Exhibit 4.1
€1,670,000,000 ADDITIONAL
FACILITY S ACCESSION AGREEMENT
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To:
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Toronto Dominion (Texas) LLC as Facility Agent
and TD Bank Europe Limited as Security Agent
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From:
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The persons listed in Schedule 1 to this
Agreement (the Additional Facility S Lenders )
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Date: 6 May 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:
Additional Facility M
Lender means each of the
lenders under Facility M.
Facility M
means the €3,640,000,000 term
loan facility made available under the Additional Facility
Accession Agreements dated 12 April 2007, 13 April, 2007, 4
May 2007 and 18 May 2007 respectively and the
€250,000,000 term loan facility made available under the
Additional Facility Accession Agreement dated 16 May 2008
(each an Additional Facility M Accession Agreement
).
Facility M Interest
Period means the Interest
Period which is current, at the Effective Date, in respect of the
outstanding Advance (the Facility M Advance ) under Facility
M.
Facility S
means the € 1,670,000,000 term
loan facility made available under this Agreement.
Facility S Advance
means a euro denominated advance
made to UPC Financing by the Additional Facility S Lenders under
Facility S.
Facility S Commitment
means, in relation to an Additional
Facility S Lender, the amount in euros set opposite its name under
the heading “Facility S Commitment” in Schedule 1 to
the counterpart of this Agreement executed by that Additional
Facility S Lender, to the extent not cancelled, transferred, or
reduced under the Credit Agreement.
Majority Facility S
Lenders means Additional
Facility S Lenders the aggregate of whose Facility S Commitments
exceeds 66 2
/ 3 per
cent. of the aggregate of Facility S Commitments of all Additional
Facility S 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 S 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 S Lenders (the
Effective Date ).
5.
We, the Additional Facility S
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 S Lender (for the purpose of
the definition of Additional Facility Commitment in Clause 1.1
(Definitions) of the Credit Agreement) is its Facility S
Commitment.
7.
Any interest due in relation to
Facility S 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
S shall be the Effective Date.
9.
Facility S may be drawn by one
Advance and no more than one Request may be made in respect of
Facility S under the Credit Agreement.
10.
(a)
The first Interest Period to apply
to the Facility S Advance will be a period equal to the period
running from the Effective Date up to and including the last day of
the Facility M Interest Period.
(b)
In respect of the first Interest
Period only, EURIBOR shall mean the EURIBOR rate as determined in
respect of the Facility M Interest Period.
11.
The Facility S 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 S 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 S Advances
will be repaid in full on the Final Maturity Date.
14.
The Margin in relation to Facility S
is 3.75 per cent. per annum.
15.
The Borrower in relation to Facility
S is UPC Financing.
16.
(a)
Provided that any upsizing of
Facility S permitted under this paragraph will not breach any term
of the Credit Agreement, Facility S may be upsized by any amount,
by the signing of one or more further Additional Facility S
Accession Agreements, that specify (along with the other terms
specified therein) UPC Financing as the sole Borrower and which
specify Additional Facility S Commitments denominated in
euros, to be drawn in euros, with
the same Final Maturity Date and Margin as specified in this
Additional Facility S Accession Agreement.
(b)
For the purposes of this paragraph
16, references to Additional Facility S Lenders and Facility S
Advances shall include Lenders and Advances made under any such
further Additional Facility S Accession Agreement.
(c)
If the Borrower so requests, an
Interest Period for a Facility S Advance will end on the same day
as the current Interest Period for any other Facility S Advance
denominated in the same currency as that Facility S Advance.
On the last day of those Interest Periods, those Facility S
Advances will be consolidated and treated as one Facility S
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 S 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 S
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 part 1
or part 2 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 S 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 S Lender.
21.
Each Additional Facility S Lender
agrees to waive the notice period in respect of drawdown requests
under Clause 5.1 (Delivery of Request) of the
