Exhibit 4.1


 


EXECUTION VERSION


 


US$1,042,770,227.03 ADDITIONAL FACILITY X ACCESSION AGREEMENT


 


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


 


From:                  The persons listed in Schedule 1 to this
Agreement (the Additional Facility X Lenders)


 


Date:     4 May 2010


 


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:


 


Additional Facility N Lender means each of the lenders under Facility
N.


 


Facility N means the US$1,900,000,000
term loan facility made available under the Additional Facility Accession
Agreements dated 11 May 2007 and 18 May 2007 respectively (each an Additional Facility N Accession Agreement).


 


Facility N Interest Period means the Interest Period
which is current, at the Effective Date, in respect of the outstanding Advance
(the Facility N Advance) under Facility N.


 


Facility X means the US$1,042,770,227.03
term loan facility made available under this Agreement.


 


Facility X Advance means a US dollar denominated
advance made to UPC Financing by the Additional Facility X Lenders under
Facility X.


 


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


 


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


 


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 X 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 Facility Agent on behalf of
the Additional Facility X Lenders (the Effective Date).


 

















 


5.                                       We, the Additional Facility X
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 X Lender (for the purpose of
the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of
the Credit Agreement) is its Facility X Commitment.


 


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


 


8.                                      The Availability Period for
Facility X shall be the Effective Date.


 


9.                                      Facility X may be drawn by one
Advance and no more than one Request may be made in respect of Facility X under
the Credit Agreement.


 


10.                                 (a)                                  The first Interest Period to
apply to the Facility X Advance will be a period equal to the period running
from the Effective Date up to and including the last day of the Facility N
Interest Period.


 


(b)                                 In respect of the first
Interest Period only, LIBOR shall mean the LIBOR rate as determined in respect
of the Facility N Interest Period.


 


11.                                The Facility X Advances will
be used for general corporate purposes and working capital purposes, including
the repayment or prepayment of existing indebtedness.


 


12.                                 The Final Maturity Date in
respect of this Facility X will be the earlier of:


 


(a)                                  31 December 2017; and


 


(b)                                 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) are currently scheduled to fall due, if on the
Relevant Date, Bonds are outstanding in an aggregate amount equal to or greater
than €250,000,000.


 


13.                                 The outstanding Facility X
Advances will be repaid in full on the Final Maturity Date.


 


14.                                 The Margin in relation to
Facility X means:


 


(a)                                  in relation to the period from
and including the date of this Agreement to and including 30 June 2010,
1.75 per cent per annum; and


 


(b)                                  in relation to the period
after 30 June 2010, 3.50 per cent per annum.


 


15.                                 The Borrower in relation to
Facility X is UPC Financing.


 


16.                                 (a)                                 Provided that any upsizing of
Facility X permitted under this paragraph will not breach any term of the
Credit Agreement, Facility X may be upsized by any amount, by the signing of
one or more further Additional Facility X Accession Agreements, that specify
(along with the other terms specified therein) UPC Financing as the sole 


 

















 


Borrower
and which specify Additional Facility X Commitments denominated in US dollars,
to be drawn in US dollars, with the same Final Maturity Date and Margin as
specified in this Additional Facility X Accession Agreement.


 


(b)                                 For the purposes of this
paragraph 16 (unless otherwise specified), references to Additional Facility X
Lenders and Facility X Advances shall include Lenders and Advances made under
any such further Additional Facility X Accession Agreement.


 


(c)                                  Where any Facility X Advance
has not already been consolidated with any other Facility X Advance, on the
last day of any Interest Period for such Facility X Advance, that Facility X
Advance will be consolidated with any other Facility X Advance which has an
Interest Period ending on the same day as that Facility X Advance, and all such
Facility X Advances will then be treated as one Advance.


 


17.                                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), 15.14 (Business Plan), 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.


 


18.                                 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.


 


19.                                 Each Additional Facility X
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.


 


20.                                 Each of the Additional
Facility X Lenders agrees that without prejudice to Clause 26.3 (Procedure for
novations) of the Credit Agreement, each New Lender (as defined in the Novation
Certificate referred to below) shall become, by the execution by the Facility
Agent of a Novation Certificate substantially in the form of part 1 or part 2
of Schedule 3 to this Agreement, bound by the terms of this Agreement as if it
were an original party hereto as an Additional Facility X Lender and shall acquire
the same rights and assume the same obligations towards the other parties to
this Agreement as would have been acquired and assumed had the New Lender been
an original party to this Agreement as an Additional Facility X Lender.


 

















 


21.                                 Each Additional Facility X
Lender agrees to waive the notice period in respect of drawdown requests under
Clause 5.1 (Delivery of Request) of the Credit Agreement in respect of this
Facility X.


 


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


 


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


 


24.                                 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 X LENDERS AND COMMITMENTS


 


	
  Additional Facility X Lender

  	
   

  	
  Facility X Commitment

  (US$)

  	
   

  
	
  UPC
  Broadband Operations B.V.

  	
   

  	
  1,042,770,227.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  1,042,770,227.03

  	
   

  



 

















 


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 each of UPC
Broadband and UPC Financing) 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
and UPC Financing) 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.


 


(c)                                  A legal opinion of Allen &
Overy LLP, New York 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 X and that such obligations shall be owed to each Finance Party
including the Additional Facility X Lenders.


 

















 


SCHEDULE 3


 


NOVATION CERTIFICATES


 


PART 1


 


NOVATION CERTIFICATE (CASH)


 


To:                              [     ]
as Facility Agent and [BORROWER]


 


From:                  [THE EXISTING LENDER] and [THE NEW LENDER]


 


Date:
[          ]


 


UPC Broadband Holding B.V. - e1,072,000,000
Term Credit Agreement dated 16 January, 2004 (the Credit Agreement)


 


We refer to
Clause 26.3 (Procedure for novations) of the Credit Agreement and clause
9.3 (Transfers by the Lenders) of the Security Deed.  Terms defined in the Credit Agreement or, if
not defined in the Credit Agreement, the Additional Facility Accession
Agreement between the Facility Agent, the Security Agent and the Additional
Facility X Lenders dated [         ]
2010, have the same meaning in this Novation Certificate.


 


1.                                       We
[             ]
(the Existing Lender) and
[     ] (the New Lender)
agree to the Existing Lender and the New Lender novating all the Existing
Lender’s rights and obligations referred to in the Schedule in accordance with
Clause 26.3 (Procedure for novations) of the Credit Agreement and clause
9.3 (Transfers by the Lenders) of the Security Deed.


 


2.                                       The New Lender confirms that it is bound by the
terms of the Additional Facility Accession Agreement as if it were an original
party thereto as an Additional Facility X Lender and shall acquire the same
rights and assume the same obligations towards the other parties to this
Agreement as would have been acquired and assumed had the New Lender been an
original party to this Agreement as an Additional Facility X Lender.


 


3.                                       The Facility Office and
address for notices of the New Lender for the purposes of Clause 32.2
(Addresses for notices) are set out in the Schedule.


 


4.                                       This
Novation
Certificate
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 Novation Certificate by e-mail (PDF) or
telecopy shall be as effective as delivery of a manually executed counterpart
of this Novation Certificate.


 


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


 

















 


THE SCHEDULE


 


Rights and obligations to
be novated


 


[Details of the rights and obligations of the Existing Lender to be
novated.]


 


	
  [New Lender]

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Facility
  Office

  	
   

  	
  Address
  for notices for administrative purposes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for notices for credit purposes]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Existing
  Lender]

  	
   

  	
  [New
  Lender]

  	
   

  	
  [                    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  Date:

  	
   

  	
  Date:

  



 
















 


PART 2


 


NOVATION CERTIFICATE
(CASHLESS)


 


To:                              Toronto Dominion (Texas) LLC
as Facility Agent and UPC Financing as Borrower


 


From:                  UPC Broadband Operations B.V. and [the
EXISTING N LENDER / NEW X LENDER]


 


Date: [·]


 


UPC Broadband Holding B.V. - e1,072,000,000
Term Credit Agreement dated 16 January, 2004 (the Credit Agreement)


 


We refer to:


 


(a)                                  Clause 26.3 (Procedure
for novations) of the Credit Agreement;


 


(b)                                 Clause 9.3 (Transfers by the
Lenders) of the Security Deed;


 


(c)                                  the Additional Facility N
Accession Agreements; and


 


(d)                                 the US$1,042,770,227.03
Additional Facility X Accession Agreement.


 


Terms defined in the Credit Agreement or,
if not defined in the Credit Agreement, the Additional Facility N Accession
Agreements, have the same meaning in this Novation Certificate.


 


1.                                       [            ]
(the Existing N Lender) agrees to novate and
UPC Broadband Operations B.V. (the New N Lender)
agrees to accept novation on the Effective Date of all the Existing N Lender’s
rights and obligations referred to in the Schedule in accordance with
Clause 26.3 (Procedure for novations) of the Credit Agreement and clause
9.3 (Transfers by the Lenders) of the Security Deed.


 


2.                                       UPC Broadband Operations B.V.
(the Existing X Lender) agrees to novate and
[            ] (the
New X Lender) agrees to accept the
novation on the Effective Date of all the Existing X Lender’s rights and
obligations referred to in the Schedule in accordance with Clause 26.3
(Procedure for novations) of the Credit Agreement and clause 9.3 (Transfers by
the Lenders) of the Security Deed.


 


3.                                       The aggregate Existing N
Commitment will be equal to the aggregate Existing X Commitment (each term as
referred to in the schedule to this certificate). The Existing N Lender’s
obligation to transfer the Existing N Commitment to the New N Lender and the
Existing X Lender’s obligation to transfer the Existing X Commitment to the New
X Lender, will each be deemed to be satisfied by the other, in each case on the
Effective Date.


 


4.                                       The New N Lender confirms that
it is bound
by the terms of the Additional Facility N Accession Agreement as if it were an
original party thereto as an Additional Facility N Lender and
shall acquire the same rights and assume the same obligations towards the other
parties to the
Additional Facility N Accession Agreement as would have been
acquired and assumed had the New Lender been an original party to the Additional
Facility N Accession Agreement as an Additional Facility N
Lender.


 

















 


5.                                       The New X Lender confirms that
it is bound
by the terms of the Additional Facility X Accession Agreement as if it were an
original party thereto as an Additional Facility X Lender and
shall acquire the same rights and assume the same obligations towards the other
parties to the
Additional Facility X Accession Agreement as would have been
acquired and assumed had the New Lender been an original party to the Additional
Facility X Accession Agreement as an Additional Facility X
Lender.


 


6.                                       This certificate shall take
effect on the date of this certificate.


 


7.                                       For the purposes of this
certificate, “Effective Date” means the date
specified under the Facility Agent’s name in the relevant signature page to
this Novation Certificate.


 


8.                                       Each party to this document
agrees, the Facility Agent agrees on behalf of each Finance Party, and UPC
Broadband Holding B.V. agrees on behalf of each Obligor, that this document is
a Novation Certificate notwithstanding that its form is different to that
required by the Credit Agreement or any Additional Facility N Accession
Agreement.


 


9.                                       This Novation Certificate is a
Finance Document.


 


10.                                 This
Novation Certificate 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 Novation Certificate by e-mail
(PDF) or telecopy shall be as effective as delivery of a manually executed
counterpart of this Novation Certificate.


 


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


 

















 


THE SCHEDULE


 


Rights and obligations to be
novated:


 


1.                                      EXISTING N
LENDER


 


Existing N Commitment: US$[    ]


 


Assignee: New N Lender


 


 


2.                                      Existing
X Lender


 


Existing X Commitment: US$[    ]


 


Assignee: New
X Lender


 


 


[THE EXISTING N LENDER], as the Existing N
Lender


 


 


By:


Name:


Title:


 


UPC BROADBAND OPERATIONS B.V., as the New N
Lender


 


 


By:


Name:


Title:


 


UPC BROADBAND OPERATIONS B.V., as the Existing
X Lender


 


 


By:


Name:


Title:


 

















 


[THE NEW X LENDER], as the New X Lender


 


 


By:


Name:


Title:


 


 


UPC BROADBAND HOLDING B.V., as Obligors
agent


 


 


By:


Name:


Title:


 


 


TORONTO DOMINION (TEXAS) LLC, as Facility
Agent


 


 


By:


Name:


Title:


Date:


 


The Facility Agent confirms that the
Effective Date is the date on which it countersigns this Novation Certificate.


 

















 


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 X LENDERS


 


 


UPC BROADBAND OPERATIONS B.V.


 


By:                            Authorized Signatory