EXHIBIT 10.30
Execution Copy
GUARANTY BY FLAG
This GUARANTY, is made as of 29 December, 2000 by FLAG Telecom Holdings Limited,
a Bermuda company (the "Guarantor"), in favor of Level 3 (Bermuda) Ltd., a
corporation organized and existing under the laws of Xxxxxxx, Xxxxx 0
Communications Limited, a corporation organized and existing under the laws of
Hong Kong and Level 3 Communications Limited, a corporation organized and
existing under the laws of Japan and their Affiliates (as defined in the
Development Agreement (as hereinafter defined)) made a party to the Agreements
(as hereinafter defined) (collectively referred to herein as "Level 3").
RECITALS
A. Pursuant to a Submarine Cable System Development Agreement (as the same
may from time to time be amended, modified or supplemented, the
"Development Agreement"), dated as of the date of this Agreement,
between FLAG Asia Limited, a company organized and existing under the
laws of Bermuda (together with its successors and assigns "FLAG") and
Level 3, have agreed to develop the FNAL System (as defined in the
Development Agreement).
B. In addition, FLAG and/or its Affiliates (as defined in the Development
Agreement) and Level 3 have entered, or will or may enter, into the
Transfer Agreement, the Fiber Pair Agreements and the Cable Station
Agreements (as such terms are defined in the Development Agreement)
(collectively, together with the Development Agreement, the
"Agreements").
C. Level 3 has required, as a condition precedent to entering into the
Agreements to which it is a party, that the Guarantor execute and
deliver this Guaranty. Level 3 would not enter into the Agreements with
FLAG but for the execution and delivery of this Guaranty by the
Guarantor.
D. In furtherance of the business purposes of the Guarantor, the Guarantor
desires to guaranty all of the obligations of FLAG under the Agreements
as provided herein.
E. The Guarantor is the owner either directly or indirectly of all of the
capital stock of FLAG.
NOW, THEREFORE, based upon the foregoing, and in order to induce Level
3 to enter into the Agreements to which it is a party, the Guarantor hereby
agrees as follows:
SECTION 1 DEFINITIONS. Capitalized terms not otherwise defined in this
Guaranty shall have the meanings ascribed to them in the Agreements. As
used in this Guaranty, the following terms have the following meanings
unless the context otherwise requires:
1.1 "Guarantied Obligations" has the meaning ascribed to such term in
Section 2.1.
1.2 "Guaranty" means this Guaranty, as it may be amended, supplemented or
otherwise modified from time to time in writing signed by the Guarantor
and Level 3.
SECTION 2 GUARANTY.
2.1 Guarantied Obligations. The Guarantor hereby unconditionally and
irrevocably guarantees to Level 3 upon first written demand the full
and punctual payment and performance by FLAG of all its obligations,
liabilities and covenants now or in the future, under the Agreements,
including, without limitation, the payment and performance of all
damages and other remedies arising out of a failure of payment or
performance (collectively, the "Guarantied Obligations"). The
Guarantied Obligations shall conclusively be deemed to have been
created in reliance upon this Guaranty.
2.2 Term of Guaranty.
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2.2.1 This Guaranty shall remain in full force and effect until the
Guarantied Obligations are paid and performed in full.
2.2.2 The Guarantor's performance or payment of a portion, but not
all, of the Guarantied Obligations shall in no way limit,
affect, modify or abridge the Guarantor's liability, as set
forth herein, for any portion of the Guarantied Obligations
that has not been completely performed or paid in full.
2.3 Guaranty Unconditional. The Guarantor agrees that the obligations of
the Guarantor hereunder shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by any of the following,
whether with or without notice to or assent by the Guarantor:
2.3.1 any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of FLAG under any of the
Agreements, by operation of law or otherwise;
2.3.2 any modification or amendment of or supplement to any of the
Agreements;
2.3.3 any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of FLAG under
any of the Agreements;
2.3.4 any change in the corporate existence, structure or ownership
of FLAG, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting FLAG or its assets or any
resulting release or discharge of any obligation of FLAG
contained in any of the Agreements;
2.3.5 the existence of any claim, set-off or other rights which the
Guarantor may have at any time against Level 3, FLAG, or any
other corporation or person, whether in connection herewith or
any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit;
2.3.6 any invalidity or unenforceability relating to or against
FLAG, for any reason, of any of the Agreements, or any
provision of applicable law or regulation purporting to
prohibit the payment by FLAG of any other amount payable by
FLAG under any of the Agreements; or
2.3.7 any other act or omission to act or delay of any kind by Level
3, FLAG, or any other corporation or person or any other
circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of
or defense to the Guarantor's obligations hereunder.
Notwithstanding any provision of this Guaranty to the
contrary, the Guarantor shall be entitled to assert as a
defense to any claim for payment or performance of the
Guarantied Obligations, that:
2.3.7.1 such Guarantied Obligations are not currently due
under the terms of the Agreements; or
2.3.7.2 that such Guarantied Obligations have previously been
paid or performed in full.
2.4 Waivers of Notices and Defenses. The Guarantor hereby waives acceptance
hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken
by any corporation or person against FLAG or any other corporation or
person.
2.5 Stay. The Guarantor agrees that, notwithstanding anything to the
contrary herein, if Level 3 is stayed upon the insolvency, bankruptcy,
or reorganization of FLAG from exercising its rights to enforce or
exercise any right or remedy with respect to the Guarantied
Obligations, or is prevented from giving any notice or demand for
payment or performance or taking any action to realize on any security
or collateral or is prevented from collecting any of the Guarantied
Obligations, in any such case, by such proceeding or action, the
Guarantor shall pay or render to Level 3 upon demand therefor the
amount or performance that would otherwise have been due had such
rights and remedies been permitted to be exercised by Level 3.
2.6 No Enforcement of Subrogation. Upon making any payment or performance
with respect to any Guarantied Obligation hereunder, the Guarantor
shall be subrogated to the rights of Level 3 against FLAG
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with respect to such payment or performance; provided that the
Guarantor shall not enforce any payment or performance right by way of
subrogation until all Guarantied Obligations have been paid and
performed in full.
SECTION 3 REPRESENTATIONS AND WARRANTIES.
The Guarantor hereby represents and warrants to Level 3 that the following
statements are true and correct:
3.1 Binding Obligation. This Guaranty has been duly and validly executed
and delivered by the Guarantor and constitutes the legal, valid and
binding obligations of the Guarantor enforceable against the Guarantor
in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights generally and by equitable
principles relating to the availability of equitable remedies.
3.2 Relationship to FLAG. As of the date hereof, the Guarantor is the
owner, directly or through one or more wholly-owned subsidiaries, of
all of the issued and outstanding capital stock of FLAG; the agreement
of Level 3 to enter into the Agreements to which it is a party with
FLAG is of substantial and material benefit to the Guarantor; and the
Guarantor has reviewed and approved copies of the Agreements and all
other related documents and is fully informed of the remedies Level 3
may pursue upon the occurrence of a default under any of the
Agreements. This Guaranty will remain in full force and effect if FLAG
ceases to be a direct or indirect subsidiary of Guarantor.
3.3 Status. Guarantor is duly organized and existing under the laws of
Bermuda.
SECTION 4 MISCELLANEOUS.
4.1 Delivery. Any notices, consent, approval, or other communication
pursuant to this Agreement shall be in writing, in the English
language, and shall be deemed to be duly given or served on a party if
sent to the party at the address stipulated below and if sent by any of
the following means only:
4.1.1 Sent by hand: Such communication shall be deemed to have been
received on the Day of delivery provided receipt of delivery
is obtained.
4.1.2 Sent by facsimile: Such communication shall be deemed to have
been received, under normal service conditions, twenty-four
(24) hours following the time of dispatch or on confirmation
by the receiving party, whichever is earlier.
4.1.3 Sent by an internationally recognized courier service: Such
communication shall be deemed to have been received, under
normal service conditions, on the Day it was received or on
the third Day after it was dispatched, whichever is earlier.
4.1.4 Sent by first class or air mail: Such communication shall be
deemed to have been received, under normal service conditions,
on the Day it was received or on the Day which is seven (7)
Days after the mailing thereof.
4.2 Addresses. For purposes of this Section, the names, addresses and fax
numbers of the Parties are as detailed below. Any change to the name,
address, and facsimile numbers may be made at any time by giving thirty
(30) Days' prior written notice.
If to the Guarantor: FLAG Telecom Holdings Limited
Xxxxx 000
00 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx XX00
Xxxxxxx
With a copy to: FLAG Telecom Limited
0 Xxxxx Xxxxxx
Xxxxxx X0X 0XX
X.X.
Attn: General Counsel
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Fax: x00 (00) 0000 0000
If to Level 3: Xxxxx 0 International, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx X0 0XX
Xxxxxxx
Attn: Legal Department
Fax: x00 (00) 0 000 0000
4.3 No Waivers. No failure or delay by Xxxxx 0 in exercising any right,
power or privilege hereunder or under any of the Agreements shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
4.4 Amendments and Waivers. This Guaranty constitutes the complete
agreement of Level 3 and the Guarantor with respect to the subject
matter hereof and supersedes all prior or contemporaneous negotiations,
promises, covenants, agreements or representations. No amendment,
modification, termination or waiver of any provision of this Guaranty,
shall in any event be effective without the written consent of Level 3
and Guarantor.
4.5 Successors and Assigns; Beneficiaries. This Guaranty is a continuing
Guaranty and shall be binding upon the Guarantor and its successors and
assigns, provided, however, that the Guarantor may not assign this
Guaranty or transfer any of the rights or obligations of the Guarantor
hereunder without the prior written consent of Level 3 and Level 3 may
not assign this Guaranty as collateral without the prior written
consent of the Guarantor. This Guaranty shall inure to the benefit of
and may be enforced by Xxxxx 0 and its successors and permitted assigns
under the Agreements. Nothing contained in this Guaranty shall be
deemed to confer upon anyone other than the parties hereto and the
other beneficiaries described in the preceding sentence any right to
insist upon or to enforce the performance or observance of any of the
obligations contained herein.
4.6 Applicable Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York, United States
without regard to its principles governing conflicts of law.
4.7 JURISDICTION. ANY ACTION OR PROCEEDING AGAINST THE GUARANTOR RELATING
IN ANY WAY TO THIS GUARANTY MAY BE BROUGHT AND ENFORCED IN THE COURTS
OF THE STATE AND CITY OF NEW YORK OR THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND THE GUARANTOR IRREVOCABLY CONSENTS TO THE
JURISDICTION OF EACH SUCH COURT IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, TO THE GUARANTOR AT ITS ADDRESS AS PROVIDED FOR
NOTICES HEREUNDER. THE FOREGOING SHALL NOT LIMIT THE RIGHT OF LEVEL 3
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY
ACTION OR PROCEEDING, OR TO OBTAIN EXECUTION OF ANY JUDGMENT, IN ANY
OTHER JURISDICTION.
4.8 VENUE. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR
PROCEEDING ARISING UNDER THIS GUARANTY IN ANY COURT LOCATED IN THE
STATE AND CITY OF NEW YORK AND HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY COURT LOCATED IN THE STATE OF NEW YORK IS NOT A
CONVENIENT FORUM FOR ANY SUCH ACTION OR PROCEEDING.
4.9 WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED UPON, OR ARISING OUT OF, THIS GUARANTY OR ANY OF THE AGREEMENTS,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF
LEVEL 3 OR THE GUARANTOR RELATING THERETO.
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4.10 Severability. If any provision in or obligation under this Guaranty
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
4.11 Interpretation. Section headings in this Guaranty are included herein
for convenience of reference only and shall not constitute a part of
this Guaranty for any other purpose or be given any substantive effect.
4.12 Further Assurances. At any time or from time to time, upon the request
of Level 3, the Guarantor shall execute and deliver such further
documents and do such other acts and things as Level 3 may reasonably
request in order to effect fully the purposes of this Guaranty. The
Guarantor agrees to be liable for any reasonable expenses incurred by
Level 3 and/or its successors and assigns with respect to any action or
proceeding to enforce this Guaranty.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first above written.
FLAG TELECOM HOLDINGS LIMITED
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Name:
Title:
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