EXHIBIT 10.34
To:
Nortel Dasa Network Systems GmbH & Co. KG
D-88039 Friedrichshafen
Germany
GUARANTEE
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Under an agreement dated December 1, 1997 (as the same may be amended from time
to time, the "Agreement"), with which we are familiar, you have agreed, subject
to certain terms and conditions, to make available credit facilities or other
financial accommodation to Star Telecommunications Deutschland GmbH, Voltastr.
1a, 60486 Frankfurt (the "Borrower") up to the amount of DM 31.284.000,00
against our first demand guarantee. Accordingly, we issue this Guarantee in
order to ensure that you shall receive payment of all amounts expressed to be
payable by the Borrower under the Agreement (the "Indebtedness") in the currency
and at the place provided therein at its stated or accelerated maturity, net of
any deduction or withholding whatsoever an irrespective of the factual or legal
circumstances and motives by reason of which the Borrower may fail to pay the
Indebtedness.
1. GUARANTEE AND GUARANTEED AMOUNT. WE HEREBY IRREVOCABLY AND UNCONDITIONALLY
GUARANTEE THE PAYMENT TO YOU, in Friedrichshafen and in effective Deutsche Xxxx,
of the Indebtedness UP TO DM 31.284.000,00. In addition to such amount, we
hereby irrevocably and unconditionally guarantee the payment to you of such
further amounts as correspond to interest, cost, expenses, fees and all other
amounts expressed to be payable by the Borrower under the Agreement. Payment
hereunder will be made net of any deduction or withholding whatsoever.
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2. PAYMENT UPON FIRST DEMAND. We shall effect payment hereunder IMMEDIATELY
UPON YOUR FIRST DEMAND and confirmation in writing or by teletransmission that
the amount claimed from us equals the Indebtedness (or part thereof) which the
Borrower has not paid when due.
3. PRIMARY, INDEPENDENT OBLIGATION. This Guarantee constitutes our primary
and independent obligation to make payment to you in accordance with the
terms hereof, under any and all circumstances, regardless of the validity,
legality or enforceability of the Agreement and irrespective of all
objections, exceptions or defences from the Borrower or third parties.
4. GUARANTEE FOR PAYMENT. You shall not be required first to claim payment
from, to proceed against, or enforce any claims on or security given by, the
Borrower or any other person before making demand from us hereunder.
5. EXCLUSION OF SPECIFIC DEFENCES. This Guarantee and our obligations
hereunder shall not be contingent upon the legal relationship between you and
the Borrower and shall be independent of and enforceable notwithstanding (a) any
defect in any provision of the Agreement, (b) any absence or insufficiency of
corporate resolutions relating to the Indebtedness, (c) any inadequate
representation of the Borrower, (d) any absence of licences or other
authorisations or any factual or legal restrictions or limitations existing or
introduced in the country of the Borrower, (e) any agreement made between you
and the Borrower concerning the Indebtedness, including any extension of the
term of payment and any rescheduling or restructuring of the Indebtedness,
whether or not we shall have given our consent thereto, (f) the taking,
existence, variation or release of any other collateral provided to you for the
Indebtedness, and your legal relationship with any provider of such other
collateral, (g) any right of the Borrower to rescind the
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Agreement, and (h) any right that you may have to set-off the Indebtedness
against a counterclaim of the Borrower.
6. TAXES. Any amount payable by us hereunder will be paid free and clear of
and without deduction of any withholding taxes. Withholding taxes are taxes,
duties or governmental charges of any kind whatsoever which are imposed or
levied in, by or on behalf of the country in which we are/or the Borrower is
situated, and which are deducted from any payment hereunder and/or under the
Agreement. If the deduction of withholding taxes is required by law, then we
shall pay such additional amounts as may be necessary in order that the net
amounts received by you after such deduction shall equal the amount that would
have been receivable had no such deduction been required.
7. CURRENCY INDEMNITY. Payments made by us to you pursuant to a judgement or
order of a court or tribunal in a currency other than that of the Guarantee (the
"Guarantee Currency") shall constitute a discharge of our obligation hereunder
only to the extent of the amount of the Guarantee Currency that you, immediately
after receipt of such payment in such other currency, would be able to purchase
with the amount so received on a recognised foreign exchange market. If the
amount so received should be less than the amount due in the Guarantee Currency
under this Guarantee, then as a separate and independent obligation, which gives
rise to a separate cause of action, we are obliged to pay the difference.
8. LIMITATION OF SUBROGATION. So long as any sum remains payable under the
Agreement, we undertake not to assert any claim we may have against the Borrower
by reason of the performance of our obligations under this Guarantee, whether on
contractual grounds or on any other legal basis, until all amounts payable to
you under the Agreement have been fully and irrevocably received or recovered.
Any amount received or recovered by us from the Borrower shall be held in trust
for and immediately paid to you. If we make any payment to you hereunder.
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we shall only be subrogated in your rights against the Borrower once all amounts
payable to you under the Agreement have been fully and irrevocably received or
recovered by you.
9. DISSOLUTION/CHANGE OF STRUCTURE. The obligations under this Guarantee
shall remain in force notwithstanding any dissolution or change in the
structure or legal form of the Borrower.
10. RESTRUCTURING. You shall without our consent be entitled to reschedule or
restructure principal, interest and other amounts payable under the Agreement,
to release the Borrower from its obligations and/or to accept a new debtor if,
for reasons which you deem important, you or other companies of the Deutsche
Bank group agree to similar measures also with respect to your or their other
credits extended to entities in the country of the Borrower. Our liability under
this Guarantee shall not be affected by such measures, and we undertake to pay
to you upon first demand, in accordance with the terms hereof, all such amounts
in full and at such time as they would have become due and payable had the
Agreement and the Indebtedness remained effective and unaltered. Our consent to
the terms and documentation of such rescheduling, restructuring, release or debt
assumption shall not be required.
11. NEW MONEY. Should you agree, in connection with a debt restructuring or in
order to avoid such restructuring, to extend new credits ("New Money") to the
Borrower or other entities of the public or private sector in the country of the
Borrower and should your participation in such New Money be calculated on the
basis of credits extended by you and/or other companies of the Deutsche Bank
group to the Borrower or such other entities, we hereby irrevocably and
unconditionally guarantee, in accordance with the terms hereof, that portion of
the claims for principal, interest, cost, expenses, fees and other amounts
payable in respect of the New Money by which your participation in the New Money
is increased
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by virtue of the Indebtedness, regardless of whether you are legally obliged to
take part in the restructuring or the New Money. Our consent to the terms and
documentation of the New Money shall not be required.
12. MISCELLANEOUS. We represent and warrant that this Guarantee is binding,
valid and enforceable against us in accordance with its terms. We waive any
express acceptance of this Guarantee by you. We confirm that we have taken, and
will continue to take, all necessary steps to ensure that any amount claimed by
you from us hereunder can be transferred to you immediately, free of any
deduction, cost or charges whatsoever. We waive any right to require information
from you in respect of the Agreement and the Indebtedness.
13. TERM. This Guarantee is effective as of its date of issuance [and shall
expire once all amounts expressed to be payable by the Borrower to you under the
Agreement have been fully and irrevocably received by you]. Unless we shall have
received your demand hereunder in accordance with the aforementioned conditions
on or before dezember, 15, 2002, this Guarantee shall expire and be of no
further effect. However, should you thereafter become liable to return monies
received in payment of the Indebtedness as a result of any bankruptcy,
composition or similar proceedings affecting the Borrower, this Guarantee shall
be reinstated and become effective again notwithstanding such expiration.
14. PARTIAL INVALIDITY. Should any provision of this Guarantee be unenforceable
or invalid, the other provisions hereof shall remain in force.
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15. APPLICABLE LAW, JURISDICTION. This Guarantee and all rights and obligations
arising hereunder shall in all respects be governed by German law. We hereby
submit to the jurisdiction of the competent courts of Friedrichshafen, Germany.
We hereby irrevocably appoint XX. XXXXXXX XXXXXXX OF DOSER AMERELLER XXXXX (fill
in name of the process agent) as our agent for service of process or other legal
summons in connection with any action or proceedings in Germany arising under
this Guarantee. We irrevocably waive any objection which we may now or hereafter
have that such proceedings have been brought in an inconvenient forum.
1/12/97 /s/ Xxxxx Xxxx
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Date Signature
