EXHIBIT W
GUARANTY AGREEMENT
This GUARANTY AGREEMENT dated as of April 14, 2003 is made
by WYNNCHURCH CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("Wynnchurch USA"), and WYNNCHURCH CAPITAL PARTNERS
CANADA, L.P., an Alberta, Canada limited partnership ("Wynchurch
Canada", and collectively with Wynnchurch USA, the "Guarantors"),
jointly and severally, to FLEET CAPITAL CORPORATION (the
"Lender").
W I T N E S S E T H
WHEREAS, Alternative Resources Corporation ("ARC"), ARC
Service, Inc., ARC Solutions, Inc., ARC Midholding, Inc., Writers
Inc., ARC Technology Management LLC, ARC Staffing Management LLC,
and ARC Shared Services LLC (collectively, the "Borrowers") and
the Lender are parties to a Credit and Security Agreement dated
as of January 31, 2002 (as amended, supplemented or otherwise
modified from time to time, 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 other extensions
of credit to the Borrowers;
WHEREAS, as a result of a dispute that has arisen between
the Borrowers and Bluecurrent, Inc. ("Bluecurrent"), regarding
accounts receivable owing from Bluecurrent to the Borrowers, the
entire amount of accounts receivable owing from Bluecurrent to
the Borrowers no longer satisfy the criteria of "Eligible
Accounts" as set forth in the Credit Agreement;
WHEREAS, after giving effect to the exclusion of the
accounts owing from Bluecurrent, the Revolving Credit Exposure
exceeds the Borrowing Base, and, as a result of the Borrowers'
failure to cause the Revolving Credit Exposure to be less than or
equal to the Borrowing Base, an Event of Default is currently
continuing under the Credit Agreement (the "Overadvance Event of
Default");
WHEREAS, as a result of the adverse effect of the dispute
between the Borrowers and Bluecurrent on the Borrower's financial
results, the Borrowers have advised the Lender that they have
failed to comply with the certain financial covenants set forth
in the Credit Agreement for the fiscal period ending December 31,
2002 (the "December 31, 2002 Events of Default") and that they
anticipate that they will be unable to satisfy the financial
covenants contained in the Credit Agreement for the fiscal
quarter ending March 31, 2003;
WHEREAS, the Borrowers have requested that the Lender enter
into a Fifth Amendment to Credit Agreement and Waiver dated as of
the date thereof (the "Fifth Amendment") whereby the Lender would
agree, subject to the terms and conditions contained therein, to
waive the Overadvance Event of Default and the December 31, 2002
Events of Default, and to amend the Credit Agreement revise
certain financial covenants relating to the fiscal quarter ending
March 31, 2003 and thereafter, and to provide for the Lender to
continue to make overadvances for the account of the Borrower
until December 31, 2003, or such later date as the Lender may
agree in writing, of up to $2,000,000 in the aggregate
outstanding at any time, and to reset certain financial
covenants; and
WHEREAS, each of the Guarantors is the holder of 15% Secured
Subordinated Convertible Promissory Notes (the "ARC Subordinated
Notes") issued by ARC (the parent company of the other Borrowers)
and will benefit from the continued liquidity of the Borrowers
resulting from the Lender's overadvances for the account of the
Borrowers;
NOW, THEREFORE, in order to induce the Lender to waive the
Overadvance Event of Default and the December 31, 2002 Events of
Default and to agree to amend the financial covenants contained
in the Credit Agreement and to continue to make Loans and
overadvances to the Borrowers as provided in the Credit
Agreement, and for other good and valuable consideration, receipt
of which is hereby acknowledged by the Guarantors, the Guarantors
hereby agree as follows:
1. Defined Terms. Terms used herein as defined terms and
not otherwise defined herein shall have the meanings ascribed
thereto in the Credit Agreement. As used herein, the following
terms have the following meanings:
(a) "Bluecurrent Receivables" means accounts
receivable owing from Bluecurrent to the Borrowers.
(b) "Capital Commitments" means, in respect of any
Guarantor, the commitment of each Investor 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 such
Guarantor's partnership agreement, as such documents may be
amended from time to time.
(c) "Capital Call" means, in respect of any Guarantor,
a call upon the Investors in such Guarantor to fund all or a
portion of the Capital Commitments of such Investors to such
Guarantor.
(d) "General Partner" 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 of such Guarantor and each of the other
constituent partners of such Guarantor.
(f) "Uncalled Capital Commitments" means, in respect
of any Guarantor, at any time, the remaining obligations of the
Investors in such Guarantor to pay their Capital Commitments at
such time.
2. Guaranteed Obligation.
(a) Subject to Section 2(b) below, the Guarantors do
hereby absolutely, irrevocably and unconditionally guarantee,
jointly and severally, the due and punctual payment of the
Overadvance Amount (the "Guaranteed Obligation").
(b) Notwithstanding any provision of this Agreement to
the contrary, the obligations of the Guarantors under this
Agreement shall not exceed the sum of (i) $2,000,000 (the
"Initial Guaranty Amount"), plus (ii) in the event any payment to
be made by the Guarantors hereunder is not made when due,
interest at the Post-Default Rate accruing on such unpaid
amount from the date such amount became due hereunder, plus (iii)
the reasonable expenses (including fees and expenses of counsel),
if any, incurred by the Lender in enforcement of and collection
under this Agreement. The parties hereto agree that the Initial
Guaranty Amount shall be reduced from time to time, upon the
payment in cash by Bluecurrent to the Borrowers of amounts due in
respect of the Bluecurrent Receivables, on a dollar for dollar
basis in an amount equal to such cash payments; provided that no
such reduction in the Initial Guaranty Amount shall become
effective until three days after receipt by the Lender of such
cash payment for application to the outstanding Loans.
(c) The Borrowers confirm that they have directed and
will continue to direct Bluecurrent to make all payments in
respect of the Bluecurrent Receivables directly to a Lockbox or
Controlled Account maintained by the Borrowers at the Cash
Management Bank. The Borrowers agree that any Credit Party
receiving any monies, checks, notes, drafts or other payments
relating to the Bluecurrent Receivables will hold the same in
trust for, and as the sole and exclusive property of, the Lender
and immediately upon receipt of thereof, shall remit the same to
a Controlled Account maintained by the Borrowers at the Cash
Management Bank.
(d) In the event of payment by the Guarantors to the
Lender of the Guaranteed Amount as provided above, the Lender
shall consent to the payment by the Borrowers to Wynnchurch
Capital, Ltd., and the acceptance by the Wynnchurch Capital,
Ltd., from the Borrowers, of a fee in the aggregate amount of
$250,000 (the "Guaranty Fee"); provided that such fee shall be
deferred and shall not be paid, except as permitted under the
terms of the Credit Agreement and that certain Subordination and
Intercreditor Agreement by and among the Guarantors, the Lender
and the Borrowers, dated as of January 31, 2002, as amended by
that certain amendment of even date herewith (the "Intercreditor
Agreement").
3. Demand by Lender.
(a) Upon failure by the Borrowers punctually to pay or
perform the Guaranteed Obligation on the Overadvance Termination
Date or on any date prior to the Overadvance Termination Date
that the entire balance of the Loans shall become due as a
result of acceleration or the occurrence of events described in
subsections 9.1(g) or (h) of the Credit Agreement, the Lender may
make demand upon the Guarantors for the payment or performance of
the Guaranteed Obligation and the Guarantors bind and oblige
themselves to make such payment or performance not later than 20
days following such demand by Lender.
(b) All payments made by the Guarantors under this
Agreement shall be made directly to the Lender in immediately
available funds. The Guarantors and the Borrowers agree that
Guarantors and Wynnchurch Capital, Ltd., will have the option, in
their sole discretion, to have all or any portion of any payment
made by the Guarantors hereunder, together with the Guaranty Fee
(the "Demand Amount") deemed to be (i) a purchase by Guarantors
and Wynnchurch Capital, Ltd. (solely with respect to the amount
of the Guaranty Fee) from ARC of Senior Subordinated Secured
Promissory Notes (the "New Wynnchurch Subordinated Notes") in an
aggregate principal amount equal to the Demand Amount; and (ii)
the immediate payment by ARC to the Lender of all proceeds of the
sale of the New Wynnchurch Subordinated Notes described above.
The New Wynnchurch Subordinated Notes shall have the terms set
forth in that certain Securities Purchase Agreement dated as of
January 31, 2002, among ARC and
Guarantors, as amended (the "Securities Purchase Agreement"),
provided, however, that ARC shall be required to prepay such New
Wynnchurch Subordinated Notes at such times and to the extent
permitted under Section 2.6 of the Intercreditor Agreement.
4. Waiver of Demands, Notices, Diligence, etc. The
Guarantors hereby assent to all of the terms and conditions of
the Guaranteed Obligation and waive: (a) demand for the payment
of the principal of the Guaranteed Obligation or of any claim for
interest or any part of any thereof (other than the demand
provided for in Section 3 hereof); (b) notice of the occurrence
of, or the occurrence of, a default or an event of default under
the Credit Agreement or under the Guaranteed Obligation; (c)
protest of the nonpayment of the principal of the Guaranteed
Obligation or of any claim for interest or any part thereof; (d)
notice of presentment, demand and protest; (e) notice of
acceptance of any guaranty herein provided for or of the terms
and provisions thereof or hereof by the Lender; (f) notice of any
extensions granted to the Borrowers or any successor to the
Borrowers or any person or party which shall have assumed the
obligations of the Borrowers; (g) any requirement of diligence or
promptness on the part of the Lender in the enforcement of any of
its rights under the provisions of the Credit Agreement or this
Agreement; (h) any enforcement of the Guaranteed Obligation; (i)
any right which any Guarantor might have to require the Lender to
proceed against any other guarantor of the Guaranteed Obligation
or to realize on any collateral security therefor; and (j) any
and all notices of every kind and description which may be
required to be given by any statute or rule of law in any
jurisdiction (other than notices of foreclosure under the UCC).
The waivers set forth in this Section 4 shall be effective
notwithstanding the fact that any Borrower ceases to exist by
reason of its liquidation, merger, consolidation or otherwise.
Notwithstanding any provision of this Agreement to the contrary,
the Lender shall not settle or compromise any Bluecurrent
Receivables without the prior written consent of the Guarantors;
provided that no such consent shall be required during the
continuance of an Event of Default of the type described in
subsection 9.1(g) or (h) of the Credit Agreement.
5. Obligations of Guarantor Unconditional. The
obligations of each of the Guarantors under this Guaranty
Agreement shall be absolute, unconditional and primary
irrespective of the validity, regularity or enforceability of the
Guaranteed Obligation, and shall not be affected by (a) any
action taken under the Credit Agreement in the exercise of any
right or remedy therein conferred (including, without limitation,
in respect of the Guaranteed Obligation), (b) any failure or
omission on the part of the Lender to enforce any right given
under any Loan Document or hereunder or any remedy conferred
thereby or hereby, (c) any waiver of any term, covenant,
agreement or condition of the Credit Agreement (including without
limitation, in respect of the Guaranteed Obligation) or this
Agreement, (d) any release of any security or any other guaranty
at any time existing for the benefit of the Guaranteed Obligation
(including, without limitation, the release of any other
Guarantor hereunder) or any other obligation under the Credit
Agreement, (e) the commencement of a bankruptcy (whether
voluntary or involuntary), insolvency or related proceeding or
the appointment of a receiver or similar official with respect 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 its properties, (h) any action of the Lender granting
indulgence or extension to, or waiving or acquiescing in any
default by, any Borrowers or any successor to any Borrower or any
person or party which shall have assumed any obligation of the
Borrowers, (i) reason of any disability or other defense of any
Borrower or any successor to any Borrower, (j) any modification,
alteration, or by any
circumstance whatsoever (with or without notice to or knowledge
of the Guarantors) which may or might in any manner or to any
extent vary the risk of any Guarantor hereunder, it being the
purpose and intent of each Guarantor that the obligations of each
Guarantor hereunder shall be absolute, unconditional and primary
under any and all circumstances and shall not be discharged
except by payment or performance as herein provided, and then
only to the extent of such payment or performance.
Notwithstanding any provision of this Agreement to the contrary,
the Lender shall not settle or compromise any Bluecurrent
Receivables without the prior written consent of the Guarantors;
provided that no such consent shall be required during the
continuance of an Event of Default of the type described in
subsection 9.1(g) or (h) of the Credit Agreement.
6. Waiver of Rights of Subrogation. Until the payment in
full of the Guaranteed Obligation, each Guarantor hereby waives
any claim, right or remedy which such Guarantor may now have or
hereafter acquire against the Borrowers that arises hereunder
and/or from the performance by such Guarantor hereunder
including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, indemnification, or
participation in any claim, right or remedy of the Lender against
the Borrowers on any security which the Lender now has or
hereafter acquires, whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law or
otherwise.
7. Termination. This Agreement shall terminate upon the
earliest to occur of: (a) the reduction of the Initial Guaranty
Amount to zero in accordance with the terms of Section 2(b) of
this Agreement, (b) the payment in full of all of the Guarantors'
obligations under this Agreement, or (c) the 60th day after the
Overadvance Termination Date.
8. Reinstatement. This Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any time
any amount received by the Lender in respect of the Guaranteed
Obligation is rescinded or must otherwise be restored or returned
by the Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or any Guarantor or
upon the appointment of an intervenor or conservator of, or
trustee or similar official for, any Borrower or any Guarantor or
any substantial part of any of their respective properties, or
otherwise, all as though said payments had not been made.
9. Representations and Warranties. Each Guarantor
represents and warrants to Lender that:
(a) Due Organization.
(i) Each Guarantor is a limited partnership duly
organized and validly existing in good standing under the laws of
its jurisdiction of organization and is duly qualified to do
business and is in good standing in each jurisdiction in which
such qualification may be necessary by reason of the nature or
location of such Guarantor's assets or operations.
(ii) The General Partner of each Guarantor is a
corporation duly organized and validly existing in good standing
under the laws of its jurisdiction of organization and is duly
qualified to do business and is in good standing in each
jurisdiction in which such
qualification may be necessary by reason of the nature or
location of such Guarantor's assets or operations.
(b) Due Authorization. The execution, delivery and
performance hereof are within each Guarantor's and each General
Partner's powers, have been duly authorized by all necessary
action (including, if required, partner action), require no
action by or in respect of or filing with any governmental
authority, and do not contravene or constitute a default under
any provision of applicable law or regulation or of the
certificate of limited partnership, limited partnership
agreement, articles of incorporation, by-laws or other
constituent documents of such Guarantor or General Partner, or
any judgment, order, decree, injunction or material agreement or
other instrument by which it or any of its properties may be
bound, and will not result in creation or imposition of any Lien
on any of its assets.
(c) Enforceability. This Agreement has been duly
executed and delivered 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 and general
principles of equity.
(d) Financial and Other Information. The Guarantors
have delivered to the Lender copies of their financial statements
for the fiscal year most recently ended, and such financial
statements are true and accurate in all material respects. Each
of the Guarantors has delivered to the Lender true and complete
copies of its certificate of limited partnership and limited
partnership agreement, as amended and in effect on the date of
this Agreement. All information heretofore furnished by the
Guarantors to the Lender for purposes or in connection with this
Agreement or the transactions contemplated hereby is, and all
such information hereafter furnished by the Guarantor to the
Lender will be, true and accurate in all material respects on the
date as of which such information is stated or deemed stated.
(e) Capital Commitments and Calls, Etc. As of March
31, 2003: (i) the Capital Commitments of Wynnchurch USA aggregate
$80,250,000; (ii) the Capital Commitments of Wynnchurch Canada
aggregate $82,852,855; (iii) Capital Calls aggregating
$38,152,687 have 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 by such Investor pursuant to Capital Calls heretofore
made or is otherwise in default under any subscription agreement
relating to its investment in the applicable Guarantor. Under
the applicable limited partnership agreement and subscription
agreement, each Investor has an absolute obligation to fund
Capital Calls up to the aggregate amount of its Capital
Commitment. No Guarantor has knowledge of any right of set-off
existing in favor of any Investor against such Investor's
obligation to fund Capital Calls. ARC is a "Portfolio Company",
as defined in each Guarantor's limited partnership agreement.
Payment of the entire amount of the Guaranteed Obligation
hereunder by any Guarantor, when aggregated with the amount of
such Guarantor's existing investment in the Borrowers, shall not
cause a breach of any applicable concentration limit set forth in
such Guarantor's limited partnership agreement. The total amount
of all loans by each Guarantor to, and all guarantees by each
Guarantor (including its guaranty under this Agreement) of any
loan or other obligation of, the Borrowers, together with the
total amount of cash invested by such Guarantor in the Borrowers,
does not represent in excess of 25% of the aggregate amount of
the Capital Commitments of the Investors in such
Guarantor. The total amount of all guarantees by each Guarantor
(including its guaranty under this Agreement) of the loans and
other obligations of existing and prospective Portfolio Companies
(as defined in each Guarantor's limited partnership agreement)
does not exceed 100% of the unfunded Capital Commitments of the
Investors 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 this
Agreement, does not and will not constitute an investment in a
leveraged buy out, venture capital or other similar private debt
or equity fund.
(f) No Adverse 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 a material adverse effect on its financial
condition, assets or operations (a "Guarantor Material Adverse
Effect") and (ii) is in compliance with its organizational
documents and all contractual requirements by which it or any of
its properties may be bound and all applicable laws, rules and
regulations other than (A) laws, rules or regulations the
validity or applicability of which it is contesting in good faith
by proceedings which serve to stay the enforcement thereof or (B)
such provisions of any of such organizational documents,
contractual requirements, laws, rules or regulations as to which
the failure to comply with the same would not reasonably be
expected to have Guarantor Material Adverse Effect.
(g) No Adverse Actions. There is no action, suit,
proceeding or investigation pending or, to each Guarantor's
knowledge, threatened against any Guarantor, any of its general
partners or any of their assets before or by any Governmental
Authority reasonably likely to have a Guarantor Material Adverse
Effect.
(h) Compliance with Laws and Agreements. Each
Guarantor is in compliance with all laws, regulations, policies
and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do
so, individually or in the aggregate, would not reasonably be
expected to result in a Guarantor Material Adverse Effect.
(i) Investment and Holding Company Status. No
Guarantor is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940,
as amended, (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility 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 of
1956, as amended.
10. Acknowledgement of Lender's Discretion. Each Guarantor
hereby acknowledges that (i) pursuant to the terms of the Credit
Agreement the Overadvance Amount at any time outstanding is
determined with reference to the Borrowing Base, which shall be
calculated by the Lender in its commercially reasonable
discretion, and (ii) in connection with the determination of the
Overadvance Amount, the amount of receivables owing by
Bluecurrent to the Borrowers shall not be included in the
Borrowing Base.
11. Subscribed Capital. Until such time as this Agreement
terminates in accordance with the terms of Section 7 hereof, the
aggregate amount of Uncalled Capital Commitments in respect of
the Guarantors shall at all times equal or exceed three times the
aggregate Guarantor
Indebtedness. For purposes hereof "Guarantor Indebtedness"
means, for any Guarantor, without duplication: (a) obligations
created, issued or incurred by such Guarantor for borrowed money
(whether by loan, advance, the issuance and sale of debt
securities or the sale of property to another Person subject to
an understanding or agreement, contingent or otherwise, to
repurchase such property from such Person); (b) obligations of
such Guarantor to pay the deferred purchase or acquisition price
of property or services, 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 Guarantor in respect
of letters of credit or similar instruments issued or accepted by
banks 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 such Guarantor; and
(f) Indebtedness of others Guaranteed by such Guarantor.
Guarantor Indebtedness, however, excludes guaranties made by a
Guarantor for which recourse under such guaranty is limited to
securities of such Guarantor's portfolio companies or their
affiliates (together with replacements for such securities,
dividends or other amounts paid on account of such securities,
property exchanged or received for such securities, or the
proceeds from the sale thereof).
12. Covenants. Each Guarantor agrees that so long as the
Guaranteed Obligation remains outstanding, such Guarantor:
(a) will maintain its existence in good standing as a
limited partnership under the laws of the jurisdiction of its
organization as a limited partnership and its qualification to
transact business in each jurisdiction where failure so to
qualify would permanently preclude it form enforcing its rights
with respect to any material asset or would expose it to any
material liability;
(b) will not merge or consolidate or enter into any
analogous reorganization or transaction with any Person or
liquidate, wind up or dissolve themselves (or suffer any
liquidation or dissolution);
(c) will not amend or modify such Guarantor's limited
partnership agreement or any subscription agreement of any
Investor in such Guarantor in any way that would adversely affect
the enforceability of this Agreement, the availability of capital
to discharge the obligations under this Agreement or the
consequences to Investors of failing to fund Capital Calls;
(d) will furnish to the Lender promptly upon the
mailing thereof to the Investors generally, copies of all
financial statements, reports and other information so mailed to
the Investors.
13. Notices. Except as otherwise provided herein, all
notices to the Guarantors or the Lender shall be in writing and
shall be deemed to have been sufficiently given or served for all
purposes hereof if personally delivered or mailed by first class
mail, postage prepaid, as follows:
(a) if to the Guarantors:
Wynnchurch Capital Partners, L.P.
Wynnchurch Capital Partners Canada, L.P.
c/o Wynnchurch Capital Ltd.
Two Xxxxxx Park
000 Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax no. 000-000-0000
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax no. 000-000-0000
(b) if to the Lender:
Fleet Xxxxxxx Xxxxxxxxxxx
Xxxx Xxxx XX XX 00000X
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Dodge LLP
000 Xxxxxxxxxx Xxxxxx at Prudential Center
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Esq.
or at such other address as the party to whom such notice or
demand is directed may have designated in writing to the other
party hereto. A notice 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 of and be binding upon the Lender and the Guarantors and
their respective successors and assigns, and the term "Lender"
shall be deemed to include any other holder or holders of the
Guaranteed Obligation. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. This Agreement may
be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument. Each Guarantor agrees, as principal obligor and not
as guarantor, to pay to the Lender forthwith upon demand in funds
immediately available to the Lender, all reasonable costs and
expenses (including court costs and reasonable attorneys'
fees and disbursements) incurred or expended by the Lender in
connection with the enforcement of this Agreement.
15. Obligations Joint and Several. The obligations of the
Guarantors hereunder shall be joint and several.
16. Governing Law; Jurisdiction; Waiver of Jury Trial.
This Agreement, including the validity hereof and the rights and
obligations of the parties hereunder, shall be construed in
accordance with and governed by the laws of the Commonwealth of
Massachusetts. Each Guarantor, to the extent that it may
lawfully do so, hereby consents to the jurisdiction of the courts
of the Commonwealth of Massachusetts and the United States
District Court for the District of Massachusetts, as well as to
the jurisdiction of all courts to which 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 or
with respect to the transactions contemplated hereby, and
expressly waives any and all objections it may have as to venue
in any such courts. Each Guarantor further agrees that a summons
and complaint commencing an action or proceeding in any of such
courts shall be properly served and shall confer personal
jurisdiction if served personally or by certified mail to it at
its address provided in Section 13 of this Agreement or as
otherwise provided under the laws of the Commonwealth of
Massachusetts. Each Guarantor irrevocably waives all right to a
trial by jury in any suit, action or other proceeding instituted
by or against it in respect of its obligations hereunder or the
transactions contemplated hereby.
17. Confidentiality. The Lender agrees to maintain the
confidentiality of information which is furnished 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) in accordance with such procedures as it applies
generally to information of this kind, 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 confidential nature of such information, (b) to the extent
required by governmental regulatory agencies, self regulating
bodies, law, legal process, or litigation in which Lender is a
defendant, plaintiff or other named party, or (c) with the
Guarantors' prior written consent.
IN WITNESS WHEREOF, the parties have executed this Agreement
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: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: President
WYNNCHURCH CAPITAL PARTNERS CANADA,
L.P.
By: Wynnchurch Partners Canada,
L.P.,
its General Partner
By: Wynnchurch GP Canada, Inc.,
its General Partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: President
The foregoing Guaranty Agreement is
hereby accepted:
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Senior Vice President
The undersigned acknowledge the foregoing Guaranty Agreement, and
agree to be bound by the terms of Sections 2(c), 2(d) and 3(b)
thereof.
ALTERNATIVE RESOURCES CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
ARC SERVICE, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Treasurer
ARC SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Treasurer
ARC MIDHOLDING, INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Treasurer
WRITERS INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Treasurer
ARC TECHNOLOGY MANAGEMENT LLC
By: ARC SERVICE, INC., its Manager and sole member
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Director
ARC STAFFING MANAGEMENT LLC
By: ARC SERVICE, INC., its Manager and sole member
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Director
ARC SHARED SERVICES LLC
By: ARC SERVICE, INC., its Manager and sole member
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Director
