Exhibit
4.1


 


EXECUTION VERSION


 


€26,108,100.67 ADDITIONAL FACILITY W 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 W Lenders)


 


Date:  20 April 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:


 


Facility
W means the €26,108,100.67 redrawable term loan
facility made available under this Agreement.


 


Facility
W Advance means a euro denominated advance made to UPC
Financing by the Additional Facility W Lenders under Facility W.


 


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


 


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


 


Total
Additional Facility W Commitment means the
aggregate for the time being of the Facility W Commitment.


 


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 W 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 W Lenders (the Effective
Date).


 


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


 


7.             Any interest due in
relation to Facility W 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 W 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 W.


 


9.             Facility W 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 provisions) of the Credit
Agreement.


 


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


 


11.          The Facility W
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 W will be the earlier of:


 


(a)           31 March 2015;
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 W Advances will be repaid in full on the Final Maturity Date.


 


14.          The Margin in
relation to Facility W is 3.00 per cent. per annum.


 


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


 


16.          The Borrower
shall pay to the Facility Agent for distribution to each Additional Facility W
Lender in accordance with Clause 20.1(b) (Commitment fee) of the Credit
Agreement a commitment fee in an amount equal to 1.20 per cent. per annum of
the undrawn uncancelled portion of the Total Additional Facility W
Commitment.  Such commitment fee shall be
calculated and shall accrue on a daily basis and shall be payable on the
Effective Date and thereafter quarterly in arrears.


 


17.          (a)           Provided that any upsizing
of Facility W permitted under this paragraph will not breach any term of the
Credit Agreement, Facility W may be upsized by any amount, by the signing of
one or more further Additional Facility W Accession Agreements, that specify
(along with the other terms specified therein) UPC Financing as the sole
Borrower and which specify Additional Facility W Commitments denominated in
euros, to be drawn in euros, with the same Final Maturity Date and Margin as specified
in this Additional Facility W Accession Agreement.


 

















 


(b)           For the purposes of this
paragraph 17 (unless otherwise specified), references to Additional Facility W
Lenders and Facility W Advances shall include Lenders and Advances made under
any such further and previous Additional Facility W Accession Agreement.


 


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


 


18.          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.


 


19.          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.


 


20.          Each Additional
Facility W 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.


 


21.          Each of the
Additional Facility W 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 W
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 W Lender.


 


22.          The prior consent
of UPC Broadband is required for any such assignment, transfer or novation
(unless to an Additional Facility W Lender or an Affiliate of an Additional
Facility W Lender), provided that:


 


(a)           UPC Broadband’s
consent must not be unreasonably withheld or delayed;


 

















 


(b)           the consent of
UPC Broadband to an assignment, transfer or novation must not be withheld
solely because the assignment, novation or transfer may result in an increase
to the Mandatory Cost or the Sterling Mandatory Cost;


 


(c)           the prior consent
of UPC Broadband is not required when an Event of Default is outstanding;


 


(d)           nothing in this
paragraph 23 restricts the ability of any Additional Facility W Lender to enter
into any sub-participation or other arrangement with any third party relating
to the Finance Documents which does not transfer to that third party any
obligation and/or legal or equitable interest in any of the rights arising
under the Credit Agreement.


 


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


 


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


 


25.          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 W LENDERS AND COMMITMENTS


 




	
  Additional Facility W Lender

  	
   

  	
  Facility W Commitment

  (€)

  	
   

  
	
  UPC
  Broadband Operations B.V.

  	
   

  	
  26,108,100.67

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  26,108,100.67

  	
   

  






 

















 


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 W and that
such obligations shall be owed to each Finance Party including the Additional
Facility W 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.
- €1,072,000,000 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 W 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 transferring to the New Lender by novation, all of
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 W 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 W
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 (BACK TO BACK)


 


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


 


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


 


Date:     2010


 


UPC Broadband Holding B.V.
- €1,072,000,000 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 [·]
Accession Agreement; and


 


(d)           the
€26,108,100.67 Additional Facility W Accession Agreement.


 


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


 


1.             [            ]
(the Existing [·] Lender) agrees to novate and UPC Broadband Operations B.V.
(the New [·] Lender) agrees to accept novation on the Effective Date, of
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.             UPC
Broadband Operations B.V. (the Existing W Lender)
agrees to novate and [                     ]
(the New W Lender) agrees to accept the
novation on the Effective Date of all the Existing W 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
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 [·] Lender and
shall acquire the same rights and assume the same obligations towards the other
parties to the Additional
Facility [·]
Accession Agreement as would have been acquired and
assumed had the New [·]
Lender been an original party to the
Additional Facility [·] Accession Agreement
as an Additional Facility [·] Lender.


 


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


 

















 


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


 


6.             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.


 


7.             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.


 


8.             This
Novation Certificate is a Finance Document.


 


9.             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.


 


10.           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
[·] LENDER


 


Existing [·] Commitment: €[        ]


 


Assignee: New [·] Lender


 


 


2.             EXISTING
W LENDER


 


Existing W
Commitment: €[        ]


 


Assignee: New W Lender


 


 


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


 


 


By:


Name:


Title:


 


UPC BROADBAND
OPERATIONS B.V., as the New [·] Lender


 


 


By:


Name:


Title:


 


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


 


 


By:


Name:


Title:


 

















 


[THE NEW W
LENDER], as the New W 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:


 


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 W LENDERS


 


 


UPC BROADBAND OPERATIONS B.V.


 


By: Authorized
Signatory