EXHIBIT 99.9
GUARANTY
To induce Adelphia Communications Corporation, a Delaware corporation
("Adelphia"), to sell to Xxxxxx PCS Ventures, Inc. (the "Buyer") Xxxxxxxx's
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, shares
of the Buyer's Series A Redeemable Preferred shares, no par value, with such
rights, preferences and privileges as described in EXHIBIT A hereto (the "Xxxxxx
Preferred Stock"), the undersigned Arch Communications Group, Inc. ("Arch" or
the "Guarantor") hereby guarantees to Adelphia the payment and performance by
the Buyer of all Buyer's obligations (the "Obligations") under the Xxxxxx
Preferred Stock and under the Exchange Agreement of even date herewith, between
Adelphia and Buyer (the "Exchange Agreement") which Obligations shall be
determined without regard to Buyer's inability to perform under the Xxxxxx
Preferred Stock or under the Exchange Agreement because of restrictions imposed
by applicable law or for any other reason.
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 the
holders of the Xxxxxx Preferred Stock (the "Holders") or anyone else; that
Guarantor shall not be relieved or released of any of its obligations hereunder
by reason of the inability or failure of the Buyer to perform under the Xxxxxx
Preferred Stock or under the Exchange Agreement because of restrictions imposed
by applicable law; that the liability of the Guarantor hereunder is direct and
unconditional and may be enforced without requiring the Holders 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 Obligations of the Buyer have been paid and performed 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 the option of the
Holders, 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 Holders'
option, 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 Xxxxxx Preferred Stock or the Exchange Agreement shall be
outstanding; that this Guaranty is a continuing Guaranty which shall remain
effective during the term of the Xxxxxx Preferred Stock and the Exchange
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 obligations to the Holders as provided in the Xxxxxx Preferred Stock and
the Exchange 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 the Holders.
In the event and each time that the Buyer becomes obligated to deliver
shares of Common Stock to the holder or holders of the Xxxxxx Preferred Stock
shares in exchange for Xxxxxx Preferred Stock, 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, Arch 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 Adelphia. All such
shares of Common Stock shall be fully paid, nonassessable and free of preemptive
rights.
Xxxxxxxx represents, warrants and covenants as follows: The Common Stock
transferred to Adelphia as described above shall be acquired by Xxxxxxxx not
with a view to or in connection with any resale or distribution. Xxxxxxxx has
had such opportunity as it has deemed adequate to obtain from the Guarantor such
information as is necessary to permit Adelphia to evaluate the merits and risks
of its acquisition of the Common Stock. Without limiting the generality of the
foregoing, Xxxxxxxx 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. Subject to the rights
provided to Adelphia pursuant to the Registration Rights Agreement of even date
herewith, Xxxxxxxx understands that the Common Stock transferred to Adelphia 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 Xxxxxxxx acquires shares of Common Stock as
described above, Adelphia shall be deemed to have reaffirmed, as of the date of
such acquisition, the representations made in this paragraph. Xxxxxxxx
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 any Xxxxxx Preferred Stock 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 all outstanding Xxxxxx
Preferred Stock. Upon the occurrence of each and every event requiring an
adjustment in a Base Price (as defined in Section 3 of the Exchange Agreement),
Arch shall provide such notice and information to Xxxxxx as may be reasonably
required in order to enable Xxxxxx to provide a certificate of adjustment to
each holder of Xxxxxx Preferred Stock in the manner and time periods
contemplated by Section 3(vi) of the Exchange Agreement.
Xxxxxxxx, and any subsequent holder of the Xxxxxx Preferred Stock by
asserting any claim under the Guaranty, confirm and agree that the Guarantor may
condition its payment and performance obligations under this Guaranty upon the
simultaneous sale, transfer and assignment of all of the Xxxxxx Preferred Stock
to Guarantor, or its nominee, without recourse or representation, other than as
to good title and the absence of liens or encumbrances.
The Guarantor shall, as a condition to any consolidation or merger of the
Guarantor with or into another corporation, or the sale of all or substantially
all of the assets of the Guarantor to another corporation, execute and deliver
such documents and take such actions (including without limitation obtaining the
written consent of any corporation with which the Guarantor consolidates or
merges or which purchases all or substantially all of the assets of the
Guarantor) as may be reasonably necessary to effectuate the provisions of
Section 3(v) of the Exchange Agreement.
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 Adelphia
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 Adelphia is rescinded or must otherwise be restored or returned
by Xxxxxxxx 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.
[Intentionally Left Blank]
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, Xxxxx 000
Xxxxxxxx, XX 00000
Acknowledged and Agreed:
Adelphia Communications Corporation Witnessed by:
By
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Name:
Title:
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(Address)
The Westlink Company II Witnessed by:
By
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Name:
Title:
c/o Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000