Exhibit 4.1
US$521,178,225 ADDITIONAL
FACILITY 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 banks and
financial institutions listed in Schedule 1 to this Agreement (the
Additional Facility P Lenders )
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Date: 9 September 2008
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 )
Additional Facility I Lender means
each of the lenders under Facility I.
Facility I
means the €500,000,000 term
loan facility made available under the Additional Facility
Accession Agreement dated 9 March 2005.
Facility P
means the US$521,178,225 term loan
facility made available under this Agreement.
Facility P Advance
means the US$ denominated advance
made to UPC Financing by the Additional Facility P Lenders under
Facility P.
Facility P Commitment
means, in relation to an Additional
Facility P Lender, the amount in US$ set opposite its name under
the heading “Facility P Commitment” in Schedule 1 to
the counterpart of this Agreement executed by that Additional
Facility P Lender, to the extent not cancelled, transferred, or
reduced under the Credit Agreement.
LGI Facility
means the US$215,000,000 senior
revolving facility agreement dated 25 June 2007 between, among
others, Liberty Global, Inc. as borrower, and BNP Paribas S.A. as
facility agent.
Majority Facility
P Lenders means Additional Facility P
Lenders the aggregate of whose Facility P Commitments exceeds
66 2 / 3 per cent. of the aggregate
of Facility P Commitments of all Additional Facility P
Lenders.
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2.
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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.
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3.
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We refer to
Clause 2.2 (Additional Facilities) of the Credit
Agreement.
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4.
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This Agreement will take effect
on the date on which the Facility Agent notifies UPC Broadband and
the Additional Facility P 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 P Lenders and
(i) in the case of the evidence specified at (b) of
paragraph 4 (Other documents)
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of Schedule 2, by all the
Facility P Lenders that are also lenders under the LGI Facility at
the date of this Agreement; and (ii) in the case of the
evidence specified at (c) of paragraph 4 (Other documents) of
Schedule 2, by all the Facility P Lenders that are also lenders
under Facility I at the date of this Agreement (the Effective
Date ).
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5.
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We, the
Additional Facility P Lenders, agree:
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(a)
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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
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(b)
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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.
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6.
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The Additional
Facility Commitment in relation to an Additional Facility P Lender
(for the purpose of the definition of Additional Facility
Commitment in Clause 1.1 (Definitions) of the Credit Agreement) is
its Facility P Commitment.
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7.
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Any interest
due in relation to Facility P will be payable on the last day of
each Interest Period in accordance with Clause 8 (Interest) of the
Credit Agreement.
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8.
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(a) The Availability
Period in relation to Facility P is the period from and including
the date of this Agreement up to and
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including the
earlier of:
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(i)
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the date of the
Facility P Advance; and
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(ii)
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the date
falling 15 Business Days after the date of this
Agreement,
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or such other date as all the
Additional Facility P Lenders may agree at their
discretion.
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(b)
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Facility P may
be drawn by one Advance and no more than one Request may be made in
respect of Facility P under the Credit Agreement.
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9.
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The Facility P
Advance will be used for general corporate purposes and working
capital purposes, including the repayment or prepayment of existing
indebtedness.
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10.
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The Final
Maturity Date in respect of this Facility P is 2 September
2013.
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11.
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The outstanding
Facility P Advance will be repaid in full on the Final Maturity
Date.
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12.
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The Margin in
relation to Facility P is 2.75 per cent. per annum.
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13.
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The Borrower in
relation to Facility P is UPC Financing.
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14.
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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), 15.15 (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.
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15.
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UPC Broadband
further repr
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