Exhibit 4.1


 


Execution Version


 


To:          UPC Broadband Holding B.V. (the Company)


Boeing Avenue 53


1119 PE Schiphol Rijk


Amsterdam


The Netherlands


 


For the attention of:  Jonathan Pearson


 


9 June 2009


 


Dear Sirs,


 


€1,072,000,000 senior secured credit facility
(the Agreement) dated 16th January, 2004 between, among others, the Company and
Toronto Dominion (Texas) LLC as facility agent, as amended from time to time


 


1.             Background


 


(a)           This letter is supplemental to and amends
the Agreement.


 


(b)           Pursuant to clause 25 (Amendments and
waivers) of the Agreement, the Majority Lenders have consented to the
amendments to the Agreement and the waiver contemplated by this letter.  Accordingly, we are authorised to execute
this letter on behalf of the Finance Parties.


 


2.             Construction


 


(a)           Capitalised terms defined in the Agreement
have the same meaning when used in this letter.


 


(b)           The provisions of clause 1.2 (Construction)
of the Agreement apply to this letter as though they were set out in full in
this letter except that references to the Agreement are to be construed as
references to this letter.


 


(c)           Amendment Effective Date has the meaning given to it
in paragraph 4 (Amendment Effective Date).


 


3.             Amendments


 


(a)           We are authorised to confirm on behalf of
the Majority Lenders that, with effect from the Amendment Effective Date the
Agreement will be amended as set out in this paragraph 3 (Amendments).


 


(b)           The definition of “EBITDA” in Clause 17.1
(Financial definitions) of the Agreement will be amended so that it reads as
follows:


 


“EBITDA means, in relation to any Ratio Period, operating income
(expense) plus depreciation, amortisation, non cash stock compensation
expenses, other non cash impairment charges, one off reorganisation or
restructuring charges, direct acquisition costs, losses (gains) on the sale of
operating assets and accrued Management Fees (whether or not paid) for such Ratio
Period as reflected in the consolidated statement of operations identified as
such in the consolidated financial statements of the Borrower Group, to the extent attributed to
the 


 


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Distribution Business of the Borrower Group
and all as determined in accordance with GAAP and (in the case of the Borrower
Group or any part 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).


 


For the
avoidance of doubt, as a result of US GAAP purchase accounting adjustments,
certain deferred revenues on the balance sheet of Cablecom GmbH were required
to be written off. The Borrower shall, when calculating EBITDA, have
the option to include revenues that would have been recognised had
this US GAAP purchase accounting not taken place.”; and


 


(b)           the definition of “Net Income” in Clause
17.1 (Financial definitions) of the Agreement will be deleted.


 


4.             Amendment Effective Date


 


This letter shall take effect on the date
(the Amendment Effective Date) on which the
Facility Agent notifies the Company and the Lenders that it has received in
form and substance to it (acting reasonably):


 


(a)           evidence of the due authorisation and
execution of this letter by each Obligor;


 


(b)           legal opinions in respect of Dutch, English
and New York law from Allen & Overy LLP, English, Dutch and New York
legal advisers to the Facility Agent, addressed to the Finance Parties.


 


5.             Reservation of rights


 


Each Finance Party reserves any other right
or remedy it may have now or subsequently. 
This letter does not constitute a waiver of any right or remedy.


 


6.             Miscellaneous


 


(a)           This letter is a Finance Document and the
Agreement, as amended by this letter, is a Finance Document.


 


(b)           Subject to the terms of this letter, the
Agreement will remain in full force and effect and the Agreement and this
letter will be read and construed as one document.


 


(c)           Each Obligor confirms that the Security
Interests granted to the Beneficiaries pursuant to the Security Documents and
its obligations under the Finance Documents shall continue and remain
unaffected by the entry into of this letter and shall extend to the liability
and obligations of the Obligors to the Finance Parties under the Finance
Documents as amended by this letter.


 


(d)           The representations and warranties in
Clause 15 (Representations and Warranties) of the 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 councils), 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 on the date of this letter
and on the Amendment Effective Date, with reference to the facts and
circumstances then existing, as if each 


 


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reference to (i) the
Finance Documents includes a reference to this letter and (ii) references
to the Agreement are to the Agreement as amended by this letter.


 


(e)           This letter 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 letter by e-mail (PDF) or telecopy shall be as effective as
delivery of a manually executed counterpart of this letter.


 


7.             Governing law


 


This letter and any non-contractual
obligations arising in connection with it are governed by English law.


 


For


TORONTO DOMINION (TEXAS) LLC


as Facility Agent


 


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We agree with the terms of this letter.


 


Borrowers:


 


UPC BROADBAND HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC FINANCING PARTNERSHIP


 


By: Authorized Signatory


 


 


Guarantors:


 


UPC BROADBAND HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC HOLDING II B.V.


 


By: Authorized Signatory


 


 


UPC FINANCING PARTNERSHIP


 


By: Authorized Signatory


 


 


UPC HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC FRANCE HOLDING B.V.


 


By: Authorized Signatory


 


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UPC SCANDINAVIA HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC WESTERN EUROPE HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC CENTRAL EUROPE HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC NEDERLAND B.V.


 


By: Authorized Signatory


 


 


UPC POLAND HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC BROADBAND N.V.


 


By: Authorized Signatory


 


 


UPC BROADBAND IRELAND B.V.


 


By: Authorized Signatory


 


 


UPC CHILE HOLDING B.V.


 


By: Authorized Signatory


 


 


UPC SWITZERLAND HOLDING B.V.


 


By: Authorized Signatory


 


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