Exhibit 10.1


 


ADDITIONAL FACILITY ACCESSION AGREEMENT


 


To:                              TD Bank Europe Limited as
Facility Agent and Security Agent


 


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


 


Date: 2nd
December, 2004


 


UPC Distribution Holding
B.V. - €1,072,000,000 Term Credit Agreement 

dated 16th January, 2004 as amended (the Credit Agreement)


 


1.                                       In this Agreement:


 


Facility
F Advance means a Facility F1 Advance or a Facility F2 Advance.


 


Facility
F1 means
the €140,000,000 term loan facility which forms a sub-tranche of this
Additional Facility.


 


Facility
F1 Advance means a euro-denominated advance made to UPC Financing Partnership (UPC Financing) under Facility F1.


 


Facility
F1 Commitment means, in relation to an Additional Facility F Lender, the amount in
euros set opposite its name under the heading “Facility F1 Commitment” in Schedule 1
to the counterpart of this Agreement executed by that Additional Facility F
Lender.


 


Facility
F2 means
the US$525,000,000 term loan facility which forms a sub-tranche of this
Additional Facility.


 


Facility
F2 Advance means a US Dollar-denominated advance made to UPC Financing under
Facility F2.


 


Facility
F2 Commitment means, in relation to an Additional Facility F Lender, the amount in US
Dollars set opposite its name under the heading “Facility F2 Commitment” in Schedule 1
to this Agreement.


 


Majority
Facility F Lenders means Additional Facility F Lenders the aggregate of
whose Facility F1 Commitments and Facility F2 Commitments (translated into
euros on the basis of the Agent’s Spot Rate of Exchange on the date of this
Agreement) exceeds 662/3 per cent. of
the aggregate of the Facility F1 Commitments and the Facility F2 Commitments
(translated into euros on the basis of the Agent’s Spot Rate of Exchange on the
date of this Agreement).


 


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.


 


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


 


4.                                       This
Agreement will take effect on the date (the Effective
Date) on which the Facility Agent notifies UPC Distribution and the
Additional Facility F 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 F
Lenders.


 


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


 


(a)                                  to become party to and to be
bound by the terms of the Credit Agreement as Additional Facility Lenders in
accordance with Clause 2.2 (Additional Facilities); 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 F Lender
(for the purpose of paragraph (a) of the definition of Additional Facility
Commitment in Clause 1.1 (Definitions)) is its Facility F1 Commitment and/or
its Facility F2 Commitment, as appropriate.


 


7.                                       The Final
Maturity Date in respect of this Additional Facility is 31st December, 2011.


 


8.                                       The
outstanding Facility F Advances will be repaid by payment of semi-annual
instalments on 30th September and 31st March annually, starting on
30th September, 2009 and ending on 30th September, 2011, in an Original Euro
Amount equal as nearly as possible (amended upwards if necessary) to 0.50 per
cent. of the total outstanding amount of Facility F
Advances on the last day of the Availability Period in relation to this
Additional Facility.  All Facility F
Advances outstanding on the Final Maturity Date in respect of this Additional
Facility will be repaid in full on that date.


 


9.                                       (a)                                  The
Availability Period in relation to this Additional Facility is the period from
and including the date of this Agreement up to and including the earlier of:


 


(i)                                     the first Utilisation Date under
this Additional Facility; or


 


(ii)                                  the date falling 5 days after the
date of this Agreement,


 


or such later date as all the
Additional Facility F Lenders may agree in writing.


 


(b)                                 This Additional Facility shall
be drawn by a single Advance and no more than one Request may be made for
Facility F Advances under the Credit Agreement.


 


10.                                 (a)       The
Margin will be, in the case of a Facility F1 Advance, 4.00 per cent. per annum and, in the case of a Facility F2 Advance, 3.50
per cent. per annum, in each case until the date falling nine months after the
date of this Agreement and thereafter shall be adjusted in accordance with the
following provisions of this paragraph.


 


(b)                                 UPC Distribution will deliver
to the Facility Agent, together with its Relevant Financial Statements, a
notice referring to this paragraph (a Margin Notice)
and specifying the ratio of Senior Debt to Annualised EBITDA as calculated in
accordance with Clause 17 (Financial Covenants) as at the date to which
the most recently delivered Relevant Financial Statements were prepared for the
purposes of calculating whether the Margin for Facility F Advances is to be
adjusted in accordance with this paragraph.


 


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(c)                                  The Margin for Facility F
Advances will be adjusted (upwards or downwards) to the percentage rates per
annum set out in column (1) below (in the case of Facility F1 Advances) and
column (2) below (in the case of Facility F2 Advances) set opposite the range
set out in column (3) below into which the ratio of Senior Debt to Annualised
EBITDA, as shown in the Margin Notice, falls:


 


	
  (1)

  Facility F1 

  Margin

  	
   

  	
  (2)

  Facility F2 

  Margin

  	
   

  	
  (3)

  Senior Debt/Annualised 

  EBITDA ratio

  
	
  4.00%

  	
   

  	
  3.50%

  	
   

  	
  ≥
  4.00:1

  
	
  3.25%

  	
   

  	
  3.00%

  	
   

  	
  < 4.00:1

  



 


(d)                                 The adjustment (if any)
specified in (c) above will apply to the Margin for all Facility F Advances
with immediate effect on the date the relevant Margin Notice (or, if later, the
related Relevant Financial Statements) is delivered to the Facility Agent.


 


(e)                                  If UPC Distribution fails to
deliver a Margin Notice in accordance with paragraph (b) above the Margin with
effect from the last date permitted for delivery of the Relevant Financial
Statements will be as stated in paragraph (a) above provided that if that
Margin Notice is delivered later, the Margin will be adjusted in accordance
with this paragraph with effect from the date falling five Business Days after
the Margin Notice (or, if later, the related Relevant Financial Statements) is
delivered.


 


(f)                                    In this paragraph, Relevant Financial Statements means each set of quarterly
financial statements delivered under Clause 16.2(b) (Financial
information) of the Credit Agreement.


 


11.                                 There is
no commitment fee in relation to this Additional Facility.


 


12.                                 The
Borrower in relation to Facility F1 and Facility F2 is UPC Financing.


 


13.                                 (a)       UPC Distribution
represents and warrants to each Finance Party that, to the best of its
knowledge after due inquiry, as of the date of the information memorandum (the Information Memorandum) prepared in October 2004 in
connection with the syndication of this Additional Facility:


 


(i)                                     the factual information relating
to the Borrower Group and UPC contained in the Information Memorandum is accurate
in all material respects;


 


(ii)       all UPC Distribution’s projections and
forecasts contained in the Information Memorandum were based on and arrived at
after due and careful consideration and have been prepared by UPC Distribution
on the basis of assumptions that UPC Distribution believed were reasonable as
of the date of the projections;


 


(iii)      there are no material facts or
circumstances which have not been disclosed to the Additional Facility F
Lenders in writing prior to the date of the Information Memorandum and which
would make any material factual information referred to in (i) above untrue,
inaccurate or misleading in any material respect as at the date of the
Information Memorandum, or any such 


 


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opinions,
projections, or assumptions referred to in (ii) above misleading in any
material respect as at the date of the Information Memorandum,


 


provided that
it is understood that information in the Information Memorandum which is
provided as of a specified date or for a specified period is in all material
respects accurate as of such date or for such period and was not, when
prepared, misleading to the best of UPC Distribution’s knowledge and belief in
any material respect as of such date or for such specified period.


 


(b)                                 Notwithstanding paragraph (a)
above, no representation is made in respect of (i) any information, facts,
statements, opinions, projections, forecasts, demographic statistics or
circumstances relating to the cable, media, telecommunications and data
services industry as a whole or (ii) any person other than any member of the
Borrower Group.


 


14.                                 The
parties to this Agreement confirm that, to the extent that:


 


(a)                                  an amount is due to be paid to
an Additional Facility F Lender (which is itself also a lender under Facility
C1) as a voluntary prepayment of Facility C1 pursuant to the Cancellation
Notice (as defined in the Existing Facility Agreement) to be delivered to the
Existing Facility Agents as referred to in paragraph 4(b) of Schedule 2 to
this Agreement; and


 


(b)                                 that amount is equal to or
greater than the amount of the Facility F1 Commitment and/or the Facility F2
Commitment (translated into euros on the basis of the Agent’s Spot Rate of
Exchange on the date of this Agreement), as appropriate, of that Additional
Facility F Lender (also being a lender under Facility C1) to be drawn on the
Utilisation Date of this Additional Facility (such amount being the Deemed Drawn F1 Amount),


 


the Deemed
Drawn F1 Amount shall, at the request of the relevant Additional Facility F
Lender (to be communicated in writing to the Facility Agent prior to the date
of this Agreement), on the Utilisation Date of this Additional Facility, be
deemed to be advanced by that Additional Facility F Lender to UPC Financing
under Facility F1 or Facility F2, as appropriate, on that date and UPC
Distribution’s obligations to that Additional Facility F Lender (also being a
lender under Facility C1) to prepay Facility C1 pursuant to the Cancellation
Notice referred to in paragraph (a) above will be satisfied in an amount equal
to the Deemed Drawn F1 Amount.


 


15.                                 The
parties to this Agreement confirm that, to the extent that:


 


(a)                                  an amount is due to be paid to
an Additional Facility F Lender (which is itself also a lender under Facility
C2) as a voluntary prepayment of Facility C2 pursuant to the Cancellation
Notice (as defined in the Existing Facility Agreement) to be delivered to the
Existing Facility Agents as referred to in paragraph 4(b) of Schedule 2 to
this Agreement; and


 


(b)                                 that amount is equal to or
greater than the amount of the Facility F2 Commitment and/or the Facility F1
Commitment (translated into euros on the basis of the Agent’s Spot Rate of
Exchange on the date of this Agreement), as appropriate, of that Additional
Facility F Lender (also being a lender under Facility C2) to be drawn on the
Utilisation Date of this Additional Facility (such amount being the Deemed Drawn F2 Amount),


 


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the Deemed
Drawn F2 Amount shall, at the request of the relevant Additional Facility F
Lender (to be communicated in writing to the Facility Agent prior to the date
of this Agreement), on the Utilisation Date of this Additional Facility, be
deemed to be advanced by that Additional Facility F Lender to UPC Financing
under Facility F2 or Facility F1, as appropriate, on that date and UPC
Financing’s obligations to that Additional Facility F Lender (also being a
lender under Facility C2) to prepay Facility C2 pursuant to the Cancellation
Notice referred to in paragraph (a) above will be satisfied in an amount equal
to the Deemed Drawn F2 Amount.


 


16.                                 We
confirm to each Finance Party that:


 


(a)                                  we have made our 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 have not relied on any information provided to us
by a Finance Party in connection with any Finance Document; and


 


(b)                                 we will continue to make our 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 Commitment is in force.


 


17.                                 Each
Additional Facility F Lender consents in principle, and subject to satisfactory
documentation, to the merger of the Credit Agreement and the Existing Facility
Agreement into a single document.


 


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


 


19.                                 This
Agreement is governed by English law.


 


20.                                 This
Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.


 


SIGNATORIES


 


	
  HARBOURMASTER
  LOAN CORPORATION B.V.

  
	
   

  
	
  By:

  	
  AS Verheijen

  	
  CH Sedenrijk

  
	
   

  
	
  HPC NOMINEES
  LTD

  
	
   

  
	
  By:

  	
  Julian Green

  	
  David
  Milward

  
	
   

  
	
  METROPOLITAN
  LIFE INSURANCE COMPANY

  
	
   

  
	
  By:

  	
  James A
  Wiviott

  
	
   

  
	
  BNP PARIBAS
  BELGIUM BRANCH

  
	
   

  
	
  By:

  	
  Raymond
  Pietercil

  	
  Didier
  Mahout

  



 


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  LEVERAGED
  FINANCE EUROPE CAPITAL II B.V.

  
	
   

  
	
  By:

  	
  François
  Gauvin

  
	
   

  
	
  BEAR STEARNS
  CORPORATE LENDING INC

  
	
   

  
	
  By:

  	
  Yves Leysen

  
	
   

  
	
  THE ALPHAGEN
  CREDIT FUND LIMITED

  
	
   

  
	
  By:

  	
  Varkki
  Chacko

  
	
   

  
	
  CIT CAPITAL
  FINANCE (UK) LTD

  
	
   

  
	
  By:

  	
  Iain Hunter

  
	
   

  
	
  THE
  TORONTO-DOMINION BANK

  
	
   

  
	
  By:

  	
  Rory
  McCarthy

  
	
   

  
	
  TORONTO
  DOMINION (TEXAS), LLC

  
	
   

  
	
  By:

  	
  Rory
  McCarthy

  
	
   

  
	
  TD BANK
  EUROPE LIMITED as Facility Agent and Security Agent

  
	
   

  
	
  By:

  	
  Rory
  McCarthy

  
	
   

  
	
  UPC
  DISTRIBUTION HOLDING B.V.

  
	
   

  
	
  By:

  	
  Jeremy Evans

  	
  Dennis
  Okhuijsen

  
	
   

  
	
  UPC
  FINANCING PARTNERSHIP

  
	
   

  
	
  By:

  	
  Jeremy Evans

  	
  Dennis
  Okhuijsen

  



 


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SCHEDULE 1


 


ADDITIONAL FACILITY F LENDERS AND COMMITMENTS


 


	
  Additional Facility F Lender

  	
   

  	
  Facility F1

  Commitment 

  (€)

  	
   

  	
  Facility F2

  Commitment

  (US$)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Harbourmaster
  Loan Corporation B.V.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HPC Nominees Ltd

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Metropolitan Life Insurance Company

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas Belgium Branch

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Leveraged Finance Europe Capital II B.V.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bear Stearns Corporate Lending Inc

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Alphagen Credit Fund Limited

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CIT Capital Finance (UK) Ltd

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Toronto-Dominion Bank

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toronto Dominion (Texas), LLC

  	
   

  	
   

  	
   

  	
  525,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  €

  	
  140,000,000

  	
   

  	
  US$

  	
  525,000,000

  	
   

  
								



 


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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 Distribution and UPC
Financing) resolving that it execute the same; and


 


(ii)           (in
the case of UPC Distribution and UPC Financing) authorising the issuance of a
power of attorney to a specified person or persons to execute this Agreement on
its behalf.


 


(b)                                 In the case of UPC
Distribution and UPC Financing, 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.


 


(c)                                  A certificate of an authorised
signatory of UPC Distribution and UPC Financing certifying that each copy
document specified in this Schedule and supplied by UPC Distribution or
UPC Financing (as the case may be) 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 Distribution 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.


 


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4.                                      Other documents


 


(a)                                  Confirmation from UPC
Distribution to the Facility Agent that all the net proceeds
of this Additional Facility will be used towards the prepayment of the Existing
Facilities (applied against the relevant Existing Facilities in such
proportions as UPC Distribution may select).


 


(b)                                 Evidence that UPC Distribution
has delivered a duly completed Cancellation Notice (as defined in the Existing
Facility Agreement) to the Existing Facility Agents giving notice of prepayment
of the whole of the outstanding advances under Facility C.


 


(c)                                  Evidence that UPC Financing
has acceded to the Credit Agreement as an Additional Borrower.


 


9