Exhibit 4.4


 


EXECUTION VERSION


 


TELENET
ADDITIONAL FACILITY J ACCESSION AGREEMENT


 


TERM
LOAN J FACILITY


 


To:                              The Bank of Nova Scotia as Facility Agent and KBC Bank
NV as Security Agent


 


From:      The Telenet Additional Facility J Lenders (as defined below)


 


Date:                    October 2010


 


TELENET NV - €2,300,000,000
Credit Agreement

dated 1 August 2007, as
amended from time to time (the
Credit Agreement)


 


1.                                       In this Agreement:


 


Majority Term Loan J
Facility Lenders means
Telenet Additional Facility J Lenders, the aggregate of whose Term Loan J
Facility Commitments exceeds two thirds of the aggregate of the Term Loan J
Facility Commitments of all Telenet Additional Facility J Lenders.


 


Telenet
Additional Facility J Lender
means each of the lenders under Term Loan J Facility (as listed in Schedule 1
of the counterpart of this Agreement).


 


Term Loan C Facility means the €1,062,500,000 term loan facility made
available under the Credit Agreement.


 


Term Loan C Facility Term means the Term which is current, at the Effective
Date, in respect of the outstanding Loan under Term Loan C Facility.


 


Term
Loan F Facility
means the €979,237,142.35 Telenet Additional Facility.


 


Term Loan J Facility means the €79,262,857.65 term loan facility made
available by the Telenet Additional Facility J Lenders under this Agreement.


 


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


 


Term Loan J Facility Loan means a euro denominated loan made to Telenet
International Finance S.A. by the Telenet Additional Facility J Lenders under
the Term Loan J Facility.


 


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.


 


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3.                                       We refer to Clause 2.7 (Telenet Additional Facility) of the Credit
Agreement.


 


4.                                       This Agreement will take effect on the date on which the Facility Agent
notifies the Borrower and the Telenet Additional Facility J 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 Term Loan J Facility Lenders (the Effective Date).


 


5.                                       We, the Telenet Additional Facility J Lenders, agree:


 


(a)                                  to become party to and to be bound by the terms of the Credit Agreement
as Lenders in accordance with Clause 2.7 (Telenet Additional Facility) of
the Credit Agreement; and


 


(b)                                 to become party to the Intercreditor Agreement as Lenders and to
observe, perform and be bound by the terms and provisions of the Intercreditor
Agreement in the capacity as Lenders in accordance with Clause 20.3 (Transfers
by Finance Parties) of the Intercreditor Agreement.


 


6.                                       The Telenet Additional Facility Commitment in relation to a Telenet Additional
Facility J Lender (for the purpose of the definition of Telenet Additional
Facility Commitment in Clause 1.1 (Definitions) of the Credit Agreement) is its
Term Loan J Facility Commitment.


 


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


 


8.                                      The Availability Period for the Term Loan J Facility shall be from the
date of this Agreement up to and including the Effective Date.


 


9.                                      The Term Loan J Facility may be drawn by one Loan and no more than one
Request may be made in respect of the Term Loan J Facility under the Credit
Agreement.


 


10.                                If, at any time, there are no Lenders under the Term Loan F Facility
other than Lenders who are Affiliates of the Borrower, the Borrower must
promptly and irrevocably prepay (pursuant to Clause 7.6 Voluntary prepayment)
all outstanding Loans and other amounts and permanently cancel any available
Commitment under the Term Loan F Facility.


 


11.                                (a)                                  If any amount is to be applied in mandatory prepayment of the Facilities
in accordance with clause 7.3 (Mandatory prepayment from disposal proceeds) of
the Credit Agreement; and


 


(b)                                 if the Borrower wishes to allocate a portion of such
amount to prepay any of the Term Loan C Facility, the Term Loan J Facility or
any other Telenet Additional Facility which may be offered to Lenders under the
same facilities in substitution for those Facilities and only those Facilities
(each a Substitution Facility) (in accordance
with Clause 7.5(a)(i) (Order of application) of the Credit Agreement,


 


then, the Borrower
must apply the amount of the relevant prepayment, in a manner which is pro rata
to the amount of the Lenders’ participation in the those facilities, against
outstanding Loans under the Term Loan C Facility, the Term Loan J Facility and
any Substitution Facility (the Prepayment Facilities).
In respect of any amount (an Affiliate Lender
Prepayment Amount), applied by the Borrower in prepayment of the
participation of a Lender under the Prepayment Facilities who is an Affiliate
of 


 


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the Borrower, the
Borrower shall pay an amount equal any Affiliate Lender Prepayment Amount to
the Lenders under the Prepayment Facilities who are not Affiliates of the
Borrower, pro-rata to those Lenders’ participations in the Prepayment
Facilities.


 


12.                                (a)                                  The first Term to apply to the Term Loan J Facility Loan will be a
period equal to the period running from the Effective Date up to and including
the last day of the Term Loan C Facility Term. 
The second Term to apply to the Term Loan J Facility Loan will be equal
to the Term under the Term Loan C Facility that will commence immediately
following the end of the Term Loan C Facility Term.


 


(b)                                 In respect of the first Term to apply to the Term Loan
J Facility Loan only, EURIBOR shall mean the EURIBOR rate as determined in
respect of the Term Loan C Facility Term. 
In respect of the second Term to apply to the Term Loan J Facility Loan
only, EURIBOR shall mean the EURIBOR rate as determined in respect of the Term
under the Term Loan C Facility that shall commence immediately following the
end of the Term Loan C Facility Term.


 


13.                                The Term Loan J Facility Loan will be used for general corporate
purposes.


 


14.                                 The Final Maturity Date in respect of this Term Loan J Facility will be
1 August 2015.


 


15.                                 The outstanding Term Loan J Facility Loan will be repaid in full on the
Final Maturity Date.


 


16.                                 The Margin in relation to the Term Loan J Facility is 2.75 per cent. per
annum.


 


17.                                 The Borrower in relation to the Term Loan J Facility is Telenet
International Finance S.A., a public limited liability company (société anonyme) with registered office at
65 Boulevard Grande-Duchesse Charlotte, L-1331 Luxembourg, registered with the
Luxembourg Register of Commerce and Companies under number B-155066.


 


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


 


(b)                                 For the purposes of this paragraph 18 (unless
otherwise specified), references to each  Telenet Additional Facility J Lender
and Term Loan J Facility Loans shall include Lenders and Loans made under any
such further Term Loan J Facility.


 


(c)                             Where any Term Loan J Facility Loan has not already
been consolidated with any other Term Loan J Facility Loan, on the last day of
any Term for such Term Loan J Facility Loan, that Term Loan J Facility Loan
will be consolidated with any other which has a Term ending on the same day as
that Term Loan J Facility Loan, and all such Term Loan J Facility Loans will
then be treated as one Loan.


 


19.                                The Borrower confirms, on behalf of itself and each other Obligor, that
the representations and warranties set out in Clause 16 (Representations and
Warranties) of the Credit Agreement (except for Clauses 16.7 (Authorisations),
16.9 (No material adverse change), 16.10 


 


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(Litigation
and insolvency proceedings), 16.11 (Business Plan), 16.12 (No misleading
information), 16.13 (Tax Liabilities), 16.14 (Security Interests), 16.17
(Ownership of assets), and 16.19 (ERISA)) 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.


 


20.                                 Each of the Guarantors confirm that its obligations under Clause 15
(Guarantee and Indemnity) of the Credit Agreement and each of the Existing
Security Providers confirms that the Security Interests created 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 Term Loan J Facility and that such obligations
shall be owed to each Finance Party including the Telenet Additional Facility J
Lenders.


 


21.                                 Each Telenet Additional Facility J 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 Telenet Additional
Facility Commitment is in force.


 


22.                                 Each Telenet Additional Facility J Lender and the Facility Agent agrees
to waive the notice period in respect of drawdown requests under Clause 5.1
(Giving of Request) of the Credit Agreement in respect of this Term Loan J
Facility.


 


23.                                 The Facility Office and address for notices of each Telenet Additional
Facility J Lender for the purposes of Clause 33.2 (Contact details) of the
Credit Agreement will be that notified by each Telenet Additional Facility J
Lender to the Facility Agent.


 


24.                                 For the purposes of the Term Loan J Facility and any Term Loan J
Facility Loan, and notwithstanding any provision of a Finance Document to the
contrary:


 


(a)                                  The following defined terms shall have the following meanings in the
Finance Documents:


 


Luxembourg means the Grand Duchy of Luxembourg;


 


Luxembourg Guarantor means a Guarantor incorporated in Luxembourg; and


 


Luxembourg Obligor means an Obligor incorporated in Luxembourg.


 


(b)                                 Where they relate to a Luxembourg company, references in the Finance
Documents to:


 


(i)                                    a winding-up,
administration or dissolution includes,
without limitation, bankruptcy (faillite),
insolvency, voluntary or judicial liquidation (liquidation
volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), reprieve
from payment (sursis de paiement),
controlled management (gestion contrôlée),
fraudulent conveyance (actio pauliana),
general 


 


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settlement with
creditors, reorganisation or similar laws affecting the rights of creditors
generally;


 


(ii)                                 a receiver,
administrative receiver, administrator or the like includes, without
limitation, a juge délégué, commissaire,
juge-commissaire, liquidateur or curateur;


 


(iii)                              a security interest
includes any hypothèque, nantissement, gage,
privilege, sûreté réelle, droit de rétention and any type of real
security or agreement or arrangement having a similar effect and any transfer
of title by way of security; and


 


(iv)                             a person being unable
to pay its debts includes that person being in a state of cessation
of payments (cessation de paiements).


 


(c)                                  Any guarantee given by any Luxembourg Guarantor does not constitute a
suretyship (cautionnement) in the
sense of articles 2011 and subsequent of the Luxembourg civil code.


 


(d)                                 The maximum liability of any Luxembourg Guarantor under the Finance
Documents shall be limited so that the maximum amount payable by the relevant
Luxembourg Guarantor for the obligations of any Obligor, which is not a direct
or indirect Subsidiary of such Luxembourg Guarantor, hereunder shall at no time
exceed the Maximum Amount.


 


Maximum Amount of any Luxembourg Guarantor means the sum of an amount equal to the
aggregate (without duplication) of:


 


(A)                              all moneys received by that Luxembourg Guarantor or
direct or indirect Subsidiaries of that Luxembourg Guarantor (which are direct
or indirect Subsidiaries of that Luxembourg Guarantor on the date hereof or
which will be direct of indirect Subsidiaries of that Luxembourg Guarantor
hereafter) as borrower under or pursuant to the Finance Documents; and


 


(B)                                the aggregate amount of the outstanding intercompany
loans made to the Luxembourg Guarantor or direct or indirect Subsidiaries of
that Luxembourg Guarantor (which are direct or indirect Subsidiaries of that
Luxembourg Guarantor on the date hereof or which will be direct or indirect
Subsidiaries of that Luxembourg Guarantor hereafter) by other members of the
Group which have been funded with moneys received by the Borrowers under the
Finance Documents (the Loan Amount);
and


 


(C)                                an amount equal to 95% of the greater of:


 


(I)                                    the market value of the assets of the Luxembourg
Guarantor at the time the guarantee is called less the Liabilities, other than
the Loan Amount, at the time the guarantee is called; and


 


(II)                                the market value of the assets of the Luxembourg
Guarantor at the date of this Agreement less the Liabilities, other than the
Loan Amount, at the time the guarantee is called.


 


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Liabilities means all existing liabilities (other than any liabilities owed to the
direct or indirect shareholders of the Luxembourg Guarantor) incurred, from
time to time, by the Luxembourg Guarantor and as reflected, from time to time,
in the books of the Luxembourg Guarantor.


 


If
the Parties fail to reach an agreement as to the market value of the assets as
referred to under paragraph (C) above, such market value shall be
determined, at the sole costs of the Luxembourg Guarantor, by (1) an
independent investment bank appointed for this purpose by the Finance Parties
or (2) a Luxembourg réviseur d’entreprises
appointed upon the request of any of the Finance Parties.


 


(e)                                  Telenet International Finance S.A. hereby expressly accepts and
confirms, for the purposes of articles 1281 and 1278 of the Luxembourg civil
code, that notwithstanding any assignment, transfer and/or novation permitted
under, and made in accordance with the provisions of this Agreement or the
Finance Documents, the guarantee given by it guarantees all obligations of each
Luxembourg Obligor (including without limitation, all obligations with respect
to all rights and/or obligations so assigned, transferred or novated) and any
security created under this Agreement or the Finance Documents shall be
preserved for the benefit of any New Lender and each Luxembourg Obligor hereby
accepts and confirms the aforementioned.


 


(f)                                    Qualifying Lender means a Lender which is not an individual or a residual entity within
the meaning of the Luxembourg laws implementing the European Council Directive
2003/48/EC of 3 June 2003 (the “EU SD”)
on taxation of savings income in the form of interest payments, including
notably the Luxembourg laws of 21 June 2005 implementing under Luxembourg
law the EU SD and the Luxembourg law of 23 December 2005 creating a final
withholding tax on certain income deriving from savings, and any entity which
may fall within the scope of the EU SD as it may be amended from time to time.


 


25.                                 Without prejudice to clause 11.7 (Value added taxes) of the Credit
Agreement, each Party agrees that in accordance with clause 11.7 (Value added
taxes) of the Credit Agreement, any amount payable under a Finance Document by
an Obligor is exclusive of any value added tax or any other Tax of a similar
nature which might be chargeable in connection with that amount. If any such Tax
is chargeable, the Obligor must pay to the Finance Party (in addition to and at
the same time as paying the amount due under a Finance Document by an Obligor)
an amount equal to the amount of that Tax (the Finance Party must provide an
appropriate VAT invoice to the Obligor in the time frame foreseen by the
Luxembourg VAT law) or, where applicable, directly account for such VAT at the
appropriate rate under the reverse charge procedure provided for by the Council
Directive 2006/112/EC on the common system of value added tax, as amended, and
any relevant VAT provision of the jurisdiction in which the Obligor receives
such supply.


 


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


 


27.                                 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.


 


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SCHEDULE
1


 


TELENET
ADDITIONAL FACILITY J LENDERS AND TERM LOAN J FACILITY COMMITMENTS


 


	
  Telenet Additional Facility J Lender

  	
   

  	
  Term Loan J Facility

  Commitment

  (€)

  	
   

  
	
  Telenet Luxembourg Finance Center S.A. a public limited liability
  company (société anonyme) incorporated under
  the laws of the Grand Duchy of Luxembourg with its registered office at 65,
  boulevard Grande-Duchesse Charlotte, L-1331 Luxembourg, Grand Duchy of
  Luxembourg and registered with the Luxembourg trade and companies register
  under number B.155088

  	
   

  	
  79,262,857.65

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  79,262,857.65

  	
   

  



 


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SCHEDULE
2


 


CONDITIONS
PRECEDENT DOCUMENTS


 


1.                                      Obligors


 


(a)                                  An Accession Agreement duly executed by (amongst
others) the Company and the Borrower.


 


(b)                                 A copy of the articles of association of each Obligor and
each Existing Security Provider.


 


(c)                                  A copy of a resolution of the board of directors of
each Obligor and each Existing Security Provider (except for Telenet Vlaanderen
NV) approving the terms of, and the transactions contemplated by, this
Agreement and any other Finance Documents to which it is, or will become, a
party.


 


(d)                                 A specimen of the signature of each person authorised
on behalf of an Obligor and each Existing Security Provider to execute or
witness the execution of this Agreement and any other Finance Document or to
sign or send any document or notice in connection with this Agreement and any
other Finance Document.


 


(e)                                  An up-to-date extract from the Luxembourg Trade and
Companies Register in respect of the Borrower or, to the extent the Borrower is
not registered with the Luxembourg Trade and Companies Register, a certificate
from a notary residing in Luxembourg.


 


(f)                                    A up-to-date negative certificate (certificat de non-inscription d’une decision judicaire)
issued by the Luxembourg Trade and Companies register in respect of the
Borrower or, to the extent the Borrower is not registered with the Luxembourg
Trade and Companies Register, a certificate on solvency of an authorised
signatory of the Borrower.


 


(g)                                 A copy of the minutes of the shareholders’ meeting of
each Belgian Obligor and each Belgian Existing Security Provider (except for
Telenet Group Holding NV):


 


(i)                                     approving for the purposes of article 556 of the
Belgian Companies Act, the terms of and transactions contemplated by this Agreement;
and


 


(ii)                                  authorising named persons to fulfil the formalities
with the Registry of the Commercial Court of the registered office of such
Obligor or Existing Security Provider following the decision taken in
accordance with the above.


 


(h)                                 A certificate of an authorised signatory of the
Borrower:


 


(i)                                     confirming that utilising the Total Commitments
(including the Term Loan J Facility Commitments) in full would not breach any
limit binding on any Obligor; and


 


(ii)                                  certifying that each copy document specified in this
Schedule 2 is correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.


 


(i)                                     A copy of the latest audited accounts of the Borrower.


 


(j)                                     Evidence that the agent of the Borrower under the
Finance Documents for service of process in England has accepted its
appointment.


 


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(k)                                  Evidence required by the Finance Parties for the
purpose of any applicable money laundering regulations.


 


2.                                      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, Belgian
legal advisers to the Facility Agent, addressed to the Finance Parties.


 


(c)                                  A legal opinion of Allen & Overy Luxembourg,
Luxembourg legal advisers to the Facility Agent, addressed to the Finance
Parties.


 


3.                                      Other documents


 


(a)                                  A pledge agreement in respect of 100% of the shares in
the Borrower.


 


(b)                                 A pledge agreement over the receivables between the
Borrower and the Company.


 


(c)                                  A pledge agreement over the bank accounts of the
Borrower.


 


(d)                                 Such documentation and other evidence as is reasonably
requested by any Finance Party, in order for such Finance Party to be satisfied
it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations.


 


(e)                                  An accession deed to the deed of renunciation and
restriction entered into on the same date of this Agreement by Telenet
Luxembourg Finance Center S.A..


 


(f)                                    The Facility Agent instruction letter entered into on
the date of this Agreement between Telenet International Finance S.A., Telenet
Luxembourg Finance Center S.A. and the Facility Agent.


 


(g)                                 The netting agreement entered into on the date of this
Agreement between Telenet International Finance S.A., Telenet NV and Telenet
Luxembourg Finance Center S.A..


 


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SIGNATORIES


 


AGENTS


 


THE BANK OF NOVA SCOTIA as Facility Agent


 


By: Authorized Signatory


 


 


KBC BANK NV as Security Agent


 


By: Authorized Signatory


 


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BORROWER


 


TELENET INTERNATIONAL FINANCE S.A.


 


By: Authorized Signatory


 


 


GUARANTORS


 


 


TELENET NV


 


By: Authorized Signatory


 


Title: by power of attorney


 


 


TELENET INTERNATIONAL FINANCE S.A.


 


By: Authorized Signatory


 


 


EXISTING SECURITY PROVIDERS


 


 


TELENET NV


 


By: Authorized Signatory


 


Title: by power of attorney


 


 


TELENET GROUP HOLDING NV


 


By: Authorized Signatory


 


Title: by power of attorney


 


 


TELENET VLAANDEREN NV


 


	
  By: Authorized Signatory

  	
  By: Authorized Signatory

  
	
   

  	
   

  
	
  Title: director

  	
  Title: director

  



 


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TELENET ADDITIONAL FACILITY J LENDERS


 


 


TELENET LUXEMBOURG FINANCE
CENTER S.A.


 


By: Authorized Signatory


 


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