EXHIBIT 99.10
GUARANTY
To induce Xxxx-Xxxx Xxxxxxxx ("LGS") to sell to Xxxxxx PCS Ventures, Inc.
(the "Buyer") her stock in Page Call, Inc. ("Page Call") pursuant to that
certain Stock Purchase Agreement dated April 30, 1997, as amended, in exchange
for, INTER ALIA, a certain Promissory Note dated the date hereof in the amount
of Two Hundred Eighty-Five Thousand and Fifteen Dollars ($285,015) (the "Note"),
the undersigned Arch Communications Group, Inc. (the "Guarantor") hereby
guarantees to LGS (a) the payment by the Buyer of all sums which may be
presently due and owing and of all sums which shall in the future become due and
owing to LGS under the Note; (b) the due performance by Buyer of all of the
Buyer's obligations under said Note; and (c) the payment by the Buyer of all
sums which may be presently due and owing and all sums which shall in the future
become due and owing by the Buyer to LGS under the Consulting Agreement of even
date herewith between the Buyer and LGS, as the same may be amended,
supplemented or modified from time to time (the "Consulting Agreement").
The Guarantor also agrees: that this Guaranty shall not be impaired by any
modification, supplement, extension or amendment of any contract or agreement to
which the parties thereto may hereafter agree, nor by any modification, release
or other alteration of any of the obligations hereby guaranteed or of any
security therefor, nor by any agreements or arrangements whatever with LGS or
anyone else; that the liability of the Guarantor hereunder is direct and
unconditional and may be enforced without requiring LGS first to resort to any
other right, remedy or security; that the Guarantor shall not have any right of
subrogation, reimbursement or indemnity whatsoever, unless and until all of the
debts and obligations of the Buyer to LGS under the Note and the Consulting
Agreement have been paid in full; that if the Buyer or any Guarantor should at
any time become insolvent or make a general assignment, or if a petition in
bankruptcy or any insolvency or reorganization proceedings shall be filed or
commenced by the Buyer or the Guarantor, any and all obligations of Guarantor
shall, at LGS's option, forthwith become due and payable without notice; that
if, after the expiration of 30 days after a petition in bankruptcy or insolvency
or reorganization proceedings shall be commenced against the Buyer or the
Guarantor, any and all obligations of the Guarantor shall, at the option of LGS,
forthwith become due and payable without notice; that this Guaranty is a
continuing Guaranty which shall remain effective while any of the obligations of
the Buyer under the Note and the Consulting Agreement shall be outstanding; that
this Guaranty is a continuing Guaranty which shall remain effective during the
term of the Note and the Consulting Agreement; that nothing shall discharge or
satisfy the liability of the Guarantor hereunder except the full payment and
performance of all of the Buyer's debts and obligations to LGS as provided in
the Note and the Consulting Agreement; that any and all present and future debts
and obligations of the Buyer to the Guarantor are hereby waived and postponed in
favor of and subordinated to the full payment and performance of all present and
future debts and obligations of the Buyer to LGS.
The Guarantor shall have the right, at its sole option, to make any payments of
interest and principal due under the Note as follows:
(i) in cash; or
(ii) in such number of shares of common stock (the "Common Stock") of
the Guarantor as is determined under Sections 1(b)(ii), 4 or 5 of the
Note, as applicable; or
(iii) in a combination of cash and Common Stock as provided above.
In the event and each time that the Buyer becomes obligated to deliver
shares of the Common Stock to LGS in exchange for the Note, subject to the
conditions set forth herein, and further subject to the conditions set forth in
Articles III and IV of the Loan Agreement (the "Loan Agreement") of even date by
and among the Guarantor, The Westlink Company II ("Westlink") and the Buyer,
then the Guarantor shall issue such Common Stock and contribute such Common
Stock to Westlink, and Westlink shall transfer such Common Stock to the Buyer.
In the event that (i) the conditions set forth in Articles III and IV of the
Loan Agreement have not been met and the Guarantor has not waived compliance
with such conditions, or (ii) Westlink is in breach of, or fails to give
adequate assurance to the Guarantor of, the performance of its obligations under
the previous sentence, or (iii) the Guarantor otherwise determines in its sole
discretion to do so, then the Guarantor shall instead issue such shares directly
to LGS. All such shares of Common Stock shall be fully paid, nonassessable and
free of preemptive rights.
LGS represents, warrants and covenants as follows: The Common Stock
transferred to LGS as described above shall be acquired by LGS not with a view
to or in connection with any resale or distribution. LGS has had such
opportunity as she has deemed adequate to obtain from the Guarantor such
information as is necessary to permit LGS to evaluate the merits and risks of
her acquisition of Common Stock. Without limiting the generality of the
foregoing, LGS acknowledges that the Guarantor is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended, and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission. LGS understands that the Common Stock
transferred to LGS as described above will not be registered under the
securities laws of the United States or any other jurisdiction and cannot be
transferred or resold except as permitted pursuant to a valid registration
statement or an applicable exemption from registration. Each time LGS acquires
shares of Common Stock as described above, LGS shall be deemed to have
reaffirmed, as of the date of such acquisition, the representations made in this
paragraph. Subject to the rights provided to LGS pursuant to the Registration
Rights Agreement of even date herewith, LGS understands that the certificate
representing the Common Stock shall bear a legend substantially in the following
form:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended, and may not be sold, exchanged,
transferred, pledged, hypothecated or otherwise
disposed of except pursuant to registration or an
available exemption from registration under the
Securities Act of 1933."
So long as the Note is issued and outstanding, the Guarantor shall reserve
and maintain a sufficient number of shares of Common Stock for issuance and
delivery upon exchange of the Note.
LGS, and any subsequent holder of the Note by asserting any claim under
this Guaranty with respect to the Note, confirm and agree that Guarantor may
condition its payment and performance obligations under this Guaranty with
respect to such Note upon the simultaneous sale, transfer and assignment of such
Note (or, if the holder of this Note does not receive payment with respect to
such Note, from the Guarantor or otherwise, in an amount equal to all
obligations due and payable to the holder under the Note, by the assignment of a
participation therein in an amount equal to all amounts paid by the Guarantor
under the Guaranty with respect to the Note) to Guarantor or its nominee,
without recourse or representation, other than as to good title and the absence
of liens or encumbrances.
The Guarantor waives: notice of acceptance hereof, presentment and protest
of any instrument, and notice thereof; notice of default; all diligence in
collection or protection or realization upon the obligations due to LGS from
Buyer; and all other notices to which such Guarantor might otherwise be
entitled.
This Guaranty shall continue to be effective, or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any of the obligations
of the Buyer to LGS is rescinded or must otherwise be restored or returned by
LGS upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Buyer or the Guarantor, or upon or as a result of the appointment of a
receiver or trustee or similar officer for the Buyer or the Guarantor or any
substantial part of their respective properties, or otherwise, all as though
such payments had not been made.
Guarantor shall pay all costs of collection of this Guaranty, including
without limitation, reasonable attorneys' fees and expenses should this Guaranty
be collected by or through an attorney-at-law.
This Guaranty, all acts and transactions hereunder, and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
according to the laws of the State of California, shall be binding upon and
shall inure to the benefit of their respective heirs, executors, administrators,
successors and assigns.
This document shall be deemed to be executed under seal.
Dated as of June 29, 1998
THE GUARANTOR
Witnessed by: Arch Communications Group, Inc.
_______________________ By
Name:
Title:
0000 Xxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Acknowledged and Agreed Witnessed by:
-----------------------------
Xxxx-Xxxx Xxxxxxxx
000 Xxxxx Xxxx Xx.
Xxxxxxxxxxx, XX 00000
The Westlink Company II Witnessed by:
By___________________________
Name:_____________________
Title:______________________
c/o Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
