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Exhibit 10.17
X X X X X X X X LIMITED LIABILITY PARTNERSHIP
C H A N C E CONFORMED COPY
PTC INTERNATIONAL FINANCE II S.A.
and
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
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ONLENDING AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.............................................1
2. The Facility...............................................................2
3. Purpose....................................................................2
4. Fee........................................................................2
5. Interest...................................................................3
6. Computation................................................................3
7. Repayment..................................................................3
8. Other Payments And Indemnities.............................................3
9. Taxes......................................................................3
10. Guarantee..................................................................3
11. Collection Agent...........................................................4
12. Assignments And Transfers..................................................4
13. Remedies And Waivers, Partial Invalidity...................................4
14. Notices....................................................................4
15. Law And Jurisdiction.......................................................4
16. Counterparts...............................................................5
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THIS AGREEMENT is made on 8 May 2001
BETWEEN
(1) PTC INTERNATIONAL FINANCE II S.A. ("SA"); And
(2) PTC INTERNATIONAL FINANCE (HOLDING) B.V. ("BV").
RECITALS
(A) A wholly owned subsidiary of BV, SA, a company with limited liability
incorporated under the laws of Luxembourg, has authorised the issue of the
Notes (as defined below).
(B) SA wishes to onlend the net proceeds of the issue of the Notes to BV on the
terms and conditions set out in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following terms have the meanings given to them in
this Clause 1.1.
"ADVANCE" has the meaning specified in Clause 2;
"EUR" and "EURO" means the lawful currency of the member states of the
European Union that have adopted the single currency in accordance with the
treaty establishing the European Community, as amended by the Treaty on
European Union (signed in Maastricht on 7 February 1992);
"INDENTURE" means the indenture dated 8 May 2001 between SA, PTC and State
Street Bank and Trust Company relating to the issue of the Notes;
"ISSUE OBLIGATIONS" means all of the payment obligations of SA under the
Relevant Documents which obligations relate to the issue of the Notes,
including those in respect of the payment of:
(a) the principal amount of the Notes, whether upon redemption, repurchase
or acceleration or at final state of maturity;
(b) interest thereon (including any default interest expressed to be
payable under the Notes and the Indenture and the Special Interest
expressed to be payable under the Notes);
(c) all Additional Amounts; and
(d) all and any premiums or penalties payable by SA in respect of any
amount under or pursuant to the Relevant Documents;
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"FEE" means the fee specified in Clause 4.1;
"INTEREST PAYMENT DATE" means each date on which interest is payable in
respect of the Notes to the holders thereof in accordance with the Relevant
Documents;
"ISSUE DATE" means 8 May 2001;
"NOTES" means the Notes issued pursuant to the Relevant Documents;
"PTC" means Polska Telefonia Cyfrowa Sp. z o.o.;
"PTC GUARANTEE" means a guarantee given by PTC in relation to the Issue
Obligations under the Indenture;
"PURCHASE AGREEMENT" means the Purchase Agreement dated 2 May 2001 between
SA, Deutsche Bank A.G., London branch and Dresdner Bank A.G., London;
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated 8 May 2001 between SA, Deutsche Bank A.G., London branch and Dresdner
Bank A.G., London;
"RELEVANT DOCUMENTS" means the Notes, the Indenture, the Purchase Agreement
and the Registration Rights Agreements; and
"REPAYMENT DATE" means each date on which all or any of the Notes mature
and fall due for payment in accordance with the Relevant Documents.
1.2 Terms not otherwise defined herein have the meanings ascribed to them in
the Indenture.
1.3 Clause headings are for ease of reference only.
2. THE FACILITY
SA and BV hereby agree that on or promptly after the Issue Date an amount
equal to the face value of the Notes, being the amount of EUR 200,000,000
(the "ADVANCE") shall be made by SA to BV hereunder.
3. PURPOSE
BV shall, immediately on receipt of the same from SA, on-lend the balance
of the proceeds of the Advance to PTC.
4. FEE
4.1 Unless SA and BV shall otherwise agree, a fee (the "FEE") shall be paid by
BV to SA for the provision of financing services under this Agreement in an
amount of EUR 67,000 per annum (or such other amount as may be agreed
between SA and BV).
4.2 SA may reimburse to BV at any time such portion of the Fee as SA may
determine at its sole discretion.
4.3 The Fee accruing pursuant to Clause 4.1 shall be paid annually or
semi-annually, in each case on an Interest Payment Date, or as otherwise
agreed between SA and BV.
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5. INTEREST
5.1 Interest shall accrue on the Advance at the rate of 10.875% per annum (or
such other rate per annum as may be agreed between SA and BV).
5.2 Accrued interest shall be paid by BV to SA on each Interest Payment Date.
6. COMPUTATION
Interest payable under Clause 5 and the Fee payable under Clause 4 shall
each be computed on the basis of a 360-day year of twelve 30-day months.
7. REPAYMENT
7.1 BV shall repay the Advance by repaying on each Repayment Date an amount
equal to such amount of the Notes as matures and is repayable on such date.
7.2 The outstanding principal amount (if any) of the Advance shall be repaid in
full on 1 May 2008.
8. OTHER PAYMENTS AND INDEMNITIES
8.1 BV shall, upon demand of SA, pay to SA an amount equal to, or reimburse SA
for, and/or indemnify SA for and against, all and any amounts of
operational costs and expenses payable, paid or incurred by SA.
8.2 BV shall, upon demand of SA, pay to SA an amount equal to, or reimburse SA
for, and/or indemnify SA for and against, all and any amounts of taxes,
duties and other impositions payable or paid by SA and any costs and
expenses payable, paid or incurred by SA pursuant to, or in connection
with, any of the Relevant Documents and any of the documents related
thereto and the transactions contemplated therein.
9. SUBORDINATION
Amounts payable by BV hereunder shall be subordinated to BV's obligations
in respect of the Senior Debt of PTC to the same extent as (a) SA's
obligations under the Notes and the Relevant Documents and (b) the PTC
Guarantee.
10. TAXES
All payments to be made by BV hereunder shall be made free and clear of and
without deduction for or on account of tax unless BV is required to make
such a payment subject to the deduction or withholding of tax, in which
case the sum payable by BV in respect of which such deduction or
withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, SA receives and retains (free from any liability in respect of
any such deduction or withholding) a net sum equal to the sum which it
would have received and so retained had no such deduction or withholding
been made or required to be made.
11. GUARANTEE
To the extent that PTC makes any payment under the PTC Guarantee, such
payment will discharge pro tanto the obligations of BV hereunder in respect
of the Issue Obligations
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and BV will be under no obligation to make payment hereunder of an
equivalent amount in respect thereof.
12. COLLECTION AGENT
SA may at any time appoint a financial institution acceptable to SA and BV
to act as its collection agent for the purpose of collecting on its behalf
all payments made or to be made by BV to SA hereunder. In the event that SA
wishes to appoint a collection agent as aforesaid, it shall enter into a
collection agency agreement with such collection agent in form and
substance acceptable to it, BV and such collection agent.
13. ASSIGNMENTS AND TRANSFERS
13.1 This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors and assigns.
13.2 SA may at any time assign all or any of its rights, benefits or obligations
hereunder to any other party.
14. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
14.1 No failure to exercise, nor any delay in exercising, on the part of any
party hereto, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
14.2 Without prejudice to any other provision hereof, if one or more provisions
hereof is or becomes invalid, illegal or unenforceable in any respect in
any jurisdiction or with respect to any party such invalidity, illegality
or unenforceability in such jurisdiction or with respect to such party or
parties shall not, to the fullest extent permitted by applicable law,
render invalid, illegal or unenforceable such provision or provisions in
any other jurisdiction or with respect to any other party or parties
hereto.
15. NOTICES
15.1 Each notice, request, demand or other communication to be given or made
under this Agreement shall be in writing by letter or fax, addressed to the
relevant party at its registered office for the time being or at such other
address as it may from time to time notify to the other party for this
purpose.
15.2 Any notice, request, demand or other communication to be given or made to
either party shall be deemed made or received (a) when confirmation of
successful transmission thereof is received by the sender (if given or made
by fax) or (b) when left at the address mentioned above or (c) three days
after posting addressed as required above (if given or made by letter).
16. LAW AND JURISDICTION
16.1 This Agreement is governed by, and shall be construed in accordance with,
the laws of the Netherlands.
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16.2 The District Court (Arrondissementsrechtbank) of Amsterdam, Netherlands
(and any appellate court therefrom) shall have exclusive jurisdiction to
settle any disputes which may arise out of or in connection with this
Agreement. This submission is made for the benefit of SA and shall not
affect its right to take proceedings in any other court of competent
jurisdiction.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF the hands of the duly authorised representatives of the
parties hereto on the day and year first before written.
PTC INTERNATIONAL FINANCE II S.A.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxx / Xxxxxxxxx Xxxxxx Xxxxxxxxxx
Title: Attorneys at Law
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
By:
Name: Nanno van der Werff / Alexander de Vreeze (as proxy holders for ABN AMRO
Trust Company (Nederland) B.V.)
Title: Managing Director
For the purposes of Article 1 of the Protocol annexed to the Convention on the
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters,
signed in Brussels on 27 September 1968, and without prejudice to the foregoing
execution of this Agreement by the parties hereto, PTC International Finance II
S.A. expressly and specifically confirms its agreement to the provisions of
Clause 16 (Law and Jurisdiction) of this Agreement.
PTC INTERNATIONAL FINANCE II S.A.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxxxx Xxxxxx Martinache
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Name: Xxxxx Xxxxxxx / Xxxxxxxxx Xxxxxx Xxxxxxxxxx
Title: Attorneys at Law
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