Exhibit 4.1


 


EXECUTION VERSION


 


US$300,000,000
ADDITIONAL FACILITY T ACCESSION AGREEMENT


 


	
  To:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  The persons listed in Schedule 1 to this
  Agreement (the Additional Facility T Lenders)

  



 


Date:  8 September 2009


 


UPC Broadband Holding B.V.
(formerly known as UPC Distribution Holding B.V) - €1,072,000,000 Term Credit
Agreement dated 16 January 2004 as amended from time to time (the Credit
Agreement)


 


1.                                       In this Agreement:


 


Existing Facility T means the US$500,000,000 term
loan facility made available under the Additional Facility Accession Agreement
dated 6 May 2009.


 


Existing Facility T Interest
Period
means the Interest Period which is current, at the Effective Date, in respect
of the outstanding Advance under Existing Facility T.


 


Facility T means the US$300,000,000 term
loan facility made available under this Agreement.


 


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


 


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


 


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


 


2.                                       Unless otherwise defined in
this Agreement, terms defined in the Credit Agreement shall have the same
meaning in this Agreement and a reference to a Clause is a reference to a Clause
of the Credit Agreement.  The principles
of construction set out in Clause 1.2 (Construction) of the Credit Agreement
apply to this Agreement as though they were set out in full in this Agreement.


 


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


 


4.                                       This Agreement will take
effect on the date on which the Facility Agent notifies UPC Broadband and the Additional
Facility T Lenders that it has received the documents and evidence set out in
Schedule 2 to this Agreement, in each case in form and substance satisfactory
to it or, as the case may be, the requirement to provide any of such documents
or evidence has been waived by the Majority Facility T Lenders (the Effective Date).


 


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


 

















 


(a)                                  to become party to and to be
bound by the terms of the Credit Agreement as Lenders in accordance with Clause 2.2
(Additional Facilities) of the Credit Agreement; and


 


(b)                                 to become party to the
Security Deed as Lenders and to observe, perform and be bound by the terms and
provisions of the Security Deed in the capacity of Lenders in accordance with Clause
9.3 (Transfers by Lenders) of the Security Deed.


 


6.                                       The Additional Facility
Commitment in relation to an Additional Facility T Lender (for the purpose of
the definition of Additional Facility Commitment in Clause 1.1 (Definitions) of
the Credit Agreement) is its Facility T Commitment.


 


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


 


8.                                      The Availability Period for
Facility T shall be the period from and including the Effective Date up to and
including the date which is three Business Days after the Effective Date.


 


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


 


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


 


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


 


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


 


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


 


(a)                                  31 December 2016; and


 


(b)                                 17 October 2013 (the Relevant Date) being the date falling 90 days prior to the
date on which the UPC Holding B.V. issued bonds due 2014 (the Bonds) are currently scheduled to fall due, if on the
Relevant Date, Bonds are outstanding in an aggregate amount equal to or greater
than €250,000,000.


 


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


 


14.                                 The Margin in relation to Facility
T is 3.50 per cent. per annum.


 


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


 


16.                                (a)                                  It is the intention of the
parties that the Existing Facility T be upsized by the amount of this Facility
T in accordance with paragraph 16 of the Additional Facility Accession
Agreement under which Existing Facility T is made available and that, on and from
the first utilisation date of this Facility T:


 


(i)                                    the Facility T Advance under
this Agreement will be consolidated with the outstanding Advance under the
Existing Facility T and, where possible, with any other Facility T Advance that
has a matching Interest Period, interest rate, currency and Borrower; and,


 

















 


(ii)                                 this Facility T, the Existing
Facility T and any other Facility T as defined in any other Additional Facility
T Accession Agreement permitted under this paragraph and executed on or before
the date of this Agreement shall constitute one single Additional Facility for
all purposes under the Credit Agreement.


 


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


 


(c)                                  For the purposes of this
paragraph 16 (unless otherwise specified or the context otherwise requires),
references to Additional Facility T Lenders and Facility T Advances shall
include Lenders and Advances made under any such further and previous Additional
Facility T Accession Agreement.


 


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


 


17.                                 Each of UPC Broadband and UPC
Financing confirms, on behalf of themselves and each other Obligor that the
representations and warranties set out in Clause 15 (Representations and
Warranties) of the Credit Agreement (with the exception of Clauses 15.6(a) (Consents),
15.10 (Financial condition), 15.12 (Security Interests), 15.13(b) (Litigation
and insolvency proceedings), 15.14 (Business Plan), 15.15 (Tax liabilities), 15.16
(Ownership of assets), 15.18 (Works Council), 15.19 (Borrower Group Structure),
15.20 (ERISA), 15.24 (UPC Financing) and 15.25 (Dutch Banking Act)) are true
and correct as if made at the Effective Date with reference to the facts and
circumstances then existing, and as if each reference to the Finance Documents
includes a reference to this Agreement.


 


18.                                 UPC Broadband further
represents and warrants on the Effective Date that the execution and delivery
by it of this Agreement and the performance of the transactions contemplated by
this Agreement will not violate any agreement or instrument to which UPC
Holding is a party or binding upon UPC Holding or any member of the Borrower
Group or any assets of UPC Holding or any member of the Borrower Group’s assets,
where such violation would or is reasonably likely to have a Material Adverse
Effect.


 


19.                                 Each Additional Facility T
Lender confirms to each Finance Party that:


 


(a)                                  it has made its own
independent investigation and assessment of the financial condition and affairs
of each Obligor and its related entities in connection with its participation
in the Credit Agreement and has not relied on any information provided to it by
a Finance Party in connection with any Finance Document; and


 


(b)                                 it will continue to make its
own independent appraisal of the creditworthiness of each Obligor and its
related entities while any amount is or may be outstanding under the Credit
Agreement or any Additional Facility Commitment is in force.


 

















 


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


 


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


 


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


 


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


 


24.                                 This
Agreement may be executed in any number of counterparts, and by each party on
separate counterparts.  Each counterpart
is an original, but all counterparts shall together constitute one and the same
instrument.  Delivery of an executed
counterpart signature page of this Agreement by e-mail (PDF) or telecopy
shall be as effective as delivery of a manually executed counterpart of this
Agreement.


 

















 


SCHEDULE 1


 


ADDITIONAL FACILITY T
LENDERS AND COMMITMENTS


 




	
  Additional Facility T
  Lender

  	
   

  	
  Facility T Commitment

  	
   

  
	
   

  	
   

  	
  (US$)

  	
   

  
	
  Liberty
  Global Europe B.V.

  	
   

  	
  300,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  300,000,000

  	
   

  






 

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT
DOCUMENTS


 


1.                                      Constitutional Documents


 


(a)                                  A copy of the constitutional
documents of each Obligor (other than UPC Financing) and the partnership
agreement of UPC Financing or, if the Facility Agent already has a copy, a
certificate of an authorised signatory of the relevant Obligor confirming that
the copy in the Facility Agent’s possession is still correct, complete and in
full force and effect as at a date no earlier than the date of this Agreement.


 


(b)                                 An extract of the registration
of each Obligor established in the Netherlands in the trade register of the
Dutch Chamber of Commerce.


 


2.                                      Authorisations


 


(a)                                  A copy of a resolution of the
board of managing and, to the extent applicable, board of supervisory directors
(or equivalent) and, to the extent that a shareholders’ resolution is required,
a copy of the shareholders’ resolution of each Obligor:


 


(i)                                     approving the terms of and the
transactions contemplated by this Agreement and (in the case of UPC Broadband)
resolving that it execute the same (and, in the case of the Guarantors and the
Charging Entities (as defined in the Security Deed) resolving that it execute
the confirmation described at paragraph 4(a) below; and


 


(ii)                                  (in the case of UPC Broadband
and UPC Financing) authorising the issuance of a power of attorney to a
specified person or persons to execute this Agreement on its behalf and (in the
case of the Guarantors and the Charging Entities (as defined in the Security Deed))
authorising the issuance of a power of attorney to a specified person or
persons to execute the confirmation described in paragraph 4(a) below.


 


(b)                                 A specimen of the signature of
each person authorised pursuant to its constitutional documents or to the power
of attorney referred to in paragraph (a) above to sign this Agreement or
the confirmation described in paragraph 4(a) below (as appropriate).


 


(c)                                  A certificate of an authorised
signatory of UPC Broadband, each Guarantor and each Charging Entity certifying
that each copy document specified in this Schedule and supplied by UPC Broadband,
each Guarantor and each Charging Entity is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.


 


(d)                                 A copy of any other
authorisation or other document, opinion or assurance which the Facility Agent
has notified UPC Broadband is necessary in connection with the entry into and
performance of, and the transactions contemplated by, this Agreement or for the
validity and enforceability of this Agreement.


 


3.                                      Legal opinions


 


(a)                                  A legal opinion of Allen &
Overy LLP, English legal advisers to the Facility Agent, addressed to the
Finance Parties.


 


(b)                                 A legal opinion of Allen &
Overy LLP, Dutch legal advisers to the Facility Agent, addressed to the Finance
Parties.


 

















 


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


 


4.                                      Other documents


 


Confirmation (in writing) from (i) each
of the Guarantors that its obligations under Clause 14 (Guarantee) of the
Credit Agreement and (ii) each of the Charging Entities (as defined in the
Security Deed) that the Security Interests granted to the Beneficiaries
pursuant to the Security Documents and its obligations under the Finance
Documents, shall continue unaffected and that such obligations extend to the
Total Commitments as increased by the addition of Facility T and that such
obligations shall be owed to each Finance Party including the Additional
Facility T Lenders.


 

















 


SCHEDULE 3


 


NOVATION CERTIFICATE


 


	
  To:

  	
   

  	
  [     ]
  as Facility Agent and [BORROWER]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  From:

  	
   

  	
  [THE EXISTING LENDER] and [THE NEW
  LENDER]

  	
   

  	
  Date:
  [          ]

  



 


 


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


 


We refer to Clause 26.3 (Procedure for
novations) of the Credit Agreement and clause 9.3 (Transfers by the Lenders) of
the Security Deed.  Terms defined in the
Credit Agreement or, if not defined in the Credit Agreement, the Additional
Facility Accession Agreement between the Facility Agent, the Security Agent and
the Additional Facility T Lenders dated [         ] 2009, have the same meaning in this
Novation Certificate.


 


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


 


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


 


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


 


4.                                       This
Novation
Certificate
may be executed in any number of counterparts, and by each party on separate
counterparts.  Each counterpart is an
original, but all counterparts shall together constitute one and the same
instrument.  Delivery of an executed
counterpart signature page of this Novation
Certificate by
e-mail (PDF) or telecopy shall be as effective as delivery of a manually executed
counterpart of this Novation Certificate.


 


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


 

















 


THE SCHEDULE


 


Rights and obligations to be novated


 


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


 


	
  [New Lender]

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Facility Office

  	
   

  	
  Address for
  notices for administrative purposes

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address for
  notices for credit purposes]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Existing Lender]

  	
   

  	
  [New Lender]

  	
   

  	
  [                    ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  Date:

  	
   

  	
  Date:

  



 

















 


SIGNATORIES


 


TORONTO DOMINION (TEXAS) LLC as Facility
Agent


 


	
  By:

  	
  Authorized Signatory

  



 


 


TD BANK EUROPE LIMITED as Security Agent


 


	
  By:

  	
  Authorized Signatory

  



 

















 


UPC BROADBAND HOLDING B.V.


 


	
  By:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
  By:

  	
  Authorized Signatory

  



 


 


UPC FINANCING PARTNERSHIP


 


	
  By:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
  By:

  	
  Authorized Signatory

  



 

















 


ADDITIONAL FACILITY T
LENDERS


 


 


LIBERTY GLOBAL EUROPE B.V.


 


	
  By:

  	
  Authorized Signatory