Exhibit
4.1


 


EXECUTION VERSION


 


€35,000,000 ADDITIONAL
FACILITY Q ACCESSION AGREEMENT


 


To:                              Toronto Dominion (Texas) LLC
as Facility Agent and TD Bank Europe Limited as Security Agent


 


From:                  The banks and financial institutions listed
in Schedule 1 to this Agreement (the Additional Facility Q
Lenders)


 


Date:    18  November 2009


 


  
UPC Broadband Holding B.V. (formerly known as UPC Distribution Holding
B.V) -  €1,072,000,000 Term Credit Agreement dated 16 January 2004
as amended from time to time (the Credit Agreement)


 


1.                                       In this Agreement:


 


Existing Facility Q means the €387,000,000 redrawable
term loan facility made available under the Additional Facility Accession
Agreements dated 25 March 2009, 27 April 2009, 8 September 2009 and
30 October 2009 respectively.


 


Existing Facility Q Advance means the outstanding Advance
under the Existing Facility Q, as at the date of this Agreement, being €147,324,495.07.


 


Existing Facility Q Interest
Period
means the Interest Period currently selected (as at the date of this Agreement)
in respect of the outstanding Advance under Existing Facility Q.


 


Facility Q means the €35,000,000 redrawable
term loan facility made available under this Agreement.


 


Facility Q Commitment means, in relation to an
Additional Facility Q Lender, the amount in Euros set opposite its name under
the heading “Facility Q Commitment” in Schedule 1 to the counterpart of this
Agreement executed by that Additional Facility Q Lender, to the extent not
cancelled, transferred, or reduced under the Credit Agreement.


 


Facility Q1 Advance means the €13,323,920.74 Advance
to be drawn on the Effective Date in accordance with paragraph 11 below.


 


Facility Q Advance means a Euro denominated
advance made available to UPC Broadband by the Additional Facility Q Lender
under Facility Q.


 


Majority Facility Q Lenders means Additional Facility Q
Lenders the aggregate of whose Facility Q Commitments exceeds 662/3 per
cent. of the aggregate of Facility Q Commitments of all Additional Facility Q
Lenders.


 


Total Additional Facility Q
Commitment means the aggregate for the time being of the Additional Facility
Commitments of each Additional Facility Q Lender under Facility Q.


 


2.                                       Unless otherwise defined in
this Agreement, terms defined in the Credit Agreement shall have the same
meaning in this Agreement and a reference to a Clause is a reference to a Clause
of the Credit Agreement.  The principles
of construction set out in Clause 1.2 (Construction) of the Credit Agreement
apply to this Agreement as though they were set out in full in this Agreement.


 

















 


3.                                       We refer to Clause 2.2
(Additional Facilities) of the Credit Agreement.


 


4.                                       This Agreement will take
effect on the date on which the Facility Agent notifies UPC Broadband and the Additional
Facility Q Lenders that it has received the documents and evidence set out in
Schedule 2 to this Agreement, in each case in form and substance satisfactory
to it or, as the case may be, the requirement to provide any of such documents
or evidence has been waived by the Majority Facility Q Lenders  (the Effective Date).


 


5.                                       We, the Additional Facility Q
Lenders, agree:


 


(a)                                  to become party to and to be
bound by the terms of the Credit Agreement as Lenders in accordance with
Clause 2.2 (Additional Facilities) of the Credit Agreement; and


 


(b)                                 to become party to the
Security Deed as Lenders and to observe, perform and be bound by the terms and
provisions of the Security Deed in the capacity of Lenders in accordance with Clause
9.3 (Transfers by Lenders) of the Security Deed.


 


6.                                       The Additional Facility
Commitment in relation to an Additional Facility Q Lender (for the purpose of
the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of
the Credit Agreement) is its Facility Q Commitment.


 


7.                                       The Availability Period for
Facility Q shall be the period from and including the Effective Date up to and
including the date falling one month before the Final Maturity Date in respect
of Facility Q.


 


8.                                       Any interest due in relation
to Facility Q will be payable on the last day of each Interest Period in
accordance with Clause 8 (Interest) of the Credit Agreement.


 


9.                                      Facility Q shall comprise a
committed term loan facility which shall (subject to paragraph 10 below) be
capable of being reborrowed in relation to any sums that are prepaid in
accordance with Clause 7.10(d) (Miscellaneous provision) of the Credit
Agreement.


 


10.                                UPC Broadband shall not
deliver a Request in relation to Facility Q if as a result of the proposed
Request more than 10 Advances under Facility Q would be outstanding.


 


11.                                The first Advance under this
Facility Q shall be drawn on the day which is three Business Days after the Effective
Date or any later date as agreed by the Borrower and the Additional Facility Q
Lender and shall be the Facility Q1 Advance.


 


12.                                The first
Interest Period to apply to the Facility Q1 Advance will be a period equal to
the period running from the Effective Date up to and including the last day of
the Existing Facility Q Interest Period.


 


13.                                Advances under Facility Q
shall be used for general corporate purposes and working capital purposes,
including the repayment or prepayment of existing indebtedness.


 


14.                                 The Final Maturity Date in
respect of this Facility Q will be the earlier of:


 


(a)                                  31 July 2014; and


 


(b)                                 if by 17 October 2013 (the
Relevant Date) being the date falling
90 days prior to the date on which the UPC Holding B.V. issued bonds due 2014
(the Bonds) fall due, those bonds have not
been repaid, redeemed or refinanced, the Relevant Date.


 

















 


15.                                 The outstanding Advances under
Facility Q will be repaid in full on the Final Maturity Date.


 


16.                                 The Margin in relation to
Facility Q is 2.75 per cent. per annum.


 


17.                                 The Borrower in relation to
Facility Q is UPC Broadband.


 


18.                                 The Borrower shall pay to the
Facility Agent for distribution to each Additional Facility Q Lender in
accordance with Clause 20.1(b) (Commitment fee) of the Credit Agreement a
commitment fee in an amount equal to 0.75 per cent. per annum of the undrawn
uncancelled portion of the Total Additional Facility Q Commitment. Such
commitment fee shall be calculated and shall accrue on a daily basis on and
from the Effective Date and shall be payable quarterly in arrears from the
Effective Date.


 


19.                                 (a)           It is the intention of the parties that the
Existing Facility Q be upsized by the amount of this Facility Q in accordance
with the relevant terms of each Existing Facility Q Accession Agreement and
that from the date the Facility Q1 Advance under this Agreement is consolidated
with the Existing Facility Q Advance, this Facility Q and the Existing Facility
Q shall constitute one single Additional Facility for all purposes under the
Credit Agreement. Provided that any upsizing of Facility Q permitted under this
paragraph will not breach any term of the Credit Agreement, Facility Q may be
upsized by any amount, by the signing of one or more further Additional
Facility Q Accession Agreements, that specify (along with the other terms
specified therein) UPC Broadband as the sole Borrower and which specify
Additional Facility Q Commitments denominated in Euros, to be drawn in Euros,
with the same Final Maturity Date and Margin as specified in this Additional
Facility Q Accession Agreement.


 


(b)                                 For the purposes of this
paragraph 19 (unless otherwise specified), references to Additional Facility Q
Lenders and Facility Q Advances shall include Lenders and Advances made under
any such further and previous Additional Facility Q Accession Agreement.


 


(c)                                  If the Borrower so requests, an Interest
Period for a Facility Q Advance under any other Additional Facility Q Accession
Agreement will end on the same day as the current Interest Period for any other
Facility Q Advance denominated in the same currency as that Facility Q Advance.


 


(d)                                 On the last day of any Interest
Period for a Facility Q Advance, that Facility Q Advance will be consolidated
with any other Facility Q Advance which has an Interest Period ending on the
same day as that Facility Q Advance, and all such Facility Q Advances will then
be treated as one Advance.


 


20.                                Each of UPC Broadband and UPC
Financing confirms, on behalf of themselves and each other Obligor that the
representations and warranties set out in Clause 15 (Representations and
Warranties) of the Credit Agreement (with the exception of Clauses 15.6(a) (Consents),
15.10 (Financial condition), 15.12 (Security Interests), 15.13(b) (Litigation
and insolvency proceedings), 15.15 (Tax liabilities), 15.16 (Ownership of
assets), 15.18 (Works Council), 15.19 (Borrower Group Structure), 15.20 (ERISA),
15.24 (UPC Financing) and 15.25 (Dutch Banking Act)) are true and correct as if
made at the Effective Date with reference to the facts and circumstances then
existing, and as if each reference to the Finance Documents includes a
reference to this Agreement.


 


21.                                 UPC Broadband further
represents and warrants on the Effective Date that the execution and delivery
by it of this Agreement and the performance of the transactions contemplated by
this 


 

















 


Agreement will
not violate any agreement or instrument to which UPC Holding is a party or
binding upon UPC Holding or any member of the Borrower Group or any assets of
UPC Holding or any member of the Borrower Group’s assets, where such violation
would or is reasonably likely to have a Material Adverse Effect.


 


22.                                 Each Additional Facility Q
Lender confirms to each Finance Party that:


 


(a)                                  it has made its own
independent investigation and assessment of the financial condition and affairs
of each Obligor and its related entities in connection with its participation
in the Credit Agreement and has not relied on any information provided to it by
a Finance Party in connection with any Finance Document; and


 


(b)                                 it will continue to make its
own independent appraisal of the creditworthiness of each Obligor and its
related entities while any amount is or may be outstanding under the Credit
Agreement or any Additional Facility Commitment is in force.


 


23.                                 The Facility Office and
address for notices of each Additional Facility Q Lender for the purposes of
Clause 32.2 (Addresses for notices) of the Credit Agreement will be that
notified by each Additional Facility Q Lender to the Facility Agent.


 


24.                                 The Additional Facility Q
Lenders each hereby notifies each Borrower and each Guarantor that pursuant to
the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) the Additional Facility Q Lenders may be
required to obtain, verify and record information that identifies each
Borrower and each of the Guarantors, which information includes the name and
address of each Borrower and each of the Guarantors and other information
that will allow the Additional Facility Q Lenders to identify each
Borrower and each of the Guarantors in accordance with the Patriot Act. This
notice is given in accordance with the requirements of the Patriot Act and is
effective for the Additional Facility Q Lenders.


 


25.                                 This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English
law.


 


26.                               This
Agreement may be executed in any number of counterparts, and by each party on
separate counterparts.  Each counterpart
is an original, but all counterparts shall together constitute one and the same
instrument.  Delivery of an executed
counterpart signature page of this Agreement by e-mail (PDF) or telecopy
shall be as effective as delivery of a manually executed counterpart of this
Agreement.


 

















 


SCHEDULE 1


 


ADDITIONAL FACILITY Q
LENDERS AND COMMITMENTS


 


	
  Additional Facility Q
  Lender

  	
   

  	
  Facility Q Commitment

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  
	
  Goldman Sachs Bank USA

  	
   

  	
  35,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  35,000,000

  	
   

  



 

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT
DOCUMENTS


 


1.                                      Constitutional Documents


 


(a)                                  A copy of the constitutional
documents of each Obligor (other than UPC Financing) and the partnership
agreement of UPC Financing or, if the Facility Agent already has a copy, a
certificate of an authorised signatory of the relevant Obligor confirming that
the copy in the Facility Agent’s possession is still correct, complete and in
full force and effect as at a date no earlier than the date of this Agreement.


 


(b)                                 An extract of the registration
of each Obligor established in the Netherlands in the trade register of the
Dutch Chamber of Commerce.


 


2.                                      Authorisations


 


(a)                                  A copy of a resolution of the
board of managing and, to the extent applicable, board of supervisory directors
(or equivalent) and, to the extent that a shareholders’ resolution is required,
a copy of the shareholders’ resolution of each Obligor:


 


(i)                                     approving the terms of and the
transactions contemplated by this Agreement and (in the case of UPC Broadband) resolving
that it execute the same (and, in the case of the Guarantors and the Charging
Entities (as defined in the Security Deed) resolving that it execute the confirmation
described at paragraph 4(a) below; and


 


(ii)                                  (in the case of UPC Broadband)
authorising the issuance of a power of attorney to a specified person or
persons to execute this Agreement on its behalf and (in the case of the
Guarantors and the Charging Entities (as defined in the Security Deed))
authorising the issuance of a power of attorney to a specified person or
persons to execute the confirmation described in paragraph 4(a) below.


 


(b)                                 A specimen of the signature of
each person authorised pursuant to its constitutional documents or to the power
of attorney referred to in paragraph (a) above to sign this Agreement or
the confirmation described in paragraph 4(a) below (as appropriate).


 


(c)                                  A certificate of an authorised
signatory of UPC Broadband, each Guarantor and each Charging Entity certifying
that each copy document specified in this Schedule and supplied by UPC Broadband,
each Guarantor and each Charging Entity is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.


 


(d)                                 A copy of any other
authorisation or other document, opinion or assurance which the Facility Agent
has notified UPC Broadband is necessary in connection with the entry into and
performance of, and the transactions contemplated by, this Agreement or for the
validity and enforceability of this Agreement.


 


3.                                      Legal opinions


 


(a)                                  A legal opinion of Allen &
Overy LLP, English legal advisers to the Facility Agent, addressed to the
Finance Parties.


 


(b)                                 A legal opinion of Allen &
Overy LLP, Dutch legal advisers to the Facility Agent, addressed to the Finance
Parties.


 

















 


4.                                      Other documents


 


Confirmation (in writing) from (i) each
of the Guarantors that its obligations under Clause 14 (Guarantee) of the
Credit Agreement and (ii) each of the Charging Entities (as defined in the
Security Deed) that the Security Interests granted to the Beneficiaries
pursuant to the Security Documents and its obligations under the Finance
Documents, shall continue unaffected and that such obligations extend to the
Total Commitments as increased by the addition of Facility Q and that such
obligations shall be owed to each Finance Party including the Additional
Facility Q Lenders.


 

















 


SIGNATORIES


 


TORONTO DOMINION (TEXAS) LLC as Facility
Agent


 


By:          Authorized Signatory


 


 


TD BANK EUROPE LIMITED as Security Agent


 


By:          Authorized Signatory


 

















 


UPC BROADBAND HOLDING B.V.


 


By:          Authorized Signatory


 


By:          Authorized Signatory


 


 


UPC FINANCING PARTNERSHIP


 


By:          Authorized Signatory


 


By:          Authorized Signatory


 

















 


ADDITIONAL FACILITY Q
LENDERS


 


 


GOLDMAN SACHS BANK USA


 


 


By: Authorized Signatory