1
EXHIBIT 10.30
[FORM OF CREDIT AGREEMENT]
INFOCOM COMMUNICATIONS NETWORK, INC.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") dated as of __________, 1998
between INFOCOM COMMUNICATIONS NETWORK, INC., a Philippines corporation (the
"Borrower"), and the entities listed on Exhibit A attached hereto, as amended
from time to time (individually, a "Lender" and collectively, the "Lenders").
RECITALS
Each Lender desires to make available from time to time, in its sole
discretion, and the Borrower desires to borrow from time to time, all or any
part of the funds required to fund the Borrower's 1998 Business Plan attached
hereto as Exhibit B.
The parties hereto agree as follows:
ARTICLE I
THE CREDITS
1.1 Request for Borrowing. From time to time, the Borrower may make
a request in writing to borrow an amount of money (each, a "Request") to each
of the stockholders of the Borrower (each, a "Stockholder") not later than 10
days prior to the requested date of any borrowing hereunder setting
forth: (a) the requested date of such borrowing and (b) the aggregate amount
of such borrowing. Each Stockholder may, in its sole discretion, accept or
reject any Request. In the aggregate, the Requests shall not exceed such
amount as is necessary for the Borrower to fund all or a portion of the cash
needs of Borrower as identified in the 1998 Business Plan approved by the
Borrower's Board of Directors.
1.2 Commitments to Lend.
(a) Loans. From the date hereof through December 31, 1999 (the
"Termination Date"), upon each receipt of a Request, each Lender may, on and
subject to the terms and conditions set forth in this Agreement, offer to
make loans (each, a "Loan") to the Borrower in an amount up to the amount set
forth in such Request.. Each Stockholder or designated Affiliate (as defined
below) thereof that is not a party to this Agreement and that desires to make
a Loan hereunder shall become a party to this Agreement by executing a
signature page hereto. Each Loan may at the option of each Lender be
denominated in U.S. Dollars or Philippine Pesos.
2
"Affiliate" of any Person (the "Subject") means any other
Person which, directly or indirectly, Controls or is Controlled by or is
under common Control with the Subject. Notwithstanding the foregoing, unless
otherwise set forth herein the Borrower shall be deemed not to be an
Affiliate of any Stockholder of the Borrower for purposes of this Agreement.
"Control" (including, with correlative meanings, the terms
"Controlled by" and "under common Control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Person" means any individual, partnership, limited
liability company, joint-stock company, firm, corporation, association,
unincorporated organization, joint venture, trust or other entity.
(b) Pro Rata Portion. To the extent that more than one Lender
shall have offered to make a Loan pursuant to Section 1.2(a), each such
Lender may make up to its pro rata portion of such Request as determined in
accordance with this Section 1.2(b). Each Lender's pro rata portion of the
Request is that proportion of the Request as the number of shares of equity
securities or other securities convertible into equity securities of the
Borrower (on a fully diluted, as converted basis) (the "Shares") held by such
Lender bears to the aggregate number of Shares held by such Lender and all
other Lenders who have exercised their right to make a Loan pursuant to each
such Request under this Section 1.
1.3 Notes. Each Loan shall be evidenced by a Convertible Senior
Subordinated Promissory Note in the form attached hereto as Exhibit C (each,
a "Note") and subject to the terms and conditions set forth herein.
1.4 Interest Rate. Each Loan shall bear interest at a rate of 18%
per annum, compounded annually; provided that if such Loan shall have been
approved by the Central Bank of the Republic of Philippines (the "Central
Bank"), such Loan shall bear interest at the lesser of 18% per annum or the
maximum rate permitted by the Central Bank, but in no event less than 15%.
1.5 Payments. All payments by the Borrower hereunder shall be made
free and clear of all taxes imposed by the Republic of Philippines. The
Borrower shall not be obligated to make any interest payments until
maturity. The Borrower shall pay any documentary stamp tax or other tax
payable on the Loan and each Note.
1.6 Fees. The Borrower shall pay to each Lender at the time of the
making of any Loan by such Lender fees in an amount equal to 1% of such
Loan. The Borrower hereby authorizes the Lender to deduct such fees from the
amount of disbursement of any Loan.
1.7 No Prepayments. No prepayment of any Loan to any Lender
hereunder may be made without the prior written consent of each of the
Lenders or so long as the principal and
-2-
3
interest owed by the Borrower to Motorola, Inc. under the Credit Agreement
dated as of June 18, 1997 shall not have been paid in full.
1.8 Computation of Interest and Fees. Interest and fees shall be
computed on the basis of a year of three hundred sixty (360) days and paid
for the actual number of days elapsed (including the first day but excluding
the last day).
ARTICLE II
MISCELLANEOUS
2.1 Expenses. Except as otherwise set forth herein, each party
hereto shall pay its own fees, costs and expenses incident to the
negotiation, preparation and carrying out of this Agreement, in each case
regardless of whether the transactions contemplated by this Agreement are
consummated.
2.2 Amendment. The Borrower and the Lenders may amend, modify or
supplement this Agreement at any time, but only in a written amendment duly
executed on behalf of each of the parties hereto; provided, however, that any
Stockholder or designated Affiliate thereof may become a party to this
Agreement without the consent of the Borrower or the Lenders by executing a
signature page hereto.
2.3 Headings. The headings preceding the text of Sections of this
Agreement are for convenience only and shall not be deemed parts thereof.
2.4 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Republic of Philippines, as
applied to contracts executed and to be fully performed in such jurisdiction.
2.5 Dispute Resolution.
2.5.1 Arbitration. All disputes arising out of or in connection
with this Agreement or the performance hereof shall be resolved by submission
to binding arbitration under the Rules for Arbitration of the Hong Kong
International Arbitration Centre (the "HKIAC").
2.5.2 Notice of Demand for Arbitration. Notice of demand for
arbitration shall be filed in writing with the other party and with the ICC.
In no event shall the demand for arbitration be made after the date when the
applicable statute of limitations under Philippine law would bar institution
of a legal or equitable proceeding based on such claim, dispute or other
matter in question.
2.5.3 Arbitration Proceedings. Unless the parties agree
otherwise, the arbitration hearing shall be conducted in Hong Kong, in the
English language, before a single arbitrator appointed by consensus among the
parties. The arbitrator shall be selected from a list
-3-
4
of arbitrators provided by the HKIAC promptly following the filing of the
notice for demand of arbitration. If the parties cannot agree upon a single
arbitrator within fifteen calendar days following the HKIAC's delivery of its
list of qualified arbitrators, then the arbitrator shall be appointed by the
Executive Director of the HKIAC. The arbitrator shall issue a reasoned
opinion in writing promptly upon the conclusion of the hearings.
2.5.4 Finality. The decision rendered by the arbitrators shall
be final, and judgment may be entered upon it in accordance with applicable
law in any court having jurisdiction thereof.
2.5.5 Parallel Actions. The parties acknowledge that any
arbitration commenced and conducted under this Section can only involve and
bind the parties to this Agreement. However, to the extent that any
individuals or companies not a party to this Agreement are involved in a
dispute involving or arising from this Agreement, the parties expressly agree
that (a) parallel judicial or arbitration actions against such non-parties
may be commenced in an appropriate forum and (b) the parties to this
Agreement shall cooperate in resolving such disputes with non-parties, and
shall not obstruct or delay such actions, it being the express intent of the
parties that a complete resolution of any dispute among the parties and their
affiliates may require multiple actions.
2.6 Parties in Interest. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and permitted assigns of the parties
hereto, whether herein so expressed or not. This Agreement shall not be
assigned by the Borrower in whole or in part without the prior written
consent of the Lender. The Lender may assign any or all of its obligations
and delegate any or all of its obligations hereunder to any third party.
2.7 Waivers. Any terms, covenants, representations, warranties or
agreements of any party hereto may be waived at any time by an instrument in
writing executed by the party for whose benefit such terms exist. The
failure of any party at any time or times to require performance of any
provisions hereof shall in no manner affect its right at a later time to
enforce the same. No waiver by any party of any condition or breach of any
terms, covenants, representations, warranties or agreements contained in this
Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any
other condition or any breach of any other terms, covenants, representations,
warranties or agreements.
2.8 Notices. Any notice or demand desired or required to be given
hereunder shall be in writing and deemed given when personally delivered or
deposited in the mail, postage prepaid, sent certified or registered, or when
delivered by facsimile, and addressed as respectively set forth on the
signature pages hereto, or to such other address as any party shall have
previously designated by such a notice. Any notice so delivered personally
or by facsimile, transmission confirmed, shall be deemed to be received on
the date of delivery and any notice so mailed shall be deemed to be received
three days after the date on which it was mailed.
-4-
5
2.9 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
2.10 Government Approvals. The Company will obtain, and will
cooperate in the obtaining of, all relevant government and administrative
approvals of the Republic of the Philippines related to the transactions
contemplated hereby, including the approval of the Central Bank of the
Republic of the Philippines.
2.11 Confidentiality. Each party hereto shall keep confidential, and
shall not make use of, any information treated by another party as
confidential (including, without limitation, the existence of this Agreement)
and obtained from such other party concerning the assets, properties,
business or operations of such other party other than to legal counsel,
consultants, financial advisors, key employees, lenders and investment
bankers where such disclosure is related to the performance of obligations
under this Agreement or the consummation of the transactions contemplated
under this Agreement (all of whom shall be similarly bound by the provisions
of this Section 2.11), without the prior written consent of the other party.
Notwithstanding the foregoing, the foregoing confidentiality restrictions
shall not apply to any information which (a) becomes generally available to
the public through no fault of the receiving party or its employees, agents
or representatives; (b) is independently developed by the receiving party
without benefit of the above-described information (and such independent
development is substantiated in writing), or rightfully received from another
source on a non-confidential basis; (c) when such disclosure is required by a
court or governmental authority or is otherwise required or permitted by law
(including, without limitation, filings required to be made with the U.S.
Securities and Exchange Commission or any other governmental or regulatory
agency or disclosure documents provided to investors in private placements
having disclosure requirements similar to those of a registered public
offering in the United States) or is necessary to establish rights under this
Agreement or any agreement contemplated hereby (and the disclosing party has
taken all reasonable efforts to limit the scope of such disclosure and to
protect the confidential nature of the information disclosed).
2.12 Entire Understanding. The terms set forth in this Agreement are
intended by the parties as a final, complete and exclusive expression of the
terms of their agreement and may not be contradicted, explained or
supplemented by evidence of any prior agreement, any contemporaneous oral
agreement or any consistent additional terms.
[Signature page follows]
-5-
6
IN WITNESS WHEREOF, the parties hereto have entered into and signed
this Agreement as of the date and year first above written.
INFOCOM COMMUNICATION NETWORK, INC.
By
-------------------------------------
Its
---------------------------------
Address: 16/F, Centerpoint Building
Xxxxx Xxxxxx Avenue
Ortigas Center, Pasig, M.M.
Republic of Philippines
Fax:
LENDERS
NEXTEL INTERNATIONAL, INC.
By
-------------------------------------
Its
--------------------------------
Address: 0000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
[GOTESCO PROPERTIES INC.
By
-------------------------------------
Its
--------------------------------
Address:
Fax:]
[FOODCAMP INDUSTRIES AND MARKETING, INC.
By
-------------------------------------
Its
--------------------------------
Address:
Fax:]
[JETCOM INC.
By
-------------------------------------
Its
--------------------------------
Address:
Fax:]
-6-
7
EXHIBIT A
LENDERS
Nextel International, Inc.
[Gotesco Properties, Inc.
Foodcamp Industries and Marketing, Inc.
Jetcom Inc.]
