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 66 2
/ 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,
