Exhibit
10.3


 


CONFORMED COPY


 


 


SCHEDULE 1


 


RESTATED
CREDIT AGREEMENT


 


DATED 26TH
OCTOBER, 2000


 


AS AMENDED
AND RESTATED PURSUANT TO AN AMENDMENT AND

RESTATEMENT AGREEMENT DATED 16TH JANUARY, 2004


 


€3,500,000,000


 


and


 


US$347,500,000
and €95,000,000


 


SENIOR
SECURED CREDIT FACILITY


 


for


 


UPC
DISTRIBUTION HOLDING B.V.


 


and


 


UPC
FINANCING PARTNERSHIP


as
Borrowers


 


arranged by


 


CHASE
MANHATTAN plc

TD BANK EUROPE LIMITED

ABN AMRO BANK N.V.

BANK OF AMERICA INTERNATIONAL LIMITED

BNP PARIBAS

CIBC WORLD MARKETS plc

CRÉDIT LYONNAIS

FORTIS BANK (NEDERLAND) N.V.

and

THE ROYAL BANK OF SCOTLAND plc


 


with


 


TD BANK
EUROPE LIMITED


and


TORONTO
DOMINION (TEXAS), INC.,


acting as
Facility Agents


 





LONDON


 

















 


CONTENTS


 


Clause


 


	
  1.

  	
  Interpretation

  	
   

  
	
  2.

  	
  The Facilities

  	
   

  
	
  3.

  	
  Purpose

  	
   

  
	
  4.

  	
  Conditions Precedent

  	
   

  
	
  5.

  	
  Advances

  	
   

  
	
  6.

  	
  Repayment

  	
   

  
	
  7.

  	
  Cancellation and Prepayment

  	
   

  
	
  8.

  	
  Interest

  	
   

  
	
  9.

  	
  Payments

  	
   

  
	
  10.

  	
  Tax Gross-up and Indemnities

  	
   

  
	
  11.

  	
  Market Disruption

  	
   

  
	
  12.

  	
  Increased Costs

  	
   

  
	
  13.

  	
  Illegality and Mitigation

  	
   

  
	
  14.

  	
  Guarantee

  	
   

  
	
  15.

  	
  Representations and
  Warranties

  	
   

  
	
  16.

  	
  Undertakings

  	
   

  
	
  17.

  	
  Financial Covenants

  	
   

  
	
  18.

  	
  Default

  	
   

  
	
  19.

  	
  Facility Agent, Security Agent, Lead
  Arrangers and Lenders

  	
   

  
	
  20.

  	
  Fees

  	
   

  
	
  21.

  	
  Expenses

  	
   

  
	
  22.

  	
  Stamp Duties

  	
   

  
	
  23.

  	
  Indemnities

  	
   

  
	
  24.

  	
  Evidence and Calculations

  	
   

  
	
  25.

  	
  Amendments and Waivers

  	
   

  
	
  26.

  	
  Changes to the Parties

  	
   

  
	
  27.

  	
  Disclosure of Information

  	
   

  
	
  28.

  	
  Set-off

  	
   

  
	
  29.

  	
  Pro Rata Sharing

  	
   

  
	
  30.

  	
  Severability

  	
   

  
	
  31.

  	
  Counterparts

  	
   

  
	
  32.

  	
  Notices

  	
   

  
	
  33.

  	
  Language

  	
   

  
	
  34.

  	
  Jurisdiction

  	
   

  
	
  35.

  	
  Waiver or Immunity

  	
   

  
	
  36.

  	
  Waiver of Trial by Jury

  	
   

  
	
  37.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Original Parties

  	
   

  
	
   

  	
  Part 1                  Original
  Guarantors

  	
   

  
	
   

  	
  Part 2                  Original
  Lenders and Commitments

  	
   

  
	
  2.

  	
  Conditions Precedent
  Documents

  	
   

  
	
   

  	
  Part
  1                  To be
  Delivered before the First Advance

  	
   

  
	
   

  	
  Part
  2                  To be
  Delivered by an Additional Guarantor

  	
   

  
	
  3.

  	
  Mandatory Cost Formulae

  	
   

  
	
  4.

  	
  Form of Request
  and Cancellation Notice

  	
   

  



 

















 


	
   

  	
  Part
  1                  Form of
  Request

  	
   

  
	
   

  	
  Part 2                  Form of
  Cancellation and/or Prepayment Notice

  	
   

  
	
  5.

  	
  Forms of Accession
  Documents

  	
   

  
	
   

  	
  Part
  1                  Novation
  Certificate

  	
   

  
	
   

  	
  Part
  2                  Guarantor
  Accession Agreement

  	
   

  
	
   

  	
  Part 3                  Form
  of Verification Letter

  	
   

  
	
  6.

  	
  Form of Confidentiality
  Undertaking

  	
   

  
	
   

  	
  Part
  1                  Form of LMA
  Confidentiality Undertaking

  	
   

  
	
   

  	
  Part
  2                  Form of LSTA
  Confidentiality Undertaking

  	
   

  
	
  7.

  	
  Security Documents

  	
   

  
	
  8.

  	
  Relevant Security Interests

  	
   

  
	
  9.

  	
  Relevant Financial
  Indebtedness

  	
   

  
	
  10.

  	
  Borrower Group Structure

  	
   

  
	
  11.

  	
  Shareholders’ Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  Signatories

  	
   

  



 


2

















 


THIS AGREEMENT originally dated 26th October, 2000 as amended and
restated pursuant to the Amendment and Restatement Agreement to which this
Agreement is scheduled, and as previously amended by a series of letters during
the period from 1st March, 2002 to 23rd July, 2003 and made


 


BETWEEN:


 


(1)                                  UPC DISTRIBUTION HOLDING B.V. (UPC Distribution);


 


(2)                                  UPC FINANCING PARTNERSHIP, a general partnership formed under the laws of
Delaware, United States and, as of the Signing Date, with its principal place
of business at 4643 South Ulster Street, Suite 1300, Denver, Colorado 80237,
USA (the US Borrower);


 


(3)                                  THE COMPANIES identified as guarantors in Part 1 of Schedule 1
(Original Guarantors) (the Original
Guarantors);


 


(4)                                  CHASE MANHATTAN plc, TD BANK EUROPE
LIMITED, ABN AMRO BANK N.V., BANK OF AMERICA INTERNATIONAL LIMITED, BNP
PARIBAS, CIBC WORLD MARKETS plc, CRÉDIT LYONNAIS, FORTIS BANK (NEDERLAND) N.V., and THE ROYAL BANK
OF SCOTLAND plc as lead arrangers (in this capacity, the Lead Arrangers);


 


(5)                                  THE BANKS AND FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 (Original Lenders
and Commitments) as lenders (the Original
Lenders);


 


(6)                                  TD BANK EUROPE LIMITED and TORONTO DOMINION
(TEXAS), INC., as facility agents; and


 


(7)                                  TD BANK EUROPE LIMITED as security agent for the Finance Parties (in this
capacity, the Security Agent).


 


IT IS AGREED as follows:


 


1.                                      INTERPRETATION


 


1.1                               Definitions


 


In this
Agreement:


 


Accounting Period in relation
to any person means any period of approximately three months or one year for
which accounts of such person are required to be delivered pursuant to this
Agreement.


 


Acquisition means the
acquisition, whether by one or a series of transactions, (including, without
limitation, by purchase, subscription or otherwise) of all or any part of the
share capital or equivalent of any company or other person (including, without
limitation, any partnership or joint venture) or any asset or assets of any
company or other person (including, without limitation, any partnership or
joint venture) constituting a business or separate line of business of that
company or other person.


 


Acquisition Business Plan means, in respect of an Acquisition, a business plan for the Borrower
Group (including the Target to be acquired) which has been reviewed by Deloitte
& Touche and which sets out the management plan for the period from the
date of the proposed Acquisition (taking into account the Acquisition Cost of
such Acquisition and financial 


 


1

















 


projections
relating to the Target) up to and including the last Final Repayment Date and
based on assumptions which are no more aggressive (when taken as a whole) than
those used in preparation of the Business Plan.


 


Acquisition Cost means, in
relation to an Acquisition, the value of the consideration for that Acquisition
at the time of completion of the Acquisition and for this purpose:


 


(a)                                  the value at the time of completion of the Acquisition
of any consideration to be paid or delivered after the time of completion of
the Acquisition will be determined in accordance with GAAP (provided that, for
the purposes only of sub-paragraph (c)(i) of the definition of “Permitted
Acquisition”, sub-paragraph (b)(i) of the definition of “Permitted Joint
Venture” and Clause 16.11(b)(ii) (Acquisitions and mergers) and the definition
of “Borrower Group Capitalisation” in Clause 17.1 (Financial definitions), the
value of any such deferred consideration shall only be included in the
calculation of the Acquisition Cost of an Acquisition at the time such deferred
consideration is paid or delivered);


 


(b)                                 if the entity acquired becomes a member of the Borrower
Group as a result of the Acquisition, the aggregate principal amount of
Financial Indebtedness of any entity 
acquired outstanding at the time of completion of the Acquisition
(including without limitation any Lending Transaction (as defined in Clause 16.14(g)
(Loans and guarantees) made by a member of the Borrower Group in connection
with the relevant Acquisition) will be counted as part of the consideration for
that Acquisition;


 


(c)                                  if the entity acquired does not become a member of the
Borrower Group as a result of the Acquisition, the aggregate principal amount
of Financial Indebtedness of the entity acquired at the time of completion of
the Acquisition will be counted as part of the consideration for that
Acquisition to the extent of the aggregate principal amount of the payment and
repayment obligations in respect of such Financial Indebtedness assumed or
guaranteed by any member of the Borrower Group; and


 


(d)                                 subject to paragraphs (a), (b) and (c) above, the
value at the time of completion of the Acquisition of any non-cash
consideration will be determined in accordance with GAAP,


 


expressed in
euros, if required, using the Agent’s Spot Rate of Exchange on the date of
completion of the Acquisition.


 


Additional Acquisition means a Majority Acquisition (as defined in paragraph (c) of the
definition of “Permitted Acquisition”) where the business of the acquired
entity or the business acquired, as the case may be:


 


(a)                                  is of the same nature as the business of the Borrower
Group as at the Effective Date; and


 


(b)                                 is being carried on only in:


 


(i)                                     a jurisdiction in which a member of the Borrower Group
is incorporated and is operating (including Poland if UPC Polska is a member of
the Borrower Group on the date of the Additional Acquisition); or


 


(ii)                                  Poland, but only in the case of the UPC Polska
Acquisition.


 


Additional Facility has the
meaning given in the New Facility Agreement.


 


2

















 


Additional Guarantor means:


 


(a)                                  a Subsidiary of UPC Distribution; and


 


(b)                                 any UPC Distribution Holdco (other than UPC Holding),


 


which in each
case becomes an Additional Guarantor in accordance with Clause 26.4 (Additional
Guarantors).


 


Additional Permitted Acquisition means an Acquisition permitted under paragraph (d) of the definition of
“Permitted Acquisition”.


 


Additional Prepayment Cap has been reached means an aggregate amount of at least  €600,000,000 has been applied by UPC
Distribution in permanent prepayment and cancellation of the Facilities and/or
the New Facility under any of the following clauses:


 


(a)                                  Clause 7.6A(a)(i) and (b)(i) (Mandatory prepayment
from Third Party Debt proceeds) of this Agreement;


 


(b)                                 clause 7.6A(a) and (b) (Mandatory prepayment from
Third Party Debt proceeds) of the New Facility Agreement;


 


(c)                                  Clause 7.5(c)(i) and (d)(i) (Mandatory prepayment from
Excess Cash Flow and Net Equity Proceeds) of this Agreement;


 


(d)                                 clause 7.5(d)(i) and (d)(ii) (Mandatory prepayment
from Excess Cash Flow and Net Equity Proceeds) of the New Facility Agreement;


 


(e)                                  Clause 7.3 (Voluntary prepayment) of this Agreement;
and


 


(f)                                    clause 7.3 (Voluntary prepayment) of the New Facility
Agreement.


 


Advance means a Facility A
Advance, Facility B Advance or Facility C Advance.


 


Affiliate means, in
respect of a person, a direct or indirect Subsidiary or Holding Company of that
person or any other person which is under common control with that person (and
for this purpose, control has the
meaning given to it in section 416 of the Income and Corporation Taxes Act
1988 in force as at the Signing Date).


 


Agent means the Facility
Agent or the Security Agent (or both), as the context requires.


 


Agent’s Spot Rate of Exchange means the spot rate of exchange as determined by the Facility Agent for
the purchase of the relevant Optional Currency in the London foreign exchange
market with euros or US Dollars (or any other relevant currency) (as
applicable) at or about 11.00 a.m. on a particular day.


 


Amendment and Restatement Agreement means the amendment and restatement agreement dated January, 2004
between, inter alios, UPC
Distribution and the Facility Agents, on behalf of the Finance Parties,
pursuant to which this Agreement was amended and restated.


 


Amendment Fee Letter means the
letter between the Facility Agent and UPC Distribution dealing with the
amendment fees payable to the Lenders in connection with the Amendment and
Restatement Agreement.


 


3

















 


Anniversary means an
anniversary of the Signing Date.


 


Annualised EBITDA has the
meaning given to it in Clause 17.1 (Financial definitions).


 


Anti-Terrorism Law means each
of:


 


(a)                                  Executive Order No. 13224 of September 23, 2001 –
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (the Executive
Order);


 


(b)                                 the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 (commonly known as the USA Patriot Act);


 


(c)                                  the Money Laundering Control Act of 1986, Public Law
99-570; and


 


(d)                                 any similar law enacted in the United States of
America subsequent to the date of this Agreement.


 


Approved Stock Options means any options, warrants, rights to purchase or other equivalents
(however designated) issued or granted by a member of the Borrower Group to any
former, present or future officers, consultants, directors and/or employees of
any member of the Borrower Group or its Associated Companies to subscribe for
share capital or similar rights of ownership in that member of the Borrower
Group provided that the maximum aggregate amount of such options, warrants,
rights to purchase or other equivalents (however designated) shall not exceed
(i) 8 per cent. of its issued share capital, in the case of Stipdon and any
Subsidiary of Stipdon (provided that the aggregate amount of such options,
warrants, rights to purchase or other equivalents issued by Stipdon and its
Subsidiaries does not exceed 8 per cent. of the issued share capital of
Stipdon) and (ii) 7.5 per cent. of its issued share capital or similar rights
of ownership, in the case of each other member of the Borrower Group.


 


Approved Transaction means the
transactions announced by UPC and UGC on 26th June, 2000 and described in UPC’s
Current Report on Form 8-K as filed with the US Securities and Exchange
Commission on 11th July, 2000 or one or a series of related transactions
resulting in the completion of the transactions so described.  No such transaction has occurred as of 14th
January, 2004.


 


Associated Company of a person
means:


 


(a)                                  any other person which is directly or indirectly
Controlled by, under common Control with or Controlling such person; or


 


(b)                                 any other person owning beneficially and/or legally
directly or indirectly 10 per cent. or more of the equity interest in such
person or 10 per cent. of whose equity is owned beneficially and/or legally
directly or indirectly by such person.


 


Auditors means KPMG or
such other leading firm of independent and internationally recognised
accountants appointed by UPC Distribution as its auditors for the purposes of
preparing the audited consolidated accounts of UPC Distribution.


 


Belmarken means
Belmarken Holding B.V., a private limited liability company incorporated under
the laws of The Netherlands and, as of the Signing Date, with its registered
office at 


 


4

















 


Amsterdam and
its business office at Boeing Avenue 53, 1119 PE Schiphol Rijk, Amsterdam, The
Netherlands.


 


Beneficiaries has the
meaning given to it in the Security Deed.


 


Borrower means each of
UPC Distribution and the US Borrower.


 


Borrower Group means:


 


(a)                                  UPC Distribution and its Subsidiaries from time to
time, excluding Unrestricted Subsidiaries; and


 


(b)                                 the US Borrower.


 


Break Costs means the
amount (if any) by which:


 


(a)                                  the amount of interest (excluding the Margin and any
Mandatory Costs) which a Lender should have received for the period from the
date of receipt of all or any part of its participation in an Advance or Unpaid
Sum to the last day of the current Interest Period in respect of that Advance
or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the
last day of that Interest Period,


 


exceeds:


 


(b)                                 the amount of interest which that Lender would be able
to obtain by placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the London interbank market
for a period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.


 


Business means any
business of the Borrower Group:


 


(a)                                  that consists of the upgrade, construction, creation,
development, marketing, acquisition (to the extent permitted under this
Agreement), operation, utilisation and maintenance of networks that use
existing or future technology for the transmission, reception and delivery of
voice, video and/or other data (including networks that transmit, receive
and/or deliver services such as multi-channel television and radio,
programming, telephony, Internet services and content, high speed data
transmission, video, multi-media and related activities); or


 


(b)                                 that supports, is incidental to or is related to any
such business; or


 


(c)                                  that comprises being a Holding Company of one or more
persons engaged in such business,


 


and references
to business or ordinary course of business shall be
similarly construed.


 


Business Day means:


 


(a)                                  a day (other than a Saturday or Sunday) on which banks
are open for general business in:


 


(i)                                     London and Amsterdam;


 


(ii)                                  in relation to a transaction involving US Dollars, New
York; and


 


5

















 


(iii)                               in relation to a transaction involving an Optional
Currency, the principal financial centre of the country of that Optional
Currency; or


 


(b)                                 in relation to a rate fixing day or a payment date for
euros, a TARGET Day.


 


Business Plan means the
business plan for the Borrower Group for the period from the Effective Date to,
as a minimum, the Final Maturity Date (as defined in the New Facility
Agreement) as provided to the Facility Agent prior to the Effective Date.


 


Cancellation Notice means a notice
of cancellation and/or prepayment substantially in the form of Part 2 of
Schedule 4 (Form of Cancellation and/or Prepayment Notice).


 


Capital Expenditure means any
expenditure which is or will be treated as a capital expenditure in the audited
consolidated financial statements of the Borrower Group in accordance with
GAAP.


 


Cash Flow means, for
any period, as set out in the most recent annual or semi-annual financial
statements of or in respect of the Target for that period, EBITDA of or
relating to the Target for such period:


 


(a)                                  minus Capital Expenditure of or relating to the Target
for such period;


 


(b)                                 minus all Taxes actually paid and/or falling due for
payment by or in respect of the Target during such period;


 


(c)                                  minus the amount of all dividends, redemptions and
other distributions payable by the Target during such period on, or in respect
of any of its share capital not held by a member of the Borrower Group;


 


(d)                                 minus any increase or plus any decrease in working
capital of or in respect of the Target for such period;


 


(e)                                  minus the aggregate of Interest payable by or in
respect of the Target during such period; and


 


(f)                                    minus all extraordinary or exceptional items
(including one off restructuring costs) which were paid by the Target during
such period on (net of any cash proceeds of insurance or warranty claims which
relate to such items) and plus all extraordinary or exceptional items which
were received by or in respect of the Target during such period.


 


For the
purposes of the above calculation no item shall be effectively deducted or
credited more than once.


 


Cash Flow Positive means, in
respect of any Acquisition, for any prospective period, the sum of projected
EBITDA of or relating to the Target for such period:


 


(a)                                  minus projected Capital Expenditure of or in respect
of the Target for such period;


 


(b)                                 minus all Taxes projected as falling due and payable
by or in respect of the Target during such period;


 


6

















 


(c)                                  minus the amount of all dividends, redemptions and
other distributions projected to be payable by the Target during such period
on, or in respect of any of its share capital not held by a member of the
Borrower Group;


 


(d)                                 minus any projected increase or plus any projected
decrease in or in respect of working capital of or in respect of the Target for
such period;


 


(e)                                  minus the amount of Interest projected to be payable
by or in respect of the Target during such period, plus any Interest that is
projected to be received by or in respect of the Target during such period;


 


(f)                                    minus all extraordinary or exceptional items
(including one off restructuring costs) which are projected to be paid by the
Target during such period on (net of any cash proceeds of insurance or warranty
claims which relate to such items) and plus all extraordinary or exceptional
items which are projected to be received by or in respect of the Target during
such period; and


 


(g)                                 plus the amount of all Relevant Equity Injections (if
any) referred to in sub-paragraphs (c)(i)(A), (c)(i)(B) or (d)(i) of the
definition of Permitted Acquisition or sub-paragraphs (b)(i)(A) or (b)(i)(B) of
the definition of Permitted Joint Venture,


 


is greater
than zero.


 


For the
purposes of the above calculation no item shall be effectively deducted or
credited more than once and all items shall be calculated by reference to, and
in accordance with the principles used in preparation of, the relevant
Acquisition Business Plan.


 


Change of Control has the
meaning given to it in Clause 7.4(a) (Change of Control).


 


CNA means Cable Networks
Austria Holding B.V., a private limited liability company incorporated under
the laws of The Netherlands and, as of the Signing Date, with its registered
office at Amsterdam and its business office at Boeing Avenue 53, 1119 PE
Schiphol Rijk, Amsterdam, The Netherlands.


 


Code means the United
States Internal Revenue Code of 1986, as amended and any rule or regulation
issued thereunder from time to time in effect.


 


Commitments means the
Facility A Commitments, Facility B Commitments and/or Facility C Commitments.


 


Confidentiality Undertaking means a confidentiality undertaking substantially in the recommended
form of either the LMA as set out in Part 1 of Schedule 6 (Form of LMA
Confidentiality Undertaking) or the LSTA as set out in Part 2 of
Schedule 6 or in any other form agreed between UPC Distribution and the
Facility Agent.


 


Connected Acquisition means an
acquisition (including without limitation by purchase, subscription or
otherwise) of:


 


(a)                                  all or any part of the share capital or equivalent of
a person or company (including without limitation any partnership or joint
venture) owned by UGCE Inc., UPC or any of their respective Subsidiaries; or


 


(b)                                 any asset or assets owned by UGCE Inc., UPC or any of
their respective Subsidiaries,


 


7

















 


but does not
include:


 


(i)                                     the UPC Polska Acquisition; or


 


(ii)                                  an Acquisition from a member of the UGCE Borrower
Group where, within the 12 months preceding such Acquisition, the acquired assets
or shares were themselves acquired by a member of the UGCE Borrower Group on
substantially the same terms and for substantially the same consideration; (in
the case of an Acquisition of part only of the assets or shares initially
acquired by the member of the UGCE Borrower Group, the consideration payable
for that part of those assets or shares must have been allocated to such assets
or shares in the business plan prepared by the relevant member of the UGCE
Borrower Group at the time of the initial Acquisition and must be substantially
the same as the consideration paid by such member of the UGCE Borrower Group
for those assets or shares).


 


Consultant means Booz
Allen & Hamilton.


 


Consultant’s Report means the
report dated on or about July 2000 from the Consultant addressed to Chase
Manhattan plc and TD Securities in relation to the 10 year business plan of UPC
Distribution.


 


Control means the
power of a person:


 


(a)                                  by means of the holding of shares or the possession of
voting power in or in relation to any other person; or


 


(b)                                 by virtue of any powers conferred by the articles of
association or other documents regulating any other person,


 


to direct or
cause the direction of the management and policies of that other person,


 


and Controlled and Controlling have a corresponding meaning.


 


Current Assets means, at any
relevant time, the aggregate of the current assets (excluding cash) of the
Borrower Group at such time which would be included as current assets in a
consolidated balance sheet of the Borrower Group drawn up at such time in
accordance with GAAP.


 


Current Liabilities means, at any
relevant time, the aggregate of the current liabilities (excluding short term
debt and overdrafts) of the Borrower Group at such time which would be included
as current liabilities in a consolidated balance sheet of the Borrower Group
drawn up at each time in accordance with GAAP.


 


Dangerous Substance means any
radioactive emissions and any natural or artificial substance (whether in solid
or liquid form or in the form of a gas or vapour and whether alone or in
combination with any other substance) which, taking into account the
concentrations and quantities present and the manner in which it is being used
or handled, it is reasonably foreseeable will cause harm to man or any other
living organism or damage to the Environment including any controlled, special,
hazardous, toxic, radioactive or dangerous waste.


 


Default means an Event
of Default or any event or circumstances specified in Clause 18 (Default) which
would (with the expiry of a grace period or the giving of notice) be an Event
of Default.


 


8

















 


Derby and EPG Agreements means:


 


(a)                                  the licence agreement dated 29th September, 2003
between, inter alios, UPC
Exploitation II B.V., UPC Exploitation Holding B.V., UPC and UPC Distribution
relating to the derby billing system and the electronic programming guide; and


 


(b)                                 the escrow agreement dated 29th September, 2003 on the
deposit of sources regarding the derby billing system and the electronic
programming guide system between UPC Exploitation II B.V., Allen & Overy
and UPC Distribution.


 


Derby and EPG Share Pledges means:


 


(a)                                  the share pledge dated 29th September, 2003 entered
into between, inter alios, UPC
Distribution as pledgee and UPC Exploitation Holding B.V. as pledgor relating
to all of the shares in UPC Exploitation II B.V.; and


 


(b)                                 the share pledge dated 29th September, 2003 entered
into between UPC Distribution as pledgee and UPC as pledgor relating to all of
the shares in UPC Exploitation Holding B.V.


 


Designated Party means any
person listed:


 


(a)                                  in the Annex to the Executive Order;


 


(b)                                 on the “Specially Designated Nationals and Blocked
Persons” list maintained by the Office of Foreign Assets Control of the United
States Department of the Treasury; or


 


(c)                                  in any successor list to either of the foregoing.


 


Distribution Business means:


 


(a)                                  the business of upgrading, constructing, creating,
developing, acquiring, operating, owning, leasing and maintaining cable television
networks (including for avoidance of doubt master antenna television, satellite
master antenna television, single and multi-channel microwave single or
multi-point distribution systems and direct-to-home satellite systems) for the
transmission, reception and/or delivery of multi-channel television and radio
programming, telephony and internet and/or data services to the residential
markets; or


 


(b)                                 any business which is incidental to or related to and,
in either case, material to such business.


 


Dutch Banking Act means the
Dutch Act on the Supervision of the Credit System 1992 (Wet toezicht Kredietwezen 1992), including
the Dutch Exemption Regulation.


 


Dutch Exemption Regulation means the Exemption Regulation of the Minister of Finance of 26th June,
2002 (Vrijstellingsregeling Wtk 1992),
including the Policy Guidelines.


 


Eastern Europe means Europe
other than Western Europe.


 


9

















 


Eastern European Acquisition means an acquisition (including, without limitation, by purchase,
subscription or otherwise) of:


 


(a)                                  all or any part of the share capital or equivalent of
a person or company (including, without limitation any partnership or joint
venture) incorporated or carrying on a material part of its business in Eastern
Europe; or


 


(b)                                 any asset or assets constituting a business or
separate line of business, a material part of which is being carried on in
Eastern Europe,


 


but excluding
any such acquisition in relation to an entity which is a Subsidiary of UPC on
the Signing Date and is incorporated or carries on business in Poland on the
Signing Date.


 


EBITDA has the meaning given
to it in Clause 17.1 (Financial definitions).


 


Effective  Date has the meaning given to it in the
Amendment and Restatement Agreement.


 


Environment means the
media of air, water and land (wherever occurring) and in relation to the media
of air and water includes, without limitation, the air and water within
buildings and the air and water within other natural or man-made structures
above or below ground and any water contained in any underground strata.


 


Environmental Claim means any
claim by any person:


 


(a)                                  in respect of any loss or liability suffered or
incurred by that person as a result of or in connection with any violation of
Environmental Law; or


 


(b)                                 that arises as a result of or in connection with
Environmental Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by private or
public legal action or administrative order or proceedings including, without
limitation, any such claim that arises from injury to persons or property.


 


Environmental Contamination means each of the following and their consequences:


 


(a)                                  any release, emission, leakage or spillage of any
Dangerous Substance at or from any site owned or occupied by any member of the
Borrower Group into any part of the Environment; or


 


(b)                                 any accident, fire, explosion or sudden event at any
site owned or occupied by any member of the Borrower Group which is directly
caused by or attributable to any Dangerous Substance; or


 


(c)                                  any other pollution of the Environment arising at or
from any site owned or occupied by any member of the Borrower Group.


 


Environmental Law means all
legislation, regulations or orders (insofar as such regulations or orders have
the force of law) to the extent that it relates to the protection or impairment
of the Environment or the control of Dangerous Substances (whether or not in
force at the date of this Agreement) which are capable of enforcement in any
applicable jurisdiction by legal process.


 


Environmental Licence means any permit, licence, authorisation, consent, filing, registration
or other approval required by any Environmental Law.


 


10

















 


ERISA means the United
States Employee Retirement Income Security Act of 1974, as amended.


 


ERISA Affiliate means each
trade or business, whether or not incorporated, that would be treated as a
single employer with any member of the Borrower Group under section 414 of
the United States Internal Revenue Code of 1986, as amended.  When any provision of this Agreement relates
to a past event, the term ERISA Affiliate
includes any person that was an ERISA Affiliate of a member of the Borrower
Group at the time of that past event.


 


EURIBOR means in
relation to any Advance or Unpaid Sum denominated in euros:


 


(a)                                  the applicable Screen Rate for deposits in the
currency of the relevant Advance or Unpaid Sum for a period equal or comparable
to the required period at or about 11.00 a.m. (Brussels time) on the applicable
Rate Fixing Day; or


 


(b)                                 if the rate cannot be determined under paragraph (a)
above, the arithmetic mean (rounded upwards, if necessary, to the nearest four
decimal places) of the respective rates, as supplied to the Facility Agent at
its request, quoted by the Reference Banks to leading banks for the offering of
deposits in euros for the required period in the London interbank market at or
about 11.00 a.m. on the Rate Fixing Day for such period,


 


and for the
purposes of this definition, required period
means the Interest Period of an Advance or the period in respect of which
EURIBOR falls to be determined in relation to any Unpaid Sum.


 


€, euro or euros
means the single currency of the Participating Member States.


 


Event of Default means an event
specified as such in Clause 18 (Default).


 


Excess Cash Flow means the
aggregate consolidated EBITDA of the Borrower Group calculated for the most
recently ended financial year (beginning with the financial year ending on 31st
December, 2004), as shown in the quarterly management accounts delivered to the
Facility Agent pursuant to Clause 16.2(b) (Financial information) in respect of
the financial quarter ending on 31st December in any relevant year:


 


(a)                                  less:


 


(i)                                     any interest and other charges in respect of Financial
Indebtedness of the Borrower Group paid during such financial year;


 


(ii)                                  repayments and/or prepayments of any Financial
Indebtedness of the Borrower Group paid during such financial year; and


 


(iii)                               capital expenditure of the Borrower Group incurred
during such financial year; and


 


(b)                                 either (i) plus any amount by which Net Working
Capital at the commencement of such financial year exceeds Net Working Capital
at the close of such financial year or, as appropriate, (ii) minus any amount
by which Net Working Capital at the end of such financial year exceeds Net
Working Capital at the beginning of such financial year.


 


11

















 


For the
purposes of this definition of “Excess Cash Flow”, Net Working Capital means, at any time, the aggregate of the
Current Assets of the Borrower Group at such time less the aggregate of the
Current Liabilities of the Borrower Group at such time.


 


Facility means each of
Facility A, Facility B and Facility C.


 


Facility A means the
€750,000,000 revolving credit facility referred to in Clause 2.1(a)
(Facilities).


 


Facility
A Advance means an advance made
to UPC Distribution under Facility A.


 


Facility
A Availability Period means the period
from and including the Signing Date up to and including the Facility A Final
Maturity Date or such earlier date on which the Total Facility A Commitments
have been cancelled in full or such later date as all the Lenders may agree in
writing.


 


Facility
A Commitment means:


 


(a)                                  in relation to an Original Lender, the amount in euros
set opposite its name under the heading “Facility A Commitment” in Part 2 of
Schedule 1 (Original Lenders and Commitments) and the amount of any other
Facility A Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount in euros
of any Facility A Commitment transferred to it in accordance with this
Agreement,


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


Facility
A Final Maturity Date means 30th June,
2008 or, if that day is not a Business Day, the preceding Business Day.


 


Facility
A Lender means a Lender under
Facility A.


 


Facility
Agent means:


 


(a)                                  TD Bank Europe Limited in its capacity as facility
agent under or in connection with Facility A, Facility B or Facility C1;


 


(b)                                 Toronto Dominion (Texas), Inc., in its capacity as
facility agent under or in connection with Facility C2; or


 


(c)                                  both,


 


in each case as
the context requires; provided that references in this Agreement to Facility Agent which do not relate solely
and specifically to Facility C2 shall be deemed to refer to TD Bank Europe
Limited in its capacity as facility agent under or in connection with the
Facility.


 


Facility
B means the
€2,750,000,000 term loan facility referred to in Clause 2.1(b) (Facilities).


 


Facility
B Advance means an advance made
to UPC Distribution under Facility B.


 


Facility
B Availability Period means the period
from and including the Signing Date up to and including 31st December, 2003 or
such earlier date on which the Total Facility B 


 


12

















 


Commitments have
been cancelled in full or such later date as all the Lenders may agree in
writing.


 


Facility
B Commitment means:


 


(a)                                  in relation to an Original Lender, the amount in euros
set opposite its name under the heading “Facility B Commitment” in Part 2 of
Schedule 1 (Original Lenders and Commitments) and the amount of any other
Facility B Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount in euros
of any Facility B Commitment transferred to it in accordance with this
Agreement,


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


Facility
B Lender means a Lender under
Facility B.


 


Facility
C means the
US$347,500,000 and €95,000,000 term loan facility referred to in Clause 2.1(c)
(Facilities).


 


Facility
C Advance means a Facility C1
Advance or a Facility C2 Advance.


 


Facility
C1 means the €95,000,000
term loan facility which forms a sub-tranche of Facility C.


 


Facility
C1 Advance means a
euro-denominated advance made to UPC Distribution under Facility C.


 


Facility
C2 means the
US$347,500,000 term loan facility which forms a sub-tranche of Facility C.


 


Facility
C2 Advance means a US
Dollar-denominated advance made to the US Borrower under Facility C.


 


Facility
C Availability Period means the period
from and including the Signing Date up to and including the earlier of:


 


(a)                                  the first Utilisation Date under the Facilities; or


 


(b)                                 the date falling 30 days after the Signing Date,


 


or such earlier
date on which the Total Facility C Commitments have been cancelled in full or
such later date as all the Lenders may agree in writing.


 


Facility
C Commitment means, in relation to a
Lender, the aggregate for the time being of its:


 


(a)                                  Facility C1 Commitments; and


 


(b)                                 Facility C2 Commitments (translated into euros on the
basis of:


 


(i)                                     (if and to the extent that any member of the Borrower
Group has entered into any currency Senior Hedging Agreement(s) in respect of a
Facility C2 Advance) the rate at which any such Facility C2 Advance was swapped
into euros; and


 


13

















 


(ii)                                  to the extent the Borrower Group has not entered into
any currency Senior Hedging Agreements in relation to Facility C2 Advances or
the Facility C2 Commitments are undrawn, the Agent’s Spot Rate of Exchange on
the Utilisation Date).


 


Facility
C1 Commitment means:


 


(a)                                  in relation to an Original Lender, the amount in euros
set opposite its name under the heading “Facility C1 Commitment” in Part 2 of
Schedule 1 (Original Lenders and Commitments) and the amount of any other
Facility C1 Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount in euros
of any Facility C1 Commitment transferred to it in accordance with this
Agreement,


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


Facility
C2 Commitment means:


 


(a)                                  in relation to an Original Lender, the amount in US
Dollars set opposite its name under the heading “Facility C2 Commitment” in
Part 2 of Schedule 1 (Original Lenders and Commitments) and the amount of
any other Facility C2 Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any other Lender, the amount in US
Dollars of any Facility C2 Commitment transferred to it in accordance with this
Agreement,


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


Facility
C Lender means a Lender under
Facility C.


 


Facility
Office means the office(s)
notified by a Lender to the Facility Agent:


 


(a)                                  on or before the date it becomes a Lender; or


 


(b)                                 by not less than five Business Days’ notice,


 


as the office(s)
through which it will perform all or any of its obligations under this Agreement.


 


Fee
Letter means each of:


 


(a)                                  the letter between Chase Manhattan plc, TD Bank Europe
Limited, Cable Networks Netherlands Holding B.V. and UPC dated 24th May, 2000
dealing with underwriting fees;


 


(b)                                 the letter between the Facility Agent and the
Borrowers dated on or about the Signing Date dealing with agency fees; and


 


(c)                                  the Amendment Fee Letter,


 


in each case
setting out the amount of various fees referred to in Clause 20 (Fees).


 


14

















 


Final
Repayment Date means:


 


(a)                                  when designated Facility
B, 30th June,  2008; and


 


(b)                                 when designated Facility
C, 31st March, 2009,


 


or in each case,
if that day is not a Business Day, the immediately preceding Business Day (and
without any such designation means the Facility B Final Repayment Date or the
Facility C Final Repayment Date, as applicable).


 


Finance
Document means this Agreement, a
Security Document, the Security Deed, a Fee Letter, a Guarantor Accession
Agreement, the Syndication Letter, a Novation Certificate, the Intercreditor
Agreement and any other document designated in writing as such by the Facility
Agent and UPC Distribution.


 


Finance
Party means a Lead Arranger,
a Lender, the Facility Agent or the Security Agent.


 


Financial
Indebtedness means, without double
counting, indebtedness in respect of:


 


(a)                                  money borrowed or raised and debit balances at banks;


 


(b)                                 any bond, note, loan stock, debenture or similar debt
instrument;


 


(c)                                  acceptance or documentary credit facilities;


 


(d)                                 receivables sold or discounted (otherwise than on a
non-recourse basis and other than in the normal course of business for
collection);


 


(e)                                  payments for assets acquired or services supplied
deferred for a period of over 180 days (or 360 days if such deferral is in
accordance with the terms pursuant to which the relevant assets were or are to
be acquired or services were or are to be supplied) after the relevant assets
were or are to be acquired or the relevant services were or are to be supplied;


 


(f)                                    finance leases and hire purchase contracts to the
extent that they constitute capital leases within the meaning of GAAP, provided
that indebtedness in respect of network leases shall only be included in this
paragraph (f) for the purposes of the definition of “Excess Cash Flow” and
Clause 18.5 (Cross default);


 


(g)                                 any other transaction (including without limitation
forward sale or purchase agreements) having the commercial effect of a
borrowing or raising of money or any of (b) to (f) above;


 


(h)                                 (for the purposes of Clause 18.5 (Cross default) only)
any derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating the
value of any derivative transaction, only the marked-to-market value shall be
taken into account); and


 


(i)                                     guarantees in respect of indebtedness of any person
falling within any of paragraphs (a) to (g) above (including for the avoidance
of doubt, without double counting, guarantees given by a member of the Borrower
Group for the indebtedness of the type falling within (a) to (g) above of
another member of the Borrower Group),


 


15

















 


provided that
indebtedness which has been cash-collateralised shall not be included in any
calculation of Financial Indebtedness to the extent so cash-collateralised and
indebtedness which is in the nature of equity (other than redeemable shares)
shall not be regarded as Financial Indebtedness.


 


GAAP means generally accepted accounting principles and
practices in the United States.


 


Guaranteed
Document means each Finance
Document, the High Yield Hedging Agreements and the Senior Hedging Agreements.


 


Guarantor
means each Original Guarantor and each
Additional Guarantor.


 


Guarantor
Accession Agreement means a deed in
the form of Part 2 of Schedule 5 (Guarantor Accession Agreement), with
such amendments as the Facility Agent may approve or reasonably require
(including, without limitation, any limitation on the obligations of the
relevant Additional Guarantor which has been approved by the Facility Agent
pursuant to Clause 26.4(a)(v) (Additional Guarantors)).


 


Hedging
Counterparty means each High Yield
Hedging Counterparty and each Senior Hedging Counterparty.


 


High
Yield Hedging Agreements has the meaning
given to it in the Security Deed.


 


High
Yield Hedging Bank means a Lender
or its Affiliate or a “Lender” or its “Affiliate” as defined in the New
Facility Agreement which is or becomes a party to the New Security Deed and/or
the Security Deed as a High Yield Hedging Bank.


 


High
Yield Hedging Counterparty means any
member of the UGCE Borrower Group that enters into a High Yield Hedging
Agreement.


 


High
Yield Notes means high yield debt
securities or other instruments not mandatorily convertible into equity, in each
case issued by a company which is a member of the UGCE Borrower Group.


 


Holding
Company means, in relation to a
person, an entity of which that person is a Subsidiary.


 


Indentures
means each of:


 


(a)                                  the indenture dated as of 30th July, 1999 between UPC
and Citibank N.A. in relation to US$735,000,000 121⁄2 per cent. senior discount
notes due 2009;


 


(b)                                 the indenture dated 5th February, 1998 between UGC and
Firstar Bank of Minnesota N.A. (the UGC
Trustee) for the $1,375,000,000 103⁄4 per cent. senior secured
discount notes due 2009;


 


(c)                                  the indenture dated 15th April, 1999 between UGC and
the UGC Trustee for the $355,000,000 senior discount notes due 2009;


 


(d)                                 the indenture dated 30th July, 1999 between UPC and
Citibank N.A. for the $800,000,000 10 7/8 per cent. senior notes
due 2009 and the €300,000,000 10 7/8 per cent. senior notes
due 2009;


 


16

















 


(e)                                  the indenture dated 29th October, 1999 between UPC and
Citibank N.A. for the $200,000,000 10 7/8 per cent. senior notes
due 2007 and the €100,000,000 10 7/8 per cent. senior notes
due 2007;


 


(f)                                    the indenture dated 29th October, 1999 between UPC and
Citibank N.A. for the $252,000,000 111⁄4 per cent. senior notes due 2009 and the
€101,000,000 111⁄4 per cent. senior notes due 2009;


 


(g)                                 the indenture dated 29th October, 1999 between UPC and
Citibank N.A. for the $478,000,000 13 3/8 per cent.
senior discount notes due 2009 and the €191,000,000 13 3/8
per cent. senior discount notes due 2009;


 


(h)                                 the indenture dated 20th January, 2000 between UPC and
Citibank N.A. for the $300,000,000 111⁄2 per cent. senior notes due 2010;


 


(i)                                     the indenture dated 20th January, 2000 between UPC and
Citibank N.A. for $600,000,000 111⁄4 per cent. senior notes due 2010 and the
€200,000,000 111⁄4 per cent. senior notes due 2010; and


 


(j)                                     the indenture dated 20th January, 2000 between UPC and
Citibank N.A. for the $1,000,000,000 133⁄4 per cent. senior discount notes due
2010,


 


in each case as
in effect on the Signing Date.


 


Information
Memorandum means the information
memorandum dated June, 2000 as updated by the information memorandum dated
July, 2000 prepared in connection with syndication of the Facilities, and as
further updated, if applicable, by an information memorandum to be prepared for
the purposes of general syndication of the Facilities.


 


Intellectual
Property Rights means all
know-how, patents, trade marks, designs and design rights, trading names,
copyrights (including any copyright in computer software), database rights and
other intellectual property rights anywhere in the world (in each case whether
registered or not and including all applications for the same).


 


Interconnect
Agreements means each
interconnection agreement, network contract, franchise agreement,
telecommunications service agreement and any agreement of a similar nature
entered into by any member of the Borrower Group in connection with the conduct
of its business as may be permitted by the terms of this Agreement (including
any interconnect agreements maintained pursuant to Clause 16.20
(Inter-connection and chello)).


 


Intercreditor
Agreement means the intercreditor
deed entered into on or about the date of the Amendment and Restatement
Agreement between, among others, the Facility Agents and the Security Agent,
the facility agent and security agent under the New Facility Agreement and UPC
Distribution.


 


Interest
has the meaning given to it in Clause 17.1
(Financial definitions).


 


Interest
Date means the last day of
an Interest Period.


 


Interest
Period means each period
determined in accordance with Clause 8 (Interest).


 


Lender
means:


 


(a)                                  any Original Lender; and


 


17

















 


(b)                                 any person which has become a New Lender (as defined
in Clause 26.2 (Transfers by Lenders)) in accordance with Clause 26 (Changes to
the Parties),


 


which in each
case has not ceased to be a Party in accordance with the terms of this
Agreement.


 


LIBOR
means in relation to any Advance or Unpaid Sum
denominated in US Dollars or in an Optional Currency (other than euros):


 


(a)                                  the applicable Screen Rate for deposits in the
currency of the relevant Advance or Unpaid Sum for a period equal or comparable
to the required period at or about 11.00 a.m. on the applicable Rate Fixing
Day; or


 


(b)                                 (if no Screen Rate is available for the required
currency or required period of that Advance or Unpaid Sum) the arithmetic mean
(rounded upwards, if necessary, to the nearest four decimal places) of the
respective rates, as supplied to the Facility Agent at its request, quoted by
the Reference Banks to leading banks for the offering of deposits in the
required currency and for the required period in the London interbank market at
or about 11.00 a.m. on the Rate Fixing Day for such period,


 


and for the
purposes of this definition, required period
means the applicable Interest Period of an Advance or the period in respect of
which LIBOR falls to be determined in relation to any Unpaid Sum.


 


Licence
means each approval, consent, authorisation and
licence from, and all filings, registrations and agreements with any governmental
or regulatory authority, in each case granted, issued, made or entered into
pursuant to any Telecommunications and Cable Law necessary in order to enable
each member of the Borrower Group to carry on its business as may be permitted
by the terms of this Agreement.


 


LMA
means the Loan Market Association.


 


Majority
Acquisition has the meaning given
in paragraph (c) of the definition of “Permitted Acquisition”.


 


Majority
Facility C Lenders means, at any
time Lenders the aggregate of whose undrawn Facility C Commitments and
participations in outstanding Facility C Advances (calculated by reference to
the Original Euro Amount of such Advances) exceeds 66 2/3
per cent. of the undrawn Total Facility C Commitments and the Original Euro
Amount of outstanding Facility C Advances.


 


Majority
Lenders means, at any time
Lenders the aggregate of whose undrawn Facility A Commitments, undrawn Facility
B Commitments and undrawn Facility C Commitments and participations in
outstanding Facility A Advances, Facility B Advances and Facility C Advances
(calculated by reference to the Original Euro Amount of such Advances) exceeds
662/3 per cent. of the aggregate undrawn Total Facility A
Commitments, undrawn Total Facility B Commitments, undrawn Total Facility C
Commitments and the Original Euro Amount of outstanding Advances.


 


Management
Fees means any management,
consultancy or similar fees payable by any member of the Borrower Group to any
Restricted Person.


 


Mandatory
Cost means the percentage
rate per annum calculated by the Facility Agent in accordance with
Schedule 3 (Mandatory Cost Formulae).


 


18

















 


Margin
means, in relation to an Advance at any time,
the percentage rate per annum determined to be the Margin applicable to that
Advance in accordance with Clause 8.10 (Margin).


 


Material
Adverse Effect means any event
or circumstance which has a material adverse effect on the ability of the
Obligors (taken as a whole) to perform their payment or other material
obligations under any of the Finance Documents.


 


Material
Contracts means:


 


(a)                                  the Interconnect Agreements;


 


(b)                                 the agreement between chello Broadband N.V. and UPC
Distribution documenting the arrangement under which chello Broadband N.V. and
UPC Distribution share the subscriber revenues generated from the chello
broadband internet service;


 


(c)                                  the Priority Pledge;


 


(d)                                 the Derby and EPG Pledges;


 


(e)                                  the Derby and EPG Agreements;


 


(f)                                    the Shareholders’ Agreements, as from time to time
amended, varied, restated or replaced, in each case in a manner that does not
constitute an Event of Default under Clause 18.18 (Material Contracts); and


 


(g)                                 each other agreement agreed as such by the Facility
Agent and UPC Distribution.


 


Material
Subsidiary means any Subsidiary of
UPC Distribution which accounts for more than five per cent. of one or more of:


 


(a)                                  the book value of the consolidated assets of the
Borrower Group; or


 


(b)                                 the consolidated revenues of the Borrower Group; or


 


(c)                                  consolidated EBITDA of the Borrower Group,


 


all as shown in
the financial statements most recently delivered under Clause 16.2(a) or (b)
(Financial information) (except that for purposes of determining the
consolidated revenues and consolidated EBITDA of the Borrower Group in respect
of the financial statements delivered under Clause 16.2(b) (Financial
information), the respective amounts of such revenues and such EBITDA shall
equal two times the consolidated revenues and consolidated EBITDA,
respectively, of the Borrower Group during the relevant Ratio Period ending on
the date to which such financial statements are prepared).


 


If a Subsidiary
which is not a Material Subsidiary on the basis of the most recent such
financial statements most recently delivered receives on any date (the Relevant Date) a transfer of assets or the
right to receive any revenues or other earnings which, taken together with the
existing assets or, as the case may be, revenues or earnings of that
Subsidiary, would satisfy either of the tests in paragraphs (a), (b) or (c)
above, then that Subsidiary shall also be a Material Subsidiary on and from the
Relevant Date.  If a Material Subsidiary
disposes of any assets or the right to receive any revenues or earnings such
that it would on the basis of the most recent such financial statements most
recently delivered cease to be a Material 


 


19

















 


Subsidiary, then
it shall be excluded as a Material Subsidiary on and from the date it makes
such disposal.


 


Necessary
Authorisations means all material
approvals, consents, authorisations and licences (other than the Licences)
from, all rights granted by and all filings, registrations and agreements with,
any government or other regulatory authority necessary in order to enable each
member of the Borrower Group to carry on its business as may be permitted by
the terms of this Agreement as carried on by it at the relevant time.


 


Net
Equity Proceeds means any cash
proceeds (net of issue expenses) received by or for the account of a member of
UGCE Borrower Group from any issued securities constituting or convertible or
exchangeable (with or without conditions) into, share capital of that member of
the UGCE Borrower Group (but excluding any proceeds received from an issue of
Relevant Convertible Preference Shares).


 


Net
Proceeds means the aggregate
cash (or cash equivalent) proceeds received by any member of the Borrower Group
in consideration for or otherwise in respect of a relevant disposal, net of all
Taxes applicable on, or to any gain resulting from, that disposal and of all
reasonable costs, fees and expenses properly incurred by continuing members of
the Borrower Group in arranging and effecting that disposal.


 


Network
means the networks operated from time to time
by any member of the Borrower Group pursuant to the Licences and in accordance
with this Agreement.


 


New
Beneficiaries means the
Beneficiaries as defined in the New Security Deed.


 


New
Facility means the
€1,072,000,000 secured credit facility provided pursuant to the New Facility
Agreement, consisting of the New Facility D and the Additional Facility.


 


New
Facility D means “Facility D” as
defined in the New Facility Agreement.


 


New
Facility Agreement means the
€1,072,000,000 secured credit agreement between TD Bank Europe Limited as
facility agent, UPC Distribution as borrower, the New Facility Lenders and
others dated on or about January, 2004.


 


New
Facility Borrower means a
Borrower as defined in the New Facility Agreement.


 


New
Facility Lender means a Lender
as defined in the New Facility Agreement.


 


New
Finance Document means a Finance
Document as defined in the New Facility Agreement.


 


New
Security Deed means the security
deed entered into on or about the date of the Amendment and Restatement
Agreement between, among others, each Obligor, the facility agent and security
agent under the New Facility Agreement, the New Facility Lenders, the High
Yield Hedging Banks and each Subordinated Creditor and includes each Deed of
Accession (as defined in the New Security Deed) entered into in relation to the
New Security Deed.


 


New
Security Document means:


 


(a)                                  the Security Documents as defined in paragraph (a) of
the definition of “Security Documents” in the New Facility Agreement; and


 


20

















 


(b)                                 any other Security Document as defined in paragraph
(b) of the definition of “Security Documents” in the New Facility Agreement,
provided that the Security Interest(s) granted under any such Security Document
are simultaneously granted on the same terms (save for variations directly
attributable to the identity of the parties and the loan amounts) to the
Security Agent on behalf of the Beneficiaries to secure the Secured Obligations
(as defined in the Security Deed).


 


non-Distribution
Business Assets has the meaning given
to it in Clause 16.10(b)(x) (Disposals).


 


Norwegian
Kroner means the lawful
currency of Norway for the time being.


 


Novation
Certificate has the meaning given
to it in Clause 26.3(a)(i) (Procedure for novations).


 


Obligor
means a Borrower or a Guarantor including, for
the purposes of Clause 18 (Default), any Subsidiary of UPC Distribution that is
required to become a Guarantor under Clause 26.4 (Additional Guarantors) but
has not yet become a Guarantor.


 


Obligor
Pledge of Shareholder Loans means the deeds of pledge of shareholder loans entered into between
certain Obligors and the Security Agent listed in sub-paragraphs 3(a), (c),
(d), (e), (f) and (g) of Schedule 7 (Security Documents) and any other
deed of pledge of shareholder loans in substantially the same form entered into
by an Obligor pursuant to any such deed of pledge or Clause 16.14(a) (Loans and
guarantees) or Clause 26.4 (Additional Guarantors).


 


Obligors’
Framework Agreement means the
Framework Agreement (as defined in any Obligor Pledge of Shareholder Loans).


 


Optional
Currency means Norwegian Kroner,
Swedish Kroner or any other currency readily available in the amount required
and freely convertible into euros in the European interbank market on the
relevant Rate Fixing Day and the relevant Utilisation Date and approved by the
Facility Agent (acting on the instructions of all the Facility A Lenders) on or
prior to receipt by the Facility Agent of the relevant Request for a Facility A
Advance denominated in that currency.


 


Original
Borrower Group Financial Statements means the financial statements of the Borrower Group for the Accounting
Period ended 31st March, 2000 (comprising the unaudited compiled financial
statements of each of the Obligors for the Accounting Period ended 31st March,
2000 and a combination of those financial statements).


 


Original
Euro Amount means:


 


(a)                                  the principal amount of a Facility A Advance, Facility
B Advance or Facility C Advance (as applicable) denominated in euros; or


 


(b)                                 the principal amount of a Facility A Advance, Facility
B Advance or Facility C Advance (as applicable) denominated in any other
currency, translated into euros on the basis of the Agent’s Spot Rate of
Exchange on the date of receipt by the Facility Agent of the Request for the
relevant Advance (in the case of a Facility A Advance or a Facility B Advance)
or on the Utilisation Date (in the case of a Facility C2 Advance).


 


21

















 


Participating
Member State means a member state of
the European Community that adopts or has adopted the euro as its lawful
currency in accordance with legislation of the European Community for Economic
Monetary Union.


 


Party
means a party to this Agreement.


 


Permitted
Acquisition means:


 


(a)                                  [intentionally left blank]


 


(b)                                 any Acquisition of a member of the Borrower Group by
any other member of the Borrower Group as part of the solvent reorganisation of
the Borrower Group; or


 


(c)                                  any Acquisition where, upon completion of the
Acquisition, the person acquired will be a Subsidiary of UPC Distribution or
where UPC Distribution or one of its Subsidiaries which is a member of the
Borrower Group will own directly or indirectly greater than a 50 per cent.
interest in the asset or assets constituting the acquired business (a Majority Acquisition) and where:


 


(i)                                     the Acquisition Cost of that Majority Acquisition,
when aggregated with the Acquisition Cost of all Majority Acquisitions made
since the Signing Date, but deducting:


 


(A)                              the amount of any such Acquisition Cost which has been
directly or indirectly funded (whether before, at or after the time of
completion of the Acquisition) by the proceeds of a Relevant Equity Injection
(other than any Relevant Equity Injection referred to in sub- paragraph
(c)(i)(B) or paragraph (c)(i)(l) below);


 


(B)                                the amount of any such Acquisition Cost which has been
directly funded (in whole or in part) by the proceeds of a drawing under
Facility A, provided that such deduction shall only be made to the extent that,
prior to the date of the Majority Acquisition, the outstandings under Facility
A were reduced out of the proceeds of a Relevant Equity Injection (and
excluding the amount of any such reduction of outstandings under Facility A to
the extent that Facility A has previously been drawn for the purposes of
funding (in whole or in part) a Permitted Acquisition) and further provided
that, at the time such reduction was made, UPC Distribution delivered to the
Facility Agent a certificate signed by two managing directors or the sole
managing director of UPC Distribution certifying:


 


I.                                         that the amount of the reduction was funded from a
Relevant Equity Injection; and


 


II.                                     that UPC Distribution intended to draw an amount up to
such amount under Facility A following the date of the  reduction in order to fund a Permitted
Acquisition;


 


(C)                                the Acquisition Cost of all such Majority Acquisitions
of any entity in which a member of the Borrower Group has an ownership interest
at the Signing Date or acquired an ownership interest pursuant to the
Restructuring;


 


22

















 


(D)                               the Acquisition Cost of any Acquisition constituting a
Majority Acquisition made pursuant to paragraph (b) above; and


 


(E)                                 the Acquisition Cost of the Acquisition of one or more
cable television networks in the Netherlands, as disclosed in writing to the
Facility Agent before the Signing Date, and/or any business which is incidental
or related thereto, in an aggregate amount that does not exceed €60,000,000,


 


does not exceed:


 


(1)                                  (except in the case of a Connected Acquisition) the
sum of (x) €250,000,000 and (y) an amount equal to the proceeds of all Relevant
Equity Injections made since the Effective Date, to the extent only that the
proceeds of such Relevant Equity Injection have been applied to permanently
prepay and cancel the outstandings under Facility A, Facility B, Facility C or
New Facility D since the Effective Date provided that, at the time that any
such prepayment and cancellation was made, UPC Distribution delivered to the
Facility Agent a certificate signed by two managing directors or the sole
managing director of UPC Distribution certifying that the amount of the
prepayment and cancellation was funded from a Relevant  Equity Injection;


 


(2)                                  in the case of a Connected Acquisition, €0; or


 


(3)                                  in the case of the UPC Polska Acquisition, and subject
always to sub-paragraph (1) above, the aggregate principal amount of any debt
securities issued by UPC Polska (together with any interest owing in respect of
such debt securities) in connection with the UPC Polska Restructuring;


 


(ii)                                  if the higher of the Acquisition Cost and the book
value of any Majority Acquisition (or, where an opinion confirming the fairness
of the relevant Majority Acquisition from a financial point of view has been
issued by an independent third party, the Acquisition Cost of any Majority
Acquisition):


 


(A)                              is greater than €100,000,000 and no more than
€150,000,000, UPC Distribution delivers a certificate to the Facility Agent
signed by two managing directors or the sole managing director, as the case may
be, of UPC Distribution and certifying; or


 


(B)                                is greater than €150,000,000, UPC Distribution
delivers to the Facility Agent financial projections based on assumptions which
are no more aggressive (when taken as a whole) than those used in the
preparation of the Business Plan which demonstrate,


 


that the Borrowers
will be in compliance with Clause 6 (Repayment) and the undertakings set out in
Clause 17 (Financial Covenants) for the period from completion of the
Acquisition (taking into account the Acquisition Cost of such Majority
Acquisition (but deducting from that Acquisition Cost the value of any
consideration referred to in paragraph (a) of the definition of “Acquisition
Cost”) and financial projections relating to the acquired business or asset(s))
to the last Final Repayment Date;


 


23

















 


(iii)                               the business of the acquired entity or the business
acquired, as the case may be, is of the same nature as the business of the
Borrower Group as at the Signing Date and is carried out principally in Europe;


 


(iv)                              in the case of any Majority Acquisition where the
Acquisition Cost is €40,000,000 or greater, UPC Distribution delivers to the
Facility Agent an Acquisition Business Plan which:


 


(A)                              must contain cash flow projections which show that the
Target will be Cash Flow Positive (taking into account the amount of any
Relevant Equity Injection referred to in sub-paragraph (c)(i)(A) and (c)(i)(B)
above) from the date of the proposed Majority Acquisition up to and including
the last Final Repayment Date; and


 


(B)                                in relation to any Majority Acquisition completed
prior to 31st December, 2006, must contain cash flow projections which show
that the sum of the undrawn Total Facility A Commitments and Unrestricted Cash,
taking into account the proposed Majority Acquisition, is projected to be
greater than €100,000,000 on 31st December, 2006;


 


(v)                                 UPC Distribution delivers to the Facility Agent the
most recent annual or semi-annual financial statements of or relating to the
Target, together with a certificate signed by two managing directors or the
sole managing director, as the case may be, of UPC Distribution certifying the
amount of the Cash Flow of the Target for the most recent half financial year
of, or relating to, the Target and setting out the supporting calculations;


 


(vi)                              no Default has occurred and is continuing or would be
caused by the Majority Acquisition; and


 


(vii)                           the Acquisition Cost of that Majority Acquisition is
not funded from the proceeds of an advance drawn by a New Facility Borrower
under the Additional Facility; or


 


(d)                                 any Additional Acquisition where:


 


(i)                                     the Acquisition Cost of that Additional Acquisition,
when aggregated with the Acquisition Cost of all Additional Acquisitions made
since the Effective Date, but deducting the amount of any such Acquisition Cost
which has been directly or indirectly funded (whether before, after or at
completion of the Additional Acquisition) by the proceeds of any Relevant
Equity Injection, does not exceed €1,000,000,000;


 


(ii)                                  UPC Distribution delivers to the Facility Agent the
most recent annual or semi-annual financial statements of the Target, together
with a certificate, signed by two managing directors or the sole managing
director of UPC Distribution, which certifies that the ratio of Senior Debt to
Annualised EBITDA (including any Senior Debt used to fund the Acquisition Cost
of that Additional Acquisition) for the most recent half financial year set out
in the most recent financial statements of the Target is:


 


(A)                              less than 4.0:1; or


 


24

















 


(B)                                at least 1.0 (one) times lower than the ratio of
Senior Debt to Annualised EBITDA of the Borrower Group for the most recent
Ratio Period, as shown in the most recent set of financial statements delivered
under Clause 16.2(a) or (b) (Financial information); and


 


(iii)                               an Acquisition Business Plan which, in the case of any
Additional Acquisition where the Acquisition Cost is €25,000,000 or greater,
must contain cash flow projections which show that the Target will be Cash Flow
Positive (taking into account the amount of any Relevant Equity Injection
referred to in sub-paragraph (d)(i) above) from the date of the proposed
Additional Acquisition up to and including the last Final Repayment Date;


 


(iv)                              UPC Distribution delivers to the Facility Agent the
most recent annual or semi-annual financial statements of or relating to the
Target, together with a certificate signed by two managing directors or the
sole managing director, as the case may be, of UPC Distribution certifying the
amount of the Cash Flow of the Target for the most recent half financial year
of, or relating to, the Target and setting out supporting calculations;


 


(v)                                 no Default has occurred and is continuing or would be
caused by the Additional Acquisition; and


 


(vi)                              the Acquisition Cost of that Additional Acquisition is
funded (in whole or in part) by one or more advances drawn by UPC Distribution
under an Additional Facility and any balance of the Acquisition Cost not funded
by drawings under an Additional Facility are funded directly or indirectly by
one or more Relevant Equity Injections.


 


(e)                                  any Majority Acquisition which is also an Additional Acquisition
where:


 


(i)                                     the Acquisition Cost of that Acquisition exceeds both
the available limit permitted for Majority Acquisitions under sub-paragraph
(c)(i)(1) above at the relevant time (the Majority
Acquisitions Available Limit) and the available limit permitted for
Additional Acquisitions under sub-paragraph (d)(i) above at the relevant time
(the Additional Acquisitions Available Limit)
but does not exceed the aggregate of the Majority Acquisitions Available Limit
and the Additional Acquisitions Available Limit;


 


(ii)                                  that Acquisition satisfies all the requirements set
out in paragraphs (c) and (d) above other than:


 


(A)                              the Acquisition Cost being in excess of the Majority
Acquisitions Available Limit and the Additional Acquisitions Available Limit as
described above; and


 


(B)                                sub-paragraphs (c)(vii) and (d)(vi); and


 


(iii)                               the Acquisition Cost of that Acquisition is funded (up
to the amount of the Additional Acquisitions Available Limit) wholly or partly
from the proceeds of a drawing under an Additional Facility and any balance not
funded by drawings under an Additional Facility (up to the Additional
Acquisitions Available Limit) are funded directly or indirectly by one or more
Relevant Equity Injections, with the balance of the Acquisition Cost (in excess
of the 


 


25

















 


Additional
Acquisitions Available Limit) funded by any other means permitted under this
Agreement.


 


All references
in this definition to euro or € shall, where applicable, mean the equivalent in
any other currency, converted to euro, based on the Agent’s Spot Rate of
Exchange at the relevant time.


 


Permitted
Business means the carrying on
of the Business in Europe.


 


Permitted
Financial Indebtedness has the meaning
given to it in Clause 16.12(b) (Restrictions on Financial Indebtedness).


 


Permitted
Joint Venture means:


 


(a)                                  any Acquisition referred to in paragraph (b) of the
definition of “Permitted Acquisition” and any Acquisition as a result of a
reorganisation of a person that is not a Subsidiary of UPC Distribution but in
which a member of the Borrower Group has an interest, provided that such
reorganisation does not result in an overall increase in the value of the
Borrower Group’s interest in that person, other than adjustments to the basis
of any member of the Borrower Group’s interest in accordance with GAAP; or


 


(b)                                 any Acquisition where, upon completion of the
Acquisition, the person acquired will not be a Subsidiary of UPC Distribution
or where UPC Distribution or one of its Subsidiaries which is a member of the
Borrower Group will own directly or indirectly no more than a 50 per cent.
interest in the asset or assets constituting the acquired business (a JV Minority Acquisition) and where:


 


(i)                                     the Acquisition Cost of that JV Minority Acquisition,
when aggregated with the Acquisition Cost of all JV Minority Acquisitions made
since the Signing Date, but deducting:


 


(A)                              the amount of any such Acquisition Cost which has been
directly or indirectly funded (whether before, at or after, the time of
completion of the Acquisition) by the proceeds of a Relevant Equity Injection
(other than any Relevant Equity Injection referred to in sub-paragraph
(b)(i)(B) or sub-paragraph (b)(i)(1) below);


 


(B)                                the amount of any such Acquisition Cost which has been
directly funded (in whole or in part) by the proceeds of a drawing under
Facility A, provided that such deduction shall only be made to the extent that,
prior to the date of the JV Minority Acquisition, the outstandings under
Facility A were reduced out of the proceeds of a Relevant Equity Injection (and
excluding the amount of any such reduction of outstandings under Facility A to
the extent that Facility A has previously been drawn for the purposes of
funding (in whole or in part) a Permitted Joint Venture) and further provided
that, at the time such reduction was made, UPC Distribution delivered to the
Facility Agent a certificate signed by two managing directors or the sole
managing director of UPC Distribution certifying:


 


I.                                         that the amount of the reduction was funded from a
Relevant Equity Injection; and


 


26

















 


II.                                     that UPC Distribution intended to draw an amount up to
such amount under Facility A following the date of the reduction in order to
fund a Permitted Joint Venture;


 


(C)                                the Acquisition Cost of all such JV Minority
Acquisitions of any entity in which a member of the Borrower Group has an
ownership interest at the Signing Date or acquired an ownership interest
pursuant to the Restructuring; and


 


(D)                               the Acquisition Cost of any Acquisition constituting a
JV Minority Acquisition made pursuant to paragraph (a) above,


 


does not exceed:


 


(1)                              (except in the case of a Connected Acquisition) the
sum of (x)  €250,000,000 and (y) an
amount equal to the proceeds  of all
Relevant Equity Injections made since the Effective Date, to the extent only
that the proceeds of such Relevant Equity Injection have been applied to permanently
prepay and cancel the outstandings under Facility A, Facility B, Facility C or
New Facility D since the Effective Date provided that, at the time that any
such prepayment and cancellation was made, UPC Distribution delivered to the
Facility Agent a certificate signed by two managing directors or the sole
managing director of UPC Distribution certifying that the amount of the
prepayment and cancellation was funded from a Relevant Equity Injection; or


 


(2)                               in the case of a Connected Acquisition, €0;


 


(ii)                                  if the higher of the Acquisition Cost and the book
value of any JV Minority Acquisition (or, where an opinion confirming the
fairness of the relevant JV Minority Acquisition from a financial point of view
has been issued by an independent third party, the Acquisition Cost of any JV
Minority Acquisition):


 


(A)                              is greater than €50,000,000, UPC Distribution delivers
a certificate to the Facility Agent signed by two managing directors or the
sole managing director, as the case may be, of UPC Distribution and certifying;
or


 


(B)                                is greater than €100,000,000, UPC Distribution
delivers to the Facility Agent financial projections based on assumptions which
are no more aggressive (when taken as a whole) than those used in the
preparation of the Business Plan which demonstrate,


 


that the
Borrowers will be in compliance with Clause 6 (Repayment) and the undertakings
set out in Clause 17 (Financial Covenants) for the period from completion of
the JV Minority Acquisition (taking into account the Acquisition Cost of such
JV Minority Acquisition (but deducting from that Acquisition Cost the value of
any consideration referred to in paragraph (a) of the definition of
“Acquisition Cost”) and financial projections relating to the acquired business
or asset(s)) to the last Final Repayment Date;


 


27

















 


(iii)                               the business of the acquired entity or the business
acquired, as the case may be, is of the same nature as the business of the
Borrower Group as at the Signing Date and is carried out principally in Europe;


 


(iv)                              in the case of any JV Minority Acquisition where the
Acquisition Cost is €40,000,000 or greater, UPC Distribution delivers to the
Facility Agent an Acquisition Business Plan which:


 


(A)                              must contain cash flow projections which show that the
Target will be Cash Flow Positive (taking into account the amount of any
Relevant Equity Injection referred to in sub-paragraph (b)(i)(A) and (b)(i)(B)
above) from the date of the proposed JV Minority Acquisition up to and
including the last Final Repayment Date; and


 


(B)                                in relation to any JV Minority Acquisition completed
prior to 31st December, 2006, must contain cash flow projection which show that
the sum of the undrawn Total Facility A Commitments and Unrestricted Cash,
taking into account the proposed JV Minority Acquisition, is projected to be
greater than €100,000,000 on 31st December, 2006;


 


(v)                                 UPC Distribution delivers to the Facility Agent the
most recent annual or semi-annual financial statements of or relating to the
Target, together with a certificate signed by two managing directors or the
sole managing director, as the case may be, of UPC Distribution certifying the
amount of the Cash Flow of the Target for the most recent half financial year
of, or relating to, the Target and setting out the supporting calculations;


 


(vi)                              no Default has occurred and is continuing or would be
caused by the JV Minority Acquisition; and


 


(vii)                           the Acquisition Cost of that JV Minority Acquisition
is not funded from the proceeds of an advance drawn by a New Facility Borrower
under the Additional Facility.


 


Permitted
Payment has the meaning given
to it in Clause 16.13(c) (Restricted Payments).


 


Permitted
Security Interest means:


 


(a)                                  any Security Interest arising hereunder or under any
Security Document;


 


(b)                                 any Security Interest arising under any New Security
Document;


 


(c)                                  any liens arising in the ordinary course of business
by way of contract which secure indebtedness under any agreement for the supply
of goods or services in respect of which payment is not deferred for more than
180 days (or 360 days if such deferral is in accordance with the terms pursuant
to which the relevant goods were acquired or services were provided);


 


(d)                                 any Security Interest imposed by any taxation or
governmental authority in respect of amounts which are being contested in good
faith and not yet payable and for which adequate reserves have been set aside
in the books of the Borrower Group (or, as the case may be, UPC Distribution
Holdco) in respect of the same in accordance with GAAP;


 


28

















 


(e)                                  any Security Interests approved in writing by the
Agent (acting on the instructions of the Majority Lenders);


 


(f)                                    any Security Interest in favour of any bank incurred
in relation to any cash management arrangements;


 


(g)                                 rights of set-off arising in the ordinary course of
business;


 


(h)                                 any Security Interest securing any Financial
Indebtedness referred to in Clause 16.12(b)(xi) (Restrictions on Financial
Indebtedness), provided that (A) such Security Interest was not created in
contemplation of the acquisition of such company, (B) the debt secured by such
Security Interest is not increased beyond that secured at the date the company
in question is acquired and such Security Interest secures only that debt and
(C) such Encumbrance is discharged within 12 months of completion of the
relevant acquisition;


 


(i)                                     any Security Interest over non-Distribution Business
Assets referred to in Clause 16.12(b)(xii) (Restrictions on Financial
Indebtedness), securing Financial Indebtedness described therein or any other
obligation in respect of such non-Distribution Business Assets;


 


(j)                                     the Security Interest arising under the deed of pledge
and deed of mortgage (the KTA Pledge and
Mortgage) that was granted to the Municipality of Amsterdam by
Kabletelevise Amsterdam B.V. (KTA)
on 8th May, 2002 under the agreement between the Municipality of Amsterdam and
KTA in respect of the construction, maintenance and operation of a cable
network in the Municipality of Amsterdam provided that no material changes are
made to the terms of the KTA Pledge and Mortgage;


 


(k)                                  Security Interests arising under agreements entered
into in the ordinary course of business relating to (i) network leases or (ii)
the leasing of (A) buildings; (B) cars; and (C) other operational equipment;
and


 


(l)                                     any Security Interests not falling within paragraphs
(a) to (k) above and securing indebtedness (other than indebtedness in relation
to an Acquisition) not exceeding €15,000,000 (or its equivalent).


 


Plan
means a plan that is subject to
section 302 or regulated by Title IV of ERISA maintained by any member of
the Borrower Group or any ERISA Affiliate currently or at any time within the
last five years, or to which any member of the Borrower Group or any ERISA
Affiliate is required to make payments or contributions or has made payments or
contributions within the past five years.


 


Pledge
of Subordinated Shareholder Loans means the deed of pledge and subordination of Subordinated Shareholder
Loans entered into between certain Restricted Persons and the Security Agent
listed in sub-paragraph 3(b) of Schedule 7 (Security Documents) and any
other deed of pledge entered into pursuant to any such deed of pledge or Clause
16.25(a) (Shareholder Loans).


 


29

















 


Priority
Pledge means the pledge
entered into between UPC Distribution as pledgee and Priority Telecom
Netherlands N.V. as pledgor dated 30th August, 2002 in relation to telephony
switches.


 


Professional
Market Party means a professional
market party (professionele marktpartij)
under the Dutch Exemption Regulation.


 


Rate
Fixing Day means:


 


(a)                                  the Utilisation Date of an Advance denominated in
Sterling;


 


(b)                                 the second Business Day before the Utilisation Date of
an Advance denominated in a currency other than euros or Sterling; or


 


(c)                                  the second TARGET Day before the Utilisation Date of
an Advance denominated in euros,


 


or such other
day on which it is market practice in the London or, as the case may be,
European interbank market for leading banks to give quotations in the relevant
currency for delivery on the first day of the relevant Utilisation Date.


 


Ratio
Period has the meaning given
to it in Clause 17.1 (Financial definitions).


 


Reference
Banks means, subject to
Clause 26.5 (Reference Banks), the principal London offices of JPMorgan Chase
Bank, The Toronto-Dominion Bank and CIBC World Markets plc.


 


Related
Fund means, with respect to
any Facility C Lender that is a fund that invests in commercial loans, any
other fund that invests in commercial loans and is administered or managed by
(a) that Facility C Lender, (b) any Affiliate of that Facility C Lender or (c)
the same investment adviser (or an Affiliate of that investment adviser) that
administers or manages that Facility C Lender.


 


Relevant
Convertible Preference Shares means, at any time, convertible preference shares issued by a member of
the UGCE Borrower Group but excluding convertible preference shares that cannot
in accordance with their terms be redeemed for cash:


 


(a)                                  before the date on which all amounts outstanding under
the Finance Documents and the New Finance Documents have been repaid or prepaid
in full; or


 


(b)                                 (if they can be redeemed for cash before that date)
until the ratio of Senior Debt to Annualised EBITDA (i) is 3.5:1 or less for
the two immediately preceding consecutive Ratio Periods and (ii) will be less
than 3.5:1 immediately after such cash redemption.


 


Relevant
Eastern European Subsidiary means any Subsidiary of any Obligor which Subsidiary is incorporated and
has all its material operations in Eastern Europe, provided that the aggregate
of the contributions of the Relevant Eastern European Subsidiaries to the
consolidated total assets, consolidated revenues and consolidated EBITDA of the
Borrower Group attributable to Eastern Europe does not exceed in aggregate 10
per cent.


 


For the purposes
of this definition, consolidated revenues and consolidated EBITDA of the
Borrower Group or any Subsidiary of an Obligor shall be determined by reference
to the 12 month period ending on the most recent date in respect of which
financial statements have 


 


30

















 


been delivered
to the Facility Agent under Clause 16.2(b) (Financial information) and
consolidated total assets shall be determined as at such date by reference to
such financial statements.


 


Relevant
Equity Injection means equity
subscribed in UPC Distribution or one or more of its Subsidiaries which is a
member of the Borrower Group (in each case other than by another member of the
Borrower Group) or the proceeds of Subordinated Shareholder Loans (including,
without limitation, the proceeds of any such equity subscription or
Subordinated Shareholder Loan which are provided to refinance any such equity
subscription or Subordinated Shareholder Loans previously provided), in each
case only to the extent that (1) such proceeds have not been repaid or prepaid
or redeemed in accordance with Clause 16.13 (Restricted Payments) and (2) such
proceeds have not been subscribed or funded in order to fund mandatory
prepayments by a Borrower pursuant to any provision of this Agreement or any
provision of the New Facility Agreement under which any Borrower is required to
make a mandatory prepayment of all or part of any Advance.


 


Relevant
Event means a Default in
relation to (a) Clause 18.2 (Non-payment) or (b) Clause 17.2 (Financial
ratios).


 


Repayment
Date means each date
identified in Clause 6.1 (Repayment of Facility A Advances).


 


Repayment
Instalment means each Facility B
Repayment Instalment (as defined in Clause 6.2 (Repayment of Facility B Advances))
and each Facility C Repayment Instalment (as defined in Clause 6.3 (Repayment
of Facility C Advances)).


 


Reportable
Event means:


 


(a)                                  an event specified as such in section 4043 of
ERISA or any regulation promulgated thereunder with respect to a Plan that is
subject to Title IV of ERISA, other than an event in relation to which the
requirement to give 30 days notice of that event is waived by any regulation;
or


 


(b)                                 a failure to meet the minimum funding standard under
section 412 of the Code or section 302 of ERISA with respect to a
Plan that is subject to such sections of the Code and ERISA, whether or not
there has been any waiver of notice or waiver of the minimum funding standard
under section 412 of the Code.


 


Request
means a request made by a Borrower to utilise
any of the Facilities and, subject to Clause 5.2 (Form of Request),
substantially in the form of Part 1 of Schedule 4 (Form of Request).


 


Requested
Amount means the amount
requested in a Request.


 


Restricted
Payment has the meaning given
to it in Clause 16.13(b) (Restricted Payments).


 


Restricted
Person means UGCE Inc., UPC,
Belmarken, UPC Holding, any other company (not being a member of the Borrower
Group) which is a Subsidiary of, or an Associated Company of, UGCE Inc. (other
than Associated Companies of UGCE Inc. which are its Associated Companies by
virtue of controlling UGCE Inc. or owning beneficially and/or legally directly
or indirectly 10 per cent. or more of the equity interests in UGCE Inc.).


 


Restricted
Person’s Framework Agreement means the Framework Agreement as defined in any Pledge of Subordinated
Shareholder Loans.


 


31

















 


Restructuring
means the transfer of share capital and
intercompany receivables that took place following the Signing Date so that the
Borrower Group was restructured to consist of UPC Distribution and its
Subsidiaries as described in the structure chart set out at Schedule 10
(Borrower Group Structure).


 


Rollover
Advance means one or more
Facility A Advances:


 


(a)                                  made or to be made on the same day that a maturing
Facility A Advance is due to be repaid;


 


(b)                                 the aggregate Original Euro Amount of which is equal
to or less than the Original Euro Amount of the maturing Facility A Advance;
and


 


(c)                                  made or to be made to UPC Distribution for the purpose
of refinancing a maturing Facility A Advance.


 


Sale
and Purchase Agreements means the
following sale and purchase agreements relating to the sale and transfer of
shares and receivables entered into on 9th April, 2003 between:


 


(a)                                  UPC, Belmarken, UPC Holding, UPC Distribution and UPC
Operations B.V.;


 


(b)                                 UPC, Belmarken, UPC Holding and UPC Services B.V.;


 


(c)                                  UPC, Belmarken, UPC Holding, UPC Distribution and UPC
Holding Services B.V.; and


 


(d)                                 UPC, Belmarken, UPC Holding, UPC Distribution and UPC
Services Ltd.


 


Screen
Rate means:


 


(a)                                  in relation to LIBOR, the British Bankers Association
Interest Settlement Rate for the relevant currency and period; and


 


(b)                                 in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for the relevant
period,


 


displayed on the
appropriate page of the Reuters screen. 
If that page is replaced or the service ceases to be available, the
Facility Agent may specify another page or service displaying the appropriate
rate after consultation with UPC Distribution and the Lenders.


 


Security
Deed means the Security Deed
dated 26th October, 2000 between, among others, each Obligor, the Facility
Agent, the Security Agent, the Lenders, the Senior Hedging Banks, the High
Yield Hedging Banks and each Subordinated Creditor and includes each Deed of
Accession (as defined in the Security Deed) entered into in relation to the
Security Deed.


 


Security
Documents means:


 


(a)                                  the documents listed in Schedule 7 (Security
Documents); and


 


(b)                                 such other security documents as may from time to time
be entered into in favour of any Beneficiary pursuant to any of the Finance
Documents (including without limitation any other Obligor Pledge of Shareholder
Loans or Pledge of Subordinated Shareholder Loans, any security document
referred to in Clause 16.23 (UPC Distribution Pledged Account), Clause 16.24
(Share security) or Clause  16.26 


 


32

















 


(Further
security over receivables) and any security document provided to the Security
Agent in connection with the accession of an Additional Guarantor pursuant to
Clause 26.4 (Additional Guarantors) and Part 2 of Schedule 2 (Conditions
Precedent Documents) or otherwise.


 


Security
Interest means any mortgage,
charge (whether fixed or floating), pledge, lien, hypothecation, assignment by
way of security, trust arrangement for the purpose of providing security or
other security interest of any kind securing any obligation of any person or any
other arrangement having the effect of conferring rights of retention or other
disposal rights over an asset (including without limitation title transfer
and/or retention arrangements having a similar effect or a deposit of money
with the primary intention of affording a right of set-off) and includes any
agreement to create any of the foregoing but does not include (a) liens arising
in the ordinary course of business by operation of law and not by way of
contract and (b) any grant of indefeasible rights of use or equivalent
arrangements with respect to network capacity, communications, fibre capacity
or conduit.


 


Security
Provider’s Deed of Accession has the meaning given to it in the Security Deed.


 


Senior
Beneficiary has the meaning given
to the term in the Security Deed.


 


Senior
Debt has the meaning given
to it in Clause 17.1 (Financial definitions).


 


Senior
Hedging Agreements means any and
all interest rate and/or currency swap and/or interest rate and/or currency cap
and/or other interest rate and/or currency hedging agreements entered into or
to be entered into by any member of the Borrower Group with any of the Senior
Hedging Banks from time to time in relation to the Borrower Group’s floating
rate interest exposure and/or currency exposure and for the avoidance of doubt
shall include, without limitation, the hedging arrangements entered into
between UPC Distribution and Bank of America, N.A. and the hedging arrangements
entered into between UPC Distribution and JP Morgan Chase Bank, each as described
in schedules 1 and 2 respectively of the letter dated 20th December, 2002
between the Facility Agent on behalf of the Majority Lenders and UPC
Distribution.


 


Senior
Hedging Bank means a Lender or its
Affiliate or a “Lender” or its “Affiliate” as defined in the New Facility
Agreement which is or becomes a party to the Security Deed as a senior hedging
bank.


 


Senior
Hedging Counterparty means any
member of the Borrower Group that enters into a Senior Hedging Agreement.


 


Serviceable
Subordinated Debt means any
Financial Indebtedness not prohibited by the Finance Documents or the New
Finance Documents (including, for the avoidance of doubt, High Yield Notes and
Relevant Convertible Preference Shares) which is raised by an entity that is
not a member of the Borrower Group, all or part of the proceeds of which are
on-lent directly or indirectly to a member of the Borrower Group by a
Subordinated Creditor by means of a Subordinated Shareholder Loan provided that
all or part of such proceeds are applied in permanent prepayment and
cancellation of the Facilities in accordance with this Agreement or of the New
Facility D in accordance with the New Facility Agreement.


 


Shareholder
means UGCE Inc. or a Subsidiary (as defined in
any relevant Indenture) of UGCE Inc.


 


Shareholders’
Agreements means the agreements
listed in Schedule 11 (Shareholders’ Agreements).


 


33

















 


Signing
Date means the date of this
Agreement.


 


Sterling
means the lawful currency for the time being of
the United Kingdom.


 


Subordinated
Creditor means any Restricted
Person who has, at any relevant time, entered into a Pledge of Subordinated
Shareholder Loans and the Security Deed or a Security Provider’s Deed of
Accession.


 


Subordinated
Shareholder Loans means any
Financial Indebtedness of any member of the Borrower Group owed to a
Subordinated Creditor.


 


Subsidiary
of a person means any company or entity
directly or indirectly controlled by such person, for which purpose control means ownership of more than 50 per
cent. of the economic and/or voting share capital (or equivalent right of
ownership of such company or entity).


 


Swedish
Kronor means the lawful
currency of Sweden for the time being.


 


Syndication
Letter means the letter dated
on or about the Signing Date between the Borrowers and the Lead Arrangers
relating to the syndication of the Facilities.


 


Target
means any assets or entity which is or are the
subject of an Acquisition or Additional Acquisition (as applicable) in
accordance with the terms of this Agreement.


 


TARGET
Day means a day on which
the Trans-European Automated Real-Time Gross Settlement (TARGET) System is
operating.


 


Taxes or Tax means
all present and future taxes, imposts, duties, levies, fees or charges of a
similar nature, together with interest thereon and penalties in respect
thereof.


 


Telecommunications
and Cable Law means all laws,
statutes, regulations and judgments relating to telecommunications, cable
television and data services applicable to any member of the Borrower Group
and/or the business carried on by any member of the Borrower Group in any
jurisdiction in which a member of the Borrower Group is incorporated or formed
or in which such member has its principal place of business or owns any
material assets.


 


Telekabel
Wien means Telekabel Wien
GmbH a company incorporated under the laws of Austria with its corporate seat
at Erlachgasse 116, 1100 Wien, Austria and with registration number FN 84116a.


 


Third
Party Debt means any Financial
Indebtedness which is owed to any person other than a member of the Wider Group
(but, for the avoidance of doubt, excluding any indebtedness arising under any
instrument that does not impose any obligations on the obligor to make any cash
payment and does not permit such obligor to elect to make any cash payments and
to the extent only that such instrument is not amended so as to become an
instrument under which there are (or may be) cash payment obligations).


 


Total
Cash Interest has the meaning
given to it in Clause 17.1 (Financial definitions).


 


Total
Debt has the meaning given
to it in Clause 17.1 (Financial definitions).


 


Total
Facility A Commitments means the
aggregate for the time being of the Facility A Commitments.


 


34

















 


Total
Facility B Commitments means the
aggregate for the time being of the Facility B Commitments.


 


Total
Facility C Commitments means the
aggregate for the time being of the Facility C Commitments.


 


UGC
means UnitedGlobalCom, Inc. a corporation
incorporated in the State of Delaware, United States and, as of the Signing
Date, having its business office at 4643 South Ulster Street, Suite 1300,
Denver, Colorado 80237 U.S.A.


 


UGCE
Borrower Group means:


 


(a)                                  UGCE Inc.;


 


(b)                                 any other company of which UPC Distribution is a
Subsidiary and which is a Subsidiary of UGCE Inc.; and


 


(c)                                  UPC Holding II.


 


UGCE
Inc. means:


 


(a)                                  UGC Europe Inc. a company organised under the laws of
the State of Delaware with its principal place of business at Boeing Avenue 53,
1119 PE Schiphol Rijk, Amsterdam, The Netherlands; and


 


(b)                                 if the entity referred to in (a) above:


 


(i)                                     consolidates with or merges with any other person or
persons; or


 


(ii)                                  directly or indirectly, sells, leases, conveys or
transfers all or substantially all of its assets to any other person or
persons,


 


the successor
person formed by such consolidation or into which such entity is merged or to
which such conveyance, transfer or lease is made.


 


United
States or US means the United States of America.


 


Unpaid
Sum means any sum due and
payable but unpaid by an Obligor under the Finance Documents.


 


Unrestricted
Cash has the meaning given
to that term under GAAP.


 


Unrestricted
Subsidiary means each Subsidiary
of UPC Distribution and, prior to the Restructuring, each Subsidiary of each
Obligor that is not a Subsidiary of UPC Distribution, the acquisition cost of
which and whose on-going funding requirements are not funded directly or
indirectly (in whole or in part) by any member of the Borrower Group by way of
drawings under the Facilities and which is designated by UPC Distribution in
writing as an Unrestricted Subsidiary.


 


35

















 


UPC
means United Pan-Europe Communications N.V., a
public limited liability company incorporated under the laws of The Netherlands
and, as of the Signing Date, with its registered office at Amsterdam and its
business office at Boeing Avenue 53, 1119 PE Schiphol Rijk, Amsterdam, The
Netherlands.


 


UPC
Distribution Holdco means the
immediate Holding Company of UPC Distribution from time to time, being UPC
Holding as of the Signing Date.


 


UPC
Distribution Pledged Account has the meaning given in Clause 16.23(b) (UPC Distribution Pledged
Account)


 


UPC
Holding means UPC Holding B.V.,
a limited liability company incorporated under the laws of The Netherlands and,
as of the Signing Date, with its registered office at Amsterdam and its
business office at Boeing Avenue 53, 1119 PE Schiphol Rijk, Amsterdam, The
Netherlands.


 


UPC
Holding II means UPC Holding II
B.V., a limited liability company incorporated under the laws of The
Netherlands and, as of the Signing Date, with its registered office at
Amsterdam and its business office at Boeing Avenue 53, 1119 PE Schiphol Rijk,
Amsterdam, The Netherlands.


 


UPC
Polska means:


 


(a)                                  UPC Polska, Inc.; and


 


(b)                                 if the entity referred to in (a) above:


 


(i)                                     consolidates with or merges with or is acquired by any
other person or persons; or


 


(ii)                                  directly or indirectly, sells, leases, conveys or
transfers all or substantially all of its assets to any other person or
persons,


 


the successor
person (including any Holding Company which holds all the shares of UPC Polska)
formed by such consolidation or into which such entity is merged or to which
such conveyance, transfer or lease is made.


 


UPC
Polska Acquisition means the
Majority Acquisition by a member of the Borrower Group of all or any part of
the share capital or assets of UPC Polska.


 


UPC
Polska Restructuring means the
proposed financial restructuring relating to UPC Polska, as particularly
described in the First Amended Disclosure Statement dated 27th October, 2003,
pursuant to which UPC Polska intends to restructure its capital structure and
effectuate an overall compromise and settlement with certain parties and
co-issue notes, stock and distribute cash in consideration for the transfer of
claims outstanding under certain notes.


 


US
Dollars and US$ means the lawful currency for the time
being of the United States.


 


US
Obligor has the meaning given
to it in Clause 18.6(c) (Insolvency).


 


Utilisation
Date means, in relation to
each Advance, the date specified as such in the relevant Request or, on and
after the making and/or issue thereof pursuant to such Request, the date on
which it was made and/or issued.


 


36

















 


VAT
means value added or similar tax.


 


Verification
Letter means a letter
substantially in the form of Part 3 of Schedule 5 (Form of Verification
Letter).


 


Western
Europe means the countries
that comprise the European Community as at the Effective Date, Scandinavia and
Switzerland.


 


Wider
Group means UGCE Inc. and
each of its Affiliates including (for the avoidance of doubt) UGC and Liberty
Media Corporation or any of their respective Subsidiaries.


 


1.2                               Construction


 


(a)                                  In this Agreement, unless the contrary intention
appears, a reference to:


 


(i)                                     a document being in the agreed form means a document (A) in a form previously agreed
in writing by or on behalf of the Facility Agent and UPC Distribution, or (B)
in a form substantially as set out in any Schedule to any Finance
Document, or (C) (if not falling within (A) or (B) above) in form and substance
satisfactory to the Lenders and initialled by or on behalf of the Facility
Agent and UPC Distribution for the purposes of identification;


 


amendment includes a supplement, novation or re-enactment and amended is to be construed accordingly;


 


assets includes all or any part of any business,
undertaking, real property, personal property, uncalled capital and any rights
(whether actual or contingent, present or future) to receive, or require
delivery of, any of the foregoing;


 


references to
the equivalent of an amount
specified in a particular currency (the specified
currency amount) shall be construed as a reference to the amount of
the other relevant currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about 11.00 a.m. on the day
on which the calculation falls to be made for spot delivery as determined by
the Facility Agent in accordance with its customary practices;


 


European
interbank market means the
interbank market for euro operating in Participating Member States;


 


a guarantee includes a reference to an
indemnity or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a consequence of a
default by any other person to pay any indebtedness and guaranteed shall be construed accordingly;


 


indebtedness is a reference to any obligation for the payment or
repayment of money, whether as principal or as surety and whether present or
future, actual or contingent;


 


a month is a reference to a period starting
on one day in a calendar month and ending on the numerically corresponding day
in the next calendar month, except that, if there is no numerically
corresponding day in the month in which that period ends, that period shall end
on the last Business Day in that month;


 


37

















 


permanent
prepayment and cancellation means, in
relation to any facility, a permanent prepayment of outstanding advances under
that facility with a corresponding permanent cancellation of the total
commitments in relation to that facility;


 


a person includes any individual, firm,
company, corporation, unincorporated body of persons or any state or any of its
agencies;


 


a regulation includes any present or future
regulation, rule, directive, requirement, request or guideline (whether or not
having the force of law but, if not having the force of law, only if compliance
therewith is in accordance with the general practice of the relevant persons to
whom it is intended to apply or, in the case of Clause 12 (Increased Costs)
only, the relevant Finance Party or its Holding Company) of any agency,
authority, central bank or government department or any self-regulatory or
other national or supra-national authority;


 


(ii)                                  a provision of a law is a reference to that provision
as amended, re-enacted or extended;


 


(iii)                               a Clause or a Schedule is a reference to a clause
of or a schedule to this Agreement;


 


(iv)                              a person includes its successors, transferees and
assigns;


 


(v)                                 (or to any specified provision of) this Agreement or
any other document shall be construed, save where expressly provided to the
contrary in this Agreement, as a reference to this Agreement, that provision or
that document as in force for the time being and as from time to time amended
in accordance with its terms, or, as the case may be, with the agreement of the
relevant parties and (where such consent is, by the terms of this Agreement or
the relevant document, required to be obtained as a condition to such amendment
being permitted) the prior written consent of the Facility Agent, all of the
Lenders or the Majority Lenders or Majority Facility C Lenders (as the case may
be);


 


(vi)                              other than in the definition of “EURIBOR” in Clause
1.1 (Definitions), a time of day is a reference to London time; and


 


(vii)                           words importing the plural include the singular and
vice versa.


 


(b)                                 Unless the contrary intention appears, a term used in
any other Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document or notice as
in this Agreement.


 


(c)                                  The index to and the headings in this Agreement are
for convenience only and are to be ignored in construing this Agreement.


 


(d)                                 Unless expressly provided to the contrary in a Finance
Document, a person who is not a party to a Finance Document may not enforce any
of its terms under the Contracts (Rights of Third Parties) Act 1999.


 


(e)                                  Notwithstanding any term of any Finance Document, the
consent of any third party is not required for any variation (including any
release or compromise of any liability under) or termination of that Finance
Document.


 


38

















 


1.3                               Replacement Facility


 


This Agreement,
the other Finance Documents and any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith replace
the €1,000,000,000 Loan and Note Issuance Agreement dated 27th July, 1999
between, amongst others, UPC Facility B.V., Telekabel Wien and UPC Norge A/S
(formerly Janco Multicom A/S) as borrowers and The Toronto-Dominion Bank as
agent (the UPCF Facility Agreement)
and any related notes, guarantees, collateral documents, instruments and
agreements executed in connection with the UPCF Facility Agreement except as
provided in this Agreement or otherwise.


 


1.4                               New Facility Agreement


 


(a)                                  Unless expressly stated to the contrary and subject to
paragraph (b), references in any of the Finance Documents to the New Finance
Documents and to terms defined in, and provisions of, any of the New Finance
Documents, shall be references to the relevant New Finance Document and such
terms and provisions as at the Effective Date, as the same may be amended with
the prior written approval of the Facility Agent (acting on the instructions of
the Majority Lenders) from time to time.


 


(b)                                 References in any of the Finance Documents to any
Finance Party (as defined in the New Facility Agreement) shall include such
Finance Party’s permitted successors, transferees or assigns from time to time.


 


2.                                      THE
FACILITIES


 


2.1                               Facilities


 


The relevant
Lenders grant to the Borrowers:


 


(a)                                  a committed €750,000,000 multicurrency revolving
credit facility under which the relevant Lenders will, when requested by UPC
Distribution, make cash advances in euros or Optional Currencies to UPC
Distribution on a revolving basis during the Facility A Availability Period;


 


(b)                                 a committed €2,750,000,000 term loan facility under
which the relevant Lenders will, when requested by UPC Distribution, make cash
advances in euros or Optional Currencies to UPC Distribution during the
Facility B Availability Period; and


 


(c)                                  a committed US$347,500,000 and €95,000,000 term loan
facility under which the relevant Lenders will, when requested by the relevant
Borrower, make cash advances in euros (in the case of UPC Distribution) or US
Dollars (in the case of the US Borrower) (as applicable) to the relevant Borrower
during the Facility C Availability Period,


 


in each case
subject to the terms of this Agreement.


 


2.2                               Overall facility limits


 


(a)                                  The aggregate Original Euro Amount of all outstanding
Facility A Advances shall not at any time exceed the Total Facility A
Commitments.


 


(b)                                 The aggregate Original Euro Amount of all outstanding
Facility B Advances shall not at any time exceed the Total Facility B
Commitments.


 


39

















 


(c)                                  (i)                                     The aggregate amount of all outstanding Facility C1
Advances shall not at any time exceed the aggregate of the Facility C1
Commitments;


 


(ii)                                  The aggregate amount of all outstanding Facility C2
Advances shall not at any time exceed the aggregate of the Facility C2
Commitments.


 


(d)                                 The aggregate Original Euro Amount of:


 


(i)                                     the participations of a Lender in Facility A Advances
shall not at any time exceed that Lender’s Facility A Commitment at that time;
and


 


(ii)                                  the participations of a Lender in Facility B Advances
shall not at any time exceed that Lender’s Facility B Commitment at that time.


 


(e)                                  (i)                                     The aggregate amount of the participations of a Lender
in Facility C1 Advances shall not at any time exceed that Lender’s Facility C1
Commitment at that time; and


 


(ii)                                  The aggregate amount of the participations of a Lender
in Facility C2 Advances shall not at any time exceed that Lender’s Facility C2
Commitment at that time.


 


2.3                               Number of Requests and Advances


 


(a)                                  Unless the Facility Agent agrees otherwise, no more
than one Request for Advances may be delivered on any one day but that Request
may, subject to paragraph (b) below, specify any number of Advances from any
Facility or all of them.


 


(b)                                 Unless the Facility Agent agrees otherwise, no more
than 50 Advances may be outstanding at any one time.


 


(c)                                  No more than one Request may be made for Facility C
Advances under this Agreement.


 


2.4                               Nature of a Finance Party’s rights
and obligations


 


(a)                                  The obligations of a Finance Party under the Finance
Documents are several.  Failure of a
Finance Party to carry out those obligations does not relieve any other Party
of its obligations under the Finance Documents.  No Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.


 


(b)                                 The rights of a Finance Party under the Finance
Documents are divided rights.  A Finance
Party may, except as otherwise stated in the Finance Documents, separately
enforce those rights.


 


(c)                                  Each of the Obligors and each of the Finance Parties
agrees that the Security Agent shall be the joint and several creditor (hoofdelijk crediteur) of each and every
obligation of any Obligor towards each of the Finance Parties under any Finance
Document, and that accordingly the Security Agent will have its own independent
claim as creditor and not as agent against each Obligor to demand performance
by the relevant Obligor of those obligations. 
However, any discharge of any such obligation to either of the Security
Agent or the relevant Finance Party shall, to the same extent, discharge the corresponding
obligation owing to the other.


 


(d)                                 Without limiting or affecting the Security Agent’s
rights against any Obligor (whether under this paragraph or under any other
provision of the Finance Documents), the Security Agent agrees with each other
Finance Party (on a several and divided basis) that, subject as set out in 


 


40

















 


the next
sentence, it will not exercise its rights as a joint and several creditor with
a Finance Party except with the prior written consent of the relevant Finance
Party.  However, for the avoidance of
doubt, nothing in the previous sentence shall in any way limit the Agent’s
right to act in the protection or preservation of rights under or to enforce
any Security Document or the Security Deed as contemplated by the Finance
Documents (or to do any act reasonably incidental to any of the foregoing).


 


2.5                               UPC Distribution as Obligors’ agent


 


Each Obligor:


 


(a)                                  irrevocably authorises and instructs UPC Distribution
to give and receive as agent on its behalf all notices (including Requests) and
sign all documents in connection with the Finance Documents on its behalf
(including but not limited to amendments and variations and execution of any
new Finance Documents) and take such other action as may be necessary or
desirable under or in connection with the Finance Documents; and


 


(b)                                 confirms that it will be bound by any action taken by
UPC Distribution under or in connection with the Finance Documents.


 


2.6                               Actions of UPC Distribution as
Obligors’ agent


 


The respective
liabilities of each of the Obligors under the Finance Documents shall not be in
any way affected by:


 


(a)                                  any irregularity (or purported irregularity) in any
act done by or any failure (or purported failure) by UPC Distribution;


 


(b)                                 UPC Distribution acting (or purporting to act) in any
respect outside any authority conferred upon it by any Obligor; or


 


(c)                                  the failure (or purported failure) by or inability (or
purported inability) of UPC Distribution to inform any Obligor of receipt by it
of any notification under this Agreement or any other Finance Document.


 


3.                                      PURPOSE


 


3.1                               Purpose


 


(a)                                  Each Advance will be applied:


 


(i)                                     in the case of Facility A, to finance the general
corporate and working capital purposes of the Borrower Group, including to
finance capital expenditure and the making of acquisitions by the Borrower
Group (to the extent permitted by this Agreement);


 


(ii)                                  in the case of Facility B, to refinance in part the
Financial Indebtedness described in Schedule 9 (Relevant Financial
Indebtedness) and to finance capital expenditure and the making of acquisitions
by the Borrower Group; and


 


(iii)                               in the case of Facility C, to refinance in part the
Financial Indebtedness described in Schedule 9 (Relevant Financial Indebtedness)


 


41

















 


(b)                                 (i)                                     Each Obligor (other than UPC Distribution Holdco) will
not, and will procure that none of its Subsidiaries which are members of the
Borrower Group will, use the proceeds of Advances drawn under the Facilities in
aggregate in excess of €750,000,000 (including without limitation by way of
transfer, loan, subscription of equity or other investment (each a Relevant Investment)) in the business of
members of the Borrower Group incorporated or principally carrying on business
in Eastern Europe.


 


3.2                               No monitoring


 


Without
affecting the obligations of the Borrowers in any way, no Finance Party is
bound to monitor or verify the application of the proceeds of any Advance.


 


4.                                      CONDITIONS
PRECEDENT


 


4.1                               Documentary conditions precedent


 


No Borrower may
draw an Advance under this Agreement until the Facility Agent has notified UPC
Distribution and the Lenders that it has received all of the documents set out
in Part 1 of Schedule 2 (Conditions Precedent Documents) in form and
substance satisfactory to the Facility Agent. 
The Facility Agent will confirm to UPC Distribution that it has received
such documents as soon as practicable upon receiving all of them in form and
substance satisfactory to it.


 


4.2                               Further conditions precedent


 


The obligations
of each Lender in respect of each Advance are subject to the further conditions
precedent that on the date of the Request for that Advance and on the proposed
Utilisation Date:


 


(a)                                  except in the case of a Rollover Advance, the
representations and warranties in Clause 15 (Representations and Warranties) to
be repeated on those dates are and will be immediately after the relevant
Advance is drawn down correct in all material respects; and


 


(b)                                 in the case of a Rollover Advance, no Event of Default
is outstanding or would result from the proposed Advance and, in the case of
other Advances, no Default is outstanding or would result from the proposed
Advance; and


 


(c)                                  except in the case of a Rollover Advance, no Change of
Control has occurred where the event has not been waived by the Majority
Lenders.


 


4.3                               Pro forma covenant compliance


 


No Borrower may
Request or obtain any Advance in an amount which, when aggregated with all
other Advances (other than Rollover Advances) (and all Advances (in each case
as defined in the New Facility Agreement) (the Relevant Advances) made since the last day of the most recent
Ratio Period ending prior to the proposed date of that Advance for which
financial statements have been delivered pursuant to Clause 4.1 (Documentary
conditions precedent) or Clause 16.2(a) or (b) (Financial information) (the Relevant Ratio Period) would cause UPC
Distribution to fail to be in compliance with the financial ratios set out in
Clause 17.2 (Financial ratios) for the Relevant Ratio Period, if such financial
ratios were re-tested for the Relevant Ratio Period after adding the aggregate
amount of all such Relevant Advances to the amount of Senior Debt and Total
Debt used in calculating such ratios.


 


42

















 


4.4                               Deferred Acquisition Costs


 


Where a member
of the Borrower Group has made an Acquisition permitted by Clause 16.11
(Acquisitions and mergers), no Borrower may Request, or apply the proceeds of,
any Advance for the purpose of paying any consideration referred to in
paragraph (a) of the definition of “Acquisition Cost” in relation to that
Acquisition, unless UPC Distribution delivers to the Facility Agent on or
before the date of each relevant Request:


 


(a)                                  where the Acquisition Cost of the acquisition was
greater than €100,000,000 and no more than €150,000,000, a certificate signed
by two managing directors or the sole managing director, as the case may be, of
UPC Distribution and certifying; or


 


(b)                                 where the Acquisition Cost of the acquisition was
greater than €150,000,000, financial projections based on assumptions which are
no more aggressive (when taken as a whole) than those used in the preparation
of the Business Plan which demonstrate,


 


that the Borrowers
will be in compliance with Clause 6 (Repayment) and the undertakings set out in
Clause 17 (Financial Covenants) for the period from the Utilisation Date of
such Advance (taking into account (i) the Acquisition Cost of such acquisition
(but deducting from that Acquisition Cost the value of any consideration
referred to in paragraph (a) of the definition of “Acquisition Cost” which has
yet to be paid or delivered), (ii) the amount of such Advance and (iii)
financial projections relating to the acquired business or asset(s)) to the
last Final Repayment Date.


 


5.                                      ADVANCES


 


5.1                               Delivery of Request


 


Subject to the
terms of this Agreement, a Borrower may request an Advance by delivering to the
Facility Agent by not later than 11.00 a.m. on the third Business Day, before
the proposed Utilisation Date, a duly completed Request.


 


5.2                               Form of Request


 


Each Request
shall specify (where applicable):


 


(a)                                  the relevant Facility;


 


(b)                                 the proposed Utilisation Date, which shall be a
Business Day falling during the Facility A Availability Period (in the case of
a Facility A Advance), the Facility B Availability Period (in the case of a
Facility B Advance) or the Facility C Availability Period (in the case of a
Facility C Advance);


 


(c)                                  the currency of the proposed Advance which must be
euros or an Optional Currency (in the case of a Facility A Advance or Facility
B Advance), euros (in the case of a Facility C1 Advance) or US Dollars (in the
case of a Facility C2 Advance);


 


(d)                                 the principal amount of the proposed Advance which:


 


(i)                                     for an Advance denominated in euros, shall be a
minimum amount of €10,000,000;


 


43

















 


(ii)                                  for an Advance denominated in US Dollars, shall be a
minimum amount of US$10,000,000; and


 


(iii)                               for an Advance denominated in any other Optional
Currency, shall be a minimum amount equivalent to €5,000,000 (in each case
using the Agent’s Spot Rate of Exchange);


 


(e)                                  the Interest Period of the Advance, which must be a
period complying with Clause 8 (Interest); and


 


(f)                                    unless previously notified to the Facility Agent in
writing and not revoked, the details of the bank and account to which the
proceeds of the proposed Advance are to be made available, which must comply
with Clause 9 (Payments).


 


Subject to the terms
of this Agreement, each Request shall be irrevocable and the relevant Borrower
shall be bound to borrow an Advance in accordance with such Request.


 


5.3                               Notification to the Lenders


 


The Facility
Agent shall promptly notify each Lender participating in the relevant Advance
of each Request for an Advance and the amount of its participation in the
Advance.


 


5.4                               Participations in Advances


 


(a)                                  Subject to the terms of this Agreement, each Lender
shall, on the date specified in any Request for an Advance, make available to
the Facility Agent for the account of the relevant Borrower the amount of its
participation in that Advance.  All such
amounts shall be made available to the Facility Agent in accordance with Clause
9.2 (Funds) for disbursement to or to the order of the relevant Borrower in
accordance with the provisions of this Agreement.


 


(b)                                 The amount of a Lender’s participation in an Advance
will be the proportion (applied to the amount set out in the Request) which:


 


(i)                                     in the case of a Facility A Advance, its Facility A
Commitment bears to the Total Facility A Commitments;


 


(ii)                                  in the case of a Facility B Advance, its Facility B
Commitment bears to the Total Facility B Commitments;


 


(iii)                               in the case of a Facility C1 Advance, its Facility C1
Commitment bears to the aggregate of the Facility C1 Commitments; and


 


(iv)                              in the case of a Facility C2 Advance, its Facility C2
Commitment bears to the aggregate of the Facility C2 Commitments.


 


(c)                                  If an Advance is to be drawn down in an Optional
Currency, the amount of each Lender’s participation in that Advance will be
determined by converting into that Optional Currency the Lender’s participation
in the Original Euro Amount of that Advance on the basis of the Agent’s Spot
Rate of Exchange three Business Days before its Utilisation Date.


 


44

















 


5.5                               Conditions relating to Optional
Currencies


 


(a)                                  If the Facility Agent has received a written request
from a Borrower for a currency to be approved as an Optional Currency, the
Facility Agent will confirm to that Borrower by 10.00 a.m. on the day two
Business Days after receipt of such request:


 


(i)                                     whether or not the Lenders have granted their
approval; and


 


(ii)                                  if approval has been granted, the minimum amount (and,
if required, integral multiples) for any subsequent Advance to be drawn in that
currency.


 


(b)                                 Advances denominated in euro will only be made
available in the euro unit.


 


6.                                      REPAYMENT


 


6.1                               Repayment of Facility A Advances


 


(a)                                  UPC Distribution shall repay each Facility A Advance
in full on the Interest Date for that Advance to the Facility Agent for the
Lenders, but since Facility A is available on a revolving basis amounts repaid
may be reborrowed during the Facility A Availability Period subject to the terms
of this Agreement.


 


(b)                                 On each date on which the Facility A Commitments are
cancelled under Clause 7.1(d) (Automatic Cancellation of the Commitments), UPC
Distribution shall repay sufficient Facility A Advances to ensure that the
Facility A Advances do not exceed the Total Facility A Commitments as so
reduced.


 


(c)                                  No Facility A Advance may be outstanding after the end
of the Facility A Availability Period.


 


6.2                               Repayment of Facility B Advances


 


UPC Distribution
shall procure that, subject to the application of Clause 7 (Cancellation and
Prepayment), the outstanding Facility B Advances shall be repaid in full by
payment of semi-annual instalments (each a Facility
B Repayment Instalment) on each date set out in column (1) below
(each date for repayment being a Facility B
Repayment Date) up to and including the Final Repayment Date for
Facility B.  Each Facility B Repayment
Instalment (other than the last) shall be in an Original Euro Amount equal as
nearly as possible (rounded upwards if necessary) to the percentage, set out in
column (2) below opposite the relevant Facility B Repayment Date, of the total
outstanding amount of Facility B Advances on the last day of the Facility B
Availability Period.  The final Facility
B Repayment Instalment shall comprise all Facility B Advances outstanding on
the Facility B Final Repayment Date:


 


	
  (1)
Facility B Repayment Date

  	
   

  	
  (2)
Relevant Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2004

  	
   

  	
  6.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2004

  	
   

  	
  6.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2005

  	
   

  	
  11.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2005

  	
   

  	
  11.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2006

  	
   

  	
  16.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2006

  	
   

  	
  16.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2007

  	
   

  	
  11.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2007

  	
   

  	
  11.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Facility B Final Repayment Date

  	
   

  	
  The aggregate amount of all outstanding Facility B Advances

  	
   

  



 


45

















 


6.3                               Repayment of Facility C Advances


 


(a)                                  The Borrowers shall procure that, subject to the
application of Clause 7 (Cancellation and Prepayment), the outstanding Facility
C Advances shall be repaid in full by payment of semi annual instalments (each
a Facility C Repayment Instalment)
on each date specified in column (1) below (each date for repayment being a Facility C Repayment Date) up to and
including the Final Repayment Date for Facility C.  Each Facility C Repayment Instalment (other than the last) shall
be in an Original Euro Amount equal as nearly as possible (rounded upwards if
necessary) to the percentage, set out in column (2) below opposite the relevant
Facility C Repayment Date, of the total outstanding amount of Facility C
Advances on the last day of the Facility C Availability Period.  The Final Facility C Repayment Instalment
shall comprise all Facility C Advances outstanding on the Facility C Final
Repayment Date.


 


	
  (1)
Facility C Repayment Date

  	
   

  	
  (2)
Relevant Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2004

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2004

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2005

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2005

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2006

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2006

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2007

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2007

  	
   

  	
  0.50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2008

  	
   

  	
  24.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  31st December, 2008

  	
   

  	
  24.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Facility C Final Repayment Date

  	
   

  	
  The aggregate amount of all outstanding Facility C Advances

  	
   

  



 


(b)                                 Each such Facility C Repayment Instalment shall be
applied pro rata against the outstanding Original Euro Amount of Facility C1
Advances and Facility C2 Advances.  For
the avoidance of doubt, any amounts paid under this Clause 6.3 to a Lender in
respect of a Facility C2 Advance shall be paid in US Dollars, as required
pursuant to Clause 9.4(a) (Currency).


 


46

















 


6.4                               Adjustment of Facility B Advances


 


(a)                                  For each Facility B Advance in an Optional Currency,
there shall be calculated the difference between the amount of the relevant
Advance (in that Optional Currency) for the current Interest Period and for the
next Interest Period.  The amount of the
Facility B Advance for the next Interest Period will be determined by notionally
converting into that Optional Currency the Original Euro Amount of the Facility
B Advance on the basis of the Agent’s Spot Rate of Exchange three Business Days
before the commencement of that Interest Period.


 


(b)                                 At the end of the current Interest Period (but subject
always to paragraph (c) below):


 


(i)                                     if the amount of the Facility B Advance for the next
Interest Period is less than for the preceding Interest Period, UPC
Distribution shall repay the difference; or


 


(ii)                                  if the amount of the Facility B Advance for the next
Interest Period is greater, each Lender shall forthwith make available to the
Facility Agent for UPC Distribution its participation in the difference.


 


(c)                                  If the Agent’s Spot Rate of Exchange for the next
Interest Period shows an appreciation or depreciation of the Optional Currency
against euros of less than five per cent. when compared with the Original
Exchange Rate, no amounts are payable in respect of the difference.  In this Clause 6, Original Exchange Rate means the Agent’s Spot Rate of Exchange
used for determining the amount of the Optional Currency for the Interest
Period which is the later of the following:


 


(i)                                     the first Interest Period of the relevant Advance; and


 


(ii)                                  the most recent Interest Period immediately prior to
which a difference was required to be paid under this Clause 6.4.


 


6.5                               Prepayments and repayments


 


If a Facility B
Advance is to be repaid or prepaid by reference to an Original Euro Amount, the
Optional Currency amount to be repaid or prepaid shall be determined by
reference to the Agent’s Spot Rate of Exchange used for determining the
Optional Currency amount of that Facility B Advance under Clause 5.4(c)
(Participations in Advances) or, if applicable, the Original Exchange Rate.


 


6.6                               Notification


 


The Agent shall
notify the Lenders and UPC Distribution of Optional Currency amounts (and the
applicable Agent’s Spot Rate of Exchange) promptly after they are ascertained
under this Agreement.


 


7.                                      CANCELLATION
AND PREPAYMENT


 


7.1                               Automatic Cancellation of the
Commitments


 


(a)                                  The Facility A Commitment of each Lender shall be
automatically cancelled at the close of business in London on the last day of
the Facility A Availability Period.


 


(b)                                 The undrawn Facility B Commitment of each Lender shall
be automatically cancelled at the close of business in London on the last day
of the Facility B Availability Period.


 


47

















 


(c)                                  The undrawn Facility C Commitment of each Lender shall
be automatically cancelled at the close of business in London on the last day
of the Facility C Availability Period.


 


(d)                                 The Facility A Commitments will be cancelled, such
that, at the close of business in London on each date set out in column (1)
below, the Total Facility A Commitments will be reduced to the amount set
opposite that date in column (2) below.


 


	
  (1)
Date

  	
   

  	
  (2)
Facility A Total Commitment after
  reduction

  	
   

  
	
   

  	
   

  	
  €

  	
   

  
	
  30th June, 2005

  	
   

  	
  666,750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2006

  	
   

  	
  583,400,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30th June, 2007

  	
   

  	
  500,000,000

  	
   

  



 


(e)                                  Each reduction of the Facility A Commitments under
paragraph (d) above shall be applied against the Facility A Commitment of each
Lender pro rata.


 


7.2                               Voluntary cancellation


 


UPC Distribution
may, by delivering to the Facility Agent a duly completed Cancellation Notice
not less than five Business Days prior to the due date of cancellation, cancel
the unutilised portion of the Total Facility A Commitments and/or Total
Facility B Commitments and/or Total Facility C Commitments in whole or in part
(but, if in part, in an aggregate minimum amount of €10,000,000 (in the case of
Facility A or Facility B) and an aggregate minimum Original Euro Amount of
€10,000,000 (in the case of Facility C) in such proportions as UPC Distribution
may specify in the Cancellation Notice) on the date specified in the
Cancellation Notice.  Any cancellation
in part shall be applied against the relevant Facility A Commitment, Facility B
Commitment or, as the case may be, Facility C Commitment of each Lender pro
rata.


 


7.3                               Voluntary prepayment


 


(a)                                  UPC Distribution may, by delivering to the Facility
Agent a duly completed Cancellation Notice not less than five Business Days
prior to the due date of prepayment, prepay the whole or any part, (but if in
part in an aggregate minimum Original Euro Amount of €10,000,000) of the
outstanding Advances made to it under Facility A, Facility B or (subject to
Clause 7.10(c) (Facility C Call protection)) Facility C.


 


(b)                                 Any voluntary prepayment made under paragraph (a)
above will be applied (subject to Clause 7.8 (Order of application) and Clause
7.10(c) (Facility C Call protection)) against:


 


(i)                                     Facility A, Facility B or Facility C in such
proportions as may be specified by UPC Distribution in the notice of
prepayment;


 


(ii)                                  (in the case of Facility A), all the Facility A Advances
pro rata or against such Facility A Advances as UPC Distribution may designate
in the Cancellation Notice;


 


48

















 


(iii)                               (in the case of Facility B or Facility C), the
Repayment Instalments for Facility B or (as the case may be) Facility C, in
whole or in part and in any order designated by UPC Distribution in the
Cancellation Notice.


 


7.4                               Change of Control


 


(a)                                  If:


 


(i)                                     UGC ceases:


 


(A)                              directly or indirectly to own more than 50 per cent.
of the issued share capital of UGCE Inc.; and


 


(B)                                to Control UGCE Inc.; or


 


(ii)                                  after completion of the Approved Transaction, Liberty
Media Corporation together with one or more of its Associated Companies does
not or ceases to directly or indirectly own 10 per cent. or more of the issued
share capital of UGCE Inc. from time to time; or


 


(iii)                               UGCE Inc. does not or ceases to own, directly or
indirectly through one or more of its Subsidiaries or other persons Controlled
by it, the legal and beneficial interest in more than 50 per cent. of the
voting and economic rights attaching to the issued share capital of, or
otherwise ceases to Control,  UPC
Distribution Holdco, (except as a result of a merger or consolidation of UPC
Distribution Holdco with or into a Shareholder, provided that such merger or
consolidation is in accordance with paragraph (b) below); or


 


(iv)                              in accordance with the terms of any share pledge in
favour of the Security Agent over the issued share capital of UPC Distribution
and UPC Holding II, UPC Distribution Holdco does not or ceases to own directly
(or indirectly through one or more of its Subsidiaries or other persons
Controlled by it, subject to such Subsidiary or person complying with Clause
26.4(a) (Additional Guarantors)) the legal and beneficial interest in 100 per
cent. of the issued share capital of UPC Distribution and UPC Holding II or
otherwise ceases to Control UPC Distribution and UPC Holding II; or


 


(v)                                 in accordance with the terms of the share pledges in
favour of the Security Agent over the issued share capital of each of the
Obligors (other than UPC Distribution Holdco, UPC Holding II, the US Borrower
and UPC Distribution), UPC Distribution does not or ceases to own directly or
indirectly through one or more of its Subsidiaries or other persons Controlled
by it, the legal and beneficial interest in at least 75 per cent. of the voting
and economic rights attaching to the issued share capital of any Obligor (other
than UPC Distribution Holdco, UPC Holding II, the US Borrower or UPC Distribution)
or otherwise ceases to Control such Obligor; or


 


(vi)                              UPC Distribution and UPC Holding II do not or cease to
own, in accordance with the terms of the pledge referred to in paragraph 2 of
Schedule 7 (Security Documents), the legal and beneficial interest in 100
per cent. of the partnership interests and economic rights attaching to the
partnership interests of, or otherwise ceases to Control, the US Borrower,


 


(any of the
events described in (i) to (vi) above being a Change
of Control):


 


49

















 


(A)                              UPC Distribution shall promptly notify the Facility
Agent upon becoming aware of a Change of Control; and


 


(B)                                if the Majority Lenders so require, the Facility Agent
shall, by not less than 20 Business Days’ notice to UPC Distribution, cancel
each Facility and declare all outstanding Advances, together with accrued
interest and all other relevant amounts accrued under the Finance Documents
immediately due and payable, whereupon each Facility will be cancelled and all
such outstanding amounts will become immediately due and payable.


 


(b)                                 UPC Distribution Holdco shall not enter into a merger
or consolidation with or into a Shareholder (the resulting entity being the UPC Merged Entity) unless:


 


(i)                                     reasonable details of the proposed merger concerning
the matters set out in sub-paragraphs (ii) and (iii) below are provided to the
Facility Agent at least 10 days before the merger is to be entered into;


 


(ii)                                  the UPC Merged Entity will be liable for the
obligations of UPC Distribution Holdco (including the obligations under the
Finance Documents), which obligations will continue in full force and effect
after the merger, and entitled to the benefit of all rights of UPC Distribution
Holdco; and


 


(iii)                               the UPC Merged Entity has entered into Security
Documents (if applicable) which provide security over the same assets of at
least an equivalent nature and ranking to the security provided by UPC
Distribution Holdco pursuant to any Security Documents entered into by it and
such Security Documents are the legal, valid and binding obligations of the UPC
Merged Entity enforceable in accordance with their terms subject (to the extent
applicable) to substantially similar qualifications to those made in the legal
opinions referred to in Schedule 2 (Conditions Precedent Documents).


 


7.5                               Mandatory prepayment from Excess Cash
Flow and Net Equity Proceeds


 


(a)                                  Subject to paragraph (b) below and Clause 7.7 (Date
for prepayment), within 10 Business Days of the delivery of the Borrower
Group’s audited consolidated financial statements which relate to any financial
year of the Borrower Group (starting with the annual Accounting Period ending
31st December, 2004) under Clause 16.2 (Financial information) the Borrowers
(unless otherwise agreed in writing by the Facility Agent acting on the
instructions of the Majority Lenders) shall prepay, or procure that there is
prepaid, an amount of the Facilities equal to 50 per cent. of the Excess Cash
Flow for such financial year.


 


(b)                                 The Borrowers shall not be required to make any
prepayments under paragraph (a) above:


 


(i)                                     after the date on which the Facility Agent receives
financial statements delivered under Clause 16.2(b) (Financial information)
which show that, for the two most recent Ratio Periods, the ratio of Senior
Debt to Annualised EBITDA is less than or equal to 3.5:1; or


 


(ii)                                  if the amount of Excess Cash Flow in respect of the relevant
financial year is less than €5,000,000.


 


(c)                                  Subject to Clause 7.7 (Date for prepayment) and
paragraph (e) below, where Net Equity Proceeds and/or the proceeds of an issue
of Relevant Convertible Preference Shares (as set out below) are received by or
for the account of any member of the UGCE Borrower Group 


 


50

















 


prior to 31st
December, 2004, UPC Distribution shall, within ten Business Days of receipt of
such proceeds:


 


(i)                                     until the Additional Prepayment Cap has been reached:


 


(A)                              in the case of the receipt of Net Equity Proceeds,
prepay or procure that there is prepaid an amount of the Facilities equal to 10
per cent. of the Net Equity Proceeds. 
Such amount shall be applied first against outstanding Facility B
Advances and outstanding Facility C Advances pro rata and second against
outstanding Facility A Advances, in each case in accordance with Clause
7.8(a)(i) (Order of Application);


 


(B)                                in addition to any prepayments made under
sub-paragraph (c)(i)(A) above, in the case of the receipt of the proceeds of an
issue of Relevant Convertible Preference Shares (whether or not such Relevant
Convertible Preference Shares also constitute Net Equity Proceeds) prepay or
procure that there is prepaid an amount of the outstanding Facility B Advances
equal to 90 per cent. of the proceeds of the Relevant Convertible Preference
Shares.  Such amount shall be applied
against outstanding Facility B Advances in order of maturity in accordance with
Clause 7.8(a)(iii) (Order of application); and


 


(ii)                                  after the Additional Prepayment Cap has been reached:


 


(A)                              in the case of the receipt of Net Equity Proceeds,
prepay or procure that there is prepaid an amount of the Facilities equal to 10
per cent. of the balance of the Net Equity Proceeds which have not been taken
into account when calculating the payments to be made under sub-paragraph
(c)(i) above.  Such amount shall be
applied first against outstanding Facility B Advances and outstanding Facility
C Advances pro rata and second against outstanding Facility A Advances, in each
case in accordance with Clause 7.8(a)(i) (Order of Application);


 


(B)                                in addition to any prepayments made under
sub-paragraph (c)(ii)(A) above, in the case of the receipt of the proceeds of
an issue of Relevant Convertible Preference Shares (whether or not such
Relevant Convertible Preference Shares also constitute Net Equity Proceeds)
prepay or procure that there is prepaid an amount of the outstanding Facility B
Advances equal to 40 per cent. of the balance, which have not been taken into
account when calculating the payments to be made under sub-paragraph (c)(i)
above, of the proceeds of the Relevant Convertible Preference Shares.  Such amount shall be applied in prepayment
of outstanding Facility B Advances in order of maturity in accordance with
Clause 7.8(a)(iii) (Order of application).


 


(d)                                 Subject to Clause 7.7 (Date for prepayment) and
paragraph (e) below, where proceeds of an issue of Relevant Convertible
Preference Shares or Net Equity Proceeds are received by any member of the UGCE
Borrower Group for or on account of a member of the UGCE Borrower Group on or
after 31st December, 2004, UPC Distribution shall, within ten Business Days of
receipt by any member of the UGCE Borrower Group of the proceeds of an issue of
Relevant Convertible Preference Shares or Net Equity Proceeds (as applicable):


 


(i)                                     until the Additional Prepayment Cap has been reached:


 


(A)                              in the case of receipt of Net Equity Proceeds, prepay
or procure that there is prepaid an amount of the Facilities equal to 10 per
cent. of the Net Equity 


 


51

















 


Proceeds.  Such amount shall be applied first against
outstanding Facility B Advances and outstanding Facility C Advances pro rata
and second against outstanding Facility A Advances, in each case in accordance
with Clause 7.8(a)(i) (Order of Application);


 


(B)                                in addition to any prepayments made under
sub-paragraph (d)(i)(A) above and subject to clause 7.5(d)(ii) and (e) and
clause 7.7 (Date for Prepayment) of the New Facility Agreement (each of which
is the equivalent of Clause 7.5(d)(i)(c) and (e) and Clause 7.7 of this
Agreement), in the case of the receipt of the proceeds of an issue of Relevant
Convertible Preference Shares (whether or not such Relevant Convertible
Preference Shares also constitute Net Equity Proceeds) prepay or procure that
there is prepaid an amount of the New Facility D equal to 90 per cent. of the
proceeds of the Relevant Convertible Preference Shares.  Such amount shall be applied pro rata
against all amounts outstanding under New Facility D; and


 


(C)                                to the extent that the amount required to be repaid
under the Facility D as set out in sub-paragraph (d)(i)(B) above exceeds the
amounts outstanding under Facility D at the relevant time, prepay or procure
that there is prepaid:


 


I.                                         until all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding Facility B Advances in an
amount equal to the amount of such excess. 
Such amount shall be applied against outstanding Facility B Advances in
order of maturity in accordance with Clause 7.8(a)(iii) (Order of application);
and


 


II.                                     after all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding Facility B Advances or
outstanding Facility C Advances in an aggregate amount equal to the amount of such
excess.  Such amount shall be applied
against outstanding Facility B Advances or Facility C Advances, as may be
designated by the Borrower in the Cancellation Notice, in order of maturity in
accordance with Clause 7.8(a)(iii) (Order of Application); and


 


(ii)                                  after the Additional Prepayment Cap has been reached:


 


(A)                              in the case of receipt of Net Equity Proceeds, prepay
or procure that there is prepaid an amount of the Facilities equal to 10 per
cent. of the balance of the Net Equity Proceeds which have not been taken into
account when calculating the payments to be made under sub-paragraph (d)(i)
above.  Such amount shall be applied
first against outstanding Facility B Advances and outstanding Facility C
Advances pro rata and second against outstanding Facility A Advances, in each
case in accordance with Clause 7.8(a)(i) (Order of Application);


 


(B)                                in addition to any prepayments made under
sub-paragraph (d)(ii)(A) above and subject to clause 7.5(d)(iv) and (e) and
clause 7.7 (Date for Prepayment) of the New Facility Agreement (each of which
is the equivalent of Clause 7.5(d)(ii)(c) and (e) and Clause 7.7 of this
Agreement), in the case of the receipt of the proceeds of an issue of Relevant
Convertible Preference Shares 


 


52

















 


(whether or not
such Relevant Convertible Preference Shares also constitute Net Equity
Proceeds) prepay or procure that there is prepaid an amount of New Facility D
equal to 40 per cent. of the balance of the proceeds of the Relevant Convertible
Preference Shares which have not been taken into account when calculating the
payments to be made under sub-paragraph (d)(i) above.  Such amount shall be applied pro rata against all amounts
outstanding under Facility D; and


 


(C)                                to the extent that the amount required to be repaid
under the New Facility D as set out in sub-paragraph (d)(ii)(B) above exceeds
the amounts outstanding under the New Facility D at the relevant time, prepay
or procure that there is prepaid:


 


I.                                         until all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding Facility B Advances in an
amount equal to the amount of such excess. 
Such amount shall be applied against outstanding Facility B Advances in
order of maturity in accordance with Clause 7.8(a)(iii) (Order of application);
and


 


II.                                     after all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding Facility B Advances or
outstanding Facility C Advances in an aggregate amount equal to the amount of
such excess.  Such amount shall be
applied against outstanding Facility B Advances or Facility C Advances, as may
be designated by the Borrower in the Cancellation Notice, in order of maturity
in accordance with Clause 7.8(a)(iii) (Order of Application); and


 


(iii)                               prepay or procure that there is prepaid, in accordance
with clause 7.5(c) (Mandatory prepayment from Excess Cash Flow and Net Equity
Proceeds) of the New Facility Agreement, an amount of New Facility D equal to
the Make-Whole Amount (as defined in that clause).


 


(e)                                  UPC Distribution shall not be required to make any
prepayments of the Facilities under paragraphs (c) or (d) above:


 


(i)                                     provided that the most recently delivered financial
statements provided to the Facility Agent under Clause 16.2(b) (Financial
information) show that, for the two most recent Ratio Periods, the applicable
ratio for the purposes of Clause 17.2(a) (Financial ratios) is 3.5:1 or less;


 


(ii)                                  to the extent that such Net Equity Proceeds are
provided by another member of the UGCE Borrower Group which is funding such
acquisition by means of proceeds which have previously been treated as “Net
Equity Proceeds” of that member of the UGCE Borrower Group for the purposes of
Clause 7.5(c) above;


 


(iii)                               in respect of Net Equity Proceeds in respect of a new
issue of shares by any member of the UGCE Borrower Group subscribed for by any
other member of the UGCE Borrower Group; or


 


53

















 


(iv)                              in respect of Net Equity Proceeds relating to any
issuance of shares where all of the shares issued are subscribed for by any
member of the Wider Group.


 


7.6                               Prepayment from disposal proceeds


 


(a)                                  [Intentionally left blank]


 


(b)                                 If the Net Proceeds of disposals of assets comprising
or contributing in aggregate a percentage value of 5 per cent. or less of the
total assets, revenues and EBITDA of the Borrower Group are either:


 


(i)                                     reinvested in the business of the Borrower Group
within 12 months of receipt; or


 


(ii)                                  deposited immediately with the Facility Agent and
applied in prepayment of the Facilities and reduction of the Total Facility A
Commitments, Total Facility B Commitments and Total Facility C Commitments in
accordance with the mechanics set out in Clauses 7.7 (Date for prepayment) and
7.8 (Order of application),


 


the percentage
value of such assets shall not be taken into account for the purposes of Clause
16.10(b)(ix) (Disposals).


 


(c)                                  For the purposes of paragraph (b) above and Clause
16.10(b) (Disposals), percentage value
of an asset disposed of means the percentage of the total assets, revenues and
EBITDA of the Borrower Group (as the case may be) attributable to such asset in
respect of the financial year (in the case of revenues and EBITDA) or as at the
end of the financial year (in the case of total assets) immediately preceding
the financial year in which the asset is disposed of and for the avoidance of
doubt, the value of assets disposed of will be calculated on an increasing
percentage basis such that any percentage value will automatically be added to
the percentage value of any subsequent disposal.  For the purpose of this Clause 7.6(c), all calculations shall be
by reference to the annual consolidated financial statements of UPC
Distribution or, as the case may be, the annual combined financial statements
of the Borrower Group required to be produced pursuant to this Agreement.


 


(d)                                 If valid and enforceable security agreements (in form
and substance satisfactory to the Facility Agent) have been entered into
between, inter alia, KTA and the
Security Agent granting security over KTA’s cable network assets in favour of
the Security Agent (the KTA Security
Agreements), UPC Distribution shall:


 


(i)                                     within five Business Days of such KTA Default, apply
€100,000,000 in prepayment of the Facilities (or, if less the amount of the
Facilities); and


 


(ii)                                  promptly following enforcement by the Security Agent
of the security constituted by the KTA Security Agreements (and in any event
within five Business Days of receipt by the Security Agent of the proceeds of
such enforcement), apply an amount equal to the net proceeds of such
enforcement (after the deduction of all enforcement costs), to the extent that
such net enforcement proceeds exceed €100,000,000, in prepayment of the
Facilities (or, if less the amount of the Facilities).


 


The obligations
of UPC Distribution under this Clause 7.6(d) shall be satisfied in full on
receipt by the Security Agent of the proceeds of enforcement of the security
constituted by the KTA Security Agreements.


 


54

















 


7.6A                      Mandatory prepayment from Third Party
Debt proceeds


 


Subject to Clause 7.7 (Date for prepayment), if any member
of the UGCE Borrower Group incurs Third Party Debt and Clause 16.12(d)(i)
(Restrictions on Financial Indebtedness) applies to such Third Party Debt, UPC
Distribution shall, within ten Business Days of receipt by such member of the
UGCE Borrower Group of the proceeds of Third Party Debt:


 


(a)                                  where the proceeds of such Third Party Debt are
received prior to 31st December, 2004:


 


(i)                                     until the Additional Prepayment Cap has been reached:


 


(A)                              prepay or procure that there is prepaid, an amount of
the Facilities equal to 50 per cent. of the proceeds of such Third Party
Debt.  Such amount shall be applied
first pro rata against outstanding Facility B Advances and outstanding Facility
C Advances in order of maturity and second against outstanding Facility A Advances,
in each case in accordance with Clause 7.8(a)(ii) (Order of Application); and


 


(B)                                prepay or procure that there is prepaid a further
amount of outstanding Facility B Advances equal to 50 per cent. of the proceeds
of such Third Party Debt.  Such amount
shall be applied against outstanding Facility B Advances in order of maturity
in accordance with Clause 7.8(a)(iii) (Order of Application); and


 


(ii)                                  after the Additional Prepayment Cap has been reached,
prepay or procure that there is prepaid, an amount of the Facilities equal to
50 per cent. of the balance of the proceeds of such Third Party Debt which have
not been taken into account when calculating the payments to be made under
sub-paragraph (a)(i) above.  Such amount
shall be applied first pro rata against outstanding Facility B Advances and
outstanding Facility C Advances in order of maturity and second against
outstanding Facility A Advances, in each case in accordance with Clause
7.8(a)(ii) (Order of Application);


 


(b)                                 where the proceeds of such Third Party Debt are
received on or after 31st December, 2004:


 


(i)                                     until the Additional Prepayment Cap has been reached:


 


(A)                              prepay or procure that there is prepaid an amount of
the Facilities equal to 50 per cent. of the proceeds of such Third Party Debt.  Such amount shall be applied first pro rata
against outstanding Facility B Advances and outstanding Facility C Advances in
order of maturity and second against outstanding Facility A Advances, in each
case in accordance with Clause 7.8(a)(ii) (Order of Application); and


 


(B)                                prepay or procure that there is prepaid an amount of
New Facility D equal to 50 per cent. of the proceeds of such Third Party Debt
in accordance with clause 7.6A(a) (Mandatory prepayment from Third Party Debt
proceeds) of the New Facility Agreement. 
To the extent that such amount exceeds the amounts outstanding under the
New Facility D at the relevant time, UPC Distribution shall prepay or procure
that there is prepaid:


 


I.                                         until all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding 


 


55

















 


Facility B
Advances in an amount equal to the amount of such excess.  Such amount shall be applied against
outstanding Facility B Advances in order of maturity in accordance with Clause
7.8(a)(iii) (Order of Application); and


 


II.                                     after all outstanding New Facility D Advances under
the New Facility have been permanently prepaid and cancelled and there are no
undrawn Commitments under New Facility D, outstanding Facility B Advances or
outstanding Facility C Advances in an aggregate amount equal to the amount of
such excess.  Such amount shall be
applied against outstanding Facility B Advances or Facility C Advances, as may
be designated by the Borrower in the Cancellation Notice, in order of maturity
in accordance with Clause 7.8(a)(iii) (Order of Application); and


 


(ii)                                  after the Additional Prepayment Cap has been reached,
prepay or procure that there is prepaid, an amount of the Facilities equal to
50 per cent. of the balance of the proceeds of such Third Party Debt, which
have not been taken into account when calculating the payments to be made under
sub-paragraph (b)(i) above.  Such amount
shall be applied first pro-rata against outstanding Facility B Advances and
outstanding Facility C Advances in order of maturity and second against
outstanding Facility A Advances, in each case in accordance with Clause
7.8(a)(ii) (Order of Application).


 


7.7                               Date for prepayment


 


Each amount of
the Facilities to be prepaid under Clause 7.5 (Mandatory prepayment from Excess
Cash Flow and Net Equity Proceeds), Clause 7.6 (Prepayment from disposal
proceeds), Clause 7.6A (Mandatory prepayment from Third Party Debt proceeds)
and Clause 17.4 (Cure provisions) shall be applied in prepayment of the
Facility within the period required by the relevant Clause or deposited before
the end of such period with the Security Agent or as the Security Agent may reasonably
direct in an account (or accounts) (each a Blocked
Account) in the name of any Obligor bearing interest at rates
customarily offered by the Security Agent in such circumstances, secured (if
requested by the Security Agent) by a first ranking security interest in favour
of the Security Agent on behalf of the Beneficiaries, on terms that the
principal amount so deposited may only be released by making the relevant
prepayment on Interest Dates falling immediately thereafter, in accordance with
Clause 7.8 (Order of application) (where applicable), until the prepayment
obligations under Clause 7.5 (Mandatory prepayment from Excess Cash Flow and
Net Equity Proceeds), Clause 7.6 (Prepayment from disposal proceeds), Clause
7.6A (Mandatory prepayment from Third Party Debt proceeds) and Clause 17.4
(Cure provisions) have been satisfied.


 


7.8                               Order of application


 


(a)                                  Subject to Clause 7.10(c) (Facility C Call
protection):


 


(i)                                     the amount of each prepayment of the Facilities made
under Clause 7.5 (a), Clause 7.5(b), Clause 7.5(c)(i)(A), 7.5(c)(ii)(A)
7.5(d)(i)(A) and 7.5(d)(ii)(A) (Mandatory prepayment from Excess Cash Flow and
Net Equity Proceeds) and Clause 7.6 (Prepayment from disposal proceeds) shall
be applied, unless otherwise stated:


 


(A)                              first, pro rata between outstanding Facility B
Advances and Facility C Advances (and pro rata against the Repayment
Instalments for Facility B and Facility C respectively) with a corresponding
permanent cancellation of the 


 


56

















 


Total Facility B
Commitments and Total Facility C Commitments (pro rata between the Commitments
of the Lenders under the relevant Facility); and


 


(B)                                second, against outstanding Facility A Advances (pro
rata against all Facility A Advances) with a corresponding permanent
cancellation of the Total Facility A Commitments, (pro rata between the
Commitments of the Lenders under that Facility) and a corresponding reduction
of each amount specified in column 2 of Clause 7.1(d) (Automatic Cancellation
of the Commitments) by the amount of each such prepayment;


 


(ii)                                  the amount of each prepayment of the Facilities made
under clause 7.6A(a)(i)(A), 7.6A(a)(ii), 7.6A(b)(i)(A) and 7.6A(b)(ii)
(Mandatory prepayment from Third Party Debt proceeds) shall be applied:


 


(A)                              first, pro rata between outstanding Facility B
Advances and Facility C Advances (and against the Repayment Instalments for
Facility B and Facility C respectively in order of maturity), starting with
amounts due to be paid on the next Facility B Repayment Date or Facility C
Repayment Date (as applicable) with a corresponding permanent cancellation of
the Total Facility B Commitments or Total Facility C Commitments (as
applicable) (pro rata between the Commitments of the Lenders under the relevant
Facility); and


 


(B)                                second, against outstanding Facility A Advances (pro
rata against all Facility A Advances) with a corresponding permanent
cancellation of the Total Facility A Commitments (pro rata between the
Commitments of the Lenders under that Facility) and a corresponding reduction
of each amount specified in column (2) of clause 7.1(d) (Automatic Cancellation
of the Commitments) by the amount of each such prepayment; and


 


(iii)                               the amount of each prepayment of:


 


(A)                              the Facilities made under Clause 7.3 (Voluntary
prepayment), as a result of the application of the proceeds of the Additional
Facility in accordance with Clause 16.12(b)(ii) (Restrictions on Financial
Indebtedness); and


 


(B)                                outstanding Facility B Advances made under Clause
7.5(c)(i)(B), 7.5(c)(ii)(B), 7.5(d)(i)(C) and 7.5(d)(ii)(C) (Mandatory
prepayment from Excess Cash Flow and Net Equity Proceeds) and Clauses
7.6A(a)(i)(B)  and 7.6A(b)(i)(B)
(Mandatory prepayment from Third Party Debt proceeds),


 


shall be applied
(in the case of Facility B or Facility C) against the Repayment Instalments for
the relevant Facility in order of maturity, starting with amounts due to be
paid on the next Facility B Repayment Date or Facility C Repayment Date (as
applicable) with a corresponding permanent cancellation of the Total Facility B
Commitments or Total Facility C Commitments (as applicable) (pro rata between
the Commitments of the Lenders under the relevant Facility).


 


7.9                               Right of prepayment and cancellation
in relation to a single Lender


 


(a)                                  If:


 


(i)                                     any sum payable to any Lender by a Borrower is
required to be increased under of Clause 10.2(c) (Tax gross-up); or


 


57

















 


(ii)                                  any Lender claims indemnification from a Borrower
under Clause 10.3 (Tax indemnity) or Clause 12.1 (Increased Costs),


 


UPC Distribution
may, whilst the circumstance giving rise to the requirement or indemnification
continues, in respect only of the Facilities made available to it, give the
Facility Agent notice of cancellation of the Facility A Commitment, Facility B
Commitment, Facility C1 Commitment and/or Facility C2 Commitment (as
applicable) of that Lender and its intention to procure the repayment of that
Lender’s participation in all relevant Advances.


 


(b)                                 On receipt of a notice referred to in paragraph (a)
above, the Facility A Commitment, Facility B Commitment, Facility C1 Commitment
and/or Facility C2 Commitment (as applicable) of that Lender shall each
immediately be reduced to zero.


 


(c)                                  On the last day of each Interest Period which ends
after a Borrower has given notice under paragraph (a) above (or, if earlier,
the date specified by the relevant Borrower in that notice), the relevant
Borrower shall repay that Lender’s participation in all relevant Advances.


 


(d)                                 Prepayments made pursuant to this Clause 7.9 shall be
applied against the outstanding Facility A Advances and (in the case of
Facility B Advances and Facility C Advances) the outstanding Repayment
Instalments pro rata.


 


7.10                        Facility C Call protection


 


(a)                                  Upon any prepayment of Facility C Advances under this
Clause 7 made up to and including the Second Anniversary, the Borrowers shall
pay to the Facility Agent for distribution to Facility C Lenders:


 


(i)                                     during the period commencing on the Signing Date to
and including the first Anniversary, a prepayment fee in respect of the
principal amount of such Advances so prepaid equal to 3 per cent. of such
principal amount; and


 


(ii)                                  during the period following the first Anniversary up
to and including the second Anniversary, a prepayment fee in respect of the
principal amount of such Loans so prepaid equal to 1.5 per cent. of such
principal amount.


 


(b)                                 In the event that:


 


(i)                                     the Lenders, the Majority Lenders or the Facility C
Lenders (as applicable) agree to modify or waive any of the provisions of this
Agreement and, as a result thereof, a prepayment that would otherwise have been
required under this Clause 7 shall not be made; or


 


(ii)                                  on receipt by the Facility Agent of a notice under
Clause 7.4(a)(A) (Change of Control) notifying it of a Change of Control, the
Majority Lenders agree not to require the cancellation of the Facility and
prepayment of all outstanding amounts under the Finance Documents,


 


the Borrowers
shall nevertheless pay to all the Facility C Lenders a fee equal to the amount
of prepayment fee that would otherwise have been paid under paragraph (a) above
had such prepayment occurred.  This fee
is in addition to any further prepayment fee under paragraph (a) above that may
be payable on any subsequent prepayment of the relevant amount.


 


(c)                                  Subject to paragraph (b), prior to the repayment or
prepayment in full of all outstanding Facility B Advances, the Facility C
Lenders may elect not to accept prepayments of Facility C 


 


58

















 


Advances under
Clause 7.3 (Voluntary prepayment), 7.5 (Mandatory prepayment from Excess Cash
Flow and Net Equity Proceeds) or 7.6 (Prepayment from disposal proceeds).  In the event of such election any amounts
which would otherwise have been applied in prepayment of Facility C Advances
shall not, unless UPC Distribution so elects, be applied in prepayment of
Facility A Advances or Facility B Advances but may be retained by the Borrowers
for use in the business of the Borrower Group.


 


7.11                        Miscellaneous provisions


 


(a)                                  Any Cancellation Notice delivered under this Agreement
is irrevocable.  The Facility Agent
shall notify the Lenders promptly of receipt of any such notice.


 


(b)                                 All prepayments under this Agreement shall be made
together with accrued interest on the amount prepaid and any other amounts due
under this Agreement in respect of that prepayment and, subject to Clause 7.10
(Facility C Call protection) and Clause 23.4 (Break Costs), without premium or
penalty.


 


(c)                                  No prepayment or cancellation is permitted except in
accordance with the express terms of this Agreement.


 


(d)                                 The amount of any Facility A Advance prepaid by UPC
Distribution in accordance with Clause 7.3 (Voluntary prepayment) (other than
any permanent prepayment and cancellation of Facility A out of the proceeds of
a drawing under an Additional Facility pursuant to Clause 16.12(b)(ii)(B)(I)
(Restrictions on Financial Indebtedness)) or Clause 17.4 (Cure provisions) may,
subject to the terms of this Agreement, be re-borrowed.  No other amount prepaid under this Agreement
may subsequently be re-borrowed.


 


(e)                                  No amount of any Commitment cancelled under this
Agreement may subsequently be reinstated.


 


(f)                                    Any prepayment in part of any Advance shall be applied
against the participations of the Lenders in that Advance pro rata.


 


(g)                                 Any cancellation or prepayment in relation to Facility
C shall be applied pro rata between Facility C1 Commitments and Facility C2
Commitments or (as the case may be) Facility C1 Advances and Facility C2 Advances
according to their respective Original Euro Amounts.


 


8.                                      INTEREST


 


8.1                               Interest rate


 


The rate of
interest on each Advance for its Interest Period is the rate per annum
determined by the Facility Agent to be the aggregate of:


 


(a)                                  the applicable Margin; and


 


(b)                                 (i)                                     LIBOR (in the case of an Advance denominated in a
currency other than euros); or


 


(ii)                                  EURIBOR (in the case of an Advance denominated in
euros); and


 


(c)                                  the Mandatory Costs.


 


59

















 


8.2                               Selection of Interest Periods


 


(a)                                  The Interest Period (in the case of each Facility A
Advance) or the first Interest Period (in the case of each Facility B Advance
or Facility C Advance) of each Advance will be the period selected in the
Request for that Advance and (in the case of each Facility B Advance or
Facility C Advance) each subsequent Interest Period will be the period selected
by the relevant Borrower by notice (a Selection
Notice) to the Facility Agent received not later than the third
Business Day before the end of the then current Interest Period.


 


(b)                                 Each Interest Period shall be one month, two, three or
six months or in any case such other period not exceeding six months as the
relevant Borrower and the Facility Agent (acting on the instructions of all the
Lenders) may agree from time to time. 
Each Interest Period for an Advance will commence on its Utilisation
Date or (in the case of each subsequent Interest Period for a Facility B
Advance or Facility C Advance) the expiry of its preceding Interest Period.


 


(c)                                  Each Facility A Advance will have only one Interest
Period.


 


8.3                               Non-Business Days


 


If an Interest
Period would otherwise end on a day which is not a Business Day, that Interest
Period shall instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).


 


8.4                               Further Adjustments to Interest
Periods


 


If an Interest
Period:


 


(a)                                  for a Facility A Advance would otherwise overrun the
Facility A Final Maturity Date, it shall be shortened so that it ends on the
Facility A Final Maturity Date;


 


(b)                                 for a Facility B Advance would otherwise overrun the
Facility B Final Repayment Date, it shall be shortened so that it ends on the
Facility B Final Repayment Date; and


 


(c)                                  for a Facility C Advance would otherwise overrun the
Facility C Final Repayment Date, it shall be shortened so that it ends on the
Facility C Final Repayment Date.


 


8.5                               Other adjustments


 


The Facility
Agent and the Borrowers may enter into such other arrangements as they may agree
for the adjustment of Interest Periods and the consolidation and/or splitting
of Advances.


 


8.6                               Notification


 


The Facility
Agent shall notify the relevant Borrower and the Lenders of the duration of
each Interest Period promptly after ascertaining its duration.


 


8.7                               Due dates


 


Except as
otherwise provided in this Agreement, accrued interest on each Advance is
payable by the relevant Borrower on its Interest Date and also, in the case of:


 


60

















 


(a)                                  any Facility A Advance or Facility B Advance with an
Interest Period longer than six months, at six monthly intervals after the
first day of that Interest Period for so long as the Interest Period continues;
and


 


(b)                                 in the case of any Facility C Advance with an Interest
Period longer than three months, at three monthly intervals after the first day
of that Interest Period for so long as the Interest Period continues.


 


8.8                               Default interest


 


(a)                                  If an Obligor fails to pay any amount payable by it
under the Finance Documents, it shall forthwith on demand by the Facility Agent
pay interest on the overdue amount from the due date up to the date of actual
payment, both before and after judgment, at a rate (the default rate) determined by the Facility
Agent to be two per cent. per annum above the rate which would have been
payable if the Unpaid Sum had, during the period of non-payment, constituted an
Advance at the Margin applicable to a new Facility A Advance or (if the Unpaid
Sum relates to an overdue amount payable under or in connection with Facility
C) a new Facility C Advance if it had been drawn down at such time in the
currency of the Unpaid Sum for such successive Interest Periods of such
duration (not being more than three months) as the Facility Agent may determine,
having regard to the likely duration of the default (a Designated Term).


 


(b)                                 The default rate will be determined on each Business
Day or the first day of, or two Business Days before the first day of, the
relevant Designated Term, as appropriate.


 


(c)                                  Default interest will be compounded at the end of each
Designated Term.


 


8.9                               Notification of rates of interest


 


The Facility
Agent will promptly notify each relevant Party of the determination of a rate
of interest under this Agreement.


 


8.10                        Margin


 


(a)                                  The Margin will be:


 


(i)                                     in the case of a Facility A Advance or Facility B
Advance, 2.75 per cent. per annum until the first Anniversary and thereafter
shall be 4.00 per cent. per annum unless adjusted in accordance with the
following provisions of this Clause 8.10; and


 


(ii)                                  in the case of a Facility C Advance, 5.50 per cent.
per annum.


 


(b)                                 Commencing with the first Anniversary (by reference,
in the case of the first Anniversary, to the Relevant Financial Statements
delivered for the most recent financial quarter to end prior to the first
Anniversary) UPC Distribution will deliver to the Facility Agent (by no later
than the date of the first Anniversary or, as the case may be, the date it
delivers to the Facility Agent each subsequent set of Relevant Financial
Statements) a notice referring to this Clause 8.10 (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 Relevant Financial Statements
were prepared for the purposes of calculating whether the Margin for Facility A
Advances and Facility B Advances is to be adjusted in accordance with this
Clause 8.10.


 


61

















 


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


 


	
  (1)

  	
   

  	
  (2)

  
	
  Margin

  	
   

  	
  Senior Debt/

  Annualised EBITDA ratio

  
	
   

  	
   

  	
   

  
	
  4.00%

  	
   

  	
  > 7.00:1

  
	
   

  	
   

  	
   

  
	
  3.50%

  	
   

  	
  > 6.00:1 but < 7.00:1

  
	
   

  	
   

  	
   

  
	
  3.00%

  	
   

  	
  > 5.00:1 but < 6.00:1

  
	
   

  	
   

  	
   

  
	
  2.75%

  	
   

  	
  > 4.00:1 but < 5.00:1

  
	
   

  	
   

  	
   

  
	
  2.50%

  	
   

  	
  > 3.00:1 but < 4.00:1

  
	
   

  	
   

  	
   

  
	
  2.25%

  	
   

  	
  < 3.00:1

  



 


(d)                                 The adjustment (if any) specified in (c) above will
apply to the Margin for all Facility A Advances and Facility B Advances with
effect from the date falling five Business Days after 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 Clause 8.10 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 Clause 8.10, Relevant
Financial Statements means each set of quarterly financial
statements delivered under Clause 16.2(b) (Financial information).


 


9.                                      PAYMENTS


 


9.1                               Place of Payment


 


All payments by
an Obligor or a Lender under this Agreement shall be made to the Facility Agent
to its account at such office or bank in the principal financial centre of the
country of the currency concerned (or, in the case of euros, the financial
centre of such of the Participating Member States or London) as the Facility
Agent may notify to the Obligor or Lender for this purpose.


 


9.2                               Funds


 


Payments under
this Agreement to the Facility Agent shall be made for value on the due date at
such times and in such funds as the Facility Agent may specify to the Party
concerned as being customary at the time for the settlement of transactions in
the relevant currency in the place for payment.


 


62

















 


9.3                               Distribution


 


(a)                                  Each payment received by the Facility Agent under this
Agreement for another Party shall, subject to paragraphs (b) and (c) below, be
made available by the Facility Agent to that Party by payment (on the date of
value of receipt and in the currency and funds of receipt) to its account with
such bank in the principal financial centre of the country of the relevant
currency (or, in the case of euros, in the principal financial centre of such
of the Participating Member States or London) as it may notify to the Facility
Agent for this purpose by not less than five Business Days’ prior notice.


 


(b)                                 The Facility Agent may apply any amount received by it
for an Obligor in or towards payment (on the date and in the currency and funds
of receipt) of any amount due from an Obligor under this Agreement in the same
currency on such date or in or towards the purchase of any amount of any
currency to be so applied.


 


(c)                                  Where a sum is to be paid under this Agreement to the
Facility Agent for the account of another Party, the Facility Agent is not
obliged to pay that sum to that Party until it has established that it has
actually received that sum.  The
Facility Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement and, in reliance on that assumption, make
available to that Party a corresponding amount.  If the sum has not been made available but the Facility Agent has
paid a corresponding amount to another Party, that Party shall forthwith on demand
refund the corresponding amount to the Facility Agent together with interest on
that amount from the date of payment to the date of receipt, calculated at a
rate reasonably determined by the Facility Agent to reflect its cost of funds.


 


9.4                               Currency


 


(a)                                  A repayment or prepayment of an Advance is payable in
the currency in which the Advance is denominated.


 


(b)                                 All interest is payable in the currency in which the
relevant amount in respect of which it is payable is denominated.


 


(c)                                  Amounts payable in respect of costs, expenses, Taxes
and the like are payable in the currency in which they are incurred.


 


(d)                                 Any other amount payable under this Agreement is,
except as otherwise provided in this Agreement, payable in euros or, to the
extent it relates to Facility C2, US Dollars.


 


9.5                               Set-off and counterclaim


 


All payments
made by an Obligor under this Agreement shall be made without set-off or
counterclaim.


 


9.6                               Non-Business Days


 


(a)                                  If a payment under this Agreement is due on a day
which is not a Business Day, the due date for that payment shall instead be the
next Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).


 


(b)                                 During any extension of the due date for payment of
any principal under this Agreement interest is payable on the principal at the
rate payable on the original due date.


 


63

















 


9.7                               Partial payments


 


(a)                                  Subject to the Security Deed, if the Facility Agent
receives a payment insufficient to discharge all the amounts then due and payable
by an Obligor under this Agreement, the Facility Agent shall apply that payment
towards the obligations of the Obligors under this Agreement in the following
order:


 


(i)                                     first, in or towards payment pro rata of any unpaid costs, fees and expenses
of the Facility Agent under this Agreement;


 


(ii)                                  secondly, in or towards payment pro rata of any accrued fees (other than any
commitment fees payable under Clause 20.1 (Commitment fee)) due but unpaid
under Clause 20 (Fees);


 


(iii)                               thirdly, in or towards payment to the Lenders pro rata of any accrued interest
and commitment fees due but unpaid under this Agreement;


 


(iv)                              fourthly, in or towards payment to the Lenders pro rata of any principal due but
unpaid under this Agreement; and


 


(v)                                 fifthly, in or towards payment pro rata of any other sum due but unpaid under
the Finance Documents.


 


(b)                                 Subject to the Security Deed, the Facility Agent
shall, if so directed by all of the Lenders, vary the order set out in
sub-paragraphs (a)(ii) to (v) above. 
The Facility Agent shall notify UPC Distribution of any such variation.


 


(c)                                  Paragraphs (a) and (b) above shall override any
appropriation made by any Obligor.


 


10.                               TAX
GROSS-UP AND INDEMNITIES


 


10.1                        Definitions


 


(a)                                  In this Clause 10:


 


Protected
Party means a Finance Party
which is or will be, for or on account of Tax, subject to any liability or
required to make any payment in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or receivable) under a
Finance Document.


 


Tax
Credit means a credit
against, relief or remission for, or repayment of any Tax.


 


Tax
Deduction means a deduction or
withholding for or on account of Tax from a payment under a Finance Document.


 


Tax
Payment means an increased
payment made by an Obligor to a Finance Party under Clause 10.2 (Tax gross-up)
or a payment under Clause 10.3 (Tax indemnity).


 


Treaty
Lender means a Lender which
is (on the date a payment falls due), entitled to that payment under a double
taxation agreement in force on the date (subject to the completion of any
necessary procedural formalities) without a Tax Deduction.


 


(b)                                 In this Clause 10 a reference to determines or determined means a determination made in the absolute
discretion of the person making the determination.


 


64

















 


10.2                        Tax gross-up


 


(a)                                  Each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)                                 UPC Distribution or a Lender shall promptly upon
becoming aware that an Obligor must make a Tax Deduction (or that there is any
change in the rate or the basis of a Tax Deduction) notify the Facility Agent
accordingly.  If the Facility Agent
receives such notification from a Lender it shall notify UPC Distribution and
that Obligor.


 


(c)                                  Subject to Clause 10.5 (U.S. Taxes), if a Tax
Deduction is required by law to be made by an Obligor, the amount of the
payment due from that Obligor shall be increased to an amount which (after
making any Tax Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.


 


(d)                                 If an Obligor is required to make a Tax Deduction,
that Obligor shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in the minimum
amount required by law.


 


(e)                                  Within 30 days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the Obligor making that
Tax Deduction shall deliver to the Facility Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance Party
that the Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority.


 


(f)                                    A Treaty Lender and each Obligor which makes a payment
to which that Treaty Lender is entitled shall co-operate and use its reasonable
efforts to complete any procedural formalities and provide any information, in
each case on a timely basis, necessary for that Obligor to obtain authorisation
to make that payment without a Tax Deduction (or with a reduced rate of such
Tax Deduction).


 


10.3                        Tax indemnity


 


(a)                                  The Obligors shall (within three Business Days of
demand by the Facility Agent) pay to a Protected Party an amount equal to the
loss, liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that
Protected Party.


 


(b)                                 Paragraph (a) above shall not apply with respect to
any Tax assessed on:


 


(i)                                     a Finance Party:


 


(A)                              under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident for tax
purposes; or


 


(B)                                under the law of the jurisdiction in which that
Finance Party’s Facility Office is located in respect of amounts received or
receivable in that jurisdiction,


 


if that Tax is
imposed on or calculated by reference to the net income or net profits received
or receivable (but not any sum deemed to be received or receivable) by that
Finance Party; or


 


65

















 


(ii)                                  the Facility Agent, as a result of the failure by a
Lender to satisfy on the due date of a payment of interest either of the
conditions set out in Clause 19.16(b)(i)(A) and (B) (Lenders).


 


(c)                                  A Protected Party making or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the Facility Agent in
writing of the event which will give, or has given, rise to the claim, including
details of the nature of the Tax due or paid by that Protected Party, following
which the Facility Agent shall promptly provide such information to UPC
Distribution.


 


(d)                                 A Protected Party shall, on receiving a payment from
an Obligor under this Clause 10.3, notify the Facility Agent.


 


10.4                        Tax Credit


 


(a)                                  If an Obligor makes a Tax Payment and the relevant
Finance Party determines that:


 


(i)                                     a Tax Credit is attributable to that Tax Payment; and


 


(ii)                                  that Finance Party has obtained, utilised and retained
that Tax Credit,


 


the Finance
Party shall pay an amount to the Obligor which that Finance Party determines
will leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been made by the Obligor.


 


(b)                                 No provision of this Agreement shall:


 


(i)                                     interfere with the right of any Finance Party to
arrange its tax or any other affairs in whatever manner it thinks fit or oblige
any Finance Party to claim any credit, relief, remission or repayment in
respect of any payment of Tax in priority to any other credit, relief,
remission or repayment available to it, except that the Finance Party’s sole
reason (acting in good faith) for not claiming or for deferring such credit,
relief, remission or repayment shall not be its obligation to make a payment
under this Clause 10.4; or


 


(ii)                                  oblige any Finance Party to disclose any information
relating to its Tax or other affairs or any computations in respect thereof.


 


10.5                        U.S. Taxes


 


The US Borrower
shall not be required to pay any additional amount pursuant to Clause 10.2 (Tax
gross-up) in respect of United States Taxes (including, without limitation,
federal, state, local or other income Taxes), branch profits or franchise Taxes
with respect to a sum payable by it pursuant to this Agreement to a Lender if
on the date such Lender becomes a Party to this Agreement or has designated a
new Facility Office either:


 


(a)                                  in the case of a Lender which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code), such
Lender has not provided the Borrower with two accurate and complete original
signed copies of (i) U.S. Internal Revenue Service Form W-8BEN (relating to
such Lender and claiming a complete exemption from withholding under an income
tax treaty) (or successor form) or (ii) U.S. Internal Revenue Service Form
W-8ECI (or successor form) certifying, in each case, to such Lender’s
entitlement as of such date to a complete exemption from United States
withholding with respect to all amounts payable pursuant to the Finance
Documents;


 


66

















 


(b)                                 after the date such Lender becomes a Party to this
Agreement, when a lapse in time or change in circumstances renders the previous
certification of such Lender made pursuant to Clause 10.5(a) above obsolete or
inaccurate, such Lender has not delivered to UPC Distribution two new accurate
and complete original signed copies of Internal Revenue Service Form W-8ECI or
Form W-8BEN (with respect to the benefit of any income tax treaty), as the case
may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to amounts payable pursuant
to the Finance Documents; or


 


(c)                                  such Lender is subject to such Tax by reason of any
connection between the jurisdiction imposing such Tax and the Lender or its
Facility Office other than a connection arising solely from this Agreement or
any transaction contemplated hereby.


 


10.6                        Value added tax


 


(a)                                  All consideration payable under a Finance Document by
an Obligor to a Finance Party shall be deemed to be exclusive of any VAT.  If VAT is chargeable, the Obligor shall,
following delivery of a VAT invoice, pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the amount
of the VAT.


 


(b)                                 Where a Finance Document requires an Obligor to
reimburse a Finance Party for any costs or expenses, that Obligor shall also at
the same time pay and indemnify that Finance Party against all VAT incurred by
that Finance Party in respect of the costs or expenses save to the extent that
that Finance Party is entitled to repayment or credit in respect of the VAT.


 


11.                               MARKET
DISRUPTION


 


11.1                        Absence of quotations


 


Subject to
Clause 11.2 (Market disruption), if LIBOR or, if applicable, EURIBOR is to be
determined by reference to the Reference Banks but a Reference Bank does not
supply a quotation by noon on the Rate Fixing Day, the applicable LIBOR or
EURIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.


 


11.2                        Market disruption


 


(a)                                  If a Market Disruption Event occurs in relation to an
Advance for any Interest Period, then the rate of interest on each Lender’s
share of that Advance for the Interest Period shall be the rate per annum which
is the sum of:


 


(i)                                     the Margin;


 


(ii)                                  the rate notified to the Facility Agent by that Lender
as soon as practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a percentage
rate per annum the cost to that Lender of funding its participation in that
Advance from whatever source it may reasonably select; and


 


(iii)                               the Mandatory Cost.


 


(b)                                 In this Agreement Market
Disruption Event means:


 


67

















 


(i)                                     at or about noon on the Rate Fixing Day for the
relevant Term or Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Facility Agent to
determine LIBOR or, if applicable, EURIBOR for the relevant currency and
period; or


 


(ii)                                  before close of business in London on the Rate Fixing
Day for the relevant Interest Period, the Facility Agent receives notifications
from a Lender or Lenders (whose participations in an Advance aggregate not less
than one-third of that Advance) that the cost to it of obtaining matching
deposits in the London Interbank Market or, as the case may be, the European Interbank
Market would be in excess of LIBOR or, if applicable, EURIBOR.


 


11.3                        Alternative basis of interest or
funding


 


(a)                                  If a Market Disruption Event occurs and the Facility
Agent or UPC Distribution so requires, the Facility Agent and UPC Distribution
shall enter into negotiations (for a period of not more than 30 days) with a
view to agreeing a substitute basis for determining the rate of interest.


 


(b)                                 Any alternative basis agreed pursuant to paragraph (a)
above shall, with the prior consent of all the Lenders and UPC Distribution, be
binding on all Parties.


 


11.4                        Revocation of currency


 


If before 9.30
a.m. on any Rate Fixing Day, the Facility Agent receives notice from a Lender
that:


 


(a)                                  it is impracticable for the Lender to fund its
participation in an Advance in the relevant Optional Currency during that
Interest Period in the ordinary course of business in the London or (in the
case of euro) European Interbank Market; and/or


 


(b)                                 the use of the proposed Optional Currency might
contravene any law or regulation,


 


the Facility
Agent shall give notice to UPC Distribution and to the Lenders to that effect
before 11.00 a.m. on that day.  In this
event:


 


(i)                                     UPC Distribution and the Lenders may agree that the
drawdown will not be made; or


 


(ii)                                  in the absence of agreement:


 


(A)                              that Lender’s participation in the Advance (or, if
more than one Lender is similarly affected, those Lender’s participations in
the Advance) shall be treated as a separate Advance denominated in euros (in
the case of a Facility A Advance, Facility B Advance or Facility C1 Advance) or
Dollars (in the case of a Facility C2 Advance) during the relevant Interest
Period;


 


(B)                                in the definitions of “LIBOR” or, as applicable,
“EURIBOR”, (insofar as it applies to that Advance) in Clause 1.1 (Definitions):


 


I.                                         there shall be substituted for the time “11.00 a.m.”
the time “1.00 p.m.”; and


 


II.                                     paragraph (c) of the relevant definition shall apply.


 


68

















 


12.                               INCREASED
COSTS


 


12.1                        Increased Costs


 


(a)                                  Subject to Clause 12.3 (Exceptions) the Borrowers
shall, within three Business Days of a demand by the Facility Agent, pay to the
Facility Agent for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Holding Companies as a
result of (i) the introduction of or any change in (or in the interpretation or
application of) any law or regulation after the Signing Date or (ii) compliance
with any law or regulation made after the Signing Date.


 


(b)                                 In this Agreement Increased
Costs means:


 


(i)                                     a reduction in the rate of return from the Facilities
or on a Finance Party’s (or any of its Holding Companies’) overall capital;


 


(ii)                                  an additional or increased cost; or


 


(iii)                               a reduction of any amount due and payable under any
Finance Document,


 


which is
incurred or suffered by a Finance Party or any of its Holding Companies to the
extent that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.


 


12.2                        Increased cost claims


 


(a)                                  A Finance Party intending to make a claim pursuant to
Clause 12.1 (Increased Costs) as soon as is reasonably practicable after that
Finance Party becomes aware that circumstances have arisen which entitle it to
make such claim, shall notify the Facility Agent of the event giving rise to
the claim, following which the Facility Agent shall promptly notify UPC
Distribution.


 


(b)                                 Each Finance Party shall, as soon as practicable after
a demand by the Facility Agent, provide a certificate confirming the amount of
its Increased Costs.


 


12.3                        Exceptions


 


(a)                                  Clause 12.1 (Increased Costs) does not apply to the
extent any Increased Cost is:


 


(i)                                     attributable to a Tax Deduction required by law to be
made by an Obligor;


 


(ii)                                  compensated for by Clause 10.3 (Tax indemnity) (or
would have been compensated for under Clause 10.3 (Tax indemnity) but was not
so compensated solely because one of the exclusions in Clause 10.3(b) (Tax
indemnity) applied);


 


(iii)                               compensated for by the payment of the Mandatory Cost;
or


 


(iv)                              attributable to the wilful breach by the relevant
Finance Party or any of its Holding Companies of any law or regulation.


 


(b)                                 In this Clause 12.3, a reference to a Tax Deduction has the same meaning given to
the term in Clause 10.1 (Definitions).


 


69

















 


13.                               ILLEGALITY
AND MITIGATION


 


13.1                        Illegality


 


If it is or will
become unlawful in any applicable jurisdiction for a Lender to give effect to
any of its obligations as contemplated by this Agreement or to fund or allow to
remain outstanding all or part of its participation in any Advance:


 


(a)                                  that Lender shall promptly notify the Facility Agent
upon becoming aware of the same;


 


(b)                                 upon the Facility Agent notifying UPC Distribution,
the Commitment of that Lender will be immediately cancelled; and


 


(c)                                  if the Facility Agent on behalf of such Lender
requires, the relevant Borrower or Borrowers shall repay that Lender’s
participation in any Advance made to that Borrower on the last day of the
Interest Period for each Advance occurring after the Facility Agent has
notified UPC Distribution or, if earlier, the date specified by the Lender in
the notice delivered to the Facility Agent (being no earlier than the last day
of any applicable grace period permitted by law).


 


13.2                        Mitigation


 


(a)                                  Each Finance Party shall, in consultation with UPC
Distribution, take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount (including without limitation, VAT)
becoming payable under, or cancelled pursuant to, any of Clause 10 (Tax
Gross-up and Indemnities), Clause 12 (Increased Costs) or Clause 13.1
(Illegality) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility
Office.


 


(b)                                 Paragraph (a) above does not in any way limit the
obligations of any Obligor under the 
Finance Documents.


 


13.3                        Limitation of Liability


 


(a)                                  The Borrowers shall indemnify each Finance Party for
all costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 13.2 (Mitigation).


 


(b)                                 A Finance Party is not obliged to take any steps under
Clause 13.2 (Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.


 


14.                               GUARANTEE


 


14.1                        Guarantee and indemnity


 


In consideration
of the Finance Parties entering into this Agreement and, where applicable, the
other Finance Documents and performing their obligations thereunder and the
Senior Hedging Banks and the High Yield Hedging Banks from time to time
entering into the Senior Hedging Agreements and the High Yield Hedging
Agreements respectively, each Guarantor irrevocably and unconditionally,
jointly and severally:


 


(a)                                  guarantees to each Finance Party and the Security
Agent on behalf of the Beneficiaries punctual performance by each Borrower and
each Hedging Counterparty of all their respective obligations under the
Guaranteed Documents;


 


70

















 


(b)                                 undertakes with each Finance Party and the Security
Agent on behalf of the Beneficiaries that whenever a Borrower or a Hedging
Counterparty does not pay any amount when due under or in connection with any
Guaranteed Document, that Guarantor shall immediately on demand pay that amount
as if it was the principal obligor; and


 


(c)                                  indemnifies each Finance Party and the Security Agent
on behalf of the Beneficiaries immediately on demand against any cost, loss or
liability suffered by that Finance Party or Beneficiary if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal.  The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party or Beneficiary would
otherwise have been entitled to recover.


 


Any demand
issued to a Guarantor under this Clause 14.1 shall be copied to UPC
Distribution at the same time as it is issued to the relevant Guarantor,
provided that failure to do so shall not affect the validity or effectiveness
of the demand or the obligations of the Guarantor under this Clause 14
(Guarantee).


 


14.2                        Continuing guarantee


 


This guarantee
is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Obligor or any Hedging Counterparty under the Guaranteed
Documents, regardless of any intermediate payment or discharge in whole or in
part.


 


14.3                        Reinstatement


 


If any payment
by an Obligor or a Hedging Counterparty or any discharge given by a Beneficiary
(whether in respect of the obligations of any Obligor or any Hedging
Counterparty or any security for those obligations or otherwise) is avoided or
reduced as a result of insolvency or any similar event:


 


(a)                                  the liability of each Obligor shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and


 


(b)                                 each Beneficiary shall be entitled to recover the
value or amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.


 


14.4                        Waiver of defences


 


The obligations
of each Guarantor under this Clause 14 will not be affected by any act,
omission, matter or thing which, but for this Clause, would reduce, release or
prejudice any of its obligations under this Clause 14 (without limitation and
whether or not known to it or any Beneficiary) including:


 


(a)                                  any time, waiver or consent granted to, or composition
with, any Obligor or any Hedging Counterparty or other person;


 


(b)                                 the release of any other Obligor or any Hedging
Counterparty or any other person under the terms of any composition or
arrangement with any creditor of any member of the Borrower Group or  any Hedging Counterparty;


 


(c)                                  the taking, variation, compromise, exchange, renewal
or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, 


 


71

















 


any Obligor or
any Hedging Counterparty or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)                                 any incapacity or lack of power, authority or legal
personality of, or dissolution or change in, the members or status of an
Obligor or a Hedging Counterparty or any other person;


 


(e)                                  any amendment (however fundamental) or replacement of
a Guaranteed Document or any other document or security;


 


(f)                                    any unenforceability, illegality or invalidity of any
obligation of any person under any Guaranteed Document or any other document or
security; or


 


(g)                                 any insolvency or similar proceedings.


 


14.5                        Immediate recourse


 


None of the
Beneficiaries shall be obliged to make any claim or demand on the Borrowers or
any Hedging Counterparty or to resort to any security document or other means of
payment now or hereafter held by or available to them or it before enforcing
its rights under this Clause 14 and no action taken or omitted by any of the
Beneficiaries in connection with any such security document or other means of
payment shall discharge, reduce, prejudice or affect the liability of any
Guarantor under this Clause 14 nor shall any of the Beneficiaries be obliged to
apply any money or other property received or recovered in consequence of any
enforcement or realisation of any such Security Document or other means of
payment in reduction of the obligations and liabilities expressed to be
guaranteed by the Guarantors pursuant to this Clause 14.


 


14.6                        Appropriations


 


Until all
amounts which may be or become payable by the Obligors and the Hedging
Counterparties under or in connection with the Guaranteed Documents have been
irrevocably paid in full, each Beneficiary (or any trustee or agent on its
behalf) may:


 


(a)                                  refrain from applying or enforcing any other moneys,
security or rights held or received by that Beneficiary (or any trustee or
agent on its behalf) in respect of those amounts, or apply and enforce the same
in such manner and order as it sees fit (whether against those amounts or
otherwise) and no Guarantor shall be entitled to the benefit of the same; and


 


(b)                                 hold in an interest-bearing suspense account any
moneys received from any Guarantor or on account of any Guarantor’s liability
under this Clause 14.


 


14.7                        Deferral of Guarantors’ rights


 


Until all
amounts which may be or become payable by the Obligors and the Hedging
Counterparties under or in connection with the Guaranteed Documents have been
irrevocably paid in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor agrees that,
without the prior written consent of the Facility Agent, it will not:


 


(a)                                  exercise its rights of subrogation, reimbursement and
indemnity against any other Obligor or Hedging Counterparty or any other person
liable; or


 


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(b)                                 demand or accept any security to be executed in
respect of any of its obligations under this guarantee or any other
indebtedness now or hereafter due to such Guarantor from any other member of
the Borrower Group or any Hedging Counterparty or from any other person liable;
or


 


(c)                                  take any step or enforce any right against any Obligor
or any Hedging Counterparty or any other person liable in respect of any
obligations and liabilities expressed to be guaranteed by the Guarantors
pursuant to this Clause 14; or


 


(d)                                 exercise any right of set-off or counterclaim against
any other Obligor or any Hedging Counterparty or any other person liable or
claim or prove or vote as a creditor in competition with any of the Beneficiaries
in the bankruptcy, liquidation, administration or other insolvency proceeding
of any other Obligor or any Hedging Counterparty or any other person liable or
have the benefit of, or share in, any payment from or composition with, any
other Obligor or any Hedging Counterparty or any other person liable or any
other security document now or hereafter held by any of the Beneficiaries for
the obligations and liabilities expressed to be guaranteed by the Guarantors
pursuant to this Clause 14 or for the obligations or liabilities of any other
person liable, but so that, if so directed by the Facility Agent, it will prove
for the whole or any part of its claim in the liquidation of any other Obligor
or any Hedging Counterparty, as the case may be, on terms that the benefit of
such proof and of all money received by it in respect thereof shall immediately
be transferred to an account to be designated by the Security Agent for the
Beneficiaries and applied in or towards discharge of the obligations and
liabilities expressed to be guaranteed by the Guarantors pursuant to this
Clause 14 in accordance with the Security Deed.


 


14.8                        Additional security


 


This guarantee
is in addition to and is not in any way prejudiced by any other guarantee or
security now or subsequently held by any Beneficiary.


 


14.9                        Limitation


 


Notwithstanding
any other provision of this Clause 14, the obligations of each US Guarantor
under this Clause 14, shall be limited to a maximum aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Bankruptcy Code, any applicable provisions of
comparable state law or any applicable case law (collectively, the Fraudulent Transfer Laws), in each case
after giving effect to all other liabilities of such US Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such US Guarantor
pursuant to (i) applicable law or (ii) any agreement providing for an equitable
allocation among such US Guarantors and other Affiliates of the Borrower Group
of the obligations arising under guarantees by such parties.


 


For the purposes
of this Clause 14.9, US Guarantor
means each Guarantor incorporated (or in the case of a non-corporate Guarantor,
formed and subsisting) in the United States of America (or any of its states or
territories or any political or legal subdivision thereof).


 


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15.                               REPRESENTATIONS
AND WARRANTIES


 


15.1                        Representations and warranties


 


(a)                                  Subject to paragraph (b), each Obligor makes the
representations and warranties set out in this Clause 15, in respect of itself
and (where applicable) its Subsidiaries which are members of the Borrower
Group, other than:


 


(i)                                     Clauses 15.9 (Accounts), 15.10 (Financial condition),
15.14 (Information), 15.14A (Business Plan) and 15.25 (Dutch Banking Act),
which shall only be made by UPC Distribution; and


 


(ii)                                  Clause 15.24 (US Borrower), which shall only be made
by the US Borrower,


 


to each Finance
Party.


 


(b)                                 UPC Distribution Holdco does not make the
representations and warranties set out in Clauses 15.6(b) or (c) (Consents),
15.7 (Material Contracts), 15.9 (Accounts), 15.10 (Financial condition), 15.11
(Environmental), 15.13(a) (Litigation and insolvency proceedings), 15.14
(Information), 15.15 (Tax liabilities), 15.16 (Ownership of assets), 15.17
(Intellectual Property Rights), 15.19 (Borrower Group structure) and 15.24 (US
Borrower).


 


15.2                        Status


 


(a)                                  It is a corporation, duly incorporated and validly
existing under the laws of its place of incorporation and, in the case of the
US Borrower only, it is a Delaware general partnership duly formed and wholly
existing under the laws of its place of formation.


 


(b)                                 It has the power to own its assets and carry on its
business as it is being conducted.


 


15.3                        Powers and authority


 


It has the
power:


 


(a)                                  to enter into and comply with all obligations
expressed on its part under the Finance Documents; and


 


(b)                                 (in the case of a Borrower) to borrow under this Agreement;
and


 


(c)                                  (in the case of a Guarantor) to give the guarantee in
Clause 14 (Guarantee),


 


and has taken
all necessary actions to authorise the execution, delivery and performance of
the Finance Documents to which it is a party.


 


15.4                        Legal validity


 


(a)                                  Each Finance Document to which it is or will be a
party constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligations enforceable, subject to
any relevant reservations or qualifications as to matters of law contained in
any legal opinion referred to in paragraph 3 of Part 1 of Schedule 2
(Conditions Precedent Documents) or (as applicable) paragraph 12 of Part 2 of
Schedule 2 (Conditions Precedent Documents), in accordance with its terms.


 


(b)                                 The choice of English law as the governing law of the
Finance Documents and its irrevocable submission to the jurisdiction of the
courts of England in respect of any proceedings relating 


 


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to the Finance
Documents (in each case other than any Finance Document which is expressly to
be governed by a law other than English law) will be recognised and enforced in
its jurisdiction of incorporation, subject to any relevant reservation or
qualification as to matters of law contained in any legal opinion referred to
in paragraph (a) above.


 


(c)                                  Any judgment obtained in England in relation to a
Finance Document (in each case other than any Security Document which is
expressly to be governed by a law other than English law) will be recognised
and enforced in its jurisdiction of incorporation, subject to any relevant
reservation or qualification as to matters of law contained in any legal
opinion referred to in paragraph (a) above.


 


15.5                        Non-violation


 


The execution
and delivery by it of, the Finance Documents to which it is a party, and its
performance of the transactions contemplated thereby, will not violate:


 


(a)                                  in any material respect, any law or regulation or
official judgment or decree applicable to it;


 


(b)                                 in any material respect, its constitutional documents;
or


 


(c)                                  any agreement or instrument to which it is a party or
binding on any of its assets or binding upon any other member of the Borrower
Group or any other member of the Borrower Group’s assets, where such violation
would or is reasonably likely to have a Material Adverse Effect.


 


15.6                        Consents


 


(a)                                  Subject to any relevant reservations or qualifications
contained in any legal opinion referred to in Clause 15.4(a) (Legal validity)
above, all material and necessary authorisations, registrations, consents,
approvals, licences (other than the Licences), and filings required by it in
connection with the execution, validity or enforceability of the Finance
Documents to which it is a party and performance of the transactions
contemplated by the Finance Documents have been obtained (or, if applicable,
will be obtained within the required time period) and are validly existing.


 


(b)                                 The Licences are in full force and effect and each
member of the Borrower Group is in compliance in all material respects with all
provisions thereof such that the Licences are not the subject of any pending
or, to the best of its knowledge, threatened attack, suspension or revocation
by a competent authority except, in each case, to the extent that any lack of
effect, non-compliance or attack, suspension or revocation of a Licence would
not have or be reasonably likely to have a Material Adverse Effect.


 


(c)                                  All the Necessary Authorisations are in full force and
effect, each member of the Borrower Group is in compliance in all material
respects with all provisions thereof and the Necessary Authorisations are not
the subject of any pending or, to the best of its knowledge, threatened attack
or revocation by any competent authority except, in each case, to the extent
that any lack of effect, non-compliance or attack or revocation of a Necessary
Authorisation would not have or be reasonably likely to have a Material Adverse
Effect.


 


15.7                        Material Contracts


 


(a)                                  Each Material Contract to which any member of the
Borrower Group is a party constitutes, or will when executed constitute, the
legal, valid and binding obligation of such member, subject 


 


75

















 


to the
application of any relevant insolvency, bankruptcy or similar laws or other
laws affecting the interests of creditors generally, enforceable against it in
accordance with its terms.


 


(b)                                 No member of the Borrower Group is in breach of any of
its material obligations under any Material Contract to which such member is a
party, nor (to the best of its knowledge and belief), is any other party
thereto, in each case in such a manner or to such an extent as would or is
reasonably likely to have a Material Adverse Effect.  To the best of its knowledge and belief there is no material
dispute between any member of the Borrower Group and any other party to a
Material Contract and there have been no amendments to any Material Contract in
the form provided to the Facility Agent prior to the date of this Agreement
which would or is reasonably likely to have a Material Adverse Effect.


 


15.8                        No default


 


(a)                                  No Event of Default has occurred and is continuing or
will result from the making of any Advance.


 


(b)                                 None of it or any other member of the Borrower Group
is in default under any law, regulation or agreement to which it is subject,
except for a default which will not have or be reasonably likely to have a
Material Adverse Effect.


 


15.9                        Accounts


 


The consolidated
financial statements of it and the Borrower Group most recently delivered to
the Facility Agent (which, at the date of this Agreement are the Original
Borrower Group Financial Statements):


 


(a)                                  present a true and fair view of (in the case of
audited financial statements) or fairly present (in the case of unaudited
financial statements) its financial position and the consolidated financial
position of the Borrower Group respectively as at the date to which they were
drawn up; and


 


(b)                                 have been prepared in all material respects in
accordance with GAAP (except that such consolidated financial statements do not
include all consolidated Subsidiaries to the extent they are Unrestricted
Subsidiaries).


 


15.10                 Financial condition


 


There has been
no material adverse change in the consolidated financial position of the
Borrower Group (taken as a whole) since the date of the Original Borrower Group
Financial Statements which would or is reasonably likely to have a Material
Adverse Effect.


 


15.11                 Environmental


 


(a)                                  It and each other member of the Borrower Group (i) have
obtained all requisite Environmental Licences required for the carrying on of
its business as currently conducted and (ii) have at all times complied with
the terms and conditions of such Environmental Licences and (iii) have at all
times complied with all other applicable Environmental Law, which in each such
case, if not obtained or complied with, would or is reasonably likely to have a
Material Adverse Effect.


 


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(b)                                 There is no Environmental Claim in existence, pending
or, to the best of its knowledge, threatened, against it which is reasonably
likely to be decided against it and which, if so decided, would or is
reasonably likely to have a Material Adverse Effect.


 


(c)                                  So far as it is aware, no Dangerous Substance has been
used, disposed of, generated, stored, transported, dumped, released, deposited,
buried or emitted at, on, from or under any premises (whether or not owned,
leased, occupied or controlled by it or any member of the Borrower Group and including
any offsite waste management or disposal location utilised by it or any member
of the Borrower Group) in circumstances where this would be reasonably likely
to result in a liability on it which would or is reasonably likely to have a
Material Adverse Effect.


 


15.12                 Security Interests


 


Its execution
and delivery of this Agreement does not necessitate and will not result in the
creation or imposition of any Security Interest over any of its material assets
or those of any member of the Borrower Group (except for any Security Interest
created pursuant to the Security Documents).


 


15.13                 Litigation and insolvency proceedings


 


(a)                                  No litigation, arbitration or administrative
proceedings of or before any court, arbitral body or agency have been started
against any member of the Borrower Group and, to its knowledge, no such
proceedings are threatened, where in any such case, there is a reasonable
likelihood of an adverse outcome to any member of the Borrower Group where that
outcome is of a nature which would or is reasonably likely to have a Material
Adverse Effect.


 


(b)                                 None of the circumstances referred to in Clause 18.7
(Insolvency proceedings) are pending or, to its knowledge, threatened against
it or any member of the Borrower Group which is a Material Subsidiary.


 


15.14                 Information


 


(a)                                  To the best of its knowledge after due inquiry, as of
the date of any Information Memorandum:


 


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


 


(ii)                                  all UPC Distribution’s projections and forecasts
contained in that 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 Lenders in writing prior to the date of that
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 that Information Memorandum, or any such opinions,
projections, or assumptions referred to in (ii) above misleading in any
material respect as at the date of that Information Memorandum.


 


(b)                                 To the best of its knowledge after due inquiry, the
factual information furnished by or on behalf of UPC or any member of the
Borrower Group to the Consultant and contained or 


 


77

















 


referred to in
the Consultant’s Report was true in all material respects at the respective
dates as of which that information speaks.


 


(c)                                  Notwithstanding paragraphs (a) and (b) 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, (ii) the research reports contained in Book Two of the Information
Memorandum and (iii) any person other than any member of the Borrower Group.


 


15.14A        Business Plan


 


To the best of
its knowledge after due inquiry, as of the date of the Business Plan:


 


(a)                                  the factual information relating to the Borrower Group
contained in the Business Plan is accurate in all material respects;


 


(b)                                 all UPC Distribution’s projections and forecasts
contained in the Business Plan 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;


 


(c)                                  there are no material facts or circumstances which
have not been disclosed to the Lenders in writing prior to the date of the
Business Plan and which would make any material factual information referred to
in (a) above untrue, inaccurate or misleading in any material respect as at the
date of the Business Plan, or any such opinions, projections, or assumptions
referred to in (b) above misleading in any material respect as at the date of
the Business Plan.


 


15.15                 Tax liabilities


 


No claims are
being asserted against it or any member of the Borrower Group with respect to
Taxes which are reasonably likely to be determined adversely to it or to such
member and which, if so adversely determined, would or is reasonably likely to
have a Material Adverse Effect.  It is
not materially overdue in the filing of any Tax returns required to be filed by
it (where such late filing might result in any material fine or penalty on it)
and it has paid within any period required by law all Taxes shown to be due on
any Tax returns required to be filed by it or on any assessments made against
it (other than Tax liabilities being contested by it in good faith and where it
has made adequate reserves for such liabilities or where such overdue filing,
or non-payment, or a claim for payment, of which in each such case would not
have or be reasonably likely to have a Material Adverse Effect).


 


15.16                 Ownership of assets


 


It and each
member of the Borrower Group has good title to or valid leases or licences of
or is otherwise entitled to use all assets necessary to conduct its business,
except where the failure to do so would not have or be reasonably likely to
have a Material Adverse Effect.


 


15.17                 Intellectual Property Rights


 


(a)                                  It (and each member of the Borrower Group) owns or has
the legal right to use all the Intellectual Property Rights which are required
for the conduct of the business of the Borrower Group as a whole from time to
time or are required by it (or such member) in order for it to carry on such
business as it is then being conducted, except where the failure to do so would
not have or be reasonably likely to have a Material Adverse Effect.  As far as it is 


 


78

















 


aware it does
not (nor does any member of the Borrower Group), in carrying on its business,
infringe any Intellectual Property Rights of any third party in any way which
would or is reasonably likely to have a Material Adverse Effect.


 


(b)                                 None of the Intellectual Property Rights owned by any
member of the Borrower Group is, to its knowledge, being infringed nor, to its
knowledge, is there any threatened infringement of those Intellectual Property
Rights, by any third party which, in either case, would or is reasonably likely
to have a Material Adverse Effect.


 


(c)                                  All registered Intellectual Property Rights owned by
it (or any member of the Borrower Group) are subsisting and all actions
(including payment of all fees) required to maintain the same in full force and
effect have been taken except where the absence of such rights or the failure
to take any such action would not have or be reasonably likely to have a
Material Adverse Effect.


 


15.18                 Works councils


 


All of the
requirements of Section 25 of The Netherlands Works Council Act (Wet op de Ondernemingsraden) in connection
with the transactions contemplated by the Finance Documents which are
applicable to an Obligor have been complied with by that Obligor.


 


15.19                 Borrower Group structure


 


Schedule 10
(Borrower Group Structure) sets out a description which is true and complete in
all material respects as at the Effective Date of the corporate ownership
structure of the Borrower Group and of the ownership of the Borrower (but does
not describe any level of ownership above UGCE Inc.).


 


15.20                 ERISA


 


Neither it nor
any member of the Borrower Group or ERISA Affiliate maintains, contributes to
or has any obligation to contribute to or any liability under, any Plan, or in
the past five years has maintained or contributed to or had any obligation to,
or liability under, any Plan.


 


15.21                 United States Regulations


 


Neither it nor
any member of the Borrower Group is:


 


(a)                                  a holding company as defined in the United States
Public Utility Holding Company Act of 1935 or subject to regulation thereunder;


 


(b)                                 a public utility as defined in the United States
Federal Power Act of 1920 or subject to regulation thereunder;


 


(c)                                  required to be registered as an investment company as
defined in the United States Investment Company Act of 1940 or subject to
regulation thereunder; or


 


(d)                                 subject to regulation under any United States Federal
or State law or regulation that limits its ability to incur or guarantee
indebtedness.


 


15.22                 Anti-Terrorism Laws


 


To the best of
its knowledge, neither it nor any member of the Borrower Group:


 


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(a)                                  is, or is controlled by, a Designated Party;


 


(b)                                 has received funds or other property from a Designated
Party; or


 


(c)                                  is in material breach of or is the subject of any
action or investigation under any Anti-Terrorism Law.


 


It and each of
its Affiliates have taken commercially reasonable measures to ensure compliance
with the Anti-Terrorism Laws.


 


15.23                 Margin stock


 


(a)                                  (In the case of the Borrowers only) the proceeds of
the Facilities have been and will be used only for the purposes described in
Clause 3 (Purpose).


 


(b)                                 Neither it nor any member of the Borrower Group is
engaged principally in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations U and X
of the Board of Governors of the United States Federal Reserve System), and no
portion of any Advance has been or will be used, directly or indirectly, to
purchase or carry margin stock or to extend credit to others for the purpose of
purchasing or carrying margin stock.


 


15.24                 US Borrower


 


The US Borrower
did not trade or carry on any business from the date it was formed up to and
including 26th October, 2000 except for investment in or proposed investment in
other members of the Borrower Group by way of intercompany loan or subscription
of shares.


 


15.25                 Dutch Banking Act


 


(a)                                  On the Effective Date, UPC Distribution is in
compliance with the applicable provisions of the Dutch Banking Act and any
implementing regulations; and


 


(b)                                 On the date falling 30 days after the Effective Date,
UPC Distribution has verified, by obtaining a duly completed and executed
Verification Letter, the status of each Facility A Lender under this Agreement
either as:


 


(i)                                     a Professional Market Party; or


 


(ii)                                  exempted from the requirement to be a Professional
Market Party because it forms part of a closed circle (besloten kring) with UPC Distribution.


 


15.26                 Investment Company Act


 


Neither it nor
any member of the Borrower Group is an “investment company” or a company
“controlled” by an “investment company”, within the meaning of the United
States Investment Company Act of 1940, as amended.


 


15.27                 Public Utility Holding Company Act and Federal Power
Act


 


Neither it nor
any member of the Borrower Group is a “holding company”, or an “affiliate” of a
“holding company” or a “subsidiary company” of a “holding company”, within the
meaning of, or otherwise subject to regulation under, the United States Public
Utility Holding Company Act of 1935, as amended.  Neither it nor any member of the Borrower Group is a 


 


80

















 


“public utility”
within the meaning of, or otherwise subject to regulation under, the United
States Federal Power Act.


 


15.28                 Times for making representations and warranties


 


(a)                                  The representations and warranties set out in this
Clause 15 (Representations and Warranties) are made by each Obligor on the
Signing Date and (except for Clauses 15.6 (Consents), 15.10 (Financial
condition), 15.12 (Security Interests), 15.13(b) (Litigation and insolvency
proceedings), 15.14 (Information), 15.14A (Business Plan), 15.15 (Tax
liabilities), 15.16 (Ownership of assets), 15.18 (Works councils), 15.19
(Borrower Group structure), 15.20 (ERISA), 15.24 (US Borrower) and 15.25 (Dutch
Banking Act)) are deemed to be made again by each relevant Obligor on the date
of each Request, the first day of each Interest Period and on each Utilisation
Date with reference to the facts and circumstances then existing.


 


(b)                                 The representations and warranties set out in this
Clause 15 (Representations and Warranties) (except Clauses 15.9 (Accounts),
15.10 (Financial condition), 15.14 (Information), 15.14A (Business Plan), 15.19
(Borrower Group structure) and 15.24 (US Borrower)) are repeated by each
Additional Guarantor with respect to itself on the date of the Guarantor
Accession Agreement relating to that Additional Guarantor, with reference to
the facts and circumstances then subsisting.


 


(c)                                  The representation and warranty made by UPC
Distribution in Clause 15.14 (Information) will be deemed to be repeated on the
date any updated Information Memorandum is delivered to the Facility Agent by
UPC Distribution, but only in respect of that updated Information Memorandum,
by reference to the facts and circumstances existing on the relevant date.


 


(d)                                 The representation and warranty made by UPC
Distribution in Clause 15.14A (Business Plan) will be deemed to be repeated on
the date any updated Business Plan is delivered to the Facility Agent by UPC
Distribution, but only in respect of that updated Business Plan, by reference
to the facts and circumstances existing on the relevant date.


 


16.                               UNDERTAKINGS


 


16.1                        Duration


 


The undertakings
in this Clause 16 (Undertakings) will remain in force from the Signing Date for
so long as any amount is or may be outstanding under any Finance Document or
any Commitment is in force.


 


16.2                        Financial information


 


UPC Distribution
shall supply to the Facility Agent in sufficient copies for all the Lenders:


 


(a)                                  as soon as the same are available (and in any event
within 150 days of the end of each of its financial years) its audited
consolidated financial statements for that financial year;


 


(b)                                 as soon as the same are available (and, in any event,
(in the case of its first three financial quarters in any financial year)
within 60 days of the end of each of its financial quarters and (in the case of
its fourth financial quarter in each financial year) within 150 days of the end
of each such financial quarter), its unaudited quarterly consolidated
management accounts for that financial quarter in the agreed form;


 


81

















 


(c)                                  by no later than 60 days after the last day of each of
its financial years, an annual budget for the Distribution Business of the
Borrower Group in the agreed form for the immediately following financial year;


 


(d)                                 together with any financial statements specified in
paragraphs (a) or (b) above, a certificate signed by a director of UPC
Distribution:


 


(i)                                     confirming that no Default is outstanding or if a
Default is outstanding, specifying the Default and the steps, if any, being
taken to remedy it;


 


(ii)                                  setting out in reasonable detail computations
establishing, as at the date of such financial statements, whether each of the
financial ratios set out in Clause 17 (Financial Covenants) were complied with;


 


(iii)                               (in the case of financial statements specified in
paragraph (a) above, starting with the annual financial statements for 31st
December, 2004) setting out in reasonable detail computations establishing the
Excess Cash Flow (if any) for the financial year to which such financial
statements were delivered for the purposes of Clause 7.5 (Mandatory prepayment
from Excess Cash Flow and Net Equity Proceeds);


 


(iv)                              certifying current compliance with the Borrowers’
obligations under Clause 7.6(b)(i) (Prepayment from disposal proceeds); and


 


(v)                                 certifying compliance with Clause 16.11(a) and (b)
(Acquisitions and mergers) and setting out in reasonable detail the amount of
the Acquisition Cost of all Acquisitions made by the Borrower Group since the
Signing Date (excluding, at UPC Distribution’s option, the value of any
consideration referred to in paragraph (a) of the definition of “Acquisition
Cost” in respect of such Acquisition which has yet to be paid or delivered) and
whether any such Acquisition Cost has been directly or indirectly funded by the
proceeds of equity or Subordinated Shareholder Loans as described in paragraph
(c) of the definition of “Permitted Acquisition” and paragraph (b) of the
definition of “Permitted Joint Venture” respectively;


 


(e)                                  as soon as the same is available (and in any event
within 90 days after each of its financial quarters) the consolidated financial
statements of UGCE Inc. for that financial quarter on Form 10Q as filed with
the United States Securities and Exchange Commission (the Commission) or such other comparable form
as UGCE Inc. is required to file with the Commission under the United States
Securities Exchange Act of 1934 (the 1934 Act)
or, if UGCE Inc. is no longer subject to the reporting requirements of the 1934
Act, in the form required to be filed with the regulatory body comparable to
the Commission then having jurisdiction over UGCE Inc.;


 


(f)                                    as soon as the same is available (and in any event
within 180 days after each of its financial years) the audited consolidated
financial statements of UGCE Inc. for that financial year on Form 10K as filed
with the Commission or such other comparable form as UGCE Inc. is required to
file with the Commission under the 1934 Act or, if UGCE Inc. is no longer
subject to the reporting requirements of the 1934 Act, in the form required to
be filed with the regulatory body comparable to the Commission then having
jurisdiction over UGCE Inc.; and


 


82

















 


(g)                                 together with the financial statements and accounts
referred to in paragraphs (a) and (b), a reconciliation demonstrating the
effect of excluding from such financial statements or accounts the results of
any business or activity other than the Distribution Business of the Borrower
Group, provided that non-Distribution Business Assets need not be so excluded
(and the reconciliation need not apply to such assets) unless they are subject
to any Security Interest referred to in paragraph (i) of the definition of
“Permitted Security Interest” or any other form of recourse as contemplated by
Clause 16.12(b)(xii) (Restrictions on Financial Indebtedness).


 


16.3                        Information - Miscellaneous


 


UPC Distribution
shall supply promptly (and in any event in the case of paragraph (d) below
within five Business Days of the date on which UPC Distribution becomes aware
of such information) or procure that there shall be supplied (both in hard copy
and in electronic form) promptly to the Facility Agent:


 


(a)                                  all notices, reports or other documents despatched by
or on behalf of any Obligor to its creditors generally in relation to it or any
of its Subsidiaries;


 


(b)                                 a copy of any material report or other notice,
statement or circular, sent or delivered by any member of the Borrower Group
whose shares are pledged to the Security Agent pursuant to any Security
Document to any person in its capacity as shareholder of such member of the
Borrower Group, which materially adversely affects the interest of the Finance
Parties under such Security Document;


 


(c)                                  such other material information regarding the Borrower
Group and which is in the possession or control of any member of the Borrower
Group as the Facility Agent may from time to time reasonably request; and


 


(d)                                 written notification of:


 


(i)                                     any or all of the Priority Pledge and/or the Derby and
EPG Share Pledges becoming enforceable;


 


(ii)                                  any breach by UPC, UPC Exploitation II B.V., UPC
Exploitation Holding B.V. or Priority Telecom N.V. of its obligations set out
in the Priority Pledge and/or the Derby and EPG Share Pledges;


 


(iii)                               any breach of the Derby and EPG Agreements; and


 


(iv)                              any breach of the Sale and Purchase Agreements.


 


16.3A               Enforcement of and undertakings in
relation to certain agreements


 


(a)                                  UPC Distribution agrees promptly after (and in any
event within five Business Days of) receiving notice from the Facility Agent to
do so, to take all necessary action to:


 


(i)                                     if any or all of the Priority Pledge and/or the Derby
and EPG Share Pledges become enforceable, enforce any or all of them;


 


(ii)                                  if UPC, UPC Exploitation II B.V., UPC Exploitation
Holding B.V. or Priority Telecom N.V. has breached its obligations set out in
all or any of the Priority Pledge and/or the Derby and EPG Share Pledges in any
material respect or if any party is in breach of either of the Derby and EPG
Agreements in any material respect, enforce 


 


83

















 


its rights in
respect of any such breaches by UPC, UPC Exploitation II B.V., UPC Exploitation
Holding B.V. or Priority Telecom N.V. of their respective obligations under
such agreements; and


 


(iii)                               if any party to the Sale and Purchase Agreements is in
default under any one or more of the Sale and Purchase Agreements in any
material respect, enforce its rights in respect of such default.


 


(b)                                 UPC Distribution undertakes to keep the Lenders
informed and to take such action in connection with the enforcement of the
Priority Pledge and/or the Derby and EPG Share Pledges or its rights under the
Priority Pledge and/or the Derby and EPG Share Pledges, the Derby and EPG
Agreements or any of the Sale and Purchase Agreements (as the case may be) as
may be requested by the Facility Agent (acting on the instructions of the
Majority Lenders).


 


(c)                                  UPC Distribution undertakes not to:


 


(i)                                     agree to any amendment, variation, supplement or waiver
of the Priority Pledge and/or the Derby and EPG Share Pledges, the Derby and
EPG Agreements or the Sale and Purchase Agreements;


 


(ii)                                  enter into any arrangements with UPC Exploitation
Holding B.V. or UPC Exploitation II B.V. other than the Priority Pledge and/or
the Derby and EPG Share Pledges, the Derby and EPG Agreements or any of the
Sale and Purchase Agreements; or


 


(iii)                               enter into any arrangements with UPC, UPC Exploitation
Holding B.V. or UPC Exploitation II B.V. in relation to the derby billing system
or electronic programming guide software that will prejudice UPC Distribution’s
rights to use and operate the derby billing system and/or the electronic
programming guide software,


 


without the
written consent of the Facility Agent (acting on the instructions of the
Majority Lenders) where the same would prejudice in any material respect the
interests of the Lenders under such arrangements.


 


16.4                        Notification of Default and
inspection rights


 


(a)                                  Each Obligor shall notify the Facility Agent of any
Default (and the steps, if any, being taken to remedy it) promptly upon
becoming aware of it (unless that Obligor is aware that such a notification has
already been provided by another Obligor).


 


(b)                                 Each Obligor (other than UPC Distribution Holdco)
shall, if required by the Facility Agent (acting on the instructions of the
Majority Lenders), at any time whilst an Event of Default is continuing or the
Facility Agent has reasonable grounds to believe that an Event of Default may
exist and at other times if the Facility Agent has reasonable grounds for such
request, permit representatives of the Facility Agent upon reasonable prior
written notice to UPC Distribution to:


 


(i)                                     visit and inspect the properties of any member of the
Borrower Group during normal business hours;


 


(ii)                                  inspect its books and records other than records which
the relevant member of the Borrower Group is prohibited by law, regulation or
contract from disclosing to the Facility Agent; and


 


84

















 


(iii)                               discuss with its principal officers and Auditors its
business, assets, liabilities, financial position, results of operations and
business prospects provided that (A) any such discussion with the Auditors
shall only be on the basis of the audited financial statements of the Borrower
Group and any compliance certificates issued by the Auditors and (B)
representatives of UPC Distribution shall be entitled to be present at any such
discussion with the Auditors.


 


(c)                              Any Obligor must promptly upon becoming aware of it
notify the Facility Agent of:


 


(i)                                 any Reportable Event;


 


(ii)                              the termination of or withdrawal from, or any
circumstances reasonably likely to result in the termination of or withdrawal
from, any Plan subject to Title IV of ERISA; and


 


(iii)                           material non-compliance with any law or regulation
relating to any Plan which would or is reasonably likely to have a Material
Adverse Effect.


 


16.5                        Authorisations


 


Each Obligor
(other than UPC Distribution Holdco, in the case of paragraphs (b) and (c) below)
will, and will procure that each of its Subsidiaries which is a member of the
Borrower Group will:


 


(a)                                  obtain or cause to be obtained, maintain and comply
with the terms of:


 


(i)                                     every material consent, authorisation, licence or
approval of, or filing or registration with or declaration to, governmental or
public bodies or authorities or courts; and


 


(ii)                                  every material notarisation, filing, recording,
registration or enrolment in any court or public office,


 


in each case
required under any law or regulation to enable it to perform its obligations
under, or for the validity, enforceability or admissibility in evidence of any
Finance Document to which it is a party; and


 


(b)                                 obtain or cause to be obtained every Necessary
Authorisation and the Licences and ensure that (i) none of the Necessary
Authorisations or Licences is revoked, cancelled, suspended, withdrawn,
terminated, expires and is not renewed or otherwise ceases to be in full force
and effect and (ii) no Necessary Authorisation or Licence is modified and no
member of the Borrower Group commits any breach of the terms or conditions of
any Necessary Authorisation or Licence which, in each case, would or is
reasonably likely to have a Material Adverse Effect.


 


16.6                        Pari passu ranking


 


Each Obligor
will procure that its payment obligations under the Finance Documents do and
will rank at least pari passu
with all the claims of its other present and future unsecured and
unsubordinated creditors (save for those obligations mandatorily preferred by
applicable law applying to companies generally).


 


85

















 


16.7                        Negative pledge


 


(a)                                  Each Obligor (other than UPC Distribution Holdco) will
not permit any Security Interest (other than the Permitted Security Interests) by
any member of the Borrower Group to subsist, arise or be created or extended
over all or any part of their respective present or future undertakings,
assets, rights or revenues to secure or prefer any present or future
indebtedness of any member of the Borrower Group or any other person.


 


(b)                                 UPC Distribution Holdco will not create or permit to
subsist any Security Interest over its assets which are subject to the Security
Documents to which it is a party (other than any Permitted Security Interest
referred to in paragraphs (a), (b), (d), (e) or (g) of the definition of
“Permitted Security Interest”).


 


(c)                                  (i)                                     UPC Distribution will procure that none of Belmarken,
UPC, UGCE Inc. or any other member of the UGCE Borrower Group (each a Relevant Company) will create or permit to
subsist any Security Interest (other than an Agreed Security Interest) over all
or part of that Relevant Company’s present or future undertakings, assets,
rights or revenues.


 


(ii)                                  For the purposes of sub-paragraph (c)(i) above:


 


Agreed Security Interest means:


 


(A)                              any liens arising in the ordinary course of business
by way of contract which secure indebtedness under any agreement for the supply
of goods or services in respect of which payment is not deferred for more than
180 days (or 360 days if such deferral is in accordance with the terms pursuant
to which the relevant goods were acquired or services were provided);


 


(B)                                any Security Interest imposed by any taxation or
governmental authority in respect of amounts which are being contested in good
faith and not yet payable and for which adequate reserves have been set aside
in the accounts of the Relevant Company in respect of the same in accordance
with GAAP;


 


(C)                                any Security Interest in favour of any bank incurred
in relation to any cash management arrangements;


 


(D)                               rights of set-off arising in the ordinary course of
business;


 


(E)                                 any Security Interest granted by a Relevant Company
over its shareholding in any of its Subsidiaries which is not itself a Relevant
Company;


 


(F)                                 any Security Interest granted by a Relevant Company
under any New Security Documents provided that, (other than in the case of the
Security Interests referred to in paragraph (a) of the definition of “New
Security Documents”) at the same time that such Security Interest is granted,
the Relevant Company grants an identical Security Interest over the same assets
to the Beneficiaries and under the terms of the Intercreditor Agreement, such
Security Interest ranks pari passu
with the Security Interest(s) arising under the corresponding Security Document
which purports to create a Security 


 


86

















 


Interest over
the same property, assets or rights, provided that any such New Security
Document will be in the same form as the corresponding Security Document (save
for changes directly attributable to the identity of the parties and the loan
amounts);


 


(G)                                any Security Interest granted by a Relevant Party to
secure any Third Party Debt permitted under Clause 16.12(d) (Restrictions on
Financial Indebtedness); and


 


(H)                               any Security Interest not falling within
sub-paragraphs (A) to (G) above securing any indebtedness which, when
aggregated with all other indebtedness secured by that Relevant Company and
each other Relevant Company, does not exceed €15,000,000 (or its equivalent).


 


16.8                        Permitted Business


 


(a)                                  Each Obligor will ensure that it and its Subsidiaries
which are members of the Borrower Group (other than any Relevant Eastern
European Subsidiary) engage:


 


(i)                                     in no material activity outside the Permitted
Business; and/or


 


(ii)                                  in the business of acting as the holder of shares
and/or interests in other members of the Borrower Group (which shall include
the raising of Permitted Financial Indebtedness and the on-lending of such Financial
Indebtedness to its Subsidiaries in accordance with the provisions of this
Agreement and the entry into of hedging arrangements on behalf of its
Subsidiaries).


 


(b)                                 The Borrowers will ensure that the US Borrower will
engage primarily in the business of a finance company for and in respect of the
Borrower Group in connection with the Facilities and the transactions
contemplated by this Agreement.


 


16.9                        Compliance with laws


 


Each Obligor
will, and will procure that each of its Subsidiaries which is a member of the
Borrower Group will, comply in all material respects with all applicable laws,
rules, regulations and orders of any governmental authority, having
jurisdiction over it or any of its assets, except where failure to comply with
which would not have or be reasonably likely to have a Material Adverse Effect.


 


16.10                 Disposals


 


(a)                                  Each Obligor (other than UPC Distribution Holdco) will
not and will procure that no other member of the Borrower Group (other than a
Relevant Eastern European Subsidiary) will, sell, transfer, lend (subject to
Clause 16.14 (Loans and guarantees)) or otherwise dispose of or cease to
exercise direct control over (each a disposal)
any part of its present or future undertaking, assets, rights or revenues
whether by one or a series of transactions related or not (other than Permitted
Disposals).


 


(b)                                 As used herein a Permitted
Disposal means:


 


(i)                                     disposals (including, for the avoidance of doubt, the
outsourcing of activities that support or are incidental to the Permitted Business)
on arm’s length commercial terms in the ordinary course of business;


 


87

















 


(ii)                                  [intentionally left blank];


 


(iii)                               the disposal of property or other assets on bona fide
arm’s length commercial terms in the ordinary course of business in
consideration for, or to the extent that the net proceeds of disposal are
applied within 120 days after such disposal in the acquisition of, property or
other assets of a similar nature and approximately equal value to be used in
the Permitted Business;


 


(iv)                              disposals of assets on bona fide arm’s length
commercial terms where such assets are obsolete or no longer required for the
purposes of the Permitted Business;


 


(v)                                 the application of cash in payments which are not otherwise
restricted by the terms of this Agreement and the Security Documents including,
for the avoidance of doubt, Permitted Acquisitions and Permitted Payments;


 


(vi)                              disposals (or the payment of management, consultancy
or similar fees):


 


(A)                              by an Obligor to another Obligor; or


 


(B)                                from a member of the Borrower Group which is not an
Obligor, to any member of the Borrower Group; or


 


(C)                                from an Obligor to another member of the Borrower
Group which is not an Obligor;


 


(vii)                           disposals of any interest in an Unrestricted
Subsidiary;


 


(viii)                        disposals made in connection with Approved Stock
Options;


 


(ix)                                disposals of assets (in addition to those described in
sub-paragraphs (i) to (viii) above), comprising or contributing in aggregate a
percentage value (as determined in accordance with Clause 7.6(c) (Prepayment
from disposal proceeds)) of five per cent. or less (adjusted in accordance with
Clause 7.6(b) (Mandatory prepayment from disposal proceeds)) of the total
assets, revenues and EBITDA of the Borrower Group provided that no Default has
occurred and is continuing or would occur as a result of such disposal;


 


(x)                                   disposals of undertakings, assets, rights or revenues
comprising interests in the share capital of persons not holding or engaged in
the Distribution Business of the Borrower Group or other undertakings, assets,
rights or revenues not constituting part of the Distribution Business of the
Borrower Group (non-Distribution Business
Assets);


 


(xi)                                payment, transfer or other disposal of consideration
for any Acquisition, merger or consolidation permitted by Clause 16.11
(Acquisitions and mergers);


 


(xii)                             disposals of cash or cash equivalents constituting any
distribution, dividend, transfer, loan or other transaction permitted by Clause
16.13 (Restricted Payments); and


 


(xiii)                          the grant of indefeasible rights of use or equivalent
arrangements with respect to network capacity, communications, fibre capacity
or conduit, in each case on arm’s length commercial terms or on terms that are
fair and reasonable and in the best interests of the Borrower Group.


 


88

















 


For the
avoidance of doubt and without limiting the generality of sub-paragraph (x)
above, non-Distribution Business Assets shall include:


 


(A)                              undertakings, assets, rights and revenues comprising
interests in the share capital of any person engaged solely in the competitive
local exchange carrier (CLEC) business, including without limitation, the
business of providing traditional voice and data services and services based on
Transmission Control Protocol/Internet Protocol (TCP/IP) technology and other
undertakings, assets, rights or revenues constituting a part of such
businesses; and


 


(B)                                undertakings, assets, rights and revenues comprising
interests in the share capital of any person engaged solely in the business of
television and radio programming, including without limitation, the business or
creating and distributing special interest television channels, radio
programmes, pay per view programmes and near video on demand services and other
undertakings, assets, rights or revenues constituting a part of such
businesses.


 


(c)                                  Except as otherwise expressly permitted in this
Agreement or the relevant Security Document, UPC Distribution Holdco will not
sell, transfer, lease or otherwise dispose of all or any part of its assets
which are subject to a Security Document to which it is a party.


 


16.11                 Acquisitions and mergers


 


(a)                                  No Obligor (other than UPC Distribution Holdco) will,
and each Obligor (other than UPC Distribution Holdco) will procure that none of
its Subsidiaries which is a member of the Borrower Group will, make any
Acquisition, other than:


 


(i)                                     any Acquisition approved in writing by the Majority
Lenders;


 


(ii)                                  any Permitted Acquisition;


 


(iii)                               any Permitted Joint Venture; or


 


(iv)                              any Acquisition from any person which is a member of
the Borrower Group or subscription of an interest in the share capital (or
equivalent) in any person which is a member of the Borrower Group.


 


(b)                                 No Obligor (other than UPC Distribution Holdco) will,
and each Obligor (other than UPC Distribution Holdco) will procure that none of
its Subsidiaries which is a member of the Borrower Group will, pay or deliver
any consideration referred to in paragraph (a) of the definition of “Acquisition
Cost” in connection with a Permitted Acquisition or Permitted Joint Venture
made by it if and to the extent that the aggregate of:


 


(i)                                     such deferred consideration; and


 


(ii)                                  the Acquisition Cost of all other Acquisitions made by
the Borrower Group since the Signing Date,


 


would cause the
relevant Acquisition to cease to be a Permitted Acquisition or, as the case may
be, a Permitted Joint Venture.


 


(c)                                  [Intentionally left blank]


 


89

















 


(d)                                 Each Obligor (other than UPC Distribution Holdco) will
not merge or consolidate with any other company or person and will procure that
no member of the Borrower Group will merge or consolidate with any other
company or person (other than, in each case, in connection with the Romania
Restructuring) save for:


 


(i)                                     Acquisitions permitted by paragraphs (a) and (b) above
and disposals permitted by Clause 16.10 (Disposals); or


 


(ii)                                  with the prior written consent of the Facility Agent
(acting on the instructions of the Majority Lenders); or


 


(iii)                               mergers between any member of the Borrower Group with
(I) any or all of the other members of the Borrower Group or (II) an
Unrestricted Subsidiary (Original Entities),
into one or more entities (each a Merged
Entity) provided that:


 


(A)                              reasonable details of the proposed merger in order to
demonstrate satisfaction with sub-paragraphs (C) to (G) below are provided to
the Facility Agent at least 10 days before the merger is to be entered into;


 


(B)                                if the proposed merger is between a member of the
Borrower Group and an Unrestricted Subsidiary, UPC Distribution has delivered
to the Facility Agent financial projections based on assumptions which are no
more aggressive than those used in the preparation of the Business Plan which
demonstrate that the Borrower Group will be in compliance with the undertakings
set out in Clause 17.2 (Financial ratios) for the period commencing on the date
of merger and ending on the last Final Repayment Date under this Agreement;


 


(C)                                such Merged Entity will be a member of the Borrower
Group and will be liable for the obligations of the relevant Original Entities
(including the obligations under this Agreement and the Security Documents),
which obligations remain unaffected by the merger, and entitled to the benefit
of all rights of such Original Entities;


 


(D)                               (if all or any part of the share capital of any of the
relevant Original Entities was charged pursuant to a Security Document) the
equivalent part of the issued share capital of such Merged Entity is charged
pursuant to a Security Document on terms of at least an equivalent nature and
equivalent ranking as any Security Document relating to the shares in each
relevant Original Entity;


 


(E)                                 such Merged Entity has entered into Security Documents
(if applicable) which provide security over the same assets of at least an
equivalent nature and ranking to the security provided by the relevant Original
Entities pursuant to any Security Documents entered into by them;


 


(F)                                 any possibility of the Security Documents referred to
in sub-paragraphs (D) or (E) above being challenged or set aside is not
materially greater than any such possibility in relation to the Security
Documents entered into by, or in respect of the share capital of, any relevant
Original Entity; and


 


(G)                                all the property and other assets of the relevant
Original Entities are vested in the Merged Entity and the Merged Entity has
assumed all the rights and obligations of the relevant Original Entities under
any relevant Material Contracts, material Necessary Authorisations and Licences
and other licences or registrations (to the extent reasonably necessary for the
business of the 


 


90

















 


relevant
Original Entities) granted in favour of the Original Entities under
Telecommunications and Cable Laws and/or all such rights and obligations have
been transferred to the Merged Entity and/or the relevant Material Contracts,
Necessary Authorisations and Licences and other licences or registrations (to
the extent reasonably necessary for the business of the relevant Original
Entities) granted in favour of the Original Entities under Telecommunications
and Cable Laws have been reissued to the Merged Entity.


 


16.12                 Restrictions on Financial Indebtedness


 


(a)                                  Each Obligor (other than UPC Distribution Holdco) will
not, and will procure that no other member of the Borrower Group (other than a
Relevant Eastern European Subsidiary) will, create, incur or otherwise permit
to be outstanding any Financial Indebtedness (other than  Permitted Financial Indebtedness).


 


(b)                                 As used herein, Permitted
Financial Indebtedness means, without duplication:


 


(i)                                     any Financial Indebtedness arising hereunder or under
the Security Documents;


 


(ii)                                  any Financial Indebtedness arising under the New
Facility Agreement, provided that, in the case of any Financial Indebtedness
arising under the Additional Facility:


 


(A)                              the final maturity date of any such Financial
Indebtedness does not fall prior to the final maturity date of the Facility D;
and


 


(B)                                the proceeds of the Additional Facility are applied:


 


I.                                         in permanent prepayment and cancellation of the
Facilities in accordance with Clause 7.3 (Voluntary prepayment) or in permanent
prepayment of the Facility D in accordance with clause 7.3 (Voluntary
prepayment) of the New Facility Agreement; or


 


II.                                     to fund an Additional Permitted Acquisition.


 


(iii)                               any Financial Indebtedness or guarantees permitted
pursuant to Clause 16.14 (Loans and guarantees);


 


(iv)                              any Financial Indebtedness incurred through a Subordinated
Shareholder Loan made to any member of the Borrower Group;


 


(v)                                 any Financial Indebtedness of any member of the
Borrower Group arising as a result of the issue by it or a financial
institution of a surety or performance bond in relation to the performance by
such member of the Borrower Group or its obligations under contracts entered
into in the ordinary course of its business (other than for the purpose of
raising finance);


 


(vi)                              any Financial Indebtedness approved in writing by the
Facility Agent (acting on the instructions of the Majority Lenders);


 


(vii)                           any Financial Indebtedness incurred in connection with
the Senior Hedging Agreements and any other hedging arrangements permitted by
Clause 16.17 (Hedging);


 


91

















 


(viii)                        any deposits or prepayments constituting Financial
Indebtedness received by any member of the Borrower Group from a customer or
subscriber for its services;


 


(ix)                                any Financial Indebtedness owing by any member of the
Borrower Group being Management Fees or management, consultancy or similar fees
payable to another member of the Borrower Group in respect of which payment has
been deferred;


 


(x)                                   any Financial Indebtedness being Permitted Payments in
respect of which payment has been deferred;


 


(xi)                                any Financial Indebtedness of a company which is
acquired by a member of the Borrower Group after the date hereof as an
acquisition permitted by Clause 16.11 (Acquisitions and mergers) where such
Financial Indebtedness existed at the date of completion of such Permitted
Acquisition provided that (A) such Financial Indebtedness was not incurred in
contemplation of the acquisition, (B) the amount of such Financial Indebtedness
is not increased beyond the amount in existence at the date of completion of
the acquisition and (C) such Financial Indebtedness is discharged within six
months of the date of completion of the acquisition;


 


(xii)                             any Financial Indebtedness of any member of the
Borrower Group, in respect of which the person or persons to whom such
Financial Indebtedness is or may be owed has or have no recourse whatever to
any member of the Borrower Group for any payment or repayment in respect
thereof other than recourse to such member of the Borrower Group for the
purpose only of enabling amounts to be claimed in respect of such Financial
Indebtedness in an enforcement of any Security Interest given by any member of
the Borrower Group over non-Distribution Business Assets, provided that:


 


(A)                              the extent of such recourse to such member is limited
solely to the amount of any recoveries made on any such enforcement;


 


(B)                                such person or persons are not entitled, pursuant to
the terms of any agreement evidencing any right or claim arising out of or in
connection with such Financial Indebtedness, to commence proceedings for the
winding up, dissolution or administration of any member of the Borrower Group
(or proceedings having an equivalent effect) or to appoint or procure the
appointment of any receiver, trustee or similar person or officer in respect of
any member of the Borrower Group or any of its assets (save only for the
non-Distribution Business Assets the subject of that Security Interest) until
after the Commitments have been reduced to zero and all amounts outstanding
under the Finance Documents have been repaid or paid in full; and


 


(C)                                the aggregate outstanding amount of all such Financial
Indebtedness of all members of the Borrower Group does not exceed €100,000,000
(or its equivalent in other currencies);


 


(xiii)                          any Financial Indebtedness of any member of the
Borrower Group (other than any Obligor) constituting Financial Indebtedness to
all the holders (or their Associated Companies) of the share capital of any
such member of the Borrower Group on a basis that is substantially proportionate
to their interests in such share capital (with any disproportionately large
interest received by any member of the Borrower Group or any disproportionately
small interest received by any person other than a member of the Borrower
Group, in each case relative to its interests in such share capital, being
ignored for this purpose), provided such Financial Indebtedness does not bear 


 


92

















 


interest (other
than by way of addition to its principal amount on a proportionate basis as
described above) and is made on terms that repayment or pre-payment of such
Financial Indebtedness shall only be made to each such holder (A) in proportion
to their respective interests in such share capital (ignoring any disproportionately
large interest held by any member of the Borrower Group or any
disproportionately small interest received by any person other than a member of
the Borrower Group, in each case relative to its interests in such share
capital, for this purpose) and (B) only on and in connection with the
liquidation or winding up (or equivalent) of such member of the Borrower Group;
and


 


(xiv)                         any other Financial Indebtedness in addition to the
Financial Indebtedness falling within paragraphs (i) to (xiii) above not
exceeding at any time more than €25,000,000 in aggregate (or its equivalent)
provided that such Financial Indebtedness is not indebtedness incurred in
respect of Acquisitions.


 


(c)                                  No Obligor will, and each Obligor will procure that
none of its Subsidiaries which is a member of the Borrower Group will, incur or
have outstanding any Financial Indebtedness due to or for the benefit of  UPC or any Subsidiary of UPC (not being a
member of the Borrower Group), other than Subordinated Shareholder Loans and
any Permitted Financial Indebtedness referred to in Clause 16.12(b)(vi),
(viii), (ix), (x) or (xii).


 


(d)                                 (i)                                     Subject to sub-paragraph (ii) below, UPC Distribution
will ensure that no member of the UGCE Borrower Group will incur any Third
Party Debt (other than any Third Party Debt subsisting prior to 28th September,
2002) unless:


 


(A)                              UPC Distribution prepays or procures the prepayment of
the Facilities in accordance with Clause 7.6A (Mandatory prepayment from the
Third Party Debt proceeds); and


 


(B)                                such Third Party Debt will not become due and payable
until after the later of the last Final Repayment Date and the Final Maturity
Date (as defined in the New Facility Agreement).


 


(ii)                                  Sub-paragraph (d)(i) above shall not apply if:


 


(A)                              the most recently delivered financial statements
provided to the Facility Agent under Clause 16.2(b) (Financial information)
show that, for the two most recent Ratio Periods, the applicable ratio for the
purposes of Clause 17.2(a) (Financial ratios) is 3.5:1 or less; or


 


(B)                                the principal amount of such Third Party Debt, when
aggregated with (I) any other Third Party Debt incurred by that member of the
UGCE Borrower Group after 28th September, 2002, and (II) any Third Party Debt
incurred by any other member of the UGCE Borrower Group after 28th September,
2002, is equal to or less than €15,000,000.


 


16.13                 Restricted Payments


 


(a)                                  Except for any payment or transfer of consideration
for the transfer of shares or receivables to a member of the Borrower Group
pursuant to the Restructuring, each Obligor (other than UPC Distribution
Holdco) will not, and will procure that no member of the Borrower Group will,
make any Restricted Payments other than Permitted Payments or enter into any
transaction with a Restricted Person other than on bona fide arm’s length
commercial terms or on terms which are fair and reasonable and in the best
interests of the Borrower Group.


 


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(b)                                 As used herein, a Restricted
Payment means, in each case whether in cash, securities, property or
otherwise:


 


(i)                                     any direct or indirect distribution, dividend or other
payment on account of any class of its share capital or capital stock or other
securities;


 


(ii)                                  any payment of principal of, or interest on, any loan;
or


 


(iii)                               any transfer of assets, loan or other payment,


 


in the case of
each of (i), (ii) and (iii), to a Restricted Person.


 


(c)                                  As used herein, a Permitted
Payment means any distribution, dividend, transfer of assets, loan
or other payment:


 


(i)                                     to any Restricted Person in relation to transactions
carried out on bona fide arm’s length commercial terms in the ordinary course
of business or on terms which are fair and reasonable and in the best interests
of the Borrower Group (including, but not limited to, such transactions under
Clause 16.21 (chello and Priority));


 


(ii)                                  by way of payment of Management Fees (A) which are
paid on bona fide arm’s length terms in the ordinary course of business to a
Restricted Person or (B) of up to €15,000,000 in any financial year provided
that, at the time of payment, no Default is subsisting or would occur as a
result of such payment;


 


(iii)                               by way of payment of interest on Subordinated
Shareholder Loans, provided that:


 


(A)                                  such interest is applied ultimately in payment of (1)
all or any interest due in respect of Serviceable Subordinated Debt where all
or part of the proceeds of the corresponding Subordinated Shareholder Loans
have been applied in mandatory permanent prepayment of the Facilities or the
New Facility D; or (2) only the interest due in respect of that part of the
outstanding principal amount of any Serviceable Subordinated Debt which
corresponds to the amount of the proceeds of the corresponding Subordinated
Shareholder Loans which have been applied in permanent prepayment and
cancellation (other than a mandatory prepayment) of the Facilities or the New
Facility D; or


 


(B)                                    the then applicable ratio for the purposes of Clause
17.2(a) (Financial ratios) is 3.5:1 (or less),


 


and in each case
no Default has occurred and is continuing or would occur as a result of such
payment;


 


(iv)                              by way of distributions, dividends or other payments
paid by UPC Distribution in respect of its share capital or by way of repayment
or payment by UPC Distribution or the relevant member of the Borrower Group (as
the case may be) in respect of a Subordinated Shareholder Loan (each a Relevant Payment) but only to the extent
that UPC Distribution or the relevant member of the Borrower Group (as the case
may be) has either (A) received a corresponding distribution, dividend or other
payment from an Unrestricted Subsidiary or any other person in which UPC
Distribution has any interest that is not a member of the Borrower Group of at
least an equal amount to such Relevant Payment; or (B)the Relevant Payment is
made from the proceeds of sale or a disposal by UPC Distribution or the
relevant member 


 


94

















 


of the Borrower
Group (as the case may be) permitted by Clause 16.10(b)(vii) (Disposals);


 


(v)                                 by way of payment to any person or for any purpose to
the extent that any such payment would be permitted to be made to UGCE Inc. or
the relevant Subordinated Creditor pursuant to sub-paragraph (iii) above and
provided that any such payment shall automatically reduce the liability to UGCE
Inc. or the relevant Subordinated Creditor under the relevant obligation
referred to in sub-paragraph (iii) above to the extent of the amount paid;


 


(vi)                              by way of the repayment of any Subordinated
Shareholder Loan made, or the redemption of equity share capital in a member of
the Borrower Group subscribed for, to finance a Permitted Acquisition or a
Permitted Joint Venture, provided that (A) the repayment of such Subordinated
Shareholder Loan or the redemption of such equity share capital would not cause
the limits referred to in the definition of “Permitted Acquisition” or
“Permitted Joint Venture” to be exceeded and (B) no Default has occurred and is
continuing or would occur as a result of such payment;


 


(vii)                           by way of payment to any Restricted Person of
consideration for an acquisition, merger or consolidation permitted by Clause
16.11 (Acquisitions and mergers); and


 


(viii)                        by way of transfer to any Restricted Person of any
non-Distribution Business Assets (as defined in Clause 16.10(b)(x) (Disposals))
permitted in accordance with Clause 16.10(b)(x) (Disposals),


 


and provided
further that, in the case of (iii), (v) and (vi), prior to making the relevant
payment the Borrower Group is in compliance with the financial covenants set
out in Clause 17.2 (Financial ratios) and would be in compliance with such
covenants if Total Cash Interest had been increased by the amount of the
proposed Permitted Payment and all other Permitted Payments made since the date
to which the most recent financial statements delivered under Clause 16.2(a) or
(b) (Financial information) were prepared.


 


(d)                                 The restriction contained in paragraph (a) on the
payment by any member of the Borrower Group of Management Fees shall cease to
apply during such period as the applicable ratio for the purposes of Clause
17.2(a) (Financial ratios) is 3.50:1 (or less), provided that no Management
Fees may be paid by any member of the Borrower Group at any time after a
Relevant Event has occurred or if a Relevant Event would result from such
payment.


 


16.14                 Loans and guarantees


 


Each Obligor
(other than UPC Distribution Holdco) will not, and will procure that no member
of the Borrower Group will make any loans, grant any credit or give any
guarantee, to or for the benefit of, or enter into any transaction having the
effect of lending money to, any person,


 


other than:


 


(a)                                  loans from a member of the Borrower Group to another
member of the Borrower Group, provided that no Obligor shall make a loan to any
other member of the Borrower Group unless:


 


(i)                                     such Obligor has first entered into an Obligor Pledge
of Shareholder Loans which creates an effective pledge in favour of the
Security Agent in relation to such loan and provided the Security Agent with
such evidence as it may reasonably request as the power and authority of such
Obligor to enter into


 


95

















 


such Obligor
Pledge of Shareholder Loans and that such Obligor Pledge of Shareholder Loans
constitutes valid and legally binding obligations of such Obligor enforceable
in accordance with its terms subject (to the extent possible) to substantially
similar qualifications to those made in the legal opinions referred to in
Schedule 2 (Conditions Precedent Documents); and


 


(ii)                                  the relevant member of the Borrower Group to whom the
shareholder loan is to be made has given a notification of pledge to the
Security Agent in respect of such shareholder loans;


 


(b)                                 as permitted by Clause 16.12 (Restrictions on
Financial Indebtedness);


 


(c)                                  normal trade credit in the ordinary course of
business;


 


(d)                                 guarantees given:


 


(i)                                     by any Obligor in respect of the liabilities of
another Obligor;


 


(ii)                                  by a member of the Borrower Group in respect of the
liabilities of an Obligor; or


 


(iii)                               by a member of the Borrower Group (which is not an
Obligor) in respect of the liabilities of another member of the Borrower Group
(which is not an Obligor); or


 


(iv)                              by an Obligor in respect of the liabilities of any
other member of the Borrower Group to the extent that such liabilities could
have been incurred by such Obligor directly without breaching this Agreement;
or


 


(e)                                  to the extent that the same constitute Permitted Payments
or a Permitted Disposal (not being a Permitted Disposal of cash or cash
equivalents);


 


(f)                                    [intentionally left blank];


 


(g)                                 loans, the granting of credit, guarantees and other
transactions having the effect of lending money (each a Lending Transaction) from a member of the
Borrower Group, in connection with an acquisition by that member which is
permitted by Clause 16.11 (Acquisitions and mergers), to the relevant person
being acquired or one or more of its Subsidiaries, provided that:


 


(i)                                     no Lending Transaction may have a term longer than 12
months (including any extensions or refinancings of the original Lending
Transaction); and


 


(ii)                                  the aggregate outstanding principal amount of all
Lending Transactions (which principal amount shall be deemed to be no longer
outstanding for this purpose at the time the beneficiary of the relevant
Lending Transaction becomes a member of the Borrower Group upon completion of
the relevant acquisition, provided such Lending Transaction was made to or in
favour of the person acquired or its Subsidiaries) shall not exceed
€100,000,000 at any time; and


 


(h)                                 Lending Transactions from a member of the Borrower
Group to any person of the proceeds of equity subscribed by any Restricted
Person in, or Subordinated Shareholder Loans provided to, such member (other
than any such proceeds which:


 


96

















 


(i)                                     are taken into account in any calculation of
Acquisition Cost pursuant to sub-paragraph (c)(i)(A), (c)(i)(B) or (d)(i) of
the definition of “Permitted Acquisition” or in the calculation of the
Acquisition basket in accordance with sub-paragraph (c)(i)(1) of the definition
of “Permitted Acquisition” or in the calculation of Acquisition Cost pursuant
to sub-paragraph (b)(i)(A) or (b)(i)(B) of the definition of “Permitted Joint
Venture” or in the calculation of the Acquisition basket in accordance with the
final paragraph of sub-paragraph (b)(i) of the definition of “Permitted Joint
Venture”; or


 


(ii)                                  are subscribed or provided pursuant to Clause 17.4
(Cure provisions)).


 


16.15                 Environmental matters


 


Each Obligor
(other than UPC Distribution Holdco) will and will procure that each of its
Subsidiaries which is a member of the Borrower Group will:


 


(a)                                  (i) obtain all requisite Environmental Licences, (ii)
comply with the terms and conditions of all Environmental Licences applicable
to it and (iii) comply with all other applicable Environmental Law, in each
case where failure to do so would or is reasonably likely to have a Material
Adverse Effect;


 


(b)                                 promptly upon receipt of the same, notify the Facility
Agent and the Security Agent of any claim, notice or other communication served
on it in respect of any alleged breach of, or corrective or remedial obligation
or liability under, any Environmental Law which, if substantiated, would or is
reasonably likely to have a Material Adverse Effect.


 


16.16                 Insurance


 


Each Obligor
(other than UPC Distribution Holdco) will, and will procure that each of its
Material Subsidiaries which is a member of the Borrower Group will, maintain
insurance cover of a type and level which a prudent company in the same
business would effect.


 


16.17                 Hedging


 


(a)                                  Each Obligor (other than UPC Distribution Holdco) will
not, and will procure that no member of the Borrower Group will, enter into any
interest rate or currency swaps, other interest rate or currency derivative
transactions or other hedging arrangements other than:


 


(i)                                     transactions and arrangements entered into with a High
Yield Hedging Bank or a Senior Hedging Bank directly relating to the management
of interest rate and/or currency exchange rate risk arising out of any
Financial Indebtedness of any member of the Borrower Group permitted to subsist
by the terms of this Agreement (or transactions and arrangements relating to
interest rate or currency swaps, other interest rate or currency derivative
transitions or other hedging arrangements that themselves relate to the
management of interest rate and/or currency exchange rate risk arising out of
any Financial Indebtedness of any member of the Borrower Group permitted to
subsist by the terms of this Agreement), in each case excluding any such
transactions or arrangements that directly or indirectly relate to Subordinated
Shareholder Loans; and


 


(ii)                                  to the extent they constitute interest rate or
currency swaps or other hedging arrangements, the guarantees granted by each of
the Guarantors pursuant to Clause 14 (Guarantee) or clause 14 (Guarantee) of
the New Facility Agreement or (as 


 


97

















 


applicable) in
respect of any High Yield Hedging Agreements or Senior Hedging Agreements.


 


(b)                                 UPC Distribution will procure that any member of the
Borrower Group that enters into a Senior Hedging Agreement and any member of
the UGCE Borrower Group that enters into a High Yield Hedging Agreement accedes
to the Security Deed and the Intercreditor Agreement as a Charging Entity by
delivering to the Security Agent a Security Provider’s Deed of Accession duly
executed by that company.


 


16.18                 Intellectual Property Rights


 


Except as
otherwise permitted by this Agreement, each Obligor (other than UPC
Distribution Holdco) will, and will procure that each of its Subsidiaries which
is a member of the Borrower Group will:


 


(a)                                  make such registrations and pay such fees and similar
amounts as are necessary to keep those registered Intellectual Property Rights
owned by any member of the Borrower Group and which are material to the conduct
of the business of the Borrower Group as a whole from time to time;


 


(b)                                 take such steps as are necessary and commercially
reasonable (including, without limitation, the institution of legal
proceedings) to prevent third parties infringing those Intellectual Property
Rights referred to in paragraph (a) above and (without prejudice to paragraph
(a) above) take such other steps as are reasonably practicable to maintain and
preserve its interests in those rights, except where failure to do so will not
have or be reasonably likely to have a Material Adverse Effect;


 


(c)                                  ensure that any licence arrangements in respect of the
Intellectual Property Rights referred to in paragraph (a) above entered into
with any third party are entered into on arm’s length terms and in the ordinary
course of business (which shall include, for the avoidance of doubt, any such
licensing arrangements entered into in connection with outsourcing on normal
commercial terms) and will not have or be reasonably likely to have a Material
Adverse Effect;


 


(d)                                 not permit any registration of any of the Intellectual
Property Rights referred to in paragraph (a) above to be abandoned, cancelled
or lapsed or to be liable to any claim of abandonment for non-use or otherwise
to the extent the same would or is reasonably likely to have a Material Adverse
Effect; and


 


(e)                                  pay all fees, and comply with each of its material
obligations under, any licence of Intellectual Property Rights which are
material to the conduct of the business of the Borrower Group as a whole from
time to time.


 


16.19                 Share capital


 


Each Obligor (other
than UPC Distribution Holdco) will not, and will procure that no member of the
Borrower Group (other than in respect of such other members of the Borrower
Group in order to permit a solvent reorganisation permitted under Clause
16.11(d)(iii) (Acquisitions and mergers)) will, reduce its capital or purchase
or redeem any class of its shares or any other ownership interest in it, except
to the extent the same constitutes a Permitted Payment or in the case of
members of the Borrower Group other than the Obligors, is otherwise permitted
by Clause 16.13 (Restricted Payments) or is in connection with the Romania
Restructuring.


 


98

















 


16.20                 Inter-connection and chello


 


Each Obligor
(other than UPC Distribution Holdco) will ensure that each member of the
Borrower Group which is not a Relevant Eastern European Subsidiary:


 


(a)                                  which offers residential telephony services in any
country, maintains inter-connection arrangements with one or more major fixed
line telephony operators in that country; and


 


(b)                                 which offers internet and/or data services is provided
with such services by chello broadband N.V. or by another provider on arm’s
length commercial terms.


 


16.21                 chello and Priority


 


For as long as
chello broadband N.V. or, as the case may be, Priority Telecom N.V. is a
Restricted Person, each Obligor (other than UPC Distribution Holdco) will not
and will not permit any contractual arrangements between chello broadband N.V.
and Priority Telecom N.V. respectively and the Borrower Group to be entered
into other than on bona fide arm’s length commercial terms or on terms that are
fair and reasonable and in the best interests of the Borrower Group.


 


16.22                 Restructuring


 


[intentionally
left blank]


 


16.23                 UPC Distribution Pledged Account


 


(a)                                  Subject to receipt of all necessary legal, regulatory,
shareholder and partner approvals (all of which each Obligor will, and will
ensure that each of its Subsidiaries will, use all reasonable efforts to obtain
as soon as practicable), each Obligor (other than UPC Distribution Holdco)
shall ensure that it and each of its Subsidiaries which is a member of the
Borrower Group, promptly following the last day of each calendar month
transfers an amount equal to its Excess Cash on that date to the UPC
Distribution Pledged Account.


 


(b)                                 For the purposes of this Clause 16.23:


 


(i)                                     Excess Cash means, in relation to any member of the Borrower
Group at any time, the aggregate cash in hand and at bank (less withdrawals and
other transfers of cash that have not cleared at bank) of that member at that
time in excess of €5,000,000 (or its equivalent in other currencies); and


 


(ii)                                  the UPC Distribution
Pledged Account means one or more accounts in the name of UPC
Distribution or any other member of the Borrower Group, held with a branch of a
bank or financial institution, which has been pledged to the Beneficiaries
pursuant to a Security Document in the agreed form and in respect of which
account(s) all notices required by that Security Document have been served upon
the relevant bank or financial institution in the manner required by that
Security Document and the relevant account bank(s) have waived any lien, right
of set-off or other Security Interest, other than in respect of routine account
keeping charges and set offs between UPC Distribution Pledged Accounts.


 


(c)                                  UPC Distribution may withdraw amounts standing to the
credit of the UPC Distribution Pledged Account at any time provided that:


 


99

















 


(i)                                     any such withdrawn amount is to be applied to meet
expenditure arising in the course of the Business of the Borrower Group as
carried on in accordance with this Agreement or for any other purpose permitted
under this Agreement; and


 


(ii)                                  no Event of Default has occurred which is continuing.


 


16.24                 Share security


 


Each Obligor
(other than UPC Distribution Holdco) will not, and will procure that no member
of the Borrower Group will, issue any shares of any class provided that:


 


(a)                                  notwithstanding paragraph (b), an Obligor (other than
UPC Distribution, UPC Holding II or UPC Distribution Holdco) may issue shares
to any person other than a member of the Borrower Group and shall not be
required to procure that such shares are charged or pledged in favour of the
Beneficiaries, provided that such share issue does not result in a Change of
Control;


 


(b)                                 any member of the Borrower Group may issue shares to
or otherwise acquire additional rights from any other member of the Borrower
Group so long as (if any of the existing shares in the relevant member of the
Borrower Group are charged or pledged in favour of any Beneficiary) such shares
are charged or pledged in favour of the Beneficiaries pursuant to the terms of
a Security Document and there are delivered at the same time to the Security
Agent the relevant share certificates and blank stock transfer forms (or
equivalent documents) in respect thereof together with such other documents and
evidence and legal opinions as the Security Agent may reasonably require;


 


(c)                                  UPC Distribution and UPC Holding II may issue shares
to UPC Distribution Holdco provided that such shares are charged or pledged in
favour of the Beneficiaries pursuant to the terms of a Security Document and
there are delivered at the same time to the Security Agent the relevant share
certificates and blank stock transfer forms (or equivalent documents) in
respect thereof together with such other documents and evidence and legal
opinions as the Security Agent may reasonably require;


 


(d)                                 any member of the Borrower Group may issue shares
pursuant to the exercise of Approved Stock Options;


 


(e)                                  a member of the Borrower Group may issue shares as
part of an Acquisition or merger or consolidation permitted by Clause 16.11
(Acquisitions and mergers), provided that the issue of such shares does not
cause a Change of Control;


 


(f)                                    a member of the Borrower Group (other than an Obligor)
may issue shares to all the holders of the share capital of such member pro
rata to their interests in such share capital provided that, if any existing
shares in that member of the Borrower Group are charged or pledged in favour of
any Beneficiary under any Security Document, upon issue the shares that are
issued to any other member of the Borrower Group or any Shareholder are charged
or pledged in favour of the Beneficiaries as provided in paragraph (b) above;
and


 


(g)                                 any member of the Borrower Group (other than UPC
Distribution or UPC Holding II) may issue shares to any person pursuant to any
agreement or other legally binding arrangement existing, and disclosed to the
Lead Arrangers in writing, on or before the Signing Date, provided that such
share issue does not result in a Change of Control.


 


100

















 


16.25                 Shareholder Loans


 


(a)                                  Each Obligor will procure that prior to any Restricted
Person making any Financial Indebtedness (other than Permitted Payments)
available to any member of the Borrower Group, such Restricted Person shall
enter into a Pledge of Subordinated Shareholder Loans on terms and conditions
satisfactory to the Facility Agent and a Security Provider’s Deed of Accession
and provides (i) the Facility Agent with such documents and evidence as it may
reasonably require as to the power and authority of the Restricted Person to
enter into such Pledge of Subordinated Shareholder Loans and Security
Provider’s Deed of Accession and that the same constitute valid and legally
binding obligations of such Restricted Person enforceable in accordance with
their terms subject (to the extent applicable) to substantially similar
qualifications to those made in the legal opinions referred to in
Schedule 2 (Conditions Precedent Documents); and (ii) notification of such
pledge to the relevant member of the Borrower Group.


 


(b)                                 Each Obligor shall ensure that each Subordinated
Shareholder Loan and each shareholder loan entered into between an Obligor
which is a party to an Obligor Pledge of Shareholder Loans as a creditor and a
member of the Borrower Group is governed by the law of The Netherlands.


 


16.26                 Further security over receivables


 


UPC Distribution
shall:


 


(a)                                  on each date on which it is required to deliver the
financial statements referred to in Clause 16.2(b) (Financial information) in
respect of its second and fourth financial quarters in each financial year,
notify the Facility Agent of the details of any contracts, agreements or other
arrangements entered into by any member of the Borrower Group with chello
broadband N.V. or Priority Telecom N.V. at any time under which receivables
owing to such member of the Borrower Group aggregating €10,000,000 (or its
equivalent in other currencies) or more are outstanding on such date, together
with details of such receivables; and


 


(b)                                 if the Facility Agent (acting on the instructions of
the Majority Lenders) requires, promptly grant, or procure the grant by the
relevant member of the Borrower Group of (in each case subject to receipt of
all necessary legal, regulatory, shareholder and partner approvals, other than
approvals from chello broadband N.V. or Priority Telecom N.V, all of which UPC
Distribution will and will ensure that each member of the Borrower Group will
use all reasonable efforts to obtain as soon as possible) (i) a pledge in
favour of the Beneficiaries over the receivables referred to in (a) above in substantially
the same form as a receivables pledge already granted to the Security Agent by
a member of the Borrower Group in respect of receivables located in, or
governed by the laws of, or (as the case may be) owed by or to a person
incorporated in, the same jurisdiction as the relevant receivables or (as the
case may be) relevant person by or to whom such receivables are owed or in such
other form as the Security Agent may reasonably request and (ii) a Security
Provider’s Deed of Accession and shall provide the Security Agent with such
evidence as it may reasonably request as to the power and authority of such
member of the Borrower Group to enter into such pledge of receivables and
Security Provider’s Deed of Accession and that the same constitute valid and
legally binding obligations of such member enforceable in accordance with their
terms subject (to the extent possible) to substantially similar qualifications
to those made in the legal opinions referred to in Schedule 2 (Conditions
Precedent Documents), together with all such notices and other 


 


101

















 


documents as the Security Agent may reasonably require to perfect the
receivables pledge.


 


16.27                 Financial year end


 


Each Obligor
(other than UPC Distribution Holdco) will, and will procure that its
Subsidiaries which are members of the Borrower Group will, maintain a financial
year end of 31st December, save with the prior written consent of the Facility
Agent (acting on the instructions of the Majority Lenders in each case not to
be unreasonably withheld).


 


16.28                 Capital expenditure


 


Each Obligor
(other than UPC Distribution Holdco) will not, and will procure that no member
of the Borrower Group will, incur any material Capital Expenditure other than
in relation to the Permitted Business.


 


16.29                 Constitutive documents


 


Each Obligor
will not, and will procure that no member of the Borrower Group will, amend its
constitutive documents in any way which would or is reasonably likely to
materially adversely affect (in terms of value, enforceability or otherwise)
any charge or pledge over the shares or partnership interest of any member of
the Borrower Group granted to the Beneficiaries pursuant to the Security
Documents.


 


16.30                 ERISA


 


Each Obligor
(other than UPC Distribution Holdco) will, and will procure that its
Subsidiaries which are members of the Borrower Group will, give the Facility
Agent prompt notice of the adoption of, participation in or contribution to any
Plan by it or any ERISA Affiliate, or any action by any of these to adopt,
participate in or contribute to any Plan, or the incurrence by any of them of
any liability or obligation to any Plan.


 


16.31                 US Borrower


 


(a)                                  Each Borrower will ensure that the proceeds of any
loan made to the US Borrower by UPC Distribution or UPC Holding II and the
proceeds of any drawing made by the US Borrower under Facility C shall be
invested by way of intercompany loan or equity subscription in one or more
other members of the Borrower Group within five Business Days of receipt of
such proceeds or, as the case may be, the relevant Utilisation Date.


 


(b)                                 Each Obligor (other than UPC Distribution Holdco) will
ensure that, in accordance with the terms of any pledge of intercompany loans
made by the US Borrower, any intercompany loan made by the US Borrower to any
Obligor or any Subsidiary of an Obligor which is a member of the Borrower Group
is made on bona fide arm’s length commercial terms or on terms which are fair
and reasonable and in the best interests of the US Borrower and entered into in
good faith.


 


16.32                 UPC Poland Share Security


 


(a)                                  In the event that a member of the Borrower Group
acquires all or any part of the share capital of an entity which is
incorporated or carrying on business in Poland the Facility Agent (acting on
the instructions of the Majority Lenders) may notify UPC Distribution in
writing that it requires a pledge over the share capital of the entity so
acquired (the Polish Holdco); and


 


102

















 


(b)                                 UPC Distribution shall, within 30 Business Days of
receipt of such written notice procure the grant by the relevant member of the
Borrower Group of:


 


(i)                                     a pledge in favour of the Security Agent over the
share capital of the Polish Holdco in substantially the same form as the share
pledges already granted to the Security Agent by a member of the Borrower Group
and listed in Schedule 7 (Security Documents) (save for any changes
required under Polish law); and


 


(ii)                                  a Security Provider’s Deed of Accession,


 


and shall
provide the Security Agent with such evidence as it may reasonably request as
to the power and authority of such member of the Borrower Group to enter into
the share pledge and Security Provider’s Deed of Accession and that the same
constitute valid and legally binding obligations of such member enforceable in
accordance with their terms subject (to the extent possible) to substantially
similar qualifications to those usually made in Polish law legal opinions,
together with all such notices and other documents as the Security Agent may
reasonably require to perfect the share pledge.


 


17.                               FINANCIAL
COVENANTS


 


17.1                        Financial definitions


 


In this Clause
17:


 


Annualised
EBITDA means, in respect of
any Ratio Period, two times EBITDA of the Borrower Group for that Ratio Period.


 


EBITDA
means, in respect of any period or person, the
Net Income of that person (plus, in the case of the Borrower Group, any amount
attributable to  non-cash compensation
payable to employees or directors of members of the Borrower Group deducted in
calculating Net Income, any depreciation, amortisation, other non-cash charges
(such as deferred Taxes), accrued Management Fees (whether or not paid), fees
accrued (whether or not paid) in respect of Financial Indebtedness and interest
expense and other charges in respect of Financial Indebtedness) for such period
adjusted as follows:


 


(a)                                  minus extraordinary income of the relevant person for
such period;


 


(b)                                 plus any extraordinary expenses (including one off
restructuring costs) of the relevant person for such period;


 


(c)                                  minus any interest income of the relevant person for
such period; and


 


(d)                                 in the case of the Borrower Group, minus any
Management Fees paid during such period,


 


to the extent
attributed to the Distribution Business of the Borrower Group and all as
determined in accordance with GAAP and (in the case of the Borrower Group) as
shown in the relevant financial statements prepared and delivered to the
Facility Agent pursuant to Clause 16.2(a) or (b) (Financial information) (as the
case may be).


 


Interest
means:


 


(a)                                  interest and amounts in the nature of interest
(including, without limitation, the interest element of finance leases)
accrued;


 


103

















 


(b)                                 discount fees and acceptance fees payable or deducted
in respect of any Financial Indebtedness (including all commissions payable in
connection with any letter of credit); and


 


(c)                                  any net payment (or, if appropriate in the context,
receipt) under any interest rate hedging agreement or instrument (including
without limitation under the Senior Hedging Agreements and (as applicable) High
Yield Hedging Agreements), taking into account any premiums payable.


 


Net
Income means, in respect of
any period and for any period, the net profit after Taxes and (in the case of
the Borrower Group only) Management Fees, in the case of the Borrower Group to
the extent attributed to the Distribution Business of the Borrower Group for
such period as determined in accordance with GAAP and (in the case of the Borrower
Group) as shown in the financial statements in respect of such period prepared
and delivered to the Facility Agent pursuant to Clause 16.2(a) or (b)
(Financial information).


 


Ratio
Period means each period of
approximately 6 months covering two quarterly Accounting Periods of the
Borrower Group ending on each date to which each set of financial statements
required to be delivered under Clause 16.2(a) or (b) (Financial information)
are prepared.


 


Senior
Debt means at any time, the
consolidated Financial Indebtedness of the Borrower Group, excluding:


 


(a)                                  any Financial Indebtedness which is a contingent
obligation of a member of the Borrower Group; and


 


(b)                                 any Subordinated Shareholder Loans and any Financial
Indebtedness referred to in Clause 16.12(b)(viii), (xi), (xii) and (xiii)
(Restrictions on Financial Indebtedness).


 


Senior
Debt Service means, for any Ratio
Period, the sum of:


 


(a)                                  all scheduled repayments (including scheduled
reductions of revolving credits to the extent they are drawn) of Senior Debt
which fell due during such Ratio Period; and


 


(b)                                 Total Cash Interest for that Ratio Period.


 


Senior
Interest means, in respect of
any period, the amount of Total Cash Interest paid in respect of Senior Debt
during that period.


 


Total
Cash Interest means, in
respect of any period, the total amount of all Interest paid in cash in respect
of Senior Debt and Subordinated Shareholder Loans during such period (having
taken into account the effect of any Senior Hedging Agreements)


 


except in each
case, to the extent that such payments (other than payments in respect of
Senior Debt) are funded by distributions made by Unrestricted Subsidiaries to
UPC Distribution or any other member of the Borrower Group and excluding, for
the avoidance of doubt, capitalisation of Interest accrued in respect of
Subordinated Shareholder Loans.


 


Total
Debt means, at any time,
the aggregate amount of:


 


(a)                                  Senior Debt; and


 


104

















 


(b)                                 Financial Indebtedness of each other member of the
UGCE Borrower Group, but excluding any Financial Indebtedness owing between
members of the UGCE Borrower Group.


 


17.2                        Financial ratios


 


UPC Distribution
will procure that:


 


(a)                                  the ratio of Senior Debt to Annualised EBITDA for each
Ratio Period which ends on a date or in a period specified in column 1 below
shall not exceed the ratio specified in column 2 below opposite such date or
period:


 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  30th September,
  2003

  	
   

  	
  7.75:1

  	
   

  
	
  31st December, 2003

  	
   

  	
  6.75:1

  	
   

  
	
  31st March, 2004

  	
   

  	
  6.75:1

  	
   

  
	
  30th June, 2004

  	
   

  	
  6.25:1

  	
   

  
	
  30th September, 2004

  	
   

  	
  6.10:1

  	
   

  
	
  31st December, 2004

  	
   

  	
  5.85:1

  	
   

  
	
  31st March, 2005

  	
   

  	
  5.70:1

  	
   

  
	
  30th June, 2005

  	
   

  	
  5.40:1

  	
   

  
	
  30th September, 2005

  	
   

  	
  5.20:1

  	
   

  
	
  31st December, 2005

  	
   

  	
  4.85:1

  	
   

  
	
  31st March, 2006

  	
   

  	
  4.70:1

  	
   

  
	
  30th June, 2006

  	
   

  	
  4.50:1

  	
   

  
	
  30th September, 2006

  	
   

  	
  4.35:1

  	
   

  
	
  31st December, 2006

  	
   

  	
  4.15:1

  	
   

  
	
  31st March, 2007

  	
   

  	
  4.00:1

  	
   

  
	
  30th June, 2007

  	
   

  	
  3.75:1

  	
   

  
	
  30th September, 2007

  	
   

  	
  3.50:1

  	
   

  
	
  31st December, 2007

  	
   

  	
  3.25:1

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1

  	
   

  



 


105

















 


(b)                                 the ratio of EBITDA to Total Cash Interest for each
Ratio Period which ends on a date or in a period specified in column 1 below
shall not be less than the ratio specified in column 2 below opposite such date
and period:


 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  30th September,
  2003

  	
   

  	
  2.25:1

  	
   

  
	
  31st December, 2003

  	
   

  	
  2.25:1

  	
   

  
	
  31st March, 2004

  	
   

  	
  1.90:1

  	
   

  
	
  30th June, 2004

  	
   

  	
  1.45:1

  	
   

  
	
  30th September, 2004

  	
   

  	
  1.45:1

  	
   

  
	
  31st December, 2004

  	
   

  	
  1.50:1

  	
   

  
	
  31st March, 2005

  	
   

  	
  1.75:1

  	
   

  
	
  30th June, 2005

  	
   

  	
  1.80:1

  	
   

  
	
  30th September, 2005

  	
   

  	
  1.80:1

  	
   

  
	
  31st December, 2005

  	
   

  	
  1.90:1

  	
   

  
	
  31st March, 2006

  	
   

  	
  2.00:1

  	
   

  
	
  Thereafter

  	
   

  	
  2.00:1

  	
   

  



 


(c)                                  the ratio of EBITDA to Senior Debt Service for each
Ratio Period which ends on a date or in a period specified in column 1 below
shall not be less than the ratio specified in column 2 below opposite such date
or period:


 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  31st December, 2003

  	
   

  	
  1.00:1

  	
   

  
	
  31st March, 2004

  	
   

  	
  1.00:1

  	
   

  
	
  30th June, 2004

  	
   

  	
  0.90:1

  	
   

  
	
  30th September, 2004

  	
   

  	
  0.90:1

  	
   

  
	
  31st December, 2004

  	
   

  	
  1.50:1

  	
   

  
	
  31st March, 2005

  	
   

  	
  1.60:1

  	
   

  
	
  30th June, 2005

  	
   

  	
  1.40:1

  	
   

  
	
  30th September, 2005

  	
   

  	
  1.40:1

  	
   

  



 


106

















 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  31st December, 2005

  	
   

  	
  1.40:1

  	
   

  
	
  31st March, 2006

  	
   

  	
  1.50:1

  	
   

  
	
  30th June, 2006

  	
   

  	
  1.35:1

  	
   

  
	
  30th September, 2006

  	
   

  	
  1.40:1

  	
   

  
	
  31st December, 2006

  	
   

  	
  1.40:1

  	
   

  
	
  31st March, 2007

  	
   

  	
  1.40:1

  	
   

  
	
  Thereafter

  	
   

  	
  1.50:1

  	
   

  



 


(d)                                 the ratio of EBITDA to Senior Interest for each Ratio
Period which ends on a date or in a period specified in column 1 below shall
not exceed the ratio specified in column 2 below opposite such date or period:


 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  30th September, 2003

  	
   

  	
  2.25:1

  	
   

  
	
  31st December, 2003

  	
   

  	
  2.25:1

  	
   

  
	
  31st March, 2004

  	
   

  	
  2.10:1

  	
   

  
	
  30th June, 2004

  	
   

  	
  2.10:1

  	
   

  
	
  30th September, 2004

  	
   

  	
  2.00:1

  	
   

  
	
  31st December, 2004

  	
   

  	
  2.00:1

  	
   

  
	
  31st March, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  30th June, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  30th September, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  31st December, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  31st March, 2006

  	
   

  	
  2.35:1

  	
   

  
	
  30th June, 2006

  	
   

  	
  2.35:1

  	
   

  
	
  Thereafter

  	
   

  	
  2.40:1

  	
   

  



 


; and


 


(e)                                  the ratio of Total Debt to Annualised EBITDA for each
Ratio Period which ends on a date or in a period specified in column 1 below
shall not be less than the ratio specified in column 2 below opposite such date
and period:


 


107

















 


	
  Test Dates

  	
   

  	
  Ratio

  	
   

  
	
  30th September, 2003

  	
   

  	
  7.50:1

  	
   

  
	
  31st December, 2003

  	
   

  	
  7.25:1

  	
   

  
	
  31st March, 2004

  	
   

  	
  7.00:1

  	
   

  
	
  30th June, 2004

  	
   

  	
  7.00:1

  	
   

  
	
  30th September, 2004

  	
   

  	
  7.00:1

  	
   

  
	
  31st December, 2004

  	
   

  	
  7.00:1

  	
   

  
	
  31st March, 2005

  	
   

  	
  7.00:1

  	
   

  
	
  30th June, 2005

  	
   

  	
  6.75:1

  	
   

  
	
  30th September, 2005

  	
   

  	
  6.50:1

  	
   

  
	
  31st December, 2005

  	
   

  	
  6.25:1

  	
   

  
	
  31st March, 2006

  	
   

  	
  5.75:1

  	
   

  
	
  Thereafter

  	
   

  	
  5.75:1

  	
   

  



 


17.3                        Calculations


 


For the purposes
of Clause 17.2 (Financial ratios), Senior Debt for any Ratio Period will be
calculated on the basis of Senior Debt outstanding on the last day of that Ratio
Period.


 


17.4                        Cure provisions


 


(a)                                  UPC Distribution may cure a breach of the financial
ratios set out in Clause 17.2(a), (b), (c), (d) and (e) (Financial ratios) by
procuring that additional equity is injected into the Borrower Group by one or
more Restricted Persons and/or additional Subordinated Shareholder Loans are
provided to the Borrower Group in an aggregate amount equal to:


 


(i)                                     in the case of a breach of Clause 17.2(a) or (e)
(Financial ratios), the amount which, if it had been deducted from Senior Debt
or Total Debt (as applicable) for the Ratio Period in respect of which the
breach arose, would have avoided the breach; or


 


(ii)                                  in the case of a breach of Clause 17.2(b), (c) or (d)
(Financial ratios), the amount which, if it had been added to EBITDA for the
Ratio Period in respect of which the breach arose, would have avoided the
breach; or


 


(iii)                               in the case of a breach of more than one paragraph of
Clause 17.2 (Financial ratios), the higher of the relevant amount referred to
in (i) or (ii) above.


 


(b)                                 A cure under paragraph (a) above will not be effective
unless:


 


(i)                                     the required amount of additional equity or the
proceeds of Subordinated Shareholder Loans is received by the Borrower Group
before delivery of the financial statements


 


108

















 


delivered under
Clause 16.2(a) or (b) (Financial information) which show that Clause 17.2
(Financial ratios) has been breached; and


 


(ii)                                  in the case of a cure of Clause 17.2(a) or (e)
(Financial ratios), the proceeds of the relevant additional equity or
Subordinated Shareholder Loans are applied in full in or towards repayment or
prepayment of Facility A Advances in accordance with Clause 7 (Cancellation and
Prepayment) and, to the extent of any surplus after such repayment or
prepayment, for the purposes of the Permitted Business.


 


(c)                                  No cure may be made under this Clause 17.4:


 


(i)                                     in respect of more than five Ratio Periods during the
life of the Facilities; or


 


(ii)                                  in respect of consecutive Ratio Periods.


 


(d)                                 Where a cure is exercised under this Clause 17.4 in
respect of a breach of Clause 17.2(b), (c) or (d) (Financial ratios) and the
next Ratio Period ends approximately three months after the Ratio Period in
respect of which the cure was made, EBITDA in respect of that next Ratio Period
will be deemed, for the purposes of Clause 17.2(b), (c) and (d) (Financial
ratios), to be increased by the amount determined under sub-paragraph (a)(ii)
above in respect of the relevant cure. 
This deemed increase will not be treated as a separate cure.


 


17.5                        Determinations


 


(a)                                  Any amount outstanding in a currency other than euros
is to be taken into account at its euro equivalent calculated at the rate used
in the latest accounts delivered to the Facility Agent.


 


(b)                                 All the terms used above are to be calculated in
accordance with the GAAP on which the preparation of the Original Borrower
Group Financial Statements was based.


 


(c)                                  If there is a dispute as to any interpretation of or
computation for Clause 17.1 (Financial definitions), the interpretation or
computation of the auditors of UPC Distribution shall prevail.


 


(d)                                 If UPC Distribution is obliged or chooses to prepare
its financial statements on a different basis from the basis used in the
preparation of the Original Borrower Group Financial Statements, such financial
statements shall be accompanied by a statement (providing reasonable detail)
from UPC Distribution either:


 


(i)                                     confirming that the change(s) would have no effect on
the operation of the ratios set out in Clause 17.2 (Financial ratios); or


 


(ii)                                  unless otherwise agreed in writing by the Facility
Agent (acting upon the instructions of the Majority Lenders), if the change(s)
would have such an effect, containing a reconciliation demonstrating the effect
of the change(s) (and, for the purpose of calculating the ratios set out in
Clause 17.2 (Financial ratios), such financial statements will be treated as
though adjusted by that reconciliation so as to exclude the effect of the
changes).


 


109

















 


18.                               DEFAULT


 


18.1                        Events of Default


 


Each of the
events set out in Clauses 18.2 (Non-payment) to 18.21 (KTA Network Agreement
Enforcement) is an Event of Default (whether or not caused by any reason
whatsoever outside the control of any Obligor or any other person).


 


18.2                        Non-payment


 


An Obligor does
not pay on the due date any amount payable by it under the Finance Documents
(other than any amount payable by UPC Distribution under Clause 7.6(d)
(Prepayment from disposal proceeds) of this Agreement) at the place at, and in
the currency in, which it is expressed to be payable, unless the relevant
amount is paid in full within one Business Day (in the case of principal
amounts) or three Business Days (in the case of other amounts) of the due date.


 


18.3                        Breach of other obligations


 


(a)                                  An Obligor does not comply with any of Clauses 16.6
(Pari passu ranking), 16.7 (Negative pledge), 16.10 (Disposals), 16.11
(Acquisitions and mergers), 16.13 (Restricted Payments), 16.14 (Loans and guarantees),
16.19 (Share capital) or 17 (Financial Covenants)


 


(b)                                 An Obligor does not comply with any provision of the
Finance Documents (other than those referred to in paragraph (a) above or in
Clause 18.2 (Non-payment) and other than non-payment by UPC Distribution of any
amount under Clause 7.6(d) (Prepayment from disposal proceeds) of this
Agreement) and such failure (if capable of remedy before the expiry of such
period) continues unremedied for a period of 28 days from the earlier of the
date on which (i) such Obligor has become aware of the failure to comply or
(ii) the Facility Agent gives notice to UPC Distribution requiring the same to
be remedied.


 


18.4                        Misrepresentation


 


A representation
or warranty made or repeated by any Obligor in or in connection with any
Finance Document or in any certificate or statement delivered by or on behalf
of any Obligor under or in connection with any Finance Document (other than the
representation in Clause 15.25 (Dutch Banking Act) or Clause 26.2(k) (Transfers
by Lenders)) is incorrect in any material respect when made or deemed to have
been made or repeated and, in the event that any representation or warranty is
capable of remedy, the misrepresentation is not remedied within 28 days of the
earlier of the date on which (i) such Obligor has become aware of the
misrepresentation or (ii) the Facility Agent gives notice to UPC Distribution
requiring the same to be remedied.


 


18.5                        Cross default


 


(a)                                  Subject to paragraph (d) below, any Financial
Indebtedness of a member of the Borrower Group or a member of the UGCE Borrower
Group is not paid when due or within any originally applicable grace period.


 


(b)                                 Subject to paragraph (d) below, any Financial
Indebtedness of a member of the Borrower Group or a member of the UGCE Borrower
Group becomes prematurely due and payable or is placed on demand, in each case
as a result of an event of default (howsoever described) under the document
relating to that Financial Indebtedness.


 


110

















 


(c)                                  Subject to paragraph (d) below, any Financial
Indebtedness of a member of the Borrower Group or a member of the UGCE Borrower
Group becomes capable of being declared prematurely due and payable or placed
on demand, in each case as a result of an event of default (howsoever
described) under the document relating to that Financial Indebtedness.


 


(d)                                 It shall not be an Event of Default under:


 


(i)                                     this Clause 18.5 where the aggregate principal amount
of all Financial Indebtedness to which any event specified in paragraphs (a),
(b) or (c) relates is less than €15,000,000 (in the case of the Borrower Group)
or €50,000,000 (in the case of any member of the UGCE Borrower Group) or, as
the case may be, the equivalent in other currencies;


 


(ii)                                  this Clause 18.5 in respect of Financial Indebtedness
owing by a member of the Borrower Group to another member of the Borrower Group
which is permitted under this Agreement; and


 


(iii)                               paragraph (c) above, in the case of the Acquisition of
an entity which results in that entity becoming a member of the Borrower Group,
for a period of 180 days following completion of that Acquisition, by reason
only of an event of default (however described) arising in relation to the
Financial Indebtedness of that acquired entity as a result only of the
Acquisition of that acquired entity, provided that such Financial Indebtedness
is not placed on demand, becomes prematurely due and payable or is otherwise
accelerated during that period.


 


(e)                                  Any Financial Indebtedness of a member of the Borrower
Group under a New Finance Document becomes capable of being due and payable or
placed on demand, in each case as a result of an Event of Default as defined
under the relevant New Finance Document.


 


18.6                        Insolvency


 


(a)                                  The Netherlands:  any Obligor,
any Material Subsidiary or member of the UGCE Borrower Group organised in The
Netherlands is declared bankrupt (in staat
van faillissement verklaard) or enters into a preliminary or
definitive moratorium (in voorlopige of
definitieve surseance van betaling gaan) pursuant to the Dutch
Bankruptcy Act (Faillissementswet);
or


 


(b)                                 General: any of the following occurs in respect of an Obligor, any Material
Subsidiary or any member of the UGCE Borrower Group:


 


(i)                                     it is, or is deemed for the purposes of any law to be,
unable to pay its debts as they fall due or insolvent;


 


(ii)                                  it admits its inability to pay its debts as they fall
due;


 


(iii)                               it suspends making payments on any of its debts or
announces an intention to do so; or


 


(iv)                              a moratorium is declared in respect of any of its
indebtedness.


 


If a moratorium
occurs in respect of any Obligor, any Material Subsidiary or any member of the
UGCE Borrower Group, the ending of the moratorium will not remedy any Event of
Default caused by the moratorium.


 


111

















 


(c)                                  United States of America:  any Obligor,
any Material Subsidiary or any member of the UGCE Borrower Group which is a
partnership, or a partner of any partnership, formed under the laws of the
states of Colorado or Delaware, United States or which is incorporated under
the laws of a State of the United States or that resides or has a domicile, a
place of business or property in the United States (each a U.S. Obligor):


 


(i)                                     admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due;


 


(ii)                                  makes a general assignment for the benefit of
creditors;


 


(iii)                               shall have had appointed a receiver, a custodian,
trustee or similar official for, or a receiver, custodian, trustee or similar
official shall have taken possession of, all or substantially all of its
assets, in proceedings brought by or against such Obligor or Material
Subsidiary, and such appointment shall not have been discharged or such
possession shall not have been terminated within 60 days after the effective
date thereof or such Obligor or Material Subsidiary shall have consented to or
acquiesced in such appointment or possession;


 


(iv)                              shall have filed a petition for relief under the
insolvency, bankruptcy or similar laws of the United States of America or any
state thereof, or an involuntary petition for such relief shall have been filed
against any such Obligor or Material Subsidiary under such laws and shall not
have been dismissed or terminated within 60 days after such involuntary
petition is filed; or


 


(v)                                 shall have failed to have discharged or obtained a
stay of any proceeding to enforce, within a period of 45 days after the
commencement thereof, any attachment, sequestration or similar proceeding
asserted against all or substantially all of the assets of such Obligor or
Material Subsidiary; or


 


18.7                        Insolvency proceedings


 


(a)                                  Any formal voluntary step commencing legal proceedings
(including petition or convening a meeting) is taken by any Obligor, any
Material Subsidiary or any member of the UGCE Borrower Group with a view to a
moratorium or a composition, assignment or arrangement with any class of
creditors of any Obligor, any Material Subsidiary or any member of the UGCE
Borrower Group; or


 


(b)                                 a meeting of any Obligor, any Material Subsidiary or
any member of the UGCE Borrower Group is convened by its shareholders,
directors, managing partner (in the case of the US Borrower), secretary or
other officers for the purpose of considering any resolution for, to petition for
or to file documents with a court for its winding-up, dissolution or for its
administration, suspension of payments, composition or bankruptcy or any such
resolution is passed; or


 


(c)                                  any person presents a petition or files documents ,
with the appropriate legal authorities, for the winding-up or for the
administration or for the bankruptcy of any Obligor, any Material Subsidiary or
any member of the UGCE Borrower Group and the petition is not discharged or
stayed within 45 days (or, in the case of a US Obligor, 60 days); or


 


(d)                                 an order for the winding-up or administration of any
Obligor, any Material Subsidiary or any member of the UGCE Borrower Group is
made,


 


112

















 


in each case
other than in connection with a reconstruction or amalgamation on terms
approved by the Facility Agent (acting on the instructions of the Majority
Lenders).


 


18.8                        Appointment of receivers and managers


 


(a)                                  Any liquidator, trustee-in-bankruptcy, preliminary
trustee, composition trustee, judicial custodian, compulsory manager, receiver,
administrative receiver or 
administrator is appointed in respect of any Obligor, any Material
Subsidiary or any member of the UGCE Borrower Group or any part of its assets
which is material in the context of the Borrower Group (taken as a whole) and,
only in the case of the appointment of a judicial custodian, compulsory manager
or receiver, is not discharged within 45 days (or, in the case of a US Obligor,
60 days); or


 


(b)                                 the directors, shareholders or other officers of any
Obligor, any Material Subsidiary or any member of the UGCE Borrower Group
request the appointment of, or give notice of their intention to appoint, a
liquidator, trustee in bankruptcy, preliminary trustee, composition trustee, judicial
custodian, compulsory manager, receiver, administrative receiver or
administrator,


 


in each case
other than in connection with a reconstruction or amalgamation on terms
approved by the Facility Agent (acting on the instructions of the Majority Lenders).


 


18.9                        Creditors’ process


 


A distress,
execution, attachment or other legal process is levied, enforced or sued out
upon or against all or any part of the assets of any Obligor, any Material
Subsidiary or any member of the UGCE Borrower Group which is material in the
context of the Borrower Group (taken as a whole), except where the same is
being contested in good faith or is removed, discharged or paid within 45 days
(or, in the case of a US Obligor, 60 days).


 


18.10                 Similar proceedings


 


Anything which
has an equivalent effect to any of the events specified in Clauses 18.6
(Insolvency) to 18.9 (Creditors’ process) (inclusive) shall occur under the
laws of any applicable jurisdiction in relation to any Obligor, any Material
Subsidiary or any member of the UGCE Borrower Group.


 


18.11                 Unlawfulness


 


It is or becomes
unlawful for any Obligor or Subordinated Creditor to perform any of its
payments or other material obligations under the Finance Documents to which it
is a party.


 


18.12                 Repudiation


 


Any Obligor or
Subordinated Creditor repudiates, or evidences an intention to repudiate, any
Finance Document to which it is a party.


 


18.13                 Cessation of Distribution Business


 


The Borrower
Group (taken as a whole) ceases to carry on all or substantially all of its Distribution
Business.


 


113

















 


18.14                 Seizure


 


All or a
material part of the undertakings, assets, rights or revenues of, or shares or
other ownership interests in, UGCE Inc., UPC Distribution Holdco or the Borrower
Group (taken as a whole but excluding any undertaking, assets, rights or
revenues which do not form part of the Distribution Business) are seized,
nationalised, expropriated or compulsorily acquired by or under the authority
of any government.


 


18.15                 Environmental Matters


 


As a result of
any Environmental Law any of the Finance Parties becomes subject to a material
obligation (actual or contingent and, in the case of any contingent obligation,
being one which, at the relevant time, would be likely to arise) directly as a
result of it entering into any of the Finance Documents which was not caused by
its negligence or wilful default.


 


18.16                 Breach of Security Deed and Intercreditor Agreement


 


(a)                                  A Subordinated Creditor fails to comply with any of
its obligations under the Security Deed or the Pledge of Subordinated
Shareholder Loans to which it is party and such failure (if capable of remedy
before the expiry of such period) continues unremedied for a period of 28 days
from the earlier of the date on which (i) UPC or UPC Distribution has become
aware of the failure to comply or (ii) the Facility Agent gives notice to the
relevant Subordinated Creditor and UPC Distribution requiring the same to be
remedied.


 


(b)                                 Any representation or warranty made by a Subordinated
Creditor under the Security Deed or the Pledge of Subordinated Shareholder
Loans is incorrect in any material aspect when made or repeated and, in the
event that any representation or warranty is capable of remedy, the
misrepresentation is not remedied within 28 days of the earlier of the date on
which (i) such Obligor has become aware of the misrepresentation or (ii) the
Facility Agent gives notice to that Subordinated Creditor requiring the same to
be remedied.


 


(c)                                  Any representation or warranty made by a Finance Party
(as defined in the New Facility Agreement) is incorrect in any material aspect
when made or repeated.


 


18.17                 Loss of Licences


 


Any Licence is
in whole or part:


 


(a)                                  terminated, suspended or revoked or does not remain in
full force and effect or otherwise expires and is not renewed prior to its
expiry (in each case, without replacement by Licence(s) having substantially
equivalent effect) in any case in a manner which would or is reasonably likely
to have a Material Adverse Effect; or


 


(b)                                 is modified or is breached in a manner which would or
is reasonably likely to have a Material Adverse Effect.


 


18.18                 Material Contracts


 


(a)                                  Except as is required by any term of this Agreement,
any Material Contract to which a member of the Borrower Group is a party is
terminated, suspended, revoked or cancelled or otherwise ceases to be in full
force and effect, unless:


 


(i)                                     in the case of an Interconnect Agreement only,
services of a similar nature to those provided pursuant to such Material Contract
are at all times provided to the Borrower


 


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Group on terms
which are not materially more onerous on the relevant member of the Borrower
Group or on the terms imposed by the mandatory requirements of any regulatory
body; or


 


(ii)                                  such termination, suspension, revocation, cancellation
or cessation (in the reasonable opinion of the Facility Agent) would not or is
not reasonably likely to have a Material Adverse Effect.


 


(b)                                 Any alteration or variation is made to any term of any
Material Contract to which a member of the Borrower Group is a party which
individually or cumulatively (in the reasonable opinion of the Facility Agent)
would or is reasonably likely to have a Material Adverse Effect.


 


(c)                                  Any party breaches any term of or repudiates any of
its obligations under any Material Contract to which a member of the Borrower
Group is a party where such breach or repudiation (in the opinion of the
Facility Agent exercised reasonably) would or is reasonably likely to have a
Material Adverse Effect unless, in the case of a breach of a Material Contract
by any person other than any member of the Borrower Group, the relevant
services are at all relevant times provided to the appropriate members of the
Borrower Group on the basis set out in (a) above.


 


18.19                 Material Adverse Change


 


Any event or
series of events occurs which would or is reasonably likely to have a Material
Adverse Effect.


 


18.20                 ERISA


 


The occurrence
of:


 


(a)                                  any event or condition that presents a material risk
that any member of the Borrower Group or any ERISA Affiliate may incur a
material liability to a Plan or to the United States Internal Revenue Service
or to the United States Pension Benefit Guaranty Corporation; or


 


(b)                                 an “accumulated funding deficiency” (as that term is
defined in section 412 of the United States Internal Revenue Code of 1986,
as amended, or section 302 of ERISA), whether or not waived, by reason of
the failure of any member of the Borrower Group or any ERISA Affiliate to make
a contribution to a Plan.


 


18.21                 KTA Network Agreement Enforcement


 


Valid and
enforceable KTA Security Agreements (as defined in Clause 7.6(d) (Prepayment
from disposal proceeds)) have not been entered into and:


 


(a)                                  KTA becomes obliged to pay the penalty to the
Municipality of Amsterdam on the basis of section 19 of the network
agreement between KTA and the Municipality of Amsterdam dated 6th July, 1995
and as amended on 22nd June, 1999 (the Network
Agreement); or


 


(b)                                 the Municipality of Amsterdam, as mortgagee or
pledgee, has factually taken steps to enforce, by way of execution, its pledge
or mortgage under the Network Agreement, other than on the basis of the
situation described under (a), except where such 


 


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enforcement is being contested in good faith or is removed or discharged
within 45 days.


 


18.22                 Acceleration


 


On and at any
time after the occurrence of an Event of Default while such event is continuing
the Facility Agent may, and if so directed by the Majority Lenders will, by
notice to UPC Distribution declare that an Event of Default has occurred and:


 


(a)                                  cancel the Total Commitments; and/or


 


(b)                                 declare that all the Advances be payable on demand,
whereupon they shall immediately become payable on demand by the Facility Agent
on the instructions of the Majority Lenders; and/or


 


(c)                                  demand that all the Advances be immediately due and
payable, whereupon they shall become immediately due and payable together with
all interest accrued on those Advances and all other amounts payable by the
Obligors under the Finance Documents.


 


18.23                 Automatic Acceleration


 


If an Event of
Default described in Clause 18.6(c)(ii), (iii) or (iv) (United States of
America) occurs, or upon the entry of an order for relief in a voluntary or
involuntary bankruptcy of the US Borrower, all outstanding Advances drawn by
the US Borrower under this Agreement will be immediately and automatically due
and payable and the Total Commitments (to the extent they relate to such Advances)
will, if not already cancelled under this Agreement, be immediately and
automatically cancelled.


 


19.                               FACILITY
AGENT,
SECURITY AGENT, LEAD ARRANGERS AND LENDERS


 


19.1                        Appointment and duties of the Agents


 


(a)                                  Each Lender and Lead Arranger irrevocably appoints
each Agent to act as its agent under and in connection with the Finance
Documents.


 


(b)                                 Each Finance Party appointing each Agent irrevocably
authorises each Agent on its behalf to:


 


(i)                                     perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in connection
with the Finance Documents, together with any other incidental rights, powers
and discretions; and


 


(ii)                                  execute each Finance Document expressed to be executed
by the Facility Agent on that Finance Party’s behalf.


 


(c)                                  Each Agent shall have only those duties which are
expressly specified in this Agreement. 
Those duties are solely of a mechanical and administrative nature.


 


19.2                        Role of the Lead Arrangers


 


Except as
otherwise provided in this Agreement, no Lead Arranger has any obligations of
any kind to any other Party under or in connection with any Finance Document.


 


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19.3                        Relationship


 


The relationship
between each Agent and the other Finance Parties is that of agent and principal
only.  Nothing in this Agreement
constitutes either Agent as trustee or fiduciary for any other Party or any
other person and neither Agent need hold in trust any moneys paid to it for a
Party save as provided in the Finance Documents or be liable to account for
interest on those moneys.


 


19.4                        Majority Lenders’ directions


 


(a)                                  Each Agent will be fully protected if it acts in
accordance with the instructions of the Majority Lenders in connection with the
exercise of any right, power or discretion or any matter not expressly provided
for in the Finance Documents.  Any such
instructions given by the Majority Lenders will be binding on all the Lenders.  In the absence of such instructions each
Agent may act as it considers to be in the best interests of all the Lenders.


 


(b)                                 No Agent is authorised to act on behalf of a Lender
(without first obtaining that Lender’s consent) in any legal or arbitration
proceedings relating to any Finance Document.


 


19.5                        Delegation


 


Each Agent may
act under the Finance Documents through its personnel and agents.


 


19.6                        Responsibility for documentation


 


Neither Agent
nor any Lead Arranger is responsible to any other Party for:


 


(a)                                  the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document by any other Party;


 


(b)                                 the collectability of amounts payable under any
Finance Document;


 


(c)                                  the accuracy of any statements (whether written or
oral) made in or in connection with any Finance Document (including the
Information Memorandum) by any other Party; or


 


(d)                                 the integrity or security of any Finance Document or
other document or information posted or distributed electronically on any
intranet based system (or similar) in connection with the preparation,
negotiation and execution of the Finance Documents or the syndication or
administration of the Facilities.


 


19.7                        Default


 


(a)                                  Neither Agent is obliged to monitor or enquire as to
whether or not a Default has occurred. Neither Agent will be deemed to have
knowledge of the occurrence of a Default. 
However, if an Agent receives notice from a Party referring to this
Agreement, describing the Default and stating that the event is a Default, it
shall promptly notify the Lenders of such notice.


 


(b)                                 Each Agent may require the receipt of security
satisfactory to it whether by way of payment in advance or otherwise, against
any liability or loss which it will or may incur in taking any proceedings or
action arising out of or in connection with any Finance Document before it
commences these proceedings or takes that action.


 


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19.8                        Exoneration


 


(a)                                  Without limiting paragraph (b) below, neither Agent
will be liable for any action taken or not taken by it under or in connection
with any Finance Document, unless directly caused by its gross negligence or
wilful misconduct.


 


(b)                                 No Party may take any proceedings against any officer,
employee or agent of either Agent in respect of any claim it might have against
that Agent or in respect of any act or omission of any kind (including
negligence or wilful misconduct) by that officer, employee or agent in relation
to any Finance Document.


 


(c)                                  Any officer, employee or agent of either Agent may
rely on this Clause 19.8 and enforce its terms under the Contracts (Rights of
Third Parties) Act 1999.


 


19.9                        Reliance


 


Each Agent may:


 


(a)                                  rely on any notice or document believed by it to be
genuine and correct and to have been signed by, or with the authority of, the
proper person;


 


(b)                                 rely on any statement made by a director or employee
of any person regarding any matters which may reasonably be assumed to be
within his knowledge or within his power to verify; and


 


(c)                                  engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Facility Agent’s employment and
those representing a Party other than the Facility Agent).


 


19.10                 Credit approval and appraisal


 


Without
affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Finance Document, each Lender confirms
that it:


 


(a)                                  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 this Agreement and has
not relied exclusively on any information provided to it by either Agent or the
Lead Arrangers in connection with any Finance Document; and


 


(b)                                 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 Finance Documents or any Commitment is in
force.


 


19.11                 Information


 


(a)                                  Each Agent shall promptly forward to the person
concerned the original or a copy of any document which is delivered to that
Agent by a Party for that person.


 


(b)                                 Except where this Agreement specifically provides
otherwise, neither Agent is obliged to review or check the accuracy or
completeness of any document it forwards to another Party.


 


(c)                                  Except as provided above, neither Agent has a duty:


 


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(i)                                     either initially or on a continuing basis to provide
any Lender with any credit or other information concerning the financial condition
or affairs of any Obligor or any related entity of any Obligor whether coming
into its possession or that of any of its related entities before, on or after
the Signing Date; or


 


(ii)                                  unless specifically requested to do so by a Lender in
accordance with this Agreement, to request any certificates or other documents
from any Obligor.


 


19.12                 Each Agent and the Lead Arrangers individually


 


(a)                                  If it is also a Lender, each of the Facility Agent,
the Security Agent and the Lead Arrangers has the same rights and powers under
this Agreement as any other Lender and may exercise those rights and powers as
though it were not the Facility Agent, Security Agent or (as applicable) a Lead
Arranger.


 


(b)                                 Each of the Agents and the Lead Arrangers may:


 


(i)                                     carry on any business with an Obligor or its related
entities;


 


(ii)                                  act as agent or trustee for, or in relation to any
financing involving, an Obligor or its related entities; and


 


(iii)                               retain any profits or remuneration in connection with
its activities under the Finance Documents, or in relation to any of the
foregoing.


 


19.13                 Indemnities


 


Each Lender
shall indemnify each Agent, within three Business Days of demand, against any
cost, loss or liability incurred by the relevant Agent (otherwise than by
reason of the relevant Agent’s gross negligence or wilful misconduct) in acting
as Agent under the Finance Documents (unless the relevant Agent has been
reimbursed by an Obligor pursuant to a Finance Document).  Such indemnification shall be pro rata to
its Commitments (and for the purposes of calculating this proportion, the
amount of the Total Facility C Commitments and each Lender’s Facility C
Commitments shall be converted to euros at the Agent’s Spot Rate of Exchange on
the date of the relevant calculation).


 


19.14                 Compliance


 


(a)                                  Each Agent may refrain from doing anything which
might, in its reasonable opinion, constitute a breach of any law or regulation
or be otherwise actionable at the suit of any person, and may do anything
which, in its reasonable opinion, is necessary or desirable to comply with any
law or regulation of any jurisdiction.


 


(b)                                 Without limiting paragraph (a) above, neither Agent
need disclose any information relating to any Obligor or any of its related
entities if the disclosure might, in the opinion of the relevant Agent,
constitute a breach of any law or regulation or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any person.


 


19.15                 Resignation of Agents


 


(a)                                  Notwithstanding its irrevocable appointment (but subject
to paragraphs (f) and (g) below), each Agent may resign by giving notice to the
Lenders and UPC Distribution, in which case the relevant Agent may, following
consultation with and with the consent of UPC Distribution (not to be
unreasonably withheld or delayed) forthwith appoint one of its


 


119

















 


Affiliates as
successor Agent or, failing that, the Majority Lenders may with the consent of
UPC Distribution (not to be unreasonably withheld or delayed) appoint a
reputable and experienced bank as successor Agent. The resignation of the
Security Agent is subject to compliance with clause 9.1 (Retirement of Security
Agent) of the Security Deed.


 


(b)                                 If the appointment of a successor Agent is to be made
by the Majority Lenders but they have not, within 30 days after notice of
resignation, appointed a successor Agent which accepts the appointment, the
retiring Agent may, following consultation with and with the consent of UPC
Distribution (not to be unreasonably withheld or delayed), appoint a successor
Agent.


 


(c)                                  The resignation of the retiring Agent and the
appointment of any successor Agent will both become effective only upon the
successor Agent notifying all the Parties that it accepts the appointment.  On giving the notification and receiving
such approval, the successor Agent will succeed to the position of the retiring
Facility Agent and the term Facility Agent
or Security Agent (as the case may
be) will mean the successor Facility Agent or Security Agent, respectively.


 


(d)                                 The retiring Agent shall, at its own cost, make
available to the successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the purposes of
performing its functions as the Agent under this Agreement.


 


(e)                                  Upon its resignation becoming effective, this Clause
19 shall continue to benefit the retiring Agent in respect of any action taken
or not taken by it under or in connection with the Finance Documents while it
was the relevant Agent and, subject to paragraph (d) above, it shall have no
further obligation under any Finance Document.


 


(f)                                    The Majority Lenders may by notice to an Agent require
it to resign in accordance with paragraph (a) above.  In this event, the relevant Agent shall resign in accordance with
paragraph (a) above but it shall not be entitled to appoint one of its
Affiliates as successor Agent.


 


(g)                                 UPC Distribution may, if it is unsatisfied (acting
reasonably) with the performance by an Agent of its role as Agent, following a
period of consultation with the relevant Agent of not less than 14 days, by
notice to that Agent require it to resign in accordance with paragraph (a)
above.  Such notice must specify the
reasons for which UPC Distribution is seeking the Agent’s resignation, which
must be based on reasonable grounds.  In
this event, the relevant Agent shall resign in accordance with paragraph (a)
above but it shall not be entitled to appoint one of its Affiliates as successor
Agent.


 


19.16                 Lenders


 


(a)                                  Each Agent may treat each Lender as a Lender, entitled
to payments under this Agreement and as acting through its Facility Office(s)
until it has received notice from the Lender to the contrary by not less than
five Business Days prior to the relevant payment.


 


(b)                                 Each Lender, on the date on which it becomes a party
to this Agreement, represents to the Facility Agent that it is:


 


(i)                                     either:


 


(A)                              not resident in the United Kingdom for United Kingdom
Tax purposes; or


 


(B)                                a “bank” as defined in section 840A of the Income
and Corporation Taxes Act 1988 and resident in the United Kingdom; and


 


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(ii)                                  beneficially entitled to the interest payable by the
Facility Agent to it under this Agreement,


 


and shall
forthwith notify the Facility Agent if either representation ceases to be
correct.


 


(c)                                  Each Facility A Lender, (if it is a requirement of
Dutch law that such Facility A Lender is a Professional Market Party)
represents to the Finance Parties and UPC Distribution on the Effective Date
that it is a Professional Market Party. 
Such Lender acknowledges that the Finance Parties and UPC Distribution
have relied upon such representation.


 


(d)                                 Each Facility A Lender shall provide the Facility
Agent with a duly completed and signed Verification Letter by the date falling
30 days after the Effective Date.  If
such Facility A Lender fails to provide such Verification Letter it shall,
within ten Business Days of demand, indemnify each Obligor and each Finance
Party against any cost, loss or liability incurred by that Obligor or Finance
Party as a result of its representation in paragraph (c) above being incorrect
or its failure to comply with its undertaking in this paragraph (d).


 


19.17                 Separate divisions


 


In acting as an
Agent or Lead Arranger, the agency and syndication’s division of each of the
Agents and the Lead Arrangers shall be treated as a separate entity from its
other divisions and departments.  Any
information acquired at any time by either Agent or any Lead Arranger otherwise
than in the capacity of Agent or Lead Arranger through its agency and
syndication’s division (whether as financial adviser to any member of the
Borrower Group or otherwise) may be treated as confidential by the relevant
Agent or Lead Arranger and shall not be deemed to be information possessed by
the relevant Agent or Lead Arranger in its capacity as such.  Each Finance Party acknowledges that each
Agent and the Lead Arrangers may, now or in the future, be in possession of, or
provided with, information relating to the Obligors which has not or will not
be provided to the other Finance Parties. 
Each Finance Party agrees that, except as expressly provided in this
Agreement, neither Agent nor any Lead Arranger will be under any obligation to
provide, or be under any liability for failure to provide, any such information
to the other Finance Parties.


 


20.                               FEES


 


20.1                        Commitment fee


 


(a)                                  Subject to paragraph (b) below UPC Distribution shall
pay to the Facility Agent for distribution to each Lender pro rata to the
proportion that the relevant Lender’s Facility A Commitment, Facility B
Commitment or Facility C Commitment bears to the Total Facility A Commitment,
Total Facility B Commitment or Total Facility C Commitment respectively from
time to time a commitment fee (subject to sub-clause (b) below) computed at the
rate of 0.75 per cent. per annum on any undrawn, uncancelled amount of the
Total Facility A Commitment, Total Facility B Commitment and Total Facility C
Commitment, PROVIDED THAT on any day that the aggregate outstanding Advances
exceed 50 per cent. of the aggregate drawn and undrawn Total Facility A
Commitments, Total Facility B Commitments and Total Facility C Commitments the
commitment fee shall be computed at the rate which is the lower of:


 


(i)                                     50 per cent. of the then applicable Margin; and


 


(ii)                                  0.50 per cent. per annum,


 


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on any undrawn,
uncancelled amount of the Total Facility A Commitment, Total Facility B
Commitment and Total Facility C Commitment.


 


In calculating
aggregate outstanding Facility C2 Advances and Total Facility C Commitments for
the purposes of the proviso to this Clause 20.1(a), outstanding Facility C2
Advances and Facility C2 Commitments shall be converted to euros on the date of
the relevant calculation on the basis of the Agent’s Spot Rate of Exchange on
that date.


 


(b)                                 Commitment fee is calculated and accrues on a daily
basis on and from the Signing Date and is payable quarterly in arrear from the
Signing Date and (in the case of the Total Facility A Commitment) on the last
day of the Facility A Availability Period, (in the case of the Total Facility B
Commitment) on the last day of the Facility B Availability Period and (in the
case of the Total Facility C Commitment) on the last day of the Facility C
Availability Period.  Accrued commitment
fee is also payable to the Facility Agent for the relevant Lender(s) on the
cancelled amount of its (their) Facility A Commitment, Facility B Commitment or
Facility C Commitment, as the case may be, at the time the cancellation takes
effect (but only in respect of the period up to the date of cancellation).


 


(c)                                  Commitment fee is payable in euros in respect of
Facility A, Facility B and Facility C1 and in Dollars in respect of Facility
C2.


 


20.2                        Agents’ fees


 


UPC Distribution
shall pay to the Facility Agent and the Security Agent for their own account an
agency fee in the amounts and on the dates agreed in the relevant Fee Letter.


 


20.3                        Underwriting Fee


 


UPC Distribution
shall pay the arrangement fee and underwriting fees in accordance with the
relevant Fee Letter.


 


20.4                        Amendment Fee


 


UPC Distribution
will pay to the Facility Agent for distribution to each Lender the amendment
fees set out in the Amendment Fee Letter on the date set out therein.


 


20.5                        VAT


 


Any fee referred
to in this Clause 20 (Fees) is exclusive of any applicable value added
tax.  If any value added tax is so
chargeable and is invoiced, it shall be paid by UPC Distribution at the same
time as it pays the relevant fee.  Where
appropriate, the relevant Finance Party will supply a VAT invoice in respect of
such fees.


 


21.                               EXPENSES


 


21.1                        Transaction Expenses


 


UPC Distribution
shall within ten Business Days of demand pay JPMorgan Chase Bank and TD Bank
Europe Limited the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution, perfection and syndication of:


 


(a)                                  this Agreement and any other documents referred to in
this Agreement; and


 


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(b)                                 any other Finance Document executed after the date of
this Agreement.


 


21.2                        Amendment Costs


 


If:


 


(a)                                  an Obligor requests an amendment, waiver or consent
under or in connection with any Finance Document;


 


(b)                                 an amendment is required under Clause 25.3 (Change of
Currency),


 


UPC Distribution
shall, within ten Business Days of demand, reimburse the Facility Agent or, as
the case may be, the Security Agent, for the amount of all costs and expenses
(including legal fees) reasonably incurred by the Facility Agent or, as the
case may be, the Security Agent in responding to, evaluating, negotiating or
complying with that request or requirement.


 


21.3                        Enforcement Costs


 


UPC Distribution
shall, within ten Business Days of demand, pay to the Facility Agent on behalf
of each Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.


 


22.                               STAMP DUTIES


 


UPC Distribution
shall pay and, within ten Business Days of demand, indemnify each Finance Party
against any cost, loss or liability which that Finance Party incurs in relation
to all stamp duty, registration and other similar Taxes payable in respect of
any Finance Document (other than those imposed by reason of any assignment or
novation by any Finance Party).


 


23.                               INDEMNITIES


 


23.1                        Currency indemnity


 


(a)                                  If any sum due from an Obligor under the Finance Documents
(a Sum), or any order, judgment or
award given or made in relation to a Sum, has to be converted from the currency
(the First Currency) in which that
Sum is payable into another currency (the Second
Currency) for the purpose of:


 


(i)                                     making or filing a claim or proof against that
Obligor;


 


(ii)                                  obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,


 


that Obligor
shall as an independent obligation, within ten Business Days of demand,
indemnify each Finance Party to whom that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.


 


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(b)                                 Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be payable.


 


23.2                        Other indemnities


 


UPC Distribution
shall (or shall procure that an Obligor will), within ten Business Days of
demand, indemnify each Lender against any cost, loss or liability incurred by
that Lender as a result of:


 


(a)                                  the occurrence of any Event of Default;


 


(b)                                 a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any cost, loss
or liability arising as a result of Clause 29 (Pro Rata Sharing);


 


(c)                                  funding, or making arrangements to fund, its
participation in an Advance requested by a Borrower in a Request but not made
by reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that Lender alone);


 


(d)                                 an Advance (or part of an Advance) not being prepaid
in accordance with a notice of prepayment given by a Borrower; or


 


(e)                                  any representation made by UPC Distribution under
Clause 15.25 (Dutch Banking Act) or Clause 26.2 (Transfers by Lenders) being
incorrect when made or deemed to be made. 
UPC Distribution shall not be liable under this paragraph (e) to any
Lender which makes a representation which is untrue in relation to its status
as a Professional Market Party or its status as part of a closed circle (besloten kring).


 


23.3                        Indemnity to the Facility Agent


 


UPC Distribution
shall, within ten Business Days of demand, indemnify the Facility Agent against
any cost, loss or liability incurred by the Facility Agent (acting reasonably)
as a result of:


 


(a)                                  investigating any event which it reasonably believes
is a Default; or


 


(b)                                 acting or relying on any notice, request or
instruction which it reasonably believes to be genuine, correct and
appropriately authorised.


 


23.4                        Break Costs


 


(a)                                  UPC Distribution shall, within ten Business Days of
demand by a Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of an Advance or Unpaid Sum being paid by that
Borrower on a day other than the last day of an Interest Period for that
Advance or Unpaid Sum.


 


(b)                                 Each Lender shall, as soon as reasonably practicable
after a demand by the Facility Agent, provide a certificate (which shall be
provided to UPC Distribution) confirming the amount of its Break Costs for any
Interest Period in which they accrue.


 


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24.                               EVIDENCE
AND CALCULATIONS


 


24.1                        Accounts


 


Accounts
maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to
which they relate.


 


24.2                        Certificates and determinations


 


Any
certification or determination by a Finance Party of a rate or amount payable
under this Agreement or otherwise expressed to be determined by a Finance Party
is, in the absence of manifest error, prima
facie evidence of the matters to which it relates.


 


24.3                        Calculations


 


The interest and
the fees payable under Clause 20.1 (Commitment fee) accrue from day to day and
are calculated on the basis of the actual number of days elapsed and a year of
360 days or, where practice in the London inter-bank market, in the case of
non-euro amounts, or the European interbank market, in the case of euro
amounts, otherwise dictates, 365 days.


 


25.                               AMENDMENTS
AND WAIVERS


 


25.1                        Required consents


 


(a)                                  Subject to Clause 25.2 (Exceptions) any term of the
Finance Documents may be amended or waived only with the consent of the
Majority Lenders and UPC Distribution and any such amendment or waiver will be
binding on all Parties.


 


(b)                                 The Facility Agent may effect, on behalf of any
Finance Party, any amendment or waiver permitted by this Clause 25.


 


25.2                        Exceptions


 


(a)                                  An amendment or waiver that has the effect of changing
or which relates to:


 


(i)                                     the definitions of “Majority Lenders” or “Majority
Facility C Lenders” in Clause 1.1 (Definitions);


 


(ii)                                  an extension to the date of payment of any amount of
principal, interest or commitment fees under this Agreement or the Security
Documents or the extension of the Facility A Availability Period, Facility B
Availability Period or Facility C Availability Period;


 


(iii)                               a reduction in the Margin other than in accordance
with Clause 8.10 (Margin) or the amount of any payment of principal, interest,
fees or commission payable under this Agreement or the Security Documents;


 


(iv)                              an increase in a Lender’s Facility A Commitment,
Facility B Commitment or Facility C Commitment;


 


(v)                                 an assignment, transfer, novation or other disposal of
any of, or any interest in, an Obligor’s rights and/or obligations under this
Agreement other than in accordance with Clause 26 (Changes to the Parties);


 


(vi)                              any provision which expressly requires the consent of
all the Lenders;


 


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(vii)                           Clause 2.4 (Nature of a Finance Party’s rights and
obligations), Clause 26.2 (Transfers by Lenders) or this Clause 25;


 


(viii)                        a release of the guarantee under Clause 14 (Guarantee)
other than in accordance with Clause 26 (Changes to the Parties);


 


(ix)                                the selection of an Interest Period exceeding six
months; or


 


(x)                                   the release of an asset from a Security Document
(except as otherwise expressly permitted herein or in any such Security
Document and except in furtherance of a disposal or any other transaction which
is permitted by any Finance Document),


 


shall not be
made without the prior consent of all the Lenders.


 


(b)                                 An amendment or waiver which relates to the rights or
obligations of the Facility Agent or the Lead Arrangers may not be effected
without the consent of the Facility Agent or, as the case may be, the Lead
Arrangers.


 


(c)                                  An amendment or waiver which has the effect of
changing or relates to Clause 7.10 (Facility C Call protection) may not be
effected without the consent of the Majority Facility C Lenders.


 


(d)                                 The Facility Agent may agree with UPC Distribution any
amendment to or the modification of the provisions of any of the Finance
Documents or any schedule thereto, which is necessary to correct a
manifest error.


 


(e)                                  If authorised by the Majority Lenders, the Security
Agent may, subject to paragraph (a) above, grant any waiver or consent in
relation to, or variation of the material provisions of, any Security Document.


 


25.3                        Change of Currency


 


(a)                                  If more than one currency or currency unit are at the
same time recognised by the central bank of any country as the lawful currency
of that country, then:


 


(i)                                     any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency  or currency unit of that country designated
by the Agent; and


 


(ii)                                  any translation from one currency or currency unit to
another shall be at the official conversion rate recognised by the central bank
for the conversion of that currency or currency unit into the other, rounded up
or down by the Agent acting reasonably.


 


(b)                                 If a change in any currency of a country occurs, this
Agreement will be amended to the extent the Agent specifies to be necessary to
reflect the change in currency and to put the Banks in the same position, so
far as possible, that they would have been in if no change in currency had
occurred.


 


25.4                        Waivers and remedies cumulative


 


The rights of
each Party under the Finance Documents:


 


(a)                                  may be exercised as often as necessary, subject to the
terms of the relevant Finance Documents;


 


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(b)                                 are cumulative and not exclusive of its rights under
the general law; and


 


(c)                                  may be waived only in writing and specifically.


 


Delay in the
exercise or non-exercise of any such right is not a waiver of that right.


 


26.                               CHANGES
TO THE PARTIES


 


26.1                        Transfers by Obligors


 


(a)                                  No Obligor may assign, transfer, novate or dispose of
any of, or any interest in, its rights and/or obligations under this Agreement,
except:


 


(i)                                     pursuant to a merger in accordance with Clause
16.11(d) (Acquisitions and mergers); and


 


(ii)                                  that UPC Distribution Holdco (Existing UPC Distribution Holdco) may at
any time assign, transfer, novate or dispose of all of its rights and
obligations under this Agreement and the other Finance Documents to which it is
a party to another person which is the immediate Holding Company of UPC
Distribution (New UPC Distribution Holdco)
in accordance with the terms of this Agreement and the terms of such other
Finance Document, provided that any transfer or novation of obligations by
Existing UPC Distribution Holdco will not be effective until New UPC
Distribution Holdco has become an Additional Guarantor in accordance with
Clause 26.4 (Additional Guarantors) and has delivered or delivers the documents
specified in Clause 26.4(a)(iv) (Additional Guarantors).


 


(b)                                 At the time the foregoing conditions for the transfer
or novation of Existing UPC Distribution Holdco’s obligations shall have been
satisfied (or waived, as the case may be) and such transfer or novation has
taken effect:


 


(i)                                     Existing UPC Distribution Holdco will be released from
its obligations under this Agreement and the other Finance Documents, without
prejudice to any such obligations which may have accrued and shall not have
been discharged prior to such time; and


 


(ii)                                  Existing UPC Distribution Holdco will cease to be an
Original Guarantor.


 


26.2                        Transfers by Lenders


 


(a)                                  A Lender (the Existing
Lender) may at any time assign, transfer or novate any of its rights
and/or obligations under this Agreement and the other Finance Documents to
another person (the New Lender),
provided that:


 


(i)                                     in the case of a partial assignment, transfer or novation
of rights and/or obligations, such assignment, transfer or novation shall be in
a minimum amount (in relation to Facility A Commitment) of €5,000,000, or (in
relation to Facility B Commitment) of €1,000,000, or (in relation to Facility C
Commitment) of $1,000,000, or its euro equivalent (save that in the case of a
partial assignment, transfer or novation by a Facility C Lender of its rights
and/or obligations under Facility C to an Affiliate or Related Fund of that
Facility C Lender, such assignment, transfer or novation shall be in a minimum
amount (in relation to Facility C Commitment) of $500,000 or its euro
equivalent);


 


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(ii)                                     if an Existing Lender is both a Facility B Lender and
holds undrawn commitments under New Facility D and that Existing Lender
assigns, transfers or novates any of its rights and/or obligations in respect
of Facility B to a New Lender that Existing Lender shall also assign transfer
or novate its undrawn commitments under New Facility D, in accordance with
clause 26.3 (Transfers to Lenders) and clause 26.3 (Procedure for novation) of the
New Facility Agreement to the extent necessary to ensure that it and the New
Lender (to the extent it is or becomes a lender under New Facility D) are and
remain in compliance with clause 26.2(a)(ii) of the New Facility Agreement; and


 


(iii)                                  if immediately prior to the time of the proposed
assignment, transfer or novation becoming effective it is a requirement of
Dutch law, the New Lender (A) is a Professional Market Party or exempted from
the requirement to be a Professional Market Party because it forms part of a
closed circle (besloten kring)
with UPC Distribution and makes the representation in paragraph 2 of the
Novation Certificate (as defined below) and (B) delivers a duly completed and
executed Verification Letter to UPC Distribution.


 


(b)                                 The prior consent of UPC Distribution is required for
any such assignment, transfer or novation (unless to an Affiliate or to a
Lender, but without prejudice to Clause 26.2(a)), provided that:


 


(i)                                     UPC Distribution’s consent must not be unreasonably
withheld or delayed;


 


(ii)                                  the consent of UPC Distribution 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;


 


(iii)                               the prior consent of UPC Distribution is not required
when (A) the assignment, novation or transfer of a Lender’s rights and/or
obligations is to an Affiliate or Related Fund of that Lender or (B) an Event
of Default is outstanding;


 


(iv)                              nothing in this Clause 26.2 restricts the ability of
any 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 this Agreement.


 


(c)                                  A transfer of obligations will be effective only if
the obligations are novated in accordance with Clause 26.3 (Procedure for
novations).


 


(d)                                 On each occasion an Existing Lender assigns, transfers
or novates any of its rights and/or obligations under this Agreement (other
than to an Affiliate or Related Fund of that Existing Lender), the New Lender
shall, on the date the assignment, transfer and/or novation takes effect, pay
to the Facility Agent for its own account a fee of €1,500 (in relation to
Facility A, Facility B or Facility C1) or US$3,500 (in relation to Facility
C2); provided that, in the case of contemporaneous assignments by a Lender
under Facility C2 to more than one fund managed by the same investment adviser
(which funds are not then Lenders hereunder), only a single such US$3,500 fee
shall be payable for all such contemporaneous assignments.


 


(e)                                  An Existing Lender is not responsible to a New Lender
for:


 


(i)                                     the execution, genuineness, validity, enforceability
or sufficiency of any Finance Document or any other document;


 


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(ii)                                  the collectability of amounts payable under any
Finance Document; or


 


(iii)                               the accuracy of any statements (whether written or
oral) made in connection with any Finance Document.


 


(f)                                    Each New Lender confirms to the Existing Lender and
the other Finance Parties that it:


 


(i)                                     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 this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                  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 this Agreement or any Facility A Commitment,
Facility B Commitment or Facility C Commitment is in force.


 


(g)                                 Nothing in any Finance Document obliges an Existing
Lender to:


 


(i)                                     accept a re-transfer from a New Lender of any of the
rights and/or obligations assigned, transferred or novated under this Clause
26; or


 


(ii)                                  support any losses incurred by the New Lender by
reason of the non-performance by any Obligor of its obligations under this
Agreement or otherwise.


 


(h)                                 Any reference in this Agreement to a Lender includes a
New Lender (to the extent rights have been assigned, transferred or novated to
that New Lender and to the extent that obligations have been assumed by the New
Lender) but excludes a Lender if no amount is or may be owed to or by it under
this Agreement and its Facility A Commitment (if any), Facility B Commitment
(if any), and Facility C Commitment (if any) has been cancelled or reduced to
nil.


 


(i)                                     If any assignment, transfer or novation results, or
will result by reason of circumstances existing at the time of the assignment,
transfer or novation, in additional amounts becoming due under Clause 10 (Tax
Gross-up and Indemnities) or amounts becoming due under Clause 12 (Increased
Costs), the New Lender shall be entitled to receive such additional amounts
only to the extent that the Existing Lender would have been so entitled had
there been no such assignment, transfer or novation.


 


(j)                                     Any Facility C Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release a Lender from any of its obligations
under this Agreement or substitute any such pledgee or assignee for such
Facility C Lender as a party hereto.


 


(k)                                  On the date that a New Lender becomes a party to this
Agreement as a Lender UPC Distribution represents and warrants that on that
date it has verified the status of that New Lender either as:


 


(i)                                     a Professional Market Party; or


 


(ii)                                  exempted from the requirement to be a Professional
Market Party because it forms part of a closed circle (besloten kring) with UPC Distribution,


 


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by obtaining a
duly completed and signed Verification Letter.


 


26.3                        Procedure for novations


 


(a)                                  A novation is effected if:


 


(i)                                     the Existing Lender and the New Lender deliver to the
Facility Agent a duly completed certificate (a Novation Certificate), substantially in the form of Part 1 of
Schedule 5 (Novation Certificate), with, for the purposes of primary
syndication of the Facilities or to facilitate novations of Facility C2
Advances (and Facility C2 Commitments, if applicable), such amendments as the
Facility Agent approves to achieve a substantially similar effect; and


 


(ii)                                  the Facility Agent executes it (which the Facility
Agent shall promptly do).


 


(b)                                 Each Finance Party (other than the Existing Lender and
the New Lender) irrevocably authorises the Facility Agent to execute any duly
completed Novation Certificate on its behalf if that Novation Certificate
effects a novation permitted by Clause 26.2 (Transfers by Lenders).


 


(c)                                  To the extent that they are expressed to be the
subject of the novation in the Novation Certificate:


 


(i)                                     the Existing Lender and the other Parties (the existing Parties) will be released from
their obligations to each other (the discharged
obligations);


 


(ii)                                  the New Lender and the existing Parties will assume
obligations towards each other which differ from the discharged obligations
only insofar as they are owed to or assumed by the New Lender instead of the
Existing Lender;


 


(iii)                               the rights of the Existing Lender against the existing
Parties and vice versa (the discharged rights)
will be cancelled;


 


(iv)                              the New Lender and the existing Parties will acquire
rights against each other which differ from the discharged rights only insofar
as they are exercisable by or against the New Lender instead of the Existing
Lender; and


 


(v)                                 the New Lender shall become, by the execution by the
Facility Agent of such Novation Certificate, bound by the terms of the Security
Deed as if it were an original party thereto as a Senior Beneficiary and shall
acquire the same rights and assume the same obligations towards the other
parties to the Security Deed as would have been acquired and assumed had the
New Lender been an original party to the Security Deed as a Senior Beneficiary,


 


all on the later
of (i) five Business Days after receipt of a Verification Letter accompanied by
a Novation Certificate executed by the Existing Lender and the New Lender; (ii)
the date of execution of such Novation Certificate by the Facility Agent; and
(iii) the date specified in the Novation Certificate.


 


(d)                                 If the effective date of a novation is after the date
a Request is received by the Facility Agent but before the date the requested
Advance is disbursed to the relevant Borrower, the Existing Lender shall be
obliged to participate in that Advance in respect of its discharged obligations
notwithstanding that novation, and the New Lender shall reimburse the Existing
Lender for its participation in that Advance and all interest and fees thereon
up to the date of reimbursement


 


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(in each case to
the extent attributable to the discharged obligations) within three Business
Days of the Utilisation Date of that Advance.


 


26.4                        Additional Guarantors


 


(a)                                  (i)                                     Subject to paragraph (b) below, a Subsidiary of UPC
Distribution may become an Additional Guarantor by delivering to the Facility
Agent a Guarantor Accession Agreement, duly executed by that company.


 


(ii)                                  A person which (a) becomes the immediate Holding
Company of UPC Distribution or (b) becomes an Additional Obligor under the New
Facility Agreement shall, prior to or contemporaneously with becoming such
Holding Company or Additional Obligor (as applicable), become an Additional
Guarantor by delivering to the Facility Agent a Guarantor Accession Agreement,
duly executed by that company.


 


(iii)                               Upon execution and delivery of a Guarantor Accession
Agreement and delivery of the documents specified in sub-paragraph (iv) below,
the relevant Subsidiary or person referred to in sub-paragraph (i) or (ii)
above will become an Additional Guarantor.


 


(iv)                              UPC Distribution shall procure that, at the same time
as a Guarantor Accession Agreement is delivered to the Facility Agent, there is
also delivered to the Facility Agent all those documents listed in Part 2 of
Schedule 2 (Conditions Precedent Documents), in each case in form and
substance satisfactory to the Facility Agent (acting reasonably).


 


(v)                                 The Guarantor Accession Agreement referred to in
sub-paragraph (i) above may, with the prior written approval of the Facility
Agent, include a limitation of the obligations or liabilities of the relevant
Additional Guarantor under Clause 14 (Guarantee) where such limitation is
required by any applicable law.


 


(b)                                 UPC Distribution shall:


 


(i)                                     procure that at all times the value of the aggregate
EBITDA, total assets and total revenues of:


 


(A)                              the Guarantors as of the Effective Date (other than,
UPC Distribution, any UPC Distribution Holdco, UPC Holding and UPC Holding II)
and their respective Subsidiaries (as calculated by reference to the relevant
financial statements most recently provided under Clause 16.2(a) or (b)
(Financial information)); and


 


(B)                                any Additional Guarantors which have become Guarantors
since the Effective Date and their respective Subsidiaries (as calculated by
reference to the relevant financial statements most recently provided under
Clause 16.2(a) or (b) (Financial information) or, if no such financial
statements have been provided in respect of such Additional Guarantors, as
calculated by reference to the financial statements referred to in paragraph 11
of Part 2 of Schedule 2 (Conditions Precedent Documents) provided under
Clause 26.4(a)(iii) (Additional Guarantors) in respect of each Additional
Guarantor),


 


is equal to or
greater than 95 per cent. of the Borrower Group’s consolidated EBITDA, total
assets and total revenues (as calculated by reference to the relevant financial
statements most recently provided under Clause 16.2(a) or (b) (Financial


 


131

















 


information)),
if necessary by procuring that additional Subsidiaries of UPC Distribution
become Additional Guarantors; and


 


(ii)                                  consult with the Facility Agent prior to any entity
becoming an Additional Guarantor in order to ensure that no material adverse
change would or be reasonably likely to occur, as a result of such entity
becoming an Additional Guarantor, in the consolidated financial position of the
Borrower Group (taken as a whole) which would or be reasonably likely to have a
Material Adverse Effect.


 


(c)                                  UPC Distribution represents and warrants to the
Finance Parties that it is in compliance with paragraph (b) above as of the
Effective Date (all relevant calculations being made by reference to the
financial statements most recently provided under Clause 16.2(a) or (b)
(Financial Information).


 


(d)                                 After the Effective Date, UPC Distribution shall be in
compliance with its obligations under paragraph (b) above if it procures that
any of its Subsidiaries which are required to become Additional Guarantors do
so within 60 days after the delivery to the Facility Agent of any financial
statements delivered under Clause 16.2(a) or (b) (Financial information) which
demonstrate that additional Subsidiaries of UPC Distribution are required to be
become Additional Guarantors under paragraph (b).


 


(e)                                  The execution of a Guarantor Accession Agreement
constitutes confirmation by the relevant Additional Guarantor that the relevant
representations and warranties set out in Clause 15 (Representations and
Warranties) to be made by it on the date of the Guarantor Accession Agreement
are correct, as if made with reference to the facts and circumstances then
existing.


 


26.5                        Reference Banks


 


(a)                                  If a Reference Bank ceases to be a Lender, the
Facility Agent shall (after consulting with UPC Distribution) appoint another
Lender which is not a Reference Bank to replace that Reference Bank.


 


(b)                                 UPC Distribution and the Facility Agent may agree to
add one or more additional Reference Bank(s) from among the Lenders.


 


26.6                        Register


 


The Facility
Agent shall maintain at its address referred to in Clause 32.2(b) (Addresses
for notices) a copy of each Novation Certificate delivered to and accepted by
it and a register of the names and addresses all the Parties including, in the
case of Lenders, their Commitments under each Facility, the principal amount of
the Advances owing under each Facility to each Lender from time to time and the
details of their Facility Office notified to the Facility Agent from time to
time, and shall supply any other Party (at that Party’s expense) with a copy of
the register on request.  The entries in
such register shall be conclusive and binding for all purposes, absent manifest
error, and the Obligors, the Facility Agent and the Lenders shall treat each
person whose name is recorded in the register as a Lender hereunder for all
purposes of this Agreement.


 


27.                               DISCLOSURE
OF INFORMATION


 


(a)                                  Any Lender may disclose to any of its Affiliates and
any other person:


 


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(i)                                     to (or through) whom that Lender assigns or transfers
(or may potentially assign or transfer) all or any of its rights and
obligations under this Agreement;


 


(ii)                                  with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to, this Agreement
or any Obligor; or


 


(iii)                               to whom, and to the extent that, information is
required to be disclosed by any applicable law or regulation,


 


any information
about any Obligor, the Borrower Group and the Finance Documents as that Lender
shall consider appropriate (acting reasonably) if, in relation to sub-paragraphs
(i) and (ii) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.


 


(b)                                 Notwithstanding any other provision of this Agreement,
any Party to this Agreement (and any of its affiliates, officers, directors,
employees, representatives, professional advisers, or other agents) may (and
has since the commencement of discussions with respect to the Facility been
permitted to) disclose to any and all persons, without limitation of any kind:


 


(i)                                     the U.S. tax
treatment and U.S. tax structure
(each as defined below) of the Facility; and


 


(ii)                                  all material of any kind (including opinions and other
tax analyses) that are provided to such party relating to such U.S. tax
treatment or U.S. tax structure,


 


except to the
extent reasonably necessary to comply with applicable federal or state
securities laws.


 


For the purposes
of this subsection, the U.S. tax treatment
of the Facility is the purported or claimed U.S. federal, state and local
income tax treatment of the Facility, and the U.S.
tax structure of the Facility is any fact that may be relevant to
understanding the purported or claimed U.S. federal, state and local income tax
treatment of the Facility.  This
authorisation is not intended to permit disclosure of any information (other
than information relating to US tax treatment or US tax structure of the
Facility) including (without limitation) (i) any portion of any materials to
the extent not related to the U.S. tax treatment or U.S. tax structure of the
Facility, (ii) the identities of participants or potential participants in the
Facility (except to the extent such identities are related to the tax treatment
or the U.S. tax structure of the Facility), (iii) the existence or status of
any negotiations, (iv) any pricing or financial information (except to the
extent such pricing or financial information is related to the U.S. tax
treatment or the U.S. tax structure of the Facility), or (v) any other term or
detail not relevant to the U.S. tax treatment or the U.S. tax structure of the
Facility.


 


28.                               SET-OFF


 


28.1                        Contractual set-off


 


A Finance Party
may set off any matured obligation owed by an Obligor under the Finance
Documents (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to that Obligor, regardless of
the place of payment, booking branch or currency of either obligation.  If the obligations are in different
currencies,


 


133

















 


the Finance
Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.


 


28.2                        Set-off not mandatory


 


No Finance Party
shall be obliged to exercise any right given to it by Clause 28.1 (Contractual
set-off).


 


28.3                        Notice of set-off


 


Any Finance
Party exercising its rights under Clause 28.1 (Contractual set-off) shall
notify the relevant Obligor promptly after set-off is applied.


 


29.                               PRO
RATA SHARING


 


29.1                        Redistribution


 


If any amount
owing by an Obligor under any Finance Document to a Finance Party (the recovering Finance Party) is discharged by
payment, set-off or any other manner other than through the Facility Agent in
accordance with Clause 9 (Payments) (a recovery),
then:


 


(a)                                  the recovering Finance Party shall, within three
Business Days, notify details of the recovery to the Facility Agent;


 


(b)                                 the Facility Agent shall determine whether the
recovery is in excess of the amount which the recovering Finance Party would
have received had the recovery been received by the Facility Agent and
distributed in accordance with Clause 9 (Payments);


 


(c)                                  subject to Clause 29.3 (Exceptions), the recovering
Finance Party shall, within three Business Days of demand by the Facility
Agent, pay to the Facility Agent an amount (the redistribution) equal to the excess;


 


(d)                                 the Facility Agent shall treat the redistribution as
if it were a payment by the Obligor concerned under Clause 9 (Payments) and
shall pay the redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 9.7 (Partial payments); and


 


(e)                                  after payment of the full redistribution, the
recovering Finance Party will be subrogated to the portion of the claims paid
under paragraph (d) above, and that Obligor will owe the recovering Finance
Party a debt which is equal to the redistribution, immediately payable and of
the type originally discharged.


 


29.2                        Reversal of redistribution


 


If under Clause
29.1 (Redistribution):


 


(a)                                  a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to an Obligor; and


 


(b)                                 the recovering Finance Party has paid a redistribution
in relation to that recovery,


 


each Finance
Party shall, within three Business Days of demand by the recovering Finance
Party through the Facility Agent, reimburse the recovering Finance Party all or
the


 


134

















 


appropriate
portion of the redistribution paid to that Finance Party.  Thereupon the subrogation in Clause 29.1(e)
(Redistribution) will operate in reverse to the extent of the reimbursement.


 


Each Finance
Party agrees with the Facility Agent that it will comply with any notice given
to it by the Facility Agent under this Clause 29.2.


 


29.3                        Exceptions


 


(a)                                  A recovering Finance Party need not pay a
redistribution to the extent that it would not, after the payment, have a valid
claim against the Obligor concerned in the amount of the redistribution
pursuant to Clause 29.1(e) (Redistribution).


 


(b)                                 A recovering Finance Party is not obliged to share
with any other Finance Party any amount which the recovering Finance Party has
received or recovered as a result of taking legal proceedings, if the other
Finance Party had an opportunity to participate in those legal proceedings but
did not do so and did not take separate legal proceedings.


 


30.                               SEVERABILITY


 


If a provision
of any Finance Document is or becomes illegal, invalid or unenforceable in any
jurisdiction, that shall not affect:


 


(a)                                  the legality, validity or enforceability in that
jurisdiction of any other provision of the Finance Documents; or


 


(b)                                 the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance Documents.


 


31.                               COUNTERPARTS


 


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.


 


32.                               NOTICES


 


32.1                        Giving of notices


 


All notices or
other communications under or in connection with this Agreement shall be given
in writing and, unless stated, may be made by letter, telex or facsimile or (to
the extent that (i) the relevant Party has specified such an address pursuant
to Clause 32.2 (Addresses for notices) and (ii) such notice or communication is
not required to be signed by an Authorised Signatory, other officer or board of
the relevant entity and the form of such notice or communication does not
provide for signature by an Authorised Signatory, other officer or board of the
relevant entity) by e-mail.  Any such
notice will be deemed to be given as follows:


 


(a)                                  if by letter, when delivered personally or on actual
receipt; and


 


(b)                                 if by facsimile or e-mail, when received in legible
form.


 


However, a
notice given in accordance with the above but received on a non-working day or
after business hours in the place of receipt will only be deemed to be given on
the next working day in that place.


 


135

















 


32.2                        Addresses for notices


 


(a)                                  The address and facsimile number and (if so specified)
e-mail address of each Party (other than the Facility Agent and the Borrowers)
for all notices under or in connection with this Agreement are:


 


(i)                                     that notified by that Party for this purpose to the
Facility Agent on or before it becomes a Party; or


 


(ii)                                  any other notified by that Party for this purpose to
the Facility Agent by not less than five Business Days’ notice.


 


(b)                                 The address, facsimile numbers and e-mail address of
the Facility Agent and the Security Agent are:


 


	
  TD Bank Europe Limited

  
	
  Triton Court

  
	
  14/18 Finsbury Square

  
	
  London EC2A 1DB

  
	
   

  	
   

  	
   

  
	
  Contact:

  	
   

  	
  Rory McCarthy

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
  +44 20 7638 0006

  
	
   

  	
   

  	
   

  
	
  E-mail:

  	
   

  	
  rory.mccarthy@tdsecurities.com

  
	
   

  	
   

  	
   

  
	
  in the case of notices relating to Facility
  C2 only:

  
	
   

  	
   

  	
   

  
	
  Toronto Dominion (Texas), Inc.,

  
	
  909 Fannin Street, Suite 1700

  
	
  Houston, Texas 77010

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Jim Bridwell

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
  +1 713 951 9921

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
  jimmie.bridwell@tdsecurities.com

  
	
   

  	
   

  	
   

  
	
  and in each case with a copy to:

  
	
   

  	
   

  	
   

  
	
  TD Bank Europe Limited

  
	
  Royal Trust Tower

  
	
  77 King Street West,

  
	
  18th Floor

  
	
  Toronto

  
	
  Ontario, Canada

  
	
  M5K 1A2

  
	
   

  	
   

  	
   

  
	
  Contact:

  	
   

  	
  Marc Scaeffer/Parin Kanji

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
  +1 416 982 6630

  



 


or such other as
the Facility Agent may notify to the other Parties by not less than five
Business Days’ notice.


 


136

















 


(c)                                  The address, facsimile numbers and e-mail address of
each Borrower are:


 


UPC Distribution
Holding B.V.

Boeing Avenue 53

1119 PE Schiphol Rijk

Amsterdam


 


Contact:                                                   Dennis Okhuijsen


 


Facsimile:                                            + 3120 778 9453; and


 


E-mail:                                                             dokhuijsen@UPCcorp.com


 


UPC Financing
Partnership


 


c/o UPC
Distribution


 


Contact:                                                   Dennis Okhuijsen


 


Facsimile:                                            + 3120 778 9453


 


E-mail:                                                             dokhuijsen@UPCcorp.com


 


or such other as
the relevant Borrower may notify to the other Parties by not less than five
Business Days’ notice.


 


(d)                                 The Facility Agent shall, promptly upon request from
any Party, give to that Party the address, facsimile number or e-mail address
(if applicable) of any other Party applicable at the time for the purposes of
this Clause 32.


 


33.                               LANGUAGE


 


(a)                                  Any notice given under or in connection with any
Finance Document shall be in English.


 


(b)                                 All other documents provided under or in connection
with any Finance Document shall be:


 


(i)                                     in English; or


 


(ii)                                  if not in English and the Facility Agent so requests,
accompanied by a certified English translation and, in this case, the English
translation shall prevail unless the document is a statutory or other official
document.


 


34.                               JURISDICTION


 


34.1                        Submission


 


For the benefit
of each Finance Party, each Obligor agrees that the courts of England have
jurisdiction to settle any disputes in connection with any Finance Document
(other than any Security Document expressed to be governed by laws other than
the laws of England) and accordingly submits to the jurisdiction of the English
courts.


 


34.2                        Service of process


 


Without
prejudice to any other mode of service, each Obligor which is not incorporated
in England and Wales:


 


137

















 


(a)                                  irrevocably appoints UPC Services Ltd, 4th
Floor, Michelen House, 81 Fulham Road, London, SW3 6RD as its agent for service
of process relating to any proceedings before the English courts in connection
with any Finance Document;


 


(b)                                 agrees to maintain an agent for service of process in
England until all Facility A Commitments, Facility B Commitments and Facility C
Commitments have terminated and the Advances and all other amounts payable
under the Finance Documents have been finally, irrevocably and indefeasibly
repaid in full;


 


(c)                                  agrees that failure by a process agent to notify the
Obligor of the process will not invalidate the proceedings concerned;


 


(d)                                 consents to the service of process relating to any
such proceedings by prepaid posting of a copy of the process to its address for
the time being applying under Clause 32.2 (Addresses for notices); and


 


(e)                                  agrees that if the appointment of any person mentioned
in paragraph (a) above ceases to be effective, the relevant Obligor shall
immediately appoint a further person in England to accept service of process on
its behalf in England and, failing such appointment within 15 days, the
Facility Agent is entitled and authorised to appoint a process agent for the
Obligor by notice to the Obligor.


 


34.3                        Forum convenience and enforcement
abroad


 


Each Obligor:


 


(a)                                  waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in connection with a
Finance Document; and


 


(b)                                 agrees that a judgment or order of an English court in
connection with a Finance Document is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.


 


34.4                        Non-exclusivity


 


Nothing in this
Clause 34 limits the right of a Finance Party to bring proceedings against an
Obligor in connection with any Finance Document:


 


(a)                                  in any other court of competent jurisdiction; or


 


(b)                                 concurrently in more than one jurisdiction.


 


35.                               WAIVER
OR IMMUNITY


 


Each Obligor
irrevocably and unconditionally:


 


(a)                                  agrees that if a Finance Party brings proceedings
against it or its assets in relation to a Finance Document, no immunity from
those proceedings (including, without limitation, suit, attachment prior to
judgment, other attachment, the obtaining of judgment, execution or other
enforcement) will be claimed by or on behalf of itself or with respect to its
assets;


 


(b)                                 waives any such right of immunity which it or its
assets now has or may subsequently acquire; and


 


138

















 


(c)                                  consents generally in respect of any such proceedings
to the giving of any relief or the issue of any process in connection with
those proceedings, including, without limitation, the making, enforcement or
execution against any assets whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in those proceedings.


 


36.                               WAIVER
OF TRIAL BY JURY


 


EACH PARTY
WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY TRANSACTION CONTEMPLATED
BY ANY FINANCE DOCUMENT.  THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.


 


37.                               GOVERNING
LAW


 


This Agreement
is governed by and construed in accordance with English law.


 


This Agreement
has been entered into on the date stated at the beginning of this Agreement.


 


139

















 


SCHEDULE 1


 


ORIGINAL PARTIES


 


PART 1


 


ORIGINAL GUARANTORS


 


	
  Name

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
  UPC Financing Partnership

  	
   

  	
  4643 South Ulster Street

  Suite 1300

  Denver, Co 80237

  United States

  
	
   

  	
   

  	
   

  
	
  UPC Distribution Holding B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Holding II B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Holding B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC France Holding B.V

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Scandinavia Holding B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Cable Network Austria Holding B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Stipdon Investments B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  



 


140

















 


	
  UPC Nederland B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  



 


141

















 


PART 2


 


ORIGINAL
LENDERS AND COMMITMENTS


 


	
  Lender

  	
   

  	
  Facility A Commitments

  	
   

  	
  Facility B Commitments

  	
   

  	
  Facility C1 Commitments

  	
   

  	
  Facility C2 Commitments

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (US$)

  	
   

  
	
  The Chase Manhattan Bank

  	
   

  	
  102,857,145

  	
   

  	
  377,142,855

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Toronto-Dominion Bank

  	
   

  	
  102,857,145

  	
   

  	
  377,142,855

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toronto Dominion (Texas), Inc.,

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  295,400,000

  	
   

  
	
  ABN AMRO Bank N.V.

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas, Belgian Branch

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CIBC World Markets plc

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Crédit Lyonnais S.A.

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fortis Bank (Nederland) N.V.

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N.B. International Finance B.V.

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  37,500,000

  	
   

  	
  137,500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Abbey National Treasury Services plc

  	
   

  	
  7,500,000

  	
   

  	
  27,500,000

  	
   

  	
  5,000,000

  	
   

  	
   

  	
   

  
	
  Lehman Commercial Paper Inc

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  5,000,000

  	
   

  
	
  Banca Commerciale Italiana S.p.A.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bear Stearns Corporate Lending Inc.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


142

















 


	
  Lender

  	
   

  	
  Facility A Commitments

  	
   

  	
  Facility B Commitments

  	
   

  	
  Facility C1 Commitments

  	
   

  	
  Facility C2 Commitments

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (US$)

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit Suisse First Boston

  	
   

  	
  10,714,286

  	
   

  	
  39,285,714

  	
   

  	
  50,000,000

  	
   

  	
   

  	
   

  
	
  Daimler Chrysler Capital Services (Debis)

  	
   

  	
  6,428,571

  	
   

  	
  23,571,429

  	
   

  	
  10,000,000

  	
   

  	
   

  	
   

  
	
  DLJ Capital Funding, Inc.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dresdner Bank AG, London Branch

  	
   

  	
  17,142,857

  	
   

  	
  62,857,143

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Goldman Sachs Credit Partners, L.P.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Goldman Sachs Credit Partners, L.P.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  8,000,000

  	
   

  
	
  The Governor and Company of the Bank of Scotland

  	
   

  	
  17,142,857

  	
   

  	
  62,857,143

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Harbourmaster Loan Corporation B.V.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  15,000,000

  	
   

  
	
  IBM Nederland Financieringen B.V.

  	
   

  	
  3,214,286

  	
   

  	
  11,785,714

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ING Bank N.V.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurocredit CDO I, B.V. and Eurocredit CDO II, B.V.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  15,000,000

  	
   

  
	
  KBC Bank NV

  	
   

  	
  5,357,143

  	
   

  	
  19,642,857

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Merrill Lynch Capital Corporation

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


143

















 


	
  Lender

  	
   

  	
  Facility A Commitments

  	
   

  	
  Facility B Commitments

  	
   

  	
  Facility C1 Commitments

  	
   

  	
  Facility C2 Commitments

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  	
  (US$)

  	
   

  
	
  Debt Strategies Fund III, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  820,000

  	
   

  
	
  Debt Strategies Fund II, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4,200,000

  	
   

  
	
  Debt Strategies Fund, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1,800,000

  	
   

  
	
  Senior High Income Portfolio, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  3,180,000

  	
   

  
	
  Morgan Stanley Senior Funding, Inc.

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Oppenheimer Senior Floating Rate Fund

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  4,100,000

  	
   

  
	
  Scotiabank Europe plc

  	
   

  	
  21,428,571

  	
   

  	
  8,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Van Kampen Prime Rate Income Trust

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  15,000,000

  	
   

  
	
  Van Kampen Senior Income Trust

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  10,000,000

  	
   

  
	
  UBS AG, London Branch

  	
   

  	
  21,428,571

  	
   

  	
  78,571,429

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  €

  	
  750,000,000

  	
   

  	
  €

  	
  2,750,000,000

  	
   

  	
  €

  	
  95,000,000

  	
   

  	
  US$347,500,000

  	
   

  
													



 


144

















 


SCHEDULE 2


 


CONDITIONS
PRECEDENT DOCUMENTS


 


PART 1


 


TO BE DELIVERED BEFORE THE FIRST ADVANCE


 


1.                                      Constitutional Documents


 


A copy of the
memorandum and articles of association and certificate of incorporation of each
Obligor (other than the US Borrower) and the partnership agreement  in relation to the US Borrower.


 


2.                                      Authorisations


 


(a)                                  A copy of an extract of a resolution of the board of
directors (or equivalent) of each Obligor:


 


(i)                                     approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is a party (including, in
the case of each Guarantor, the giving of the guarantee under Clause 14
(Guarantee)) and resolving that it execute and, where applicable, deliver the
Finance Documents;


 


(ii)                                  authorising a specified person or persons to execute
and, where applicable, deliver the Finance Documents to which it is a party on
its behalf; and


 


(iii)                               authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and notices (including Requests)
to be signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party;


 


(b)                                 a specimen of the signature of each person authorised
by the resolutions referred to in paragraph (a) above;


 


(c)                                  certificate of an authorised signatory of each of UPC
Distribution and the US Borrower respectively certifying that each copy of the
documents specified in Part 1 of this Schedule 2 and supplied by UPC
Distribution or the US Borrower (as the case may be) is a true copy and in full
force and effect as at a date no earlier than the Signing Date; and


 


(d)                                 Evidence that all of the requirements of
Section 25 of the Netherlands Works Council Act (Wet op de Ondernemingsraden) in connection
with the transactions contemplated by the Finance Documents have been complied
with.


 


3.                                      Legal opinions


 


(a)                                  Legal opinions of:


 


(i)                                     Allen & Overy, London, Amsterdam and New York,
legal advisers to the Lead Arrangers;


 


(ii)                                  Loeff Claeys Verbeke, Brussels, legal advisers to the
Lead Arrangers;


 


(iii)                               Vinge KB, Stockholm, legal advisers to the Lead
Arrangers;


 


(iv)                              Wiersholm, Mellbye & Bech, Oslo, legal advisers to
the Lead Arrangers.


 


145

















 


(b)                                 Legal opinion of Holme Roberts & Owen LLP, legal
advisers to the Borrowers, addressed to the Finance Parties and confirming that
the Facility will not cause any default under the existing high yield indentures
of UPC or UGC.


 


4.                                      Existing Financial Indebtedness


 


Evidence that:


 


(a)                                  all availability under the facility agreements or
other documentation relating to any Financial Indebtedness (Relevant Financial Indebtedness) described
in Schedule 9 (Relevant Financial Indebtedness) has irrevocably been
cancelled in full or will be irrevocably cancelled in full as at the first
Utilisation Date;


 


(b)                                 all indebtedness under such facility agreements or
other documentation relating to any Relevant Financial Indebtedness has been
repaid in full or will be repaid in full upon the making of the first Advance;


 


(c)                                  all letters of credit and guarantees and similar
instruments issued under such facility agreements or other documentation
relating to any Relevant Financial Indebtedness have been cancelled and that no
cash collateral is held by the relevant issuing banks in respect of those
instruments (or that the foregoing will be achieved upon the making of the
first Advance); and


 


(d)                                 all Security Interests described in Schedule 8
(Relevant Security Interests) have been released (or will be released upon the
making of the first Advance) and that all parties with an interest in such
Security Interests have consented to such release.


 


5.                                      Capital and corporate structure


 


(a)                                  A certificate from a director of UPC Distribution
addressed to the Finance Parties confirming that as at the first Utilisation
Date (following the first Utilisation hereunder) there will be no Subordinated
Shareholder Loans outstanding from the Borrower Group to any Subordinated
Creditors other than Subordinated Shareholder Loans owing by UPC Distribution
to UPC Holdco in a principal amount of not less than €1,400,000,000.


 


(b)                                 Evidence as to the capital and corporate structure of
the Borrower Group as at the first Utilisation Date, such structure being
consistent with the description set out in Schedule 10 (Borrower Group
Structures).


 


6.                                      Finance Documents


 


(a)                                  The Security Documents listed in Schedule 7
(Security Documents) duly executed by all parties thereto.


 


(b)                                 The Security Deed duly executed by all parties
thereto.


 


(c)                                  All relevant notices of security required to be
delivered under any Security Document together with acknowledgements of such
notices, in each case in the form required by the relevant Security Document.


 


(d)                                 Delivery to the Security Agent of share certificates
and duly completed blank stock transfer forms (or equivalent) in respect of all
shares or partnership interests (as applicable) subject to the Security
Documents listed in Schedule 7 (Security Documents).


 


146

















 


(e)                                  UCC-1 Financing Statements duly executed by each of
UPC Holding and UPC Holding II.


 


(f)                                    Completion of all other steps specified by the
Security Agent as being necessary to perfect the Security Interests intended to
be created by the Security Documents listed in Schedule 7 (Security
Documents).


 


(g)                                 Syndication Letter duly executed by all parties
thereto.


 


(h)                                 Guarantor Accession Agreements duly executed by each
of UPC Nederland B.V., Stipdon Investments B.V. and Cable Networks Austria
Holding B.V.


 


7.                                      Financial information


 


(a)                                  Audited consolidated financial statements for UPC for
the financial year ending 31st December, 1999.


 


(b)                                 The Original Borrower Group Financial Statements,
together with the financial statements of the Borrower Group for the Accounting
Period ended 30th June, 2000.


 


(c)                                  The Consultant’s Report.


 


(d)                                 A certificate from a director of UPC Distribution
confirming that as at the first Utilisation Date (following the first
Utilisation) Borrower Group Capitalisation will be equal to the figure
specified in Clause 17.2(d) (Financial ratios).


 


8.                                      Other documents


 


(a)                                  Copies of the Material Contracts listed in 15.7
(Material Contracts).


 


(b)                                 A copy of (and of all applications for) any and all
approvals, consents, licences, exemptions and other requirements of
governmental and other authorities required for the entering into or
performance of the Finance Documents to be entered into on or about the Signing
Date by each party.


 


(c)                                  Restricted Person’s Framework Agreement and Obligors’
Framework Agreement, in each case duly executed by all parties thereto.


 


147

















 


PART 2


 


TO
BE DELIVERED BY AN ADDITIONAL GUARANTOR


 


1.                                       A Guarantor Accession Agreement, duly executed as a
deed (or using any equivalent necessary formality, in the case of an Additional
Guarantor incorporated outside the United Kingdom) by the Additional Guarantor.


 


2.                                       In the case of an Additional Guarantor (other than any
UPC Distribution Holdco), a pledge over all the issued shares of the Additional
Guarantor owned by any member of the Borrower Group in substantially the same
form as a share pledge already granted to the Security Agent over shares of
another Obligor incorporated in the same jurisdiction as the Additional
Guarantor or in such other form as the Security Agent may reasonably require,
together with a Security Provider’s Deed of Accession executed by such member
of the Borrower Group, such notices and other documents as the Security Agent
may require to perfect such share pledge.


 


3.                                       Details of:


 


(a)                                  (in the case of an Additional Guarantor, other than
any UPC Distribution Holdco) all material receivables (aggregating €10,000,000
(or its equivalent in other currencies) or more) which are owed to the
Additional Guarantor by chello broadband N.V. or Priority Telecom N.V.;


 


(b)                                 (in the case of an Additional Guarantor, other than
UPC Distribution Holdco) all intercompany loans owed to the Additional
Guarantor by any member of the Borrower Group, together with an Obligor Pledge
of Shareholder Loans executed by the Additional Guarantor in respect of such
intercompany loans and the other documents referred to in Clause 16.14(a)
(Loans and guarantees); and


 


(c)                                  where the Additional Guarantor will become a UPC
Distribution Holdco at the same time as, or after, it becomes an Additional
Guarantor, details of all Financial Indebtedness owing to the Additional
Guarantor by any member of the Borrower Group, together with a Pledge of
Subordinated Shareholder Loans executed by the Additional Guarantor in respect
of such Financial Indebtedness and the other documents referred to in Clause
16.25(a) (Shareholder Loans); and


 


(d)                                 (in the case of an Additional Guarantor, other than
any UPC Distribution Holdco) all Financial Indebtedness owing by the Additional
Guarantor to any Restricted Person, together with a Pledge of Subordinated
Shareholder Loans executed by the relevant Restricted Person(s) (if any) in
respect of such Financial Indebtedness and the other documents referred to in
Clause 16.25(a) (Shareholder Loans).


 


4.                                       A pledge over such of the receivables referred to in
sub-paragraph 3(a) above (in the case of an Additional Guarantor, other than
any UPC Distribution Holdco) as in the opinion of the Security Agent is
necessary to maintain the coverage of the Security Documents over such
receivables owed to the Borrower Group on a basis consistent with Clause 16.26
(Further security over receivables) in substantially the same form as a
receivables pledge already granted to the Security Agent (i) by a member of the
Borrower Group incorporated in the same jurisdiction as the Additional
Guarantor or (ii) in respect of receivables located in the same jurisdiction as
the relevant receivables or (iii) in such other form as the Security Agent may
reasonably request, together with all such notices and other documents as the
Security Agent may require to perfect the receivables pledge.


 


148

















 


5.                                       A copy of the memorandum and articles of association
and certificate of incorporation (or other equivalent constitutional documents)
of the Additional Guarantor (and any Subsidiary of the Additional Guarantor (a Relevant Subsidiary), the issued shares of
which are to be subject to a share pledge referred to in paragraph 6 below).


 


6.                                       (a)                                  Where the Additional Guarantor will become a UPC
Distribution Holdco at the same time as, or after, it becomes an Additional
Guarantor, a pledge over all the issued shares of UPC Distribution
substantially in the same form as a share pledge already granted to the
Security Agent over shares of UPC Distribution or in such other form as the
Security Agent may reasonable require, together with such notices and other
documents as the Security Agent may require to perfect such share pledge.


 


(b)                                 In the case of an Additional Guarantor (other than any
UPC Distribution Holdco), a pledge over all the issued shares of any Subsidiary
(a Relevant Subsidiary) of the
Additional Guarantor (other than shares not owned by the Additional Guarantor
or any Subsidiary of the Additional Guarantor) if in the opinion of the
Security Agent such pledge is necessary to maintain the coverage of the
Security Documents over shares in Obligors (other than UPC Holding and any
other UPC Distribution Holdco) or other key members of the Borrower Group
(being holding companies in respect of one or more members of the Borrower
Group which carry on business in a particular jurisdiction).  Such share pledge shall be in substantially
the same form as a Share Pledge already granted to the Security Agent over
shares in a person incorporated in the same jurisdiction as the Relevant
Subsidiary or in such other form as the Security Agent may reasonably require,
together with such notices and other documents as the Security Agent may
require to perfect such pledge.


 


7.                                       A copy of a resolution of the board of directors of
the Additional Guarantor:


 


(a)                                  approving the terms of, and the transactions
contemplated by, the Guarantor Accession Agreement (and any relevant Security
Document referred to in paragraphs 2, 3, 4 or 6 above (each an Additional Security Document) resolving
that it execute the Guarantor Accession Agreement (and each Additional Security
Document));


 


(b)                                 authorising a specified person or persons to execute
the Guarantor Accession Agreement and each Additional Security Document; and


 


(c)                                  authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents to be signed and/or despatched by
it under or in connection with the Finance Documents.


 


8.                                       A copy of any other authorisation or other document,
opinion or assurance which the Facility Agent reasonably considers to be
necessary in connection with the entry into and performance of, and the
transactions contemplated by, the Guarantor Accession Agreement or any
Additional Security Document.


 


9.                                       A specimen of the signature of each person authorised
by the resolution referred to in paragraph 7 above.


 


10.                                 A certificate of an authorised signatory of the
Additional Guarantor certifying that each copy of the documents specified in
Part 2 of this Schedule 2 and provided by it is a true copy and in full
force and effect as at a date no earlier than the date of the Guarantor
Accession Agreement (and, in the case of an Additional Guarantor other than any
UPC Distribution Holdco, if required by the Facility Agent, a certificate of
each Relevant Subsidiary in respect


 


149

















 


of each copy of the documents provided by it in accordance with the
provisions of Part 2 of this Schedule 2).


 


11.                                 A copy of the latest financial statements (audited, if
available) of the Additional Guarantor.


 


12.                                 A legal opinion of legal advisers to the Facility
Agent, and, if applicable, other lawyers approved by the Facility Agent in the
place of incorporation of the Additional Guarantor (and/or each Relevant
Subsidiary) addressed to the Finance Parties.


 


13.                                 All other notices, documents and other steps required
to perfect the security constituted by each Additional Security Document
(including, without limitation, accession to, or entry into (as the case may
be), by:


 


(a)                                  the relevant Additional Guarantor (and any member of
the Borrower Group which is an intercompany debtor in respect of the Additional
Guarantor) of an Obligors’ Framework Agreement; or


 


(b)                                 as the case may be, the relevant Restricted Person
referred to sub-paragraph 3(d) above (and the Additional Guarantor) of a
Restricted Person’s Framework Agreement.


 


150

















 


SCHEDULE 3


 


MANDATORY COST FORMULAE


 


1.                                       The Mandatory Cost is an addition to the interest rate
to compensate Lenders for the cost of compliance with (a) the requirements of
the Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.


 


2.                                       On the first day of each Interest Period (or as soon
as possible thereafter) the Facility Agent shall calculate, as a percentage
rate, the arithmetic mean (rounded up, if necessary, to four decimal places) of
the respective rates notified by each Reference Bank to the Facility Agent at
its request as the rate resulting from the application of the formulae set out
in paragraphs 3 and 4 below (the Additional Cost Rate).


 


3.                                       The Additional Cost Rate for any Lender lending from a
Facility Office in a Participating Member State will be the percentage notified
by that Lender to the Facility Agent. 
This percentage will be certified by that Lender in its notice to the
Facility Agent to be its reasonable determination of the cost (expressed as a
percentage of that Lender’s participation in all Loans made from that Facility
Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.


 


4.                                       The Additional Cost Rate for any Lender lending from a
Facility Office in the United Kingdom will be calculated by the Facility Agent
as follows:


 


(a)                                  in relation to a Sterling Advance:


 


	
  

  	
  per cent. per annum

  



 


(b)                                 in relation to an Advance in any currency other than
sterling:


 


	
  

  	
  per cent. per annum

  



 


Where:


 


A                                      is the percentage of Eligible Liabilities (assuming
these to be in excess of any stated minimum) which that Reference Bank is from
time to time required to maintain as an interest-free cash ratio deposit with
the Bank of England to comply with cash ratio requirements;


 


B                                        is the percentage rate of interest (excluding the
Margin and the Mandatory Cost) and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in Clause 8.8(a) (Default interest)
payable for the relevant Interest Period on the Advance;


 


C                                        is the percentage (if any) of Eligible Liabilities
which that Reference Bank is required from time to time to maintain as
interest-bearing Special Deposits with the Bank of England;


 


D                                       is the percentage rate per annum payable by the Bank
of England to the Facility Agent on interest-bearing Special Deposits;


 


151

















 


E                                         is designed to compensate the Reference Banks for
amounts payable under the Fees Rules (but, for this purpose, ignoring any
minimum fee required pursuant to the Fees Rules) and is calculated by the
Facility Agent as being the average for the most recent rates of charge
supplied by the Reference Banks to the Facility Agent pursuant to paragraph 7
below and expressed in pounds per £1,000,000.


 


5.                                       For the purposes of this Schedule:


 


(a)                                  Eligible Liabilities and Special
Deposits have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)                                 Fees Rules means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time
to time in respect of the payment of fees for the acceptance of deposits;


 


(c)                                  Fee Tariffs means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into account any
applicable discount rate; and


 


(d)                                 Tariff Base has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.


 


6.                                       In application of the above formulae, A, B, C and D
will be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). 
A negative result obtained by subtracting D from B shall be taken as
zero.  The resulting figures shall be
rounded to four decimal places.


 


7.                                       If requested by the Facility Agent, each Reference
Bank shall, as soon as practicable after publication by the Financial Services
Authority, supply to the Facility Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the
Fee Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                       Each Lender shall supply any information required by
the Facility Agent for the purpose of calculating its Additional Cost
Rate.  In particular, but without
limitation, each Lender shall supply the following information on or prior to
the date on which its becomes a Lender:


 


(a)                                  the jurisdiction of its Facility Office; and


 


(b)                                 any other information that the Facility Agent may
reasonably require for such purpose.


 


Each Lender
shall promptly notify the Facility Agent of any change to the information
provided by it pursuant to this paragraph.


 


9.                                       The percentages of each Lender for the purpose of A
and C above and the rates of charge of each Reference Bank for the purpose of E
above shall be determined by the Facility Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Facility Agent to the contrary, each Lender’s
obligations in relation to cash ratio deposits and Special Deposits are the
same as those of a


 


152

















 


typical bank from its jurisdiction of incorporation with a Facility
Office in the same jurisdiction as its Facility Office.


 


10.                                 The Facility Agent shall have no liability to any
person if such determination results in an Additional Cost Rate which over or
under compensates any Lender and shall be entitled to assume that the
information provided by any Reference Bank pursuant to paragraph 3 above is
true and correct in all respects.


 


11.                                 The Facility Agent shall distribute the additional
amounts received as a result of the Mandatory Costs to the Lenders on the basis
of the Additional Cost Rate for each Lender based on the information provided
by each Reference Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.                                 Any determination by the Facility Agent pursuant to
this Schedule in relation to a formula, the Mandatory Cost, an Additional
Cost Rate or any amount payable to a Lender shall, in the absence of manifest
error, be conclusive and binding on all Parties.


 


13.                                 The Facility Agent may from time to time, after
consultation with UPC Distribution and the Lenders, determine and notify to all
Parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all Parties.


 


153

















 


SCHEDULE 4


 


FORM
OF REQUEST AND CANCELLATION NOTICE


 


PART 1


 


FORM OF REQUEST


 


	
  To:

  	
  [                            ]

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  [              ]

  	
   

  
	
   

  	
   

  	
   

  
	
  From:

  	
  [Borrower]

  	
  Date:
  [              ]

  



 


REQUEST (ADVANCE)


 


UPC Distribution Holding B.V. - €3,500,000,000 and
US$347,500,000 and €95,000,000 Term and

Revolving Credit Agreement dated
[              ],
2000


 


Dear Sirs,


 


We hereby give you notice pursuant to Clause 5.1
(Delivery of Request) of the above Credit Agreement that we require an Advance
to be made to that Borrower under the Credit Agreement, as follows:


 


	
  (a)

  	
   

  	
  Facility:

  	
   

  	
  [A, B, C1 or C2]

  
	
  (b)

  	
   

  	
  Utilisation Date:

  	
   

  	
  [                             ]

  
	
  (c)

  	
   

  	
  Requested Amount:

  	
   

  	
  [                             ]

  
	
  (d)

  	
   

  	
  Currency:

  	
   

  	
  [                             ]

  
	
  (e)

  	
   

  	
  Interest Period:

  	
   

  	
  [                             ]

  



 


Payment instructions with respect to the proceeds of
the Advance to be made in relation to this Request are as follows:  [              ].


 


We confirm that each condition specified in Clause 4.2
(Further conditions precedent) is satisfied on the date of this Request.


 


Terms used in this Request and defined in the Credit
Agreement have the same meaning in this Request as in the Credit Agreement.


 


Yours faithfully


 


[Authorised Signatory]


 


[Borrower]


 


154

















 


PART 2


 


FORM OF CANCELLATION AND/OR PREPAYMENT NOTICE


 


	
  To:

  	
   

  	
  [              ]  as
  Facility Agent

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [BORROWER]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Date:    [              ]

  



 


UPC Distribution Holding B.V. - €3,500,000,000 and
US$347,500,000 and €95,000,000 Term and

Revolving Credit Agreement dated
[              ],
2000


 


1.                                       [We wish to cancel a portion of Total Facility A
Commitments* and/or*/Total Facility B Commitments* and/or* Total Facility C
Commitments* in the following amounts: 


 


Cancellation:


 


Total Facility A Commitments:                               [              ]*


 


Total Facility B
Commitments:                                 [              ]*


 


Total Facility
C1 Commitments:                           [              ]*


 


Total Facility
C2 Commitments:                           [              ]*


 


OR


 


[We wish to
prepay the whole or part of the following Advances which are to be applied
against the Facilities in the following order:


 


(a)                                  Facilities:


 


Facility A Advance:                                     [              ]*


 


Facility B Advance:                                       [              ]*


 


Facility C1 Advance:                                 [              ]*


 


Facility C2
Advance:                                 [              ]*


 


(b)                                 Application of Advance[s]:


 


Facility A:                                         [              ]*


 


Facility B:                                           [              ]*


 


Facility C1:                                     [              ]*


 


Facility C2:                                     [              ]*


 


2.                                       Terms defined in the above Credit Agreement have the
same meaning in this notice.


 












*                                         Delete as appropriate.


 


155

















 


By:


 


[BORROWER]


 


Authorised Signatory


 


156

















 


SCHEDULE 5


 


FORMS OF ACCESSION DOCUMENTS


 


PART 1


 


NOVATION CERTIFICATE


 


 


To:                              [              ]
as Facility Agent and UPC Distribution Holding B.V.


 


	
  From:

  	
  [THE EXISTING LENDER] and [THE NEW LENDER]

  	
  Date: [              ]

  



 


UPC Distribution Holding B.V. - €3,500,000,000 and
US$347,500,000 and €95,000,000 Term and

Revolving Credit Agreement dated
[              ],
2000


 


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 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.                                       On the date on which this novation becomes effective
in accordance with Clause 26.3 (Procedure for novations), the New Lender
represents and warrants to the Existing Lender, the Finance Parties and UPC
Distribution that it is [a Professional Market Party]/[exempted from the
requirement to be a Professional Market Party because it forms part of a closed
circle (besloten kring) with UPC
Distribution].


 


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 this has the same effect as if the signatures on the
counterparts were on a single copy of this Novation Certificate.


 


5.                                       This Novation Certificate is governed by English law.


 


157

















 


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:

  



 


158

















 


PART 2


 


GUARANTOR ACCESSION AGREEMENT


 


	
  To:

  	
  [     ] as Facility
  Agent and [        ] as Security
  Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  From:

  	
  [PROPOSED GUARANTOR]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
  [              ]

  



 


 


UPC Distribution Holding B.V. - €3,500,000,000 and
US$347,500,000 and €95,000,000 Term and

Revolving Credit Agreement dated [              ], 2000


 


We refer to Clause 26.4 (Additional Guarantors).  Terms defined in the Credit Agreement have
the same meaning in this Deed.


 


We, [name of company] of [Registered Office]
(Registered no.
[              ])
agree:


 


(a)                                  to become an Additional Guarantor and to be bound by
the terms of the Credit Agreement as an Additional Guarantor in accordance with
Clause 26.4 (Additional Guarantors);


 


(b)                                 to become a party to the Security Deed as a Charging
Entity and to observe, perform and be bound by the terms and provisions of the
Security Deed in the capacity of a Charging Entity in accordance with clause
9.6 (Charging Entities) of the Security Deed; and


 


(c)                                  to become a party to the Intercreditor Agreement as a
Charging Entity and to observe, perform and be bound by the terms and
provisions of the Intercreditor Agreement in the capacity of a Charging Entity
in accordance with Clause 8.1 of the Intercreditor Agreement.


 


Our address for notices for the purposes of Clause
32.2 (Addresses for notices) is:


 


	
  [

  	
   

  
	
   

  	
   

  
	
   

  	
  ]

  



 


This Deed is governed by English law.


 


 


	
  Executed as a deed by

  	
  )

  	
  Director

  
	
  [PROPOSED GUARANTOR]

  	
  )

  	
   

  
	
  acting by

  	
  )

  	
  Director/Secretary

  
	
  and

  	
  )

  	
   

  



 


159

















 


PART 3


 


FORM OF VERIFICATION LETTER


 


 


	
  To:

  	
   

  	
  UPC DISTRIBUTION HOLDING B.V.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [NEW LENDER] as New Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Date:[                 ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Dear Sirs


 


UPC Distribution Holding B.V. - €3,500,000,000 and
US$347,500,000 and €95,000,000 Term and

Revolving Credit Agreement dated
[              ],
2000 (the Credit Agreement)


 


We refer to the Credit Agreement.  Terms defined in the Credit Agreement have
the same meaning in this letter.


 


[[On the date that we become a Lender in accordance
with Clause 26.2 (Transfers by Lenders) of the Credit Agreement we will be]/[We
are currently a Facility A Lender and we are] a Professional Market Party,
because [name of entity] falls within the category [         ]
set out in the schedule to this letter.]


 


or


 


[[On the date on which we become a Lender in
accordance with Clause 26.2 (Transfers by Lenders) of the Credit Agreement we
will be]/[We are currently a Facility A Lender and we are] exempted from the requirement
to be a Professional Market Party because we form part of a closed circle (besloten kring) with UPC Distribution.](1)


 


[We enclose with this letter a copy of the documents
which provide evidence of this status.](2)/[We are incorporated in [   ] and act under the supervision of [   ].](3)


 


Yours faithfully


 


 


 


[New Lender]


 


 












(1)                                  Delete and complete as applicable.


(2)                                  No evidence is required in the case of institutions falling within
category (c) of the schedule to this letter.


(3)                                  Institutions falling within category (a) of the
schedule to this letter can, rather than providing documentary evidence
can provide this confirmation.


 


160

















 


THE SCHEDULE


 


THE EXEMPTION REGULATION CATEGORIES


 


 


(a)                                  Banks, insurance companies, securities firms,
investment institutions and pension funds that are (i) supervised or licensed
under Dutch law or (ii) established and acting under supervision in a European
Union member state (other than the Netherlands), Hungary, Monaco, Poland,
Puerto Rico, Saudi Arabia, Slovakia, Czech Republic, Turkey, South Korea, the
United States of America, Japan, Australia, Canada, Mexico, New Zealand or
Switzerland;


 


(b)                                 investment institutions which offer their
participation rights exclusively to professional market parties and are not
required to be supervised or licensed under Dutch law;


 


(c)                                  the State of the Netherlands, the Dutch Central Bank,
a foreign central government body, a foreign central bank, Dutch regional and
local governments and comparable foreign decentralised government bodies,
international treaty organisations and supranational organisations;


 


(d)                                 enterprises or entities with total assets of at least
EUR500,000,000 (or its equivalent in another currency) as per the balance sheet
as of the year end preceding the obtaining of the repayable funds;


 


(e)                                  enterprises, entities or individuals with net assets (eigen vermogen) of at least EUR10,000,000
(or its equivalent in another currency) as of the year end preceding the
obtaining of the repayable funds who or which have been active in the financial
markets on average twice a month over a period of at least two consecutive
years preceding the obtaining of the repayable funds;


 


(f)                                    subsidiaries of the entities referred to under paragraph
(a) above if those subsidiaries are subject to supervision; and


 


(g)                                 an enterprise or institution that has a rating from a
rating agency that in the opinion of the Dutch Central Bank is an expert or
that issues securities that have a rating from a rating agency that in the
opinion of the Dutch Central Bank is an expert.


 


161

















 


SCHEDULE 6


 


FORM
OF CONFIDENTIALITY UNDERTAKING


 


PART 1


 


FORM OF LMA CONFIDENTIALITY UNDERTAKING


 


LMA CONFIDENTIALITY LETTER (PURCHASER)


 


[Letterhead of Existing Lender]


 


To:


 


	
   

  	
  [insert
  name of New Lender]

  



 


Re:                               The Facility


 


	
  Borrowers:

  Amount:

  Agent: 

  



 


 


Dear Sirs


 


We understand that you are considering participating
in the Facility.  In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:


 


1.                                      Confidentiality Undertaking


 


You undertake:


 


(a)                                  to keep the Confidential Information confidential and
not to disclose it to anyone except as provided for by paragraph 2 below and to
ensure that the Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential information;


 


(b)                                 to keep confidential and not disclose to anyone the
fact that the Confidential Information has been made available or that
discussions or negotiations are taking place or have taken place between us in
connection with the Facility;


 


(c)                                  to use the Confidential Information only for the
Permitted Purpose;


 


(d)                                 to use all reasonable endeavours to ensure that any
person to whom we pass any Confidential Information (unless disclosed under
sub-paragraph 2(b) below) acknowledges and complies with the provisions of this
letter as if that person were also a party to it; and


 


162

















 


(e)                                  not to make enquiries of any member of the Borrower
Group or any of their officers, directors, employees or professional advisers
relating directly or indirectly to the Facility.


 


2.                                      Permitted Disclosure


 


(a)                                  We agree that you may disclose Confidential
Information:


 


(i)                                     to members of the Participant Group and their
officers, directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of members of the
Participant Group;


 


(ii)                                  (A) where requested or required by any court of
competent jurisdiction or any competent judicial, governmental, supervisory or
regulatory body, (B) where required by the rules of any stock exchange on which
the shares or other securities of any member of the Participant Group are
listed or (C) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;


 


(iii)                               with the prior written consent of us and the Borrower.


 


(b)                                 Notwithstanding any other provision of this letter,
any party to this letter (and any of its affiliates, officers, directors,
employees, representatives, professional advisers, or other agents) may and has
since the commencement of discussions with respect to the Facility been
permitted to disclose to any and all persons, without limitation of any kind:


 


(i)                                     the U.S. tax
treatment and U.S. tax structure
(each as defined below) of the Facility; and


 


(ii)                                  all material of any kind (including opinions and other
tax analyses) that are provided to such party relating to such U.S. tax
treatment or U.S. tax structure,


 


except to the
extent reasonably necessary to comply with applicable federal or state
securities laws.


 


For the purposes
of this subsection, the U.S. tax treatment
of the Facility is the purported or claimed U.S. federal, state and local
income tax treatment of the Facility, and the U.S.
tax structure of the Facility is any fact that may be relevant to
understanding the purported or claimed U.S. federal, state and local income tax
treatment of the Facility.  This
authorisation is not intended to permit disclosure of any information (other
than information relating to U.S. tax treatment or U.S. tax structure of the
Facility) including (without limitation) (i) any portion of any materials to
the extent not related to the U.S. tax treatment or U.S. tax structure of the
Facility, (ii) the identities of participants or potential participants in the
Facility (except to the extent such identities are related to the tax treatment
or the U.S. tax structure of the Facility), (iii) the existence or status of
any negotiations, (iv) any pricing or financial information (except to the
extent such pricing or financial information is related to the U.S. tax treatment
or the U.S. tax structure of the Facility), or (v) any other term or detail not
relevant to the U.S. tax treatment or the U.S. tax structure of the Facility.


 


3.                                      Notification of Required or
Unauthorised Disclosure


 


You agree (to
the extent permitted by law) to inform us of the full circumstances of any
disclosure under sub-paragraph 2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.


 


163

















 


4.                                      Return of Copies


 


If we so request
in writing, you shall return all Confidential Information supplied to you by us
and destroy or permanently erase all copies of Confidential Information made by
you and use all reasonable endeavours to ensure that anyone to whom you have
supplied any Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save to the
extent that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance with
internal policy, or where the Confidential Information has been disclosed under
sub-paragraph 2(b) above.


 


5.                                      Continuing Obligations


 


The obligations
in this letter are continuing and, in particular, shall survive the termination
of any discussions or negotiations between you and us.  Notwithstanding the previous sentence, the
obligations in this letter shall cease (a) if you become a party to or
otherwise acquire (by assignment or sub-participation) an interest, direct or
indirect, in the Facility or (b) 12 months after we have returned all
Confidential Information supplied to you by us and destroyed or permanently
erased all copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under paragraph 2
above (other than sub-paragraph 2(a)) or which, pursuant to paragraph 4 above,
are not required to be returned or destroyed).


 


6.                                      No Representation; Consequences of
Breach, etc


 


You acknowledge
and agree that:


 


(a)                                  neither we nor any of our officers, employees or
advisers (each a Relevant Person)
(i) make any representation or warranty, express or implied, as to, or assume
any responsibility for, the accuracy, reliability or completeness of any of the
Confidential Information or any other information supplied by us or any member
of the Borrower Group or the assumptions on which it is based or (ii) shall be
under any obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or any member of the
Borrower Group or be otherwise liable to you or any other person in respect to
the Confidential Information or any such information; and


 


(b)                                 we or members of the Borrower Group may be irreparably
harmed by the breach of the terms of this letter and damages may not be an
adequate remedy; each Relevant Person or member of the Borrower Group may be
granted an injunction or specific performance for any threatened or actual
breach of the provisions of this letter by you.


 


7.                                      No Waiver; Amendments, etc.


 


This letter sets
out the full extent of our obligations of confidentiality owed to us in
relation to the information the subject of this letter.  No failure or delay in exercising any right,
power or privilege under this letter will operate as a waiver thereof nor will
any single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges under this letter.  The terms
of this letter and your obligations under this letter may only be amended or
modified by written agreement between us.


 


164

















 


8.                                      Inside Information


 


We acknowledge
that some or all of the Confidential Information is or may be price-sensitive
information and that the use of such information may be regulated or prohibited
by applicable legislation relating to insider dealing and you undertake not to
use any Confidential Information for any unlawful purpose.


 


9.                                      Nature of Undertakings


 


The undertakings
given by you under this letter are given to us and (without implying any
fiduciary obligations on our part) are also given for the benefit of the
Borrower and each other member of the Borrower Group.


 


10.                               Third party rights


 


(a)                                  Subject to paragraph 6 and paragraph 9 the terms of
this letter may be enforced and relied upon only by you and us and the
operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.


 


(b)                                 Notwithstanding any provisions of this letter, the
parties to this letter do not require the consent of any Relevant Person or any
member of the Borrower Group to rescind or vary this letter at any time.


 


11.                               Governing Law and Jurisdiction


 


This letter
(including the agreement constituted by your acknowledgement of its terms)
shall be governed by and construed in accordance with the laws of England and
the parties submit to the non-exclusive jurisdiction of the English courts.


 


12.                               Definitions


 


In this letter
(including the acknowledgement set out below):


 


Borrower
Group means UPC Distribution
and each of its holding companies and subsidiaries and each subsidiary of each
of its holding companies (as each such term is defined in the Companies Act
1985);


 


Confidential
Information means any information
relating to a Borrower, the Borrower Group, the Facility including, without
limitation, the information memorandum provided to you by us or any of our
affiliates or advisers, in whatever form, and includes information given orally
and any document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but
excludes information that (a) is or becomes public knowledge other than as a
direct or indirect result of any breach of this letter or (b) is known by you
before the date the information is disclosed to you by us or any of our
affiliates or advisers or is lawfully obtained by you thereafter, other than
from a source which is connected with the Borrower Group and which, in either
case, as far as you are aware, has not been obtained in violation of, and is
not otherwise subject to, any obligation of confidentiality;


 


Participant
Group means us, each of your
holding companies and subsidiaries and each subsidiary of each of your holding
companies (as each such term is defined in the Companies Act 1985); and


 


Permitted
Purpose means considering and
evaluating whether to enter into the Facility.


 


165

















 


Please acknowledge your agreement to the above by
signing and returning the enclosed copy.


 


	
  Yours faithfully

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  For and on behalf of

  
	
   

  
	
  [Arranger]

  
	
   

  
	
   

  
	
  To:

  	
  [Existing Lender]

  
	
   

  	
   

  
	
   

  	
  The Borrower and each other member of the
  Borrower Group

  
	
   

  
	
  We acknowledge and agree to the above:

  
	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  For and on behalf of

  	
   

  
	
   

  	
   

  
	
  [New Lender]

  	
   

  
				



 


166

















 


PART 2


 


FORM OF LSTA CONFIDENTIALITY UNDERTAKING


 


Master Confidentiality Agreement dated as of
[          ] (this Agreement) between [Existing Lender] (the Existing Lender) and [New Lender] (the New Lender).


 


This Agreement sets forth the terms and conditions
that will apply, in each instance, to the treatment of certain non-public
information that the Existing Lender may supply to the New Lender in connection
with the consideration by the New Lender of its participating in any financing
or proposed financing (a Financing)
for any borrower or group of borrowers (each a Borrower) specified in a Schedule described below.


 


As used herein: 
(a) Evaluation Material
refers to (i) the non-public information furnished to the Existing Lender,
including any Information Memorandum, in respect of a particular Financing of a
Borrower that the Existing Lender supplies to the New Lender on or after the
date of the Schedule in respect of such Financing, (ii) all memoranda,
notes, and other documents and analyses (collectively, analyses)
internally developed by the Existing Lender that it supplies to the
New Lender and (iii) all analyses developed by the New Lender using any
information specified under clauses (i) and (ii) above; (b) Internal Evaluation Material refers to
analyses specified under clause (iii) of the definition of Evaluation Material;
and (c) participation refers to a
transfer of a lender’s interest in a Financing (or a grant of derivative rights
in respect thereof), whether by assignment, participation or otherwise (and participate and participating  shall
have correlative meanings thereto).


 


As a condition to the Existing Lender’s furnishing the
New Lender with any Evaluation Material in the Existing Lender’s possession in
respect of a particular Financing, the New Lender shall execute and return to
the Existing Lender a schedule, in substantially the form of Exhibit A attached
hereto, that the Existing Lender may have completed, executed and delivered to
it (a Schedule).  Each Schedule shall identify the
Existing Lender and the New Lender in respect of such Financing and the related
Evaluation Material, the name of each Borrower that the New Lender has under
consideration and a description of the documentation (the Operative Documentation) in respect
thereof.


 


The New Lender in respect of a particular Financing
agrees that it will use all Evaluation Material in respect of such Financing
solely for the purpose of evaluating its possible participation, or obtaining
the participation of another eligible person (an Additional Assignee), in such Financing and that the New
Lender will use reasonable precautions in accordance with its established
procedures to keep such information confidential; provided, however, that any
such information may be disclosed to the partners, directors, officers,
employees, agents, counsel, auditors, affiliates, advisors and representatives
(collectively, Representatives) of
the New Lender’s institution who need to know such information for the purpose
of evaluating its participation in such Financing (it being understood that
such Representatives shall be informed by the New Lender of the confidential
nature of such information and shall be directed by it to treat such
information in accordance with the terms of this Agreement) and to any
Additional Assignee and its Representatives (provided that such Additional
Assignee shall have previously executed and delivered to the New Lender an
agreement in substantially the same substance as this Agreement in respect of
the Evaluation Material). The New Lender agrees to be responsible for any
breach of this Agreement that results from the actions or omissions of its
Representatives.  Notwithstanding the
foregoing, the New Lender will not use such information to obtain an Additional
Assignee if otherwise prohibited by agreements binding on the New Lender.


 


In addition, the New Lender in respect of a particular
Financing agrees that prior to the settlement of its participation in such
Financing, it will not disclose to any person, other than its Representatives,
the identity of the Existing Lender with which discussions or negotiations are
taking place concerning


 


167

















 


the New Lender’s possible participation in the related
Financing or any of the terms or conditions of such proposed
participation.  The term person as used in this Agreement shall be
broadly interpreted to include the media and any corporation, partnership,
group, individual or other entity and, if the New Lender’s participation in the
Financing would constitute a secondary market transaction, the Borrower.


 


The New Lender in respect of a particular Financing
shall be permitted to disclose any related Evaluation Material (and the fact
that such Evaluation Material has been made available to it and that
discussions or negotiations are taking place concerning the transaction or any
of the terms, conditions or other facts with respect thereto) in the event that
the New Lender is required by law or regulation or requested by any
governmental agency or other regulatory authority (including any
self-regulatory organization having or claiming to have jurisdiction) or in
connection with any legal proceedings. The New Lender agrees that it will
notify the Existing Lender as soon as practical in the event of any such
disclosure (other than as a result of an examination by any regulatory agency),
unless such notification shall be prohibited by applicable law or legal
process.


 


The New Lender in respect of a particular Financing
and its Representatives shall have no obligation hereunder with respect to any
information in any related Evaluation Material to the extent that such
information (i) is or becomes generally available to the public other than as a
result of a disclosure by the New Lender in violation of this Agreement, (ii)
was within the New Lender’s possession prior to its being furnished to it
pursuant hereto, provided that the source of such information was not known by
the New Lender to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Borrower or
any other party with respect to such information or (iii) is or becomes
available to the New Lender on a non-confidential basis from a source other
than the Borrower or the Existing Lender, or their respective Representatives,
provided that such source is not known by the New Lender to be bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Existing Lender, the Borrower or any other
party with respect to such information.


 


Notwithstanding any other provision of this letter,
any party to this letter (and any of its affiliates, officers, directors,
employees, representatives, professional advisers, or other agents) may and has
since the commencement of discussions with respect to the Facility been
permitted to disclose to any and all persons, without limitation of any kind:


 


(a)                                  the U.S. tax
treatment and U.S. tax structure
(each as defined below) of the Facility; and


 


(b)                                 all material of any kind (including opinions and other
tax analyses) that are provided to such party relating to such U.S. tax
treatment or U.S. tax structure,


 


except to the extent reasonably necessary to comply
with applicable federal or state securities laws.


 


For the purposes of this subsection, the U.S. tax treatment of the Facility is the
purported or claimed U.S. federal, state and local income tax treatment of the
Facility, and the U.S. tax structure
of the Facility is any fact that may be relevant to understanding the purported
or claimed U.S. federal, state and local income tax treatment of the
Facility.  This authorisation is not
intended to permit disclosure of any information (other than information
relating to U.S. tax treatment or U.S. tax structure of the Facility) including
(without limitation) (i) any portion of any materials to the extent not related
to the U.S. tax treatment or U.S. tax structure of the Facility, (ii) the
identities of participants or potential participants in the Facility (except to
the extent such identities are related to the tax treatment or the U.S. tax
structure of the Facility), (iii) the existence or status of any negotiations,
(iv) any pricing or financial information (except to the extent such pricing or
financial information is related to the U.S. tax treatment or the U.S. tax structure
of the Facility), or (v) any other term or detail not relevant to the U.S. tax
treatment or the U.S. tax structure of the Facility.


 


168

















 


To the extent the Operative Documentation for a
particular Financing contains provisions regarding the use of non-public
information which conflict with, are more restrictive than or are in addition
to the provisions of this Agreement, then (so long as such Operative
Documentation shall be effective as to the Existing Lender) solely with
application to any Evaluation Material concerning the Borrower that is the
subject of such Financing (and without application hereunder to any other
Evaluation Material or otherwise), such provisions of the Operative
Documentation shall be incorporated herein by this reference and shall
supersede and control the terms of this Agreement to the extent that such
provisions are in conflict with or more restrictive than the terms hereof or
are in addition to those contained herein. 
Upon the New Lender’s request, the Existing Lender will furnish to the
New Lender the provisions of the Operative Documentation for such Financing
regarding the use of non-public information. 
In addition, in the event that the New Lender actually becomes a lender (bound
as a party to the Operative Documentation) with respect to a particular
Financing, the application of this Agreement in respect of all Evaluation
Material in respect of such Financing shall terminate and the applicable
confidentiality provisions, if any, contained in the Operative Documentation
shall govern and control.


 


If the New Lender in respect of a particular Financing
chooses not to participate in such Financing, the New Lender agrees on request
of the Existing Lender to return to the Existing Lender as soon as practical
all related Evaluation Material (other than Internal Evaluation Material) or
destroy such Evaluation Material (other than Internal Evaluation Material)
without retaining any copies thereof unless prohibited from doing so by its
internal policies and procedures.


 


The New Lender in respect of a particular Financing
understands and agrees that the Existing Lender will have received the related
Evaluation Material from third party sources (including the Borrower) and that
the Existing Lender bears no responsibility (and shall not be liable) for the
accuracy or completeness (or lack thereof) of such Evaluation Material or any
information contained therein.


 


The New Lender hereby acknowledges that United States
securities laws prohibit any person with material, non-public information about
an issuer from purchasing or selling securities of such issuer or, subject to
certain limited exceptions, from communicating such information to any other
person.  The New Lender agrees to comply
with its internal compliance policies and procedures with respect to material
confidential information.


 


The New Lender agrees that money damages would not be
a sufficient remedy for breach of this Agreement, and that in addition to all
other remedies available at law or in equity, the Existing Lender shall be
entitled to seek equitable relief, including injunction and specific
performance, without proof of actual damages.


 


This Agreement (including each Schedule delivered
pursuant hereto and the provisions of any Operative Documentation incorporated
herein by reference) embodies the entire understanding and agreement between
the parties with respect to all Evaluation Material for each Financing and
supersedes all prior understandings and agreements relating thereto.  Unless otherwise agreed in writing between
the parties hereto, the application of this Agreement shall terminate with
respect to all Evaluation Material concerning each Financing on the date
falling one year after the Schedule in respect of such Financing.


 


This Agreement shall be governed by and construed in
accordance with the law of the State of New York, without regard to principles
of conflicts of law (except Section 5-1401 of the New York General
Obligation Law to the extent that it mandates that the law of the State of New
York govern).


 


This Agreement may be signed in counterparts, each of
which shall be an original and both of which taken together shall constitute
the same instrument.


 


169

















 


It is understood by the parties that the custom in the
loan syndications and loan trading markets is to execute and deliver any
confidentiality agreement, schedule, confirmation or other transaction
documents by telecopy or telefax.  The
parties agree that all telecopied or telefaxed copies of this Agreement, the
Schedules, confirmations and other transaction documents, and signatures hereto
and thereto, shall be duplicate originals.


 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective authorized officers as of the
date first written above.


 


[Existing Lender]


 


	
  By: 

  	
   

  	
   

  
	
   

  
	
  Name:

  
	
  Title:

  
	
   

  
	
  [New Lender]

  
	
   

  
	
  By: 

  	
   

  	
   

  
	
   

  
	
  Name:

  
	
  Title:

  



 


170

















 


EXHIBIT A


 


This Schedule, dated as of
[          ], is one of the
Schedules referred to in the Master Confidentiality Agreement dated today
between [Existing Lender] and [New Lender], 
Terms used herein, unless defined herein, shall have the respective
meanings given them in said Master Confidentiality Agreement.


 


Name(s) of the Borrower(s):
[                                    ]


 


Description of the Operative Documentation:
[                                    ]


 


Existing Lender


 


[                                    ].


 


By:
[                                    ]


 


Name:


Title:


 


Received and accepted as of


the date first written above:


 


New Lender


 


[                                    ].


 


By:
[                                    ]


 


Name:


 


Title:


 


171

















 


SCHEDULE 7


 


SECURITY DOCUMENTS


 


1.                                       Each share pledge given in favour of the Security
Agent by:


 


(a)                                  UPC Holding in respect of its interest in the share
capital of UPC Distribution dated 31st October, 2000;


 


(b)                                 UPC Holding in respect of its interest in the share
capital of UPC Holding II dated 31st October, 2000;


 


(c)                                  UPC Distribution in respect of its interest in the
share capital of UPC Scandinavia Holding B.V. dated 31st October,
2000;


 


(d)                                 UPC Distribution in respect of its interest in the
share capital of Cable Networks Austria Holding B.V. dated 31st
October, 2000;


 


(e)                                  UPC Distribution in respect of its interest in the
share capital of UPC France Holding B.V. dated 31st October, 2000;


 


(f)                                    UPC Distribution in respect of its interest in the
share capital of UPC Nederland B.V. dated 31st October, 2000;


 


(g)                                 UPC Distribution in respect of its interest in the
share capital of Stipdon Investments B.V. dated 31st October, 2000;


 


(h)                                 UPC Scandinavia Holding B.V. in respect of its interest
in the share capital of UPC Norge AS dated 31st October, 2000;


 


(i)                                     UPC Scandinavia Holding B.V. and Cable Networks
Austria Holding B.V. in respect of their respective interests in the share
capital of UPC Belgium SA dated 31st October, 2000;


 


(j)                                     UPC Scandinavia Holding B.V. in respect of its
interest in the share capital of NBS Nordic Broadband Services AB dated 31st
October, 2000;


 


(k)                                  Stipdon Investments B.V. in respect of its interest in
the share capital of UPC Czech Holding B.V. dated 31st October,
2000;


 


(l)                                     Stipdon Investments B.V. in respect of its interest in
the share capital of UPC Slovakia Holding B.V. dated 31st October,
2000;


 


(m)                               Stipdon Investments B.V. in respect of its interest in
the share capital of UPC Romania Holding B.V. dated 31st October,
2000; and


 


(n)                                 Stipdon Investments B.V. in respect of its interests
in the share capital of Telekabel Hungary N.V. dated 31st October,
2000.


 


2.                                       Pledge by each of UPC Holding and UPC Holding II of
its partnership interest in the US Borrower.


 


172

















 


3.                                      (a)                                   Obligor Pledge of Shareholder Loans between UPC
Distribution, UPC Scandinavia Holding B.V., Stipdon Investments B.V., UPC
Nederland B.V. and UPC Financing Partnership and the Security Agent dated 31st
October, 2000;


 


(b)                                 Pledge of Subordinated Shareholder Loans between UPC
Holding and the Security Agent dated 31st October, 2000;


 


(c)                                  Obligor Pledge of Shareholder Loans between UPC
Distribution and the Security Agent dated 31st May, 2002;


 


(d)                                 Obligor Pledge of Shareholder Loans between UPC
Distribution and the Security Agent dated 2nd December, 2002;


 


(e)                                  Obligor Pledge of Shareholder Loans between Stipdon
Investments B.V. and the Security Agent dated 2nd December, 2002;


 


(f)                                    Obligor Pledge of Shareholder Loans between
Scandinavia Holding B.V. and the Security Agent dated 2nd December,
2002; and


 


(g)                                 Obligor Pledge of Shareholder Loans between UPC
Distribution and the Security Agent dated 9th April, 2003.


 


4.                                       Deed of pledge of registered shares in favour of the
Security Agent by UPC Distribution over its interest in UPC Distribution
Services B.V. dated 4th July, 2002.


 


5.                                       Bank account pledge between UPC Distribution, Fortis
Bank (Nederland N.V.) and the Security Agent dated 22nd October,
2001.


 


6.                                       Securities account pledge between UPC Scandinavia
Holding B.V., Fortis Bank (Nederland) N.V. and the Security Agent in relation
to the shares in the capital of NBS Nordic Broadband AB.


 


173

















 


SCHEDULE 8


 


RELEVANT SECURITY INTERESTS


 


(A)                              Security granted in connection with the loan agreement
between N.V. Telekabel as Borrower, Bank of America International Limited,
Citibank, N.A., Deutsche Bank AG London, Meespierson N.V. and Paribas as
Arrangers and others, dated 10th March, 1999 (the N.V. Telekabel Facility).


 


(B)                                Security granted in connection with credit facility
agreement between Cable Network Brabant Holding B.V. as Borrower and
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. as Agent and Initial Lender,
dated 20th February, 1998, as amended.


 


(C)                                Security granted in connection with bridge facility
agreement between A2000 Holding N.V., Kabeltelevisie Amsterdam B.V. and A2000
Hilversum B.V. as Borrowers and Coöperatieve Centrale Raiffeisen-Boerenleenbank
B.A. as Arranger and Agent, dated 15th December, 1999 (the A2000 Facility).


 


(D)                               Security granted in connection with revolving loan
facility agreement for NLG90,000,000 between GelreVision Holding B.V. as
Borrower, MeesPierson N.V. as Arranger, Facility Agent and Security Agent and
others, dated 17th November, 1999.


 


(E)                                 Security granted in connection with facility agreement
for €250,000,000 between UPC France S.A. and Médiaréseaux S.A. as Borrowers,
Paribas, Crédit Lyonnais S.A and ING Barings as Joint Arrangers, Videopole
S.A., Citéréseau S.A. and InterComm France Holding S.A. as Original Guarantors
and Paribas as Facility Agent and Security Agent, dated 7th April, 2000 (the Médiaréseaux Facility).


 


(F)                                 Security granted in connection with revolving credit
facility agreement for €500,000,000 between UPC Nederland B.V. as Borrower,
Chase Manhattan plc and Toronto Dominion Bank Europe Limited as Arrangers, The
Chase Manhattan Bank and The Toronto-Dominion Bank as Original Lenders and
Toronto Dominion Bank Europe Limited as Agent, dated 9th June, 2000.


 


(G)                                Security granted in connection with loan and note
issuance agreement for up to €1,000,000,000 between UPC Facility BV, TeleKabel
Wien GmbH and Janco Multicom A/S as Borrowers, the banks, guarantors and
arrangers named therein and The Toronto-Dominion Bank as Agent and Security
Agent, dated 27th July, 1999 (the UPCF
Facility).


 


(H)                               Security granted in connection with the Loan agreement
and working capital facility for up to KC 510,000,000 between, among others,
Dottelkabel A.S. as Borrower, De Nationale Investerings - bank N.V. as Facility
Agent and Lenders and Creditanstalt A.S. as Working Capital Bank and Lender,
dated 16th June, 1998 and June 1998 respectively.


 


174

















 


SCHEDULE 9


 


RELEVANT
FINANCIAL INDEBTEDNESS


 


1.                                       Loan agreement for up to NLG340,000,000 between N.V.
Telekabel as Borrower, Bank of America International Limited, Citibank, N.A.,
Deutsche Bank AG London, MeesPierson N.V. and Paribas, as Arrangers and others,
dated 10th March, 1999;


 


2.                                       Credit facility agreement between Cable Network
Brabant Holding B.V. as Borrower and Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A. as Agent and Initial Lender, dated 20th
February, 1998, as amended;


 


3.                                       Bridge facility agreement between A2000 Holding N.V.,
Kabeltelevisie Amsterdam B.V. and A2000 Hilversum B.V. as Borrowers and
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. as Arranger and Agent,
dated 15th December, 1999;


 


4.                                       Revolving loan facility agreement for NLG90,000,000
between Gelrevision Holding B.V. as Borrower, MeesPierson N.V. as Arranger,
Facility Agent and Security Agent and others, dated 17th November, 1999;


 


5.                                       Facility agreement for €250,000,000 between UPC France
S.A. and Mediareseaux S.A. as Borrowers, Paribas, Crédit Lyonnais S.A. and ING
Barings as Joint Arrangers, Videopole S.A., Citéréseau S.A. and InterComm
France Holding S.A. as Original Guarantors and Paribas as Facility Agent and
Security Agent, dated 7th April, 2000;


 


6.                                       Revolving credit facility agreement for €500,000,000
between UPC Nederland B.V. as Borrower, Chase Manhattan plc and Toronto
Dominion Bank Europe Limited as Arrangers, The Chase Manhattan Bank and The
Toronto-Dominion Bank as Original Lenders and Toronto Dominion Bank Europe
Limited as Agent, dated 9th June, 2000;


 


7.                                       Loan and note issuance agreement for up to
€1,000,000,000 between UPC Facility B.V., TeleKabel Wien GmbH and Janco
Multicom A/S as Borrowers, the banks, guarantors and arrangers named therein
and The Toronto-Dominion Bank as Agent and Security Agent, dated 27th July,
1999; and


 


8.                                       Loan Agreement and working capital facility for up to
KC510,000,000 between, among others Dattelkabel A.S. as Borrower, De Nationale
Investeringsbank N.V. as Facility Agent and Lender and Creditanstalt A.S. as
Working Capital Bank and Lender, dated 16th June, 1998 and June 1998
respectively.


 


175

















 


SCHEDULE 10


 


BORROWER GROUP STRUCTURE


 





 


 












*                                         All the asterisked entities are not part
of the Borrower Group at the Effective Date. 
These entities figure on the chart for the sake of clarification.  


(1)                                  One share in UPC Belgium S.A. is held by
Cable Network Austria Holding B.V. 


 


176

















 


SCHEDULE 11


 


SHAREHOLDERS’ AGREEMENTS


 


1.                                      Austria


 


Syndikatsvereinbarung
(shareholders agreement) dated 28th June, 1995 among Osterreichische Philips
Industrie GmbH, Cable Networks Austria Holding B.V. and Kabel-TV-Wien GmbH. (In
English and German).


 


2.                                      France


 


Stockholders
Agreement dated 29th February, 2000 between Belmarken Holding B.V., InterComm
France CVOHA, InterComm France II CVOHA and Reflex Participants.


 


3.                                      The Netherlands


 


Shareholders’
Agreement, dated 6th July, 1995, among The Municipality of Amsterdam, A2000
Holding N.V. and Kabeltelevisie Amsterdam B.V. (in English).


 


4.                                      Romania


 


Partnership
Agreement between Comtec 2000, Multicanal Holdings S.R.L. and Control SA.


 


177

















 


SIGNATORIES


 


	
  Borrowers

  	
   

  
	
   

  	
   

  
	
  UPC DISTRIBUTION HOLDING B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC FINANCING PARTNERSHIP

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Original Guarantors

  	
   

  
	
   

  	
   

  
	
  UPC DISTRIBUTION HOLDING B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC HOLDING II B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC FINANCING PARTNERSHIP

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC HOLDING B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC FRANCE HOLDING B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UPC SCANDINAVIA HOLDING B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  



 


178

















 


	
  Lead Arrangers

  	
   

  
	
   

  	
   

  
	
  CHASE MANHATTAN plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TD BANK EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ABN AMRO BANK N.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA INTERNATIONAL LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CIBC WORLD MARKETS plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CRÉDIT LYONNAIS S.A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  FORTIS BANK (NEDERLAND) N.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ROYAL BANK OF SCOTLAND plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  



 


179

















 


	
  Lenders

  	
   

  
	
   

  	
   

  
	
  THE CHASE MANHATTAN BANK

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE TORONTO-DOMINION BANK

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TORONTO DOMINION (TEXAS), INC.,

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JANO MOTT

  	
   

  
	
   

  	
  JANO MOTT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ABN AMRO BANK N.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS, BELGIAN BRANCH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CIBC WORLD MARKETS plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CRÉDIT LYONNAIS S.A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  FORTIS BANK (NEDERLAND) N.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  N B INTERNATIONAL FINANCE B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  



 


180

















 


	
  THE ROYAL BANK OF SCOTLAND plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ABBEY NATIONAL TREASURY SERVICES PLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ A J LYNN

  	
   

  
	
   

  	
  A J LYNN

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  LEHMAN COMMERCIAL PAPER Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JENNIFER O’CALLAGHAN

  	
   

  
	
   

  	
  JENNIFER O’CALLAGHAN

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANCA COMMERCIALE ITALIANA S.p.A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ RICHARD ADAMS

  	
  /s/ RICHARD OLIVER

  
	
   

  	
  RICHARD ADAMS

  	
  RICHARD OLIVER

  
	
   

  	
   

  
	
   

  	
   

  
	
  BEAR STEARNS CORPORATE LENDING INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ KEITH C BARNISH

  	
   

  
	
   

  	
  KEITH C BARNISH

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CITIBANK, N.A.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ PAUL HOUSE

  	
   

  
	
   

  	
  PAUL HOUSE

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  CREDIT SUISSE FIRST BOSTON

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MATTHEW VYLE

  	
  /s/ KAMLESH VARA

  
	
   

  	
  MATTHEW VYLE

  	
  KAMLESH VARA

  
	
   

  	
   

  
	
   

  	
   

  
	
  DAIMLER CHRYSLER CAPITAL SERVICES (DEBIS)
  BELGIUM S.A.

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DLJ CAPITAL FUNDING, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ THOMAS L NEWBERRY

  	
   

  
	
   

  	
  THOMAS L NEWBERRY

  	
   

  



 


181

















 


	
  DRESDNER BANK AG LONDON BRANCH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ S CLUNIE

  	
  /s/ M BURNYEAT

  
	
   

  	
  S CLUNIE

  	
  M BURNYEAT

  
	
   

  	
   

  
	
   

  	
   

  
	
  HARBOURMASTER LOAN CORPORATION B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GOLDMAN SACHS CREDIT PARTNERS, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ VIVEK KUMAR

  	
   

  
	
   

  	
  VIVEK KUMAR

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GOLDMAN SACHS CREDIT PARTNERS, L.P.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ VIVEK KUMAR

  	
   

  
	
   

  	
  VIVEK KUMAR

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE GOVERNOR AND COMPANY OF THE BANK OF
  SCOTLAND

  
	
   

  	
   

  
	
  By:

  	
  /s/ G MACDONALD

  	
   

  
	
   

  	
  G MACDONALD

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  IBM NEDERLAND FINANCIERINGEN B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ A LUNDQVIST

  	
   

  
	
   

  	
  A LUNDQVIST

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ING BANK N.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
  /s/ STEPHEN MCPHERSON

  
	
   

  	
  ANN B KERNS

  	
  STEPHEN MCPHERSON

  
	
   

  	
   

  
	
   

  	
   

  
	
  EUROCREDIT CDO I B.V. AND EUROCREDIT CDO II B.V.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANDREW D JACKSON

  	
   

  
	
   

  	
   ANDREW D JACKSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  KBC FINANCE IRELAND

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  



 


182

















 


	
  MERRILL LYNCH CAPITAL CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MARTIN J MCINERNEY

  	
   

  
	
   

  	
  MARTIN J MCINERNEY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DEBT STRATEGIES FUND III, Inc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOSEPH MATTEO

  	
   

  
	
   

  	
  JOSEPH MATTEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DEBT STRATEGIES FUND II, Inc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOSEPH MATTEO

  	
   

  
	
   

  	
  JOSEPH MATTEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  DEBT STRATEGIES FUND, Inc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOSEPH MATTEO

  	
   

  
	
   

  	
  JOSEPH MATTEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SENIOR HIGH INCOME PORTFOLIO, Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOSEPH MATTEO

  	
   

  
	
   

  	
  JOSEPH MATTEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MORGAN STANLEY SENIOR FUNDING Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MAY F NASRALLAH

  	
   

  
	
   

  	
  MAY F NASRALLAH

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  OPPENHEIMER SENIOR FLOATING RATE FUND

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ SCOTT FARRAR

  	
   

  
	
   

  	
  SCOTT FARRAR

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SCOTIABANK EUROPE plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ANN B KERNS

  	
   

  
	
   

  	
  ANN B KERNS

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  VAN KAMPEN PRIME RATE INCOME TRUST

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ BRIAN T BUSCHER

  	
   

  
	
   

  	
  BRIAN T BUSCHER

  	
   

  



 


183

















 


	
  VAN KAMPEN SENIOR INCOME TRUST

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ BRIAN T BUSCHER

  	
   

  
	
   

  	
  BRIAN T BUSCHER

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  UBS AG, LONDON BRANCH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ J V MCCLOSKEY

  	
  /s/ WILLIAM J GALLAGHER

  
	
   

  	
  J V MCCLOSKEY

  	
  WILLIAM J GALLAGHER

  
	
   

  	
   

  
	
   

  	
   

  
	
  Facility Agent

  	
   

  
	
   

  	
   

  
	
  TD BANK EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TORONTO DOMINION (TEXAS), INC.,

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JANO MOTT

  	
   

  
	
   

  	
  JANO MOTT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Security Agent

  	
   

  
	
   

  	
   

  
	
  TD BANK EUROPE LIMITED

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEPHEN MCPHERSON

  	
   

  
	
   

  	
  STEPHEN MCPHERSON

  	
   

  



 


184