommitments at such time.

 

2.                                       GuaranteedObligation.

 

(a)                                  Subjectto Section 2(b) below, the Guarantors do hereby absolutely, irrevocably andunconditionally guarantee, jointly and severally, the due and punctual paymentof the Overadvance Amount (the “Guaranteed Obligation”).

 

(b)                                 Notwithstandingany provision of this Agreement to the contrary, the obligations of theGuarantors under this Agreement shall not exceed the sum of (i) $2,000,000 (the“Initial Guaranty Amount”), plus (ii) in the event any payment tobe made by the Guarantors hereunder is not made when due, interest at thePost-Default Rate accruing on such unpaid

 

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amount from the date suchamount became due hereunder, plus (iii) the reasonable expenses(including fees and expenses of counsel), if any, incurred by the Lender inenforcement of and collection under this Agreement.  The parties hereto agree that the Initial Guaranty Amount shallbe reduced from time to time, upon the payment in cash by Bluecurrent to theBorrowers of amounts due in respect of the Bluecurrent Receivables, on a dollarfor dollar basis in an amount equal to such cash payments; provided thatno such reduction in the Initial Guaranty Amount shall become effective untilthree days after receipt by the Lender of such cash payment for application tothe outstanding Loans.

 

(c)                                  TheBorrowers confirm that they have directed and will continue to directBluecurrent to make all payments in respect of the Bluecurrent Receivablesdirectly to a Lockbox or Controlled Account maintained by the Borrowers at theCash Management Bank.  The Borrowersagree that any Credit Party receiving any monies, checks, notes, drafts orother payments relating to the Bluecurrent Receivables will hold the same intrust for, and as the sole and exclusive property of, the Lender andimmediately upon receipt of thereof, shall remit the same to a ControlledAccount maintained by the Borrowers at the Cash Management Bank.

 

(d)                                 Inthe event of payment by the Guarantors to the Lender of the Guaranteed Amountas provided above, the Lender shall consent to the payment by the Borrowers toWynnchurch Capital, Ltd., and the acceptance by the Wynnchurch Capital, Ltd.,from the Borrowers, of a fee in the aggregate amount of $250,000 (the “GuarantyFee”); provided that such fee shall be deferred and shall not be paid,except as permitted under the terms of the Credit Agreement and that certainSubordination and Intercreditor Agreement by and among the Guarantors, theLender and the Borrowers, dated as of January 31, 2002, as amended by thatcertain amendment of even date herewith (the “Intercreditor Agreement”).

 

3.                                       Demandby Lender.

 

(a)                                  Uponfailure by the Borrowers punctually to pay or perform the Guaranteed Obligationon the Overadvance Termination Date or on any date prior to the OveradvanceTermination Date that the entire balance of the Loans shall become due as aresult of acceleration or the occurrence of events described in subsections9.1(g) or (h) of the Credit Agreement, the Lender may make demand upon theGuarantors for the payment or performance of the Guaranteed Obligation and theGuarantors bind and oblige themselves to make such payment or performance notlater than 20 days following such demand by Lender.

 

(b)                                 Allpayments made by the Guarantors under this Agreement shall be made directly tothe Lender in immediately available funds. The Guarantors and the Borrowers agree that Guarantors and WynnchurchCapital, Ltd., will have the option, in their sole discretion, to have all orany portion of any payment made by the Guarantors hereunder, together with theGuaranty Fee (the “Demand Amount”) deemed to be (i) a purchase byGuarantors and Wynnchurch Capital, Ltd. (solely with respect to the amount ofthe Guaranty Fee) from ARC of Senior Subordinated Secured Promissory Notes (the“New Wynnchurch Subordinated Notes”) in an aggregate principal amountequal to the Demand Amount; and (ii) the immediate payment by ARC to the Lenderof all proceeds of the sale of the New Wynnchurch Subordinated Notes describedabove.  The New Wynnchurch SubordinatedNotes shall have the terms set forth in that certain Securities PurchaseAgreement dated as of January 31, 2002, among ARC and

 

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Guarantors, as amended(the “Securities Purchase Agreement”), provided, however, thatARC shall be required to prepay such New Wynnchurch Subordinated Notes at suchtimes and to the extent permitted under Section 2.6 of the IntercreditorAgreement.

 

4.                                       Waiverof Demands, Notices, Diligence, etc. The Guarantors hereby assent to all of the terms and conditions of theGuaranteed Obligation and waive: (a) demand for the payment of the principal ofthe Guaranteed Obligation or of any claim for interest or any part of anythereof (other than the demand provided for in Section 3 hereof); (b) notice ofthe occurrence of, or the occurrence of, a default or an event of default underthe Credit Agreement or under the Guaranteed Obligation; (c) protest of thenonpayment of the principal of the Guaranteed Obligation or of any claim forinterest or any part thereof; (d) notice of presentment, demand and protest;(e) notice of acceptance of any guaranty herein provided for or of the termsand provisions thereof or hereof by the Lender; (f) notice of any extensionsgranted to the Borrowers or any successor to the Borrowers or any person orparty which shall have assumed the obligations of the Borrowers; (g) anyrequirement of diligence or promptness on the part of the Lender in theenforcement of any of its rights under the provisions of the Credit Agreementor this Agreement; (h) any enforcement of the Guaranteed Obligation; (i) anyright which any Guarantor might have to require the Lender to proceed againstany other guarantor of the Guaranteed Obligation or to realize on anycollateral security therefor; and (j) any and all notices of every kind anddescription which may be required to be given by any statute or rule of law inany jurisdiction (other than notices of foreclosure under the UCC).  The waivers set forth in this Section 4shall be effective notwithstanding the fact that any Borrower ceases to existby reason of its liquidation, merger, consolidation or otherwise.  Notwithstanding any provision of thisAgreement to the contrary, the Lender shall not settle or compromise anyBluecurrent Receivables without the prior written consent of the Guarantors; providedthat no such consent shall be required during the continuance of an Event ofDefault of the type described in subsection 9.1(g) or (h) of the CreditAgreement.

 

5.                                       Obligationsof Guarantor Unconditional.  Theobligations of each of the Guarantors under this Guaranty Agreement shall beabsolute, unconditional and primary irrespective of the validity, regularity orenforceability of the Guaranteed Obligation, and shall not be affected by (a)any action taken under the Credit Agreement in the exercise of any right orremedy therein conferred (including, without limitation, in respect of theGuaranteed Obligation), (b) any failure or omission on the part of the Lenderto enforce any right given under any Loan Document or hereunder or any remedyconferred thereby or hereby, (c) any waiver of any term, covenant, agreement orcondition of the Credit Agreement (including without limitation, in respect ofthe Guaranteed Obligation) or this Agreement, (d) any release of any securityor any other guaranty at any time existing for the benefit of the GuaranteedObligation (including, without limitation, the release of any other Guarantorhereunder) or any other obligation under the Credit Agreement, (e) thecommencement of a bankruptcy (whether voluntary or involuntary), insolvency orrelated proceeding or the appointment of a receiver or similar official withrespect to any Guarantor, (f) the merger or consolidation of any Borrower, (g)sale, lease or transfer by any Borrower to any person of any or all of itsproperties, (h) any action of the Lender granting indulgence or extension to,or waiving or acquiescing in any default by, any Borrowers or any successor toany Borrower or any person or party which shall have assumed any obligation ofthe Borrowers, (i) reason of any disability or other defense of any Borrower orany successor to any Borrower, (j) any modification, alteration, or by any

 

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circumstance whatsoever(with or without notice to or knowledge of the Guarantors) which may or mightin any manner or to any extent vary the risk of any Guarantor hereunder, itbeing the purpose and intent of each Guarantor that the obligations of eachGuarantor hereunder shall be absolute, unconditional and primary under any andall circumstances and shall not be discharged except by payment or performanceas herein provided, and then only to the extent of such payment orperformance.  Notwithstanding anyprovision of this Agreement to the contrary, the Lender shall not settle orcompromise any Bluecurrent Receivables without the prior written consent of theGuarantors; provided that no such consent shall be required during thecontinuance of an Event of Default of the type described in subsection 9.1(g)or (h) of the Credit Agreement.

 

6.                                       Waiverof Rights of Subrogation.  Until thepayment in full of the Guaranteed Obligation, each Guarantor hereby waives anyclaim, right or remedy which such Guarantor may now have or hereafter acquireagainst the Borrowers that arises hereunder and/or from the performance by suchGuarantor hereunder including, without limitation, any claim, remedy or rightof subrogation, reimbursement, exoneration, indemnification, or participationin any claim, right or remedy of the Lender against the Borrowers on anysecurity which the Lender now has or hereafter acquires, whether or not suchclaim, right or remedy arises in equity, under contract, by statute, undercommon law or otherwise.

 

7.                                       Termination.  This Agreement shall terminate upon theearliest to occur of: (a) the reduction of the Initial Guaranty Amount to zeroin accordance with the terms of Section 2(b) of this Agreement, (b) the paymentin full of all of the Guarantors’ obligations under this Agreement, or (c) the60th day after the Overadvance Termination Date.

 

8.                                       Reinstatement.  This Agreement shall continue to beeffective, or be reinstated, as the case may be, if at any time any amountreceived by the Lender in respect of the Guaranteed Obligation is rescinded ormust otherwise be restored or returned by the Lender upon the insolvency,bankruptcy, dissolution, liquidation or reorganization of any Borrower or anyGuarantor or upon the appointment of an intervenor or conservator of, ortrustee or similar official for, any Borrower or any Guarantor or anysubstantial part of any of their respective properties, or otherwise, all asthough said payments had not been made.

 

9.                                       Representationsand Warranties.  Each Guarantorrepresents and warrants to Lender that:

 

(a)                                  DueOrganization.

 

(i)                                     EachGuarantor is a limited partnership duly organized and validly existing in goodstanding under the laws of its jurisdiction of organization and is dulyqualified to do business and is in good standing in each jurisdiction in whichsuch qualification may be necessary by reason of the nature or location of suchGuarantor’s assets or operations.

 

(ii)                                  TheGeneral Partner of each Guarantor is a corporation duly organized and validlyexisting in good standing under the laws of its jurisdiction of organizationand is duly qualified to do business and is in good standing in eachjurisdiction in which such

 

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qualification may benecessary by reason of the nature or location of such Guarantor’s assets or operations.

 

(b)                                 DueAuthorization.  The execution,delivery and performance hereof are within each Guarantor’s and each GeneralPartner’s powers, have been duly authorized by all necessary action (including,if required, partner action), require no action by or in respect of or filingwith any governmental authority, and do not contravene or constitute a defaultunder any provision of applicable law or regulation or of the certificate oflimited partnership, limited partnership agreement, articles of incorporation,by-laws or other constituent documents of such Guarantor or General Partner, orany judgment, order, decree, injunction or material agreement or otherinstrument by which it or any of its properties may be bound, and will notresult in creation or imposition of any Lien on any of its assets.

 

(c)                                  Enforceability.  This Agreement has been duly executed anddelivered by and constitutes a valid and binding agreement of each Guarantor,enforceable against it in accordance with its terms, subject to bankruptcy,insolvency, moratorium and other laws affecting the rights of creditors andgeneral principles of equity.

 

(d)                                 Financialand Other Information.  TheGuarantors have delivered to the Lender copies of their financial statementsfor the fiscal year most recently ended, and such financial statements are trueand accurate in all material respects. Each of the Guarantors has delivered to the Lender true and completecopies of its certificate of limited partnership and limited partnershipagreement, as amended and in effect on the date of this Agreement.  All information heretofore furnished by theGuarantors to the Lender for purposes or in connection with this Agreement orthe transactions contemplated hereby is, and all such information hereafterfurnished by the Guarantor to the Lender will be, true and accurate in allmaterial respects on the date as of which such information is stated or deemedstated.

 

(e)                                  CapitalCommitments and Calls, Etc.  As ofMarch 31, 2003: (i) the Capital Commitments of Wynnchurch USA aggregate$80,250,000;  (ii) the CapitalCommitments of Wynnchurch Canada aggregate $82,852,855;  (iii) Capital Calls aggregating $38,152,687have been made by Wynnchurch USA;  (iv)Capital Calls aggregating $39,452,587 have been made by Wynnchurch Canada; and(v) no Investor has failed to fund all of the amounts required to be paid bysuch Investor pursuant to Capital Calls heretofore made or is otherwise indefault under any subscription agreement relating to its investment in theapplicable Guarantor.  Under theapplicable limited partnership agreement and subscription agreement, eachInvestor has an absolute obligation to fund Capital Calls up to the aggregateamount of its Capital Commitment.  NoGuarantor has knowledge of any right of set-off existing in favor of anyInvestor against such Investor’s obligation to fund Capital Calls.  ARC is a “Portfolio Company”, as defined ineach Guarantor’s limited partnership agreement.  Payment of the entire amount of the Guaranteed Obligationhereunder by any Guarantor, when aggregated with the amount of such Guarantor’sexisting investment in the Borrowers, shall not cause a breach of anyapplicable concentration limit set forth in such Guarantor’s limitedpartnership agreement.  The total amountof all loans by each Guarantor to, and all guarantees by each Guarantor(including its guaranty under this Agreement) of any loan or other obligationof, the Borrowers, together with the total amount of cash invested by suchGuarantor in the Borrowers, does not represent in excess of 25% of theaggregate amount of the Capital Commitments of the Investors in such

 

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Guarantor. The totalamount of all guarantees by each Guarantor (including its guaranty under thisAgreement) of the loans and other obligations of existing and prospectivePortfolio Companies (as defined in each Guarantor’s limited partnershipagreement) does not exceed 100% of the unfunded Capital Commitments of theInvestors in such Guarantor as of the date hereof.  The execution and delivery of this Agreement by the Guarantors,and the performance by the Guarantors of their obligations under thisAgreement, does not and will not constitute an investment in a leveraged buyout, venture capital or other similar private debt or equity fund.

 

(f)                                    NoAdverse Regulations.  Each Guarantor(i) is subject to no legal restriction, or any judgment, award, decree, order,governmental rule or regulation or contractual restriction which would have amaterial adverse effect on its financial condition, assets or operations (a “GuarantorMaterial Adverse Effect”) and (ii) is in compliance with its organizationaldocuments and all contractual requirements by which it or any of its propertiesmay be bound and all applicable laws, rules and regulations other than (A)laws, rules or regulations the validity or applicability of which it iscontesting in good faith by proceedings which serve to stay the enforcementthereof or (B) such provisions of any of such organizational documents,contractual requirements, laws, rules or regulations as to which the failure tocomply with the same would not reasonably be expected to have GuarantorMaterial Adverse Effect.

 

(g)                                 NoAdverse Actions.  There is noaction, suit, proceeding or investigation pending or, to each Guarantor’sknowledge, threatened against any Guarantor, any of its general partners or anyof their assets before or by any Governmental Authority reasonably likely tohave a Guarantor Material Adverse Effect.

 

(h)                                 Compliancewith Laws and Agreements.  EachGuarantor is in compliance with all laws, regulations, policies and orders ofany Governmental Authority applicable to it or its property and all indentures,agreements and other instruments binding upon it or its property, except wherethe failure to do so, individually or in the aggregate, would not reasonably beexpected to result in a Guarantor Material Adverse Effect.

 

(i)                                     Investmentand Holding Company Status.  NoGuarantor is (a) an “investment company” as defined in, or subject toregulation under, the Investment Company Act of 1940, as amended, (b) a“holding company” as defined in, or subject to regulation under, the PublicUtility Holding Company Act of 1935, as amended or (c) a “bank holding company”as defined in, or subject to regulation under, the Bank Holding Company Act of1956, as amended.

 

10.                                 Acknowledgementof Lender’s Discretion.  EachGuarantor hereby acknowledges that (i) pursuant to the terms of the CreditAgreement the Overadvance Amount at any time outstanding is determined withreference to the Borrowing Base, which shall be calculated by the Lender in itscommercially reasonable discretion, and (ii) in connection with thedetermination of the Overadvance Amount, the amount of receivables owing by Bluecurrentto the Borrowers shall not be included in the Borrowing Base.

 

11.                                 SubscribedCapital.  Until such time as thisAgreement terminates in accordance with the terms of Section 7 hereof, theaggregate amount of Uncalled Capital Commitments in respect of the Guarantorsshall at all times equal or exceed three times the aggregate Guarantor

 

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Indebtedness.  For purposes hereof “GuarantorIndebtedness” means, for any Guarantor, without duplication: (a) obligationscreated, issued or incurred by such Guarantor for borrowed money (whether byloan, advance, the issuance and sale of debt securities or the sale of propertyto another Person subject to an understanding or agreement, contingent orotherwise, to repurchase such property from such Person); (b) obligations ofsuch Guarantor to pay the deferred purchase or acquisition price of property orservices, other than trade accounts payable (other than for borrowed money)arising, and accrued expenses incurred, in the ordinary course of business; (c)capital lease obligations of such Guarantor; (d) obligations of such Guarantorin respect of letters of credit or similar instruments issued or accepted bybanks and other financial institutions for the account of such Guarantor; (e)Indebtedness of others secured by a Lien on the property of such Guarantor,whether or not the respective indebtedness so secured has been assumed by suchGuarantor; and (f) Indebtedness of others Guaranteed by such Guarantor.  Guarantor Indebtedness, however, excludesguaranties made by a Guarantor for which recourse under such guaranty islimited to securities of such Guarantor’s portfolio companies or theiraffiliates (together with replacements for such securities, dividends or otheramounts paid on account of such securities, property exchanged or received forsuch securities, or the proceeds from the sale thereof).

 

12.                                 Covenants.  Each Guarantor agrees that so long as theGuaranteed Obligation remains outstanding, such Guarantor:

 

(a)                                  willmaintain its existence in good standing as a limited partnership under the lawsof the jurisdiction of its organization as a limited partnership and itsqualification to transact business in each jurisdiction where failure so toqualify would permanently preclude it form enforcing its rights with respect toany material asset or would expose it to any material liability;

 

(b)                                 willnot merge or consolidate or enter into any analogous reorganization ortransaction with any Person or liquidate, wind up or dissolve themselves (orsuffer any liquidation or dissolution);

 

(c)                                  willnot amend or modify such Guarantor’s limited partnership agreement or anysubscription agreement of any Investor in such Guarantor in any way that wouldadversely affect the enforceability of this Agreement, the availability ofcapital to discharge the obligations under this Agreement or the consequencesto Investors of failing to fund Capital Calls;

 

(d)                                 willfurnish to the Lender promptly upon the mailing thereof to the Investorsgenerally, copies of all financial statements, reports and other information somailed to the Investors.

 

13.                                 Notices.  Except as otherwise provided herein, allnotices to the Guarantors or the Lender shall be in writing and shall be deemedto have been sufficiently given or served for all purposes hereof if personallydelivered or mailed by first class mail, postage prepaid, as follows:

 

 

(a)                                  ifto the Guarantors:

 

Wynnchurch Capital Partners, L.P.

 

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Wynnchurch CapitalPartners Canada, L.P.c/o Wynnchurch Capital Ltd.Two Conway Park150 Field Drive, Suite 165Lake Forest, Illinois  60045Attention:  John A. HatherlyFax no. 847-604-6105

with a copy to:

 

Altheimer &Gray10 South Wacker Drive, Suite 4000Chicago, Illinois 60606Attention:  Mark T. Kindelin, Esq.Fax no. 312-715-4800

 

(b)                                 ifto the Lender:

 

Fleet CapitalCorporationMail Stop MA DE 10307XOne Federal StreetBoston, Massachusetts  02110Attention:  Christopher Godfrey

 

with a copy to:

 

Palmer & DodgeLLP111 Huntington Avenue at Prudential CenterBoston, Massachusetts 02199-7613Attn: David L. Ruediger, Esq.

 

or at such other addressas the party to whom such notice or demand is directed may have designated inwriting to the other party hereto.  Anotice shall be deemed to have been given upon the earlier to occur of (i)three (3) days after the date on which it is deposited in the U.S. mails or(ii) receipt by the party to whom such notice is directed.

 

14.                                 Miscellaneous.  This Agreement shall inure to the benefit ofand be binding upon the Lender and the Guarantors and their respectivesuccessors and assigns, and the term “Lender” shall be deemed to include anyother holder or holders of the Guaranteed Obligation.  In case any provision in this Agreement shall be invalid, illegalor unenforceable, the validity, legality and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.  This Agreement may be executed in any numberof counterparts and by the different parties hereto on separate counterparts,each of which shall be an original, but all of which together shall constituteone instrument.  Each Guarantor agrees,as principal obligor and not as guarantor, to pay to the Lender forthwith upondemand in funds immediately available to the Lender, all reasonable costs andexpenses (including court costs and reasonable attorneys’

 

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fees and disbursements)incurred or expended by the Lender in connection with the enforcement of thisAgreement.

 

15.                                 ObligationsJoint and Several.  The obligationsof the Guarantors hereunder shall be joint and several.

 

16.                                 GoverningLaw; Jurisdiction; Waiver of Jury Trial. This Agreement, including the validity hereof and the rights andobligations of the parties hereunder, shall be construed in accordance with andgoverned by the laws of the Commonwealth of Massachusetts.  Each Guarantor, to the extent that it maylawfully do so, hereby consents to the jurisdiction of the courts of theCommonwealth of Massachusetts and the United States District Court for theDistrict of Massachusetts, as well as to the jurisdiction of all courts towhich an appeal may be taken from such courts, for the purpose of any suit,action or other proceeding arising out of any of its obligations hereunder orwith respect to the transactions contemplated hereby, and expressly waives anyand all objections it may have as to venue in any such courts.  Each Guarantor further agrees that a summonsand complaint commencing an action or proceeding in any of such courts shall beproperly served and shall confer personal jurisdiction if served personally orby certified mail to it at its address provided in Section 13 of this Agreementor as otherwise provided under the laws of the Commonwealth ofMassachusetts.  Each Guarantorirrevocably waives all right to a trial by jury in any suit, action or otherproceeding instituted by or against it in respect of its obligations hereunderor the transactions contemplated hereby.

 

17.                                 Confidentiality.The Lender agrees to maintain the confidentiality of information which isfurnished to the Lender by the Guarantors pursuant to the terms hereof(including any information regarding any Person in which the Guarantors hold,or contemplate acquiring, any portfolio investments made by the Guarantors) inaccordance with such procedures as it applies generally to information of thiskind, and agrees that it will not disclose any of such information other than(a) to the Lender’s employees, representatives, attorneys, auditors,professional advisors, agents or Affiliates who are advised of the confidentialnature of such information, (b) to the extent required by governmentalregulatory agencies, self regulating bodies, law, legal process, or litigationin which Lender is a defendant, plaintiff or other named party, or (c) with theGuarantors’ prior written consent.

 

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IN WITNESS WHEREOF, the parties have executed thisAgreement as a sealed instrument as of the date first above written.

 

 
|   | WYNNCHURCH CAPITAL  PARTNERS, L.P.                    |
|--------|-------------------------------------------------------|
|   |                                                  |
|   | By:                                                   | Wynnchurch Partners,  L.P., its General Partner |
|   |                                                  |
|   | By:                                                   | Wynnchurch Management  Inc., |
|   |                                                  | its General Partner |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 |
|   | Title:                                                |
|   |                                                  |
|   | WYNNCHURCH CAPITAL  PARTNERS CANADA, L.P.             |
|   |                                                  |
|   | By:                                                   | Wynnchurch Partners  Canada, L.P., |
|   |                                                  | its General Partner |
|   |                                                  |
|   | By:                                                   | Wynnchurch GP Canada,  Inc., |
|   |                                                  | its General Partner |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 |
|   | Title:                                                |
|   |                                                  |
|   |                                                  |
|   | The foregoing Guaranty  Agreement is hereby accepted: |
|   |                                                  |
|   | FLEET CAPITAL  CORPORATION                            |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 |
|   | Title:                                                |
|        |                                                       |  |  |  |

 

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The undersignedacknowledge the foregoing Guaranty Agreement, and agree to be bound by theterms of Sections 2(c), 2(d) and 3(b) thereof.

 
| ALTERNATIVE RESOURCES  CORPORATION |
|------------------------------------|
|                               |
|                               |
| By:                                |   |   |
| Name:                              |
| Title:                             |
|                               |
|                               |
| ARC SERVICE, INC.                  |
|                               |
|                               |
| By:                                |   |   |
| Name:                              |
| Title:                             |
|                               |
|                               |
| ARC SOLUTIONS, INC.                |
|                               |
|                               |
| By:                                |   |   |
| Name:                              |
| Title:                             |
|                               |
|                               |
| ARC MIDHOLDING, INC.               |
|                               |
|                               |
| By:                                |   |   |
| Name:                              |
| Title:                             |
|                               |
|                               |
| WRITERS INC.                       |
|                               |
|                               |
| By:                                |   |   |
| Name:                              |
| Title:                             |

 

12

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| ARC TECHNOLOGY  MANAGEMENT LLC                            |
|-----------------------------------------------------------|
|                                                      |
|                                                      |
| By:  ARC SERVICE, INC., its Manager and sole  member |
|                                                      |
|                                                      |
| By:                                                       |   |   |
| Name:                                                     |
| Title:                                                    |
|                                                      |
|                                                      |
| ARC STAFFING MANAGEMENT  LLC                              |
|                                                      |
|                                                      |
| By:  ARC SERVICE, INC., its Manager and sole  member |
|                                                      |
|                                                      |
| By:                                                       |   |   |
| Name:                                                     |
| Title:                                                    |
|                                                      |
|                                                      |
| ARC SHARED SERVICES LLC                                   |
|                                                      |
|                                                      |
| By:  ARC SERVICE, INC., its Manager and sole  member |
|                                                      |
|                                                      |
| By:                                                       |   |   |
| Name:                                                     |
| Title:                                                    |

 

13

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