EX-4.3 4 exhibit43upcrcfamendment.htm EX-4.3 Document

Exhibit 4.3



SUPPLEMENTAL DEED

DATED 12 APRIL 2021


BETWEEN


UPC BROADBAND HOLDING B.V.
as UPC Broadband and as Obligors’ Agent

THE FINANCIAL INSTITUTIONS LISTED HEREIN
as Upsizing Revolving Facility Lenders

THE BANK OF NOVA SCOTIA
as Facility Agent

AND

THE BANK OF NOVA SCOTIA
as Security Agent

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CONTENTS
ClausePage
1.Interpretation3
2.Amendment and Restatement of the Credit Agreement4
3.Representations4
4.Guarantee and Security5
5.Fees5
6.Miscellaneous5
7.Governing Law6
SCHEDULES
Schedule 1 Conditions Precedent7
Schedule 2 Amended Credit Agreement8
Signatories222

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THIS DEED is dated 12 April 2021 and made
BETWEEN:
(1)    UPC BROADBAND HOLDING B.V. (previously called UPC Distribution Holding B.V.) for itself (in this capacity, “UPC Broadband”) and as Obligors’ agent for and on behalf of each other Obligor under and as defined in the Credit Agreement defined below (in this capacity, the “Obligors’ Agent”);
(2)    (1) DEUTSCHE BANK AG, LONDON BRANCH, (2) BNP PARIBAS FORTIS SA/NV, (3) GOLDMAN SACHS BANK USA, (4) SCOTIABANK EUROPE PLC, (5) CREDIT SUISSE AG, LONDON BRANCH, (6) BANK OF AMERICA, N.A., LONDON BRANCH, (7) JPMORGAN CHASE BANK, N.A. – LONDON BRANCH, (8) CITIBANK N.A., LONDON BRANCH, and (9) CREDIT SUISSE (SWITZERLAND) LTD. (together, the “Upsizing Revolving Facility Lenders”);
(3)    THE BANK OF NOVA SCOTIA as security agent for and on behalf of the other Finance Parties under and as defined in the Credit Agreement defined below (in this capacity, the “Security Agent”); and
(4)    THE BANK OF NOVA SCOTIA as facility agent for and on behalf of the other Finance Parties under and as defined in the Credit Agreement defined below (in this capacity, the “Facility Agent”).
It is intended that this document takes effect as a deed notwithstanding that a party hereto may only execute it under hand.
BACKGROUND
(A)    We refer to the senior secured credit facility agreement originally dated 16 January 2004 as last amended and restated pursuant to a supplemental deed dated 23 April 2020 and entered into between, among others, UPC Broadband Holding B.V. as UPC Broadband, the Lenders as defined therein and The Bank of Nova Scotia as Facility Agent and Security Agent (the “Credit Agreement”) as further amended by this Deed (the “Amended Credit Agreement”).

(B)    We further refer to the senior secured credit facilities agreement dated 9 November 2020 and entered into between, among others, NewCo I B.V. as the company and The Bank of Nova Scotia as facility agent and security agent (the “Sunrise Facilities Agreement”).
(C)    We further refer to a global transfer certificate to be entered into on or about the date of this Deed between The Bank of Nova Scotia as Facility Agent, Security Agent and on behalf of the Lenders pursuant to certain Additional Facilities (the “Global Transfer Certificate”).
(D)    This Deed is supplemental to and amends the Credit Agreement.
(E)    Pursuant to clause 27.2(a)(iv) (Exceptions) of the Credit Agreement the Upsizing Revolving Facility Lenders have consented to the amendments to the Credit Agreement contemplated by Clause 2 (Amendment and Restatement of the Credit Agreement) of this Deed. Accordingly, the Facility Agent is authorised to sign this Deed on behalf of the Finance Parties.
IT IS AGREED as follows:
1.    INTERPRETATION
1.1    Definitions
(a)    Capitalised terms defined in the Credit Agreement have, unless expressly defined in this Deed, the same meaning in this Deed except that “Security Grantor” shall have the meaning given to it in the Intercreditor Agreement.
(b)    Upsize Amounts” shall mean the amount by which the Revolving Facility Commitments (under the Credit Agreement) of each Upsizing Revolving Facility Lender under the Credit Agreement are increased by the provisions of this Deed.
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1.2    Construction
(a)    The provisions of clause 1.2 (Construction) of the Credit Agreement apply to this Deed as though they were set out in full in this Deed except that references to the Credit Agreement are to be construed as references to this Deed.
(b)    References to “clauses” are references to clauses in the Credit Agreement (and not, for the avoidance of doubt, in the Amended Credit Agreement).
2.    AMENDMENT AND RESTATEMENT OF THE CREDIT AGREEMENT
(a)    The parties hereto agree that with effect from the Effective Time, the Credit Agreement will be supplemented and amended and restated by this Deed so that it shall then be in effect in the form set out at Schedule 2 (Amended Credit Agreement) to this Deed.
(b)    Effective Time” has the meaning given to it in the Global Transfer Certificate.
3.    REPRESENTATIONS
3.1    Representations
The representations and warranties set out in this Clause are made on the date of this Deed by the Obligors’ Agent to each Finance Party. The Obligors’ Agent makes the representations and warranties set out in this Clause in respect of itself and (where applicable) in respect of each member of the Borrower Group.
3.2    Legal Validity
(a)    The obligations expressed to be assumed by it in this Deed constitute its legal, valid and binding obligations enforceable, subject to any relevant reservations or qualifications as to matters of law contained in any legal opinion referred to in paragraph 3 of Schedule 1 (Conditions Precedent) to this Deed, in accordance with its terms.
(b)    The choice of English law as the governing law of this Deed and its submission to the jurisdiction of the courts of England in respect of any proceedings relating to this Deed will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.
(c)    Any judgment obtained in England in relation to this Deed will be recognised and enforced in its jurisdiction of incorporation, subject to any relevant reservation or qualification as to matters of law contained in any legal opinion referred to in paragraph (a) above.
3.3    Non-violation
The execution and delivery by it of this Deed, and its performance of the transactions contemplated hereby, will not violate:
(a)    in any material respect, any law or regulation or official judgment or decree applicable to it;
(b)    in any material respect, its constitutional documents; or
(c)    any agreement or instrument to which it is a party or binding on any of its assets or binding upon any other member of the Borrower Group or any other member of the Borrower Group’s assets, where such violation would or is reasonably likely to have a Material Adverse Effect.
3.4    Powers and authority
It has the power to enter into and comply with all obligations expressed on its part under this Deed and has taken all necessary actions to authorise the execution, delivery and performance of this Deed.
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3.5    Consents
(a)    Subject to any relevant reservations or qualifications contained in any legal opinion referred to in Clause 3.2(a) (Legal Validity) above, all material and necessary authorisations, registrations, consents, approvals, licences (other than the Licences), and filings required by it in connection with the execution, validity or enforceability of this Deed, and the performance of the transactions contemplated by this Deed have been obtained (or, if applicable, will be obtained within the required time period) and are validly existing.
(b)    The Licences are in full force and effect and each member of the Borrower Group is in compliance in all material respects with all provisions thereof such that the Licences are not the subject of any pending or, to the best of its knowledge, threatened attack, suspension or revocation by a competent authority except, in each case, to the extent that any lack of effect, non-compliance or attack, suspension or revocation of a Licence would not have or not be reasonably likely to have a Material Adverse Effect.
(c)    All the Necessary Authorisations are in full force and effect, each member of the Borrower Group is in compliance in all material respects with all provisions thereof and the Necessary Authorisations are not the subject of any pending or, to the best of its knowledge, threatened attack or revocation by any competent authority except, in each case, to the extent that any lack of effect, non-compliance or attack or revocation of a Necessary Authorisation would not have or be reasonably likely to have a Material Adverse Effect.
4.    GUARANTEE AND SECURITY
With effect from the Effective Time, the Obligors’ Agent for itself and on behalf of each Obligor:
(a)    confirms its and each other Obligor’s acceptance of the Credit Agreement as amended by Clause 2 (Amendment and Restatement of the Credit Agreement);
(b)    agrees that it and each other Obligor is bound as an Obligor by the terms of the Credit Agreement as amended by Clause 2 (Amendment and Restatement of the Credit Agreement); and
(c)    confirms and accepts that any Security Interest, guarantee or indemnity created or given by it and any other Obligor under a Finance Document will:
(i)    continue in full force and effect on the terms of the respective Finance Documents (including the Credit Agreement as amended by Clause 2 (Amendment and Restatement of the Credit Agreement)); and
(ii)    extend to the liabilities and obligations of the Obligors under and on the terms of the Finance Documents (including the Credit Agreement as amended by Clause 2 (Amendment and Restatement of the Credit Agreement)),
in each case, subject to any applicable guarantee limitations set out in any relevant Finance Document.
5.    FEES
The parties to this Deed confirm that any unpaid and accrued commitment fees payable to the Upsizing Revolving Facility Lenders (in their capacity as Revolving Facility Lenders under the Sunrise Facilities Agreement) pursuant to Clause 23.2 (Revolving Facility Commitment Fee) of the Sunrise Facilities Agreement accrued prior to the 2021 Amendment Effective Date (as defined in the Amended Credit Agreement) shall be payable by UPC Broadband to the Upsizing Revolving Facility Lenders on the date of (and in addition to) the first payment of commitment fees for the Revolving Facility following the 2021 Amendment Effective Date pursuant to Clause 23.2 (Revolving Facility Commitment Fee) of the Amended Credit Agreement.
6.    MISCELLANEOUS
(a)    Each of this Deed and the Amended Credit Agreement is a Finance Document.
(b)    No part of this Deed is intended to or will create any registerable Security.
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(c)    Subject to the terms of this Deed:
(i)    the Credit Agreement will remain in full force and effect and on and from the Effective Time, the Credit Agreement and this Deed will be read and construed as one document; and
(ii)    except as otherwise provided in this Deed, the Finance Documents remain in full force and effect.
(d)    Unless expressly provided to the contrary in this Deed, no person may enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
(e)    The provisions of clauses 34 (Counterparts) and 37 (Jurisdiction) of the Credit Agreement apply to this Deed as though they were set out in full in this Deed except that references to the Credit Agreement are to be construed as references to this Deed.
7.    GOVERNING LAW
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
THIS DEED has been entered into as a deed on the date stated at the beginning of this Deed.

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SCHEDULE 1
CONDITIONS PRECEDENT
1.    Constitutional Documents
(a)    A copy of the articles of association and certificate of incorporation of the Obligors’ Agent and each Security Grantor or, if the Facility Agent already has a copy, a certificate of an authorised signatory of the Obligors’ Agent confirming that the copy in the Facility Agent’s possession is still correct, complete and in full force and effect as at the date of this Deed.
(b)    An extract of the registration in the trade register of the Dutch Chamber of Commerce of the Obligors’ Agent and each Security Grantor established in The Netherlands.
2.    Authorisations
(a)    A copy of a resolution of the managing or supervisory board of directors (or equivalent) and, to the extent that a shareholders’ resolution is required under the constitutional documents of any Obligor and any Security Grantor established in the Netherlands, a copy of the shareholders’ resolution of each Obligor and each such Security Grantor:
(i)    approving the terms of and the transactions contemplated by this Deed 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 Intercreditor Agreement)) resolving that it execute the confirmation described at paragraph 4 below; and
(ii)    (in the case of UPC Broadband) authorising the issuance of a power of attorney to a specified person or persons to execute this Deed on its behalf and (in the case of the Guarantors and the Charging Entities (as defined in the Intercreditor Agreement)) authorising the issuance of a power of attorney to a specified person or persons to execute the confirmation described in paragraph 4 below.
(b)    A specimen of the signature of each person authorised pursuant to the power of attorney granted purusuant to the resolutions referred to in paragraph (a) above to sign this Deed or the confirmation described in paragraph 4 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 Deed.
(d)    Evidence that all of the requirements of Section 25 of the Netherlands Works Council Act (Wet op de Ondernemingsraden) in connection with the transactions contemplated by this Deed have been complied with by the Obligors’ Agent and each Security Grantor established in The Netherlands, that is subject to the jurisdiction of a works council.
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.
4.    Other documents
(a)    Confirmation (in writing) from (i) each of the Guarantors that its obligations under Clause 17 (Guarantee) of the Credit Agreement and (ii) each of the Charging Entities (as defined in the Intercreditor Agreement) 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 this Deed and that such obligations shall be owed to each Finance Party including the Upsizing Revolving Facility Lenders.
(b)    Notice of cancellation and prepayment in respect of all facilities under the Sunrise Facilities Agreement.
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SCHEDULE 2
AMENDED CREDIT AGREEMENT

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SENIOR SECURED CREDIT FACILITY AGREEMENT
Dated 16th January 2004 as amended and restated pursuant to a Deed of Amendment and Restatement dated 12 April 2021


for
UPC BROADBAND HOLDING B.V.
as Borrower
with
THE BANK OF NOVA SCOTIA
acting as Facility Agent
image_01.jpg




TABLE OF CONTENTS
Page
1.
DEFINITIONS AND INTERPRETATIONS
1
2.
THE FACILITIES
61
3.
PURPOSE
67
4.
CONDITIONS PRECEDENT
68
5.
UTILISATIONS
69
6.DOCUMENTARY CREDITS
70
7.
ANCILLARY FACILITIES
75
8.OPTIONAL CURRENCIES
80
9.
REPAYMENT
81
10.
CANCELLATION AND PREPAYMENT
82
11.
INTEREST
90
12.
PAYMENTS
91
13.
TAX GROSS-UP AND INDEMNITIES
94
14.MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
98
15.
INCREASED COSTS
101
16.
ILLEGALITY AND MITIGATION
103
17.
GUARANTEE
104
18.
REPRESENTATIONS AND WARRANTIES
106
19.
UNDERTAKINGS
110
20.
FINANCIAL COVENANT
142
21.
DEFAULT
148
22.FACILITY AGENT, SECURITY AGENT, LENDERS AND L/C BANKS
155
23.
FEES
159
24.
EXPENSES
160
25.
INDEMNITIES
161
26.
EVIDENCE AND CALCULATIONS
162
27.
AMENDMENTS AND WAIVERS
162
28.
CHANGES TO THE PARTIES
167
29.
DISCLOSURE OF INFORMATION
175
30.
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
176
31.
SET-OFF
177
32.
PRO RATA SHARING
177
33.
SEVERABILITY
179
34.
COUNTERPARTS
180
35.
NOTICES
180
36.
LANGUAGE
182
37.
JURISDICTION
182
38.
WAIVER OF IMMUNITY
183
39.
WAIVER OF TRIAL BY JURY
183
40.
GOVERNING LAW
183

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TABLE OF CONTENTS
Page
SCHEDULE 1 ORIGINAL PARTIES
184
Part 1: 2021 Amendment Effective Date Guarantors
184
Part 2: Initial Revolving Facility Lenders (as at the 2021 Amendment Effective Date)
185
SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS
186
Part 1: To be Delivered before the First Advance
186
Part 2: To be Delivered by an Additional Obligor
188
SCHEDULE 3 FORM OF REQUEST AND CANCELLATION NOTICE
191
Part 1: Form of Request (Advances)
191
Part 2: Form of Cancellation and/or Prepayment Notice
192
Part 3: Form Of Request (Documentary Credits)
193
SCHEDULE 4 FORMS OF ACCESSION DOCUMENTS
194
Part 1: Novation Certificate
194
Part 2: Transfer Agreement
196
Part 3: Obligor Accession Agreement
202
Part 4: Additional Facility Accession Agreement
203
SCHEDULE 5 SECURITY DOCUMENTS
206
SCHEDULE 6 FORM OF L/C BANK ACCESSION CERTIFICATE
208
SCHEDULE 7 FORM OF DOCUMENTARY CREDIT
209
SCHEDULE 8 FORM OF INCREASE CONFIRMATION
212
SCHEDULE 9 FORM OF DESIGNATED ENTITY ACCESSION AGREEMENT
214
SCHEDULE 10 TIMETABLE
215
SCHEDULE 11 AGREED SECURITY PRINCIPLES
216

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THIS AGREEMENT originally dated 16 January 2004 as amended and restated by an amendment agreement dated 24 June 2004 and as amended by amendment letters dated 22 July 2004 and 2 December 2004, subsequently amended and restated on 7 March 2005 and amended by an amendment letter dated 15 December 2005, amended and restated on 10 May 2006, further amended pursuant to amendment letters dated 11 December 2006, 16 April 2007, 30 April 2009, 9 June 2009 and 15 October 2013, and as further amended and restated on 9 February 2016, on 19 December 2016, on 29 November 2017, on 23 April 2020 and on the 2021 Amendment Effective Date.
BETWEEN:
(1)    UPC BROADBAND HOLDING B.V. (previously called UPC Distribution Holding B.V.) (“UPC Broadband”);
(2)    THE COMPANIES that were identified as guarantors under this Agreement as at the Signing Date (the “Original Guarantors”);
(3)    CERTAIN FINANCE INSTITUTIONS as Lenders as defined herein;
(4)    THE BANK OF NOVA SCOTIA as facility agent (in this capacity, the “Facility Agent”); and
(5)    THE BANK OF NOVA SCOTIA as security agent for the Finance Parties (in this capacity, the “Security Agent”).
IT IS AGREED as follows:
1.    DEFINITIONS AND INTERPRETATIONS
1.1    Definitions
In this Agreement:
1934 Act” has the meaning given to such term in Clause 19.2 (Financial information).
2006 Amendment Effective Date” means 10 May 2006.
2016 First Amendment Effective Date” means 9 February 2016.
2016 First Amendment Effective Date Lender” means each Initial Additional Facility Lender which had Commitments outstanding as at the 2016 First Amendment Effective Date.
2016 ICA Amendment Effective Date” means the first date on which the Intercreditor Agreement is amended as contemplated under paragraph (a) of the definition of Intercreditor Agreement.
2016 Second Amendment Effective Date” means 19 December 2016.
2017 First Amendment Effective Date” means the Effective Time as defined in the Deed of Amendment and Restatement dated 29 November 2017 between (among others), UPC Broadband and the Facility Agent.
2020 Amendment Effective Date” means 23 April 2020.
2021 Amendment Effective Date” means the Effective Time as defined in the 2021 Supplemental Deed.
2021 Amendment Effective Date Guarantor” means each Guarantor listed in Part 1 of Schedule 1 (Original Parties).
2021 Supplemental Deed” means the Deed of Amendment and Restatement dated 12 April 2021 between (among others) UPC Broadband and the Facility Agent.
80% Security Test” means the requirement that, save as otherwise provided in Clause 28.8 (Additional Obligors) and subject to the Agreed Security Principles:
(a)    the value of the aggregate EBITDA of:
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(i)    the Guarantors as of the Effective Date (other than UPC Broadband, UPC Broadband Holdco, UPC Holding, UPC Holding II and any Subsidiary of UPC Broadband that is a Holding Company of all other Subsidiaries of UPC Broadband) and their respective Subsidiaries (as calculated by reference to the relevant financial statements most recently provided under Clause 19.2(a)(i) or 19.2(a)(ii) (Financial information)); and
(ii)    any Additional Guarantors which have become Guarantors since the Effective Date and their respective Subsidiaries (as calculated by reference to the relevant financial statements most recently provided under Clause 19.2(a)(i) or 19.2(a)(ii) (Financial information) or, if no such financial statements have been provided in respect of such Additional Guarantors, as calculated by reference to the financial statements referred to in paragraph 11 of Part 2 of Schedule 2 (Conditions Precedent Documents) provided under Clause 28.8(a)(v) (Additional Obligors) in respect of each Additional Guarantor),
is equal to or greater than 80 per cent. of the Borrower Group’s consolidated EBITDA (as calculated by reference to the relevant financial statements most recently provided under Clause 19.2(a)(i) or 19.2(a)(ii) (Financial Information) but, for the avoidance of doubt, deducting any corporate costs or allocations paid or payable by a member of the Borrower Group to one of its Affiliates pursuant to any general services arrangement); and
(b)    the Guarantors have granted Security, or procured the granting of Security:
(i)    prior to the Asset Security Release Date, pursuant to the documents listed in Part 2 of Schedule 2 (Condition Precedent Documents); and
(ii)    on or after the Asset Security Release Date, pursuant to the Security Documents over:
(A)    all of the shares in the Obligors held by any member of the Borrower Group or any Obligor; and
(B)    all of the rights of the relevant creditors in relation to Subordinated Shareholder Loans; and
(C)    Security over loans made by any Obligor to any other member of the Borrower Group,
and provided that to the extent any Guarantor or any of its Subsidiaries generates negative earnings before interest, tax, depreciation and amortisation, such Guarantor or Subsidiary shall be deemed for the purposes of calculating the 80% Security Test numerator to have zero earnings before interest, tax, depreciation and amortization, and provided further that in respect of any member of the Borrower Group that is not required to (or cannot) become a Guarantor and grant Security (or procure the granting of Security) due to the provisions of the Agreed Security Principles, the EBITDA of such member of the Borrower Group and its Subsidiaries shall be disregarded for the purposes of calculating the 80% Security Test numerator and denominator, and such requirements shall at all times be subject to any grace period under this Agreement.
Acceleration Date” means the date on which a written notice has been served under Clause 21.18 (Acceleration).
Acceptable Bank” means:
(a)    a bank or financial institution which has a rating for its long-term unsecured and non credit enhanced debt obligations of BBB+ or higher by Standard & Poor’s or Fitch or Baal or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency; or
(b)    any other bank or financial institution approved by the Facility Agent (in consultation with UPC Broadband).
Acceptable Joint Venture” means a joint venture, partnership or similar arrangement formed by a member of the Borrower Group:
(a)    by the contribution of some or all of the assets of the Borrower Group pursuant to a Business Division Transaction to such joint venture, partnership or similar arrangement with one or more persons; and/or
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(b)    for the purposes of network and/or infrastructure sharing with one or more Joint Ventures.
Accounting Period” in relation to any person means any period of approximately three months or one year, as the context requires, for which accounts of such person are required to be delivered pursuant to this Agreement.
Acquisition” means the acquisition, whether by one or a series of transactions, (including, without limitation, by purchase, subscription or otherwise) of all or any part of the share capital or equivalent of any person (including, without limitation, any partnership or joint venture) or any asset or assets of any person (including, without limitation, any partnership or joint venture) constituting a business or separate line of business of that person.
Acquisition Cost” means, in relation to an Acquisition, the value of the consideration for that Acquisition at the time of completion of the Acquisition and for this purpose:
(a)    the value at the time of completion of the Acquisition of any consideration to be paid or delivered after the time of completion of the Acquisition will be determined in accordance with the Relevant Accounting Principles;
(b)    if the person acquired becomes a member of the Borrower Group as a result of the Acquisition, the aggregate principal amount of Financial Indebtedness of any person acquired outstanding at the time of completion of the Acquisition (including without limitation any Lending Transaction made by a member of the Borrower Group in connection with the relevant Acquisition) will be counted as part of the consideration for that Acquisition;
(c)    if the person acquired does not become a member of the Borrower Group as a result of the Acquisition, the aggregate principal amount of Financial Indebtedness of the person acquired at the time of completion of the Acquisition will be counted as part of the consideration for that Acquisition to the extent of the aggregate principal amount of the payment and repayment obligations in respect of such Financial Indebtedness assumed or guaranteed by any member of the Borrower Group; and
(d)    subject to paragraphs (a), (b) and (c) above, the value at the time of completion of the Acquisition of any non-cash consideration will be determined in accordance with the Relevant Accounting Principles,
expressed in Euros, if required, using the Agent’s Spot Rate of Exchange on the date of completion of the Acquisition.
Act” means the Companies Act 2006 (as amended).
Additional Borrower” means a member of the Borrower Group (including, without limitation, any Permitted Affiliate Parent) which becomes an Additional Borrower in accordance with Clause 28.8 (Additional Obligors).
Additional Currency” means any currency that is the lawful currency for the time being of a country in which a member of the Borrower Group is incorporated and/or carries out its Business.
Additional Facilities Cap” has the meaning given to such term in Clause 2.3(g) (Additional Facilities).
Additional Facility” has the meaning given to such term in Clause 2.3(d) (Additional Facilities) and “Additional Facilities” means all or any such Additional Facilities.
Additional Facility Accession Agreement” means a deed in the form of Part 4 of Schedule 4 (Forms of Accession Documents), with such amendments as may be agreed between UPC Broadband and the relevant Lender or Lenders under the proposed Additional Facility.
Additional Facility Availability Period” means, in relation to an Additional Facility, the availability period specified in the Additional Facility Accession Agreement for that Additional Facility.
Additional Facility Commitment” means in relation to:
(a)    an Initial Additional Facility Lender, the amount in Euros, US Dollars or the relevant Additional Currency set out as the Additional Facility Commitment of that Lender in the relevant Additional Facility Accession Agreement and the amount of any other Additional Facility Commitment transferred to it or assumed by it under this Agreement; and
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(b)    any other Lender, the amount in Euros, US Dollars or the relevant Additional Currency (as applicable) transferred to it or assumed by it in accordance with this Agreement,
in each case, to the extent not cancelled, reduced or transferred by it in accordance with this Agreement.
Additional Guarantor” means:
(a)    any member of the Borrower Group (including, without limitation, any Permitted Affiliate Parent);
(b)    UPC Broadband Holdco (other than UPC Holding);
(c)    any Permitted Affiliate Holdco;
(d)    any Affiliate Subsidiary; and
(e)    any Subsidiary of UPC Broadband Holdco or any Permitted Affiliate Holdco which is permitted to issue, and has issued, Holdco Debt,
which in each case becomes an Additional Guarantor in accordance with Clause 28.8 (Additional Obligors).
Additional Obligor” means an Additional Borrower or an Additional Guarantor.
Additional Revolving Facility” means an Additional Facility which is a revolving loan facility.
Advance” means:
(a)    when designated “Additional Facility”, an advance made or to be made to a Borrower under an Additional Facility (but excluding for the purposes of this definition, any utilisation of an Additional Facility by way of an Ancillary Facility or a Documentary Credit);
(b)    when designated “Revolving Facility”, an advance made or to be made under the Revolving Facility (but excluding for the purposes of this definition, any utilisation of the Revolving Facility by way of an Ancillary Facility or a Documentary Credit); or
(c)    without any such designation, an advance made or to be made to a Borrower under an Additional Facility or the Revolving Facility, as the context requires,
in each case, as from time to time reduced by repayment or prepayment.
Affected Documentary Credit” has the meaning given to such term in Clause 16.2 (Illegality in Relation to an L/C Bank).
Affiliate” means a Subsidiary or a Holding Company of a person or any other Subsidiary of that Holding Company provided that in relation to any clause, reference or provision that uses such term:
(a)    an Affiliate of UPC Broadband that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuances under a Facility and to a Borrower under this Agreement and which acts in accordance with the terms of any indentures or other documents governing such issuances (a “Designated Notes Issuer”) shall not be an Affiliate of UPC Broadband or any of its Affiliates; and
(b)    a Designated Notes Issuer shall be deemed not to be managed by, or under the control of, UPC Broadband or any of its Affiliates.
Affiliate Subsidiary” means any Proposed Affiliate Subsidiary which accedes to this Agreement as a Guarantor in accordance with Clause 28.8 (Additional Obligors), provided that such Affiliate Subsidiary has not been released from its rights and obligations as a Guarantor hereunder pursuant to Clause 27.4 (Release of Guarantees and Security).
Agent” means the Facility Agent or the Security Agent (or both of them), as the context requires.
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Agent’s Spot Rate of Exchange” means, in relation to two currencies, the Facility Agent’s spot rate of exchange for the purchase of the first-mentioned currency with the second-mentioned currency in the London foreign exchange market at or about 11.00 a.m. on a particular day.

Agreed Security Principles” means the security principles set out in Schedule 11 (Agreed Security Principles).

All3Media Intercreditor Agreement” means the intercreditor agreement originally dated 28 September 2006 between, among others, The Royal Bank of Scotland plc as Senior Agent and Security Agent and All3Media Capital Limited, All3Media Intermediate Limited and All3Media Finance Limited as Effective Date Debtors.
Alternative Benchmark Commencement Date” means any Business Day on which the Facility Agent and UPC Broadband agree upon an Alternative Benchmark Rate.
Alternative Benchmark Rate” means any alternative benchmark rate agreed in writing between the Facility Agent (acting in its sole discretion and, for the avoidance of doubt, without any requirement to consult with or seek any consent or instruction from the Lenders or any other Finance Party) and UPC Broadband (in each case, acting reasonably) from time to time provided that the Facility Agent and UPC Broadband shall consider the benchmark rates being used at that time in the then prevailing market for syndicated debt financings of a similar size to, and in the same currencies as, the Facilities.
Alternative Reference Banks” means the principal London offices of such banks as may be appointed by the Facility Agent with the consent of UPC Broadband.
Alternative Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Alternative Reference Banks:
(a)    in relation to LIBOR:
(i)    (other than where paragraph (ii) below applies) as the rate at which the relevant Alternative Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
(ii)    if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(b)    in relation to EURIBOR:
(i)    (other than where paragraph (ii) below applies) as the rate at which the relevant Alternative Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in Euro within the Participating Member States for the relevant period; or
(ii)    if different, as the rate (if any and applied to the relevant Alternative Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
Amendment Agreement” means the agreement dated on or around 24 June 2004 between UPC Broadband, the Guarantors as at the date thereof, the Facility Agent and the Security Agent, pursuant to which this Agreement was amended.
Ancillary Facilities Effective Date” has the meaning given to such term in Clause 7.1(a) (Utilisation of Ancillary Facilities).
Ancillary Facility” means any:
(a)    overdraft, automated payment, cheque drawing or other current account facility;
(b)    forward foreign exchange facility;
(c)    derivatives facility;
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(d)    short term loan facility;
(e)    guarantee, bond issuance, documentary or stand-by letter of credit facility;
(f)    performance bond facility; and/or
(g)    such other facility or financial accommodation as may be required in connection with the Business of the Borrower Group and which is agreed in writing between the relevant Borrower and the relevant Ancillary Facility Lender.
Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, and save as otherwise provided in this Agreement, the maximum Euro Amount to be made available under that Ancillary Facility granted by it, to the extent not cancelled or reduced or transferred pursuant to the terms of such Ancillary Facility or under this Agreement.
Ancillary Facility Documents” means the documents and other instruments pursuant to which an Ancillary Facility is made available and the Ancillary Facility Outstandings under it are evidenced.
Ancillary Facility Lender” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities).
Ancillary Facility Outstandings” means (without double counting), at any time with respect to an Ancillary Facility Lender and each Ancillary Facility provided by it, the aggregate of:
(a)    all amounts of principal then outstanding under any overdraft, automated payment, cheque drawing, other current account facility or short term loan facility (determined in accordance with the applicable terms) as at such time (net of any Available Credit Balance); and
(b)    in respect of any other facility or financial accommodation, such other amount as fairly represents the aggregate potential exposure of that Ancillary Facility Lender with respect to it under its Ancillary Facility, as reasonably determined by that Ancillary Facility Lender from time to time in accordance with its usual banking practices for facilities or accommodation of the relevant type (including without limitation, the calculation of exposure under any derivatives facility by reference to the mark-to-market valuation of such transaction at the relevant time).
Ancillary Facility Termination Date” has the meaning given to such term in Clause 7.1(g) (Ancillary Facilities).
Annualised EBITDA” has the meaning given to such term in Clause 20.1 (Financial definitions).
Anti-Terrorism Law” means each of:
(a)    Executive Order No. 13224 on Terrorist Financing - Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (issued 23 September 2001, as amended by Order 13268 (as so amended, the “Executive Order”));
(b)    the Patriot Act;
(c)    the Money Laundering Control Act of 1986 18 U.S.C, section 1956; and
(d)    any updates or replacements to the laws listed above in paragraphs (a) to (c) which are enacted in the United States subsequent to the Signing Date.
Approved Stock Options” means any options, warrants, rights to purchase or other equivalents (however designated) issued or granted by a member of the Borrower Group to any former, present or future officers, consultants, directors and/or employees of any member of the Borrower Group or its Associated Companies to subscribe for share capital or similar rights of ownership in that member of the Borrower Group provided that the maximum aggregate amount of such options, warrants, rights to purchase or other equivalents (however designated) shall not exceed (a) 8 per cent. of its issued share capital, in the case of any person which was a Subsidiary of UPC Central Europe Holding B.V. prior to the date on which UPC Central Europe Holding B.V. was merged into UPC Broadband (provided that the aggregate amount of such options, warrants, rights to
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purchase or other equivalents issued by such Subsidiaries does not exceed 8 per cent. of the issued share capital of each such Subsidiary) and (b) 7.5 per cent. of its issued share capital or similar rights of ownership, in the case of each other member of the Borrower Group.
Asset Passthrough” means a series of transactions between a Borrower Holdco, one or more members of the Borrower Group and an Asset Transferring Party where:
(a)    in the case of an asset being transferred by a Borrower Holdco to the Asset Transferring Party, that asset:
(i)    is first transferred by that Borrower Holdco to a member of the Borrower Group; and
(ii)    may then be transferred between various members of the Borrower Group, and is finally transferred (insofar as such transaction relates to the Borrower Group) to an Asset Transferring Party; or
(b)    in the case of an asset being transferred by an Asset Transferring Party to a Borrower Holdco, that asset:
(i)    is first transferred by that Asset Transferring Party to a member of the Borrower Group; and
(ii)    may then be transferred between various members of the Borrower Group, and is finally transferred (insofar as such transaction relates to the Borrower Group) to a Borrower Holdco,
and where the purpose of each such asset transfer is, in the case of an Asset Passthrough of the type described in paragraph (a) above, to enable a Borrower Holdco to indirectly transfer assets (other than cash) to that Asset Transferring Party and, in the case of an Asset Passthrough of the type described in paragraph (b) above, is to enable an Asset Transferring Party to indirectly transfer assets (other than cash) to a Borrower Holdco, in either case, by way of transfers of those assets to and from (and, if necessary, between) one or more members of the Borrower Group in such a manner as to be neutral to the Borrower Group taken as a whole provided that:
(i)    the consideration payable (if any) by the first member of the Borrower Group to acquire such assets comprises either (i) cash funded or to be funded directly or indirectly by a payment from (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party and (in the case of an Asset Passthrough of the type described in paragraph (b) above) that Borrower Holdco, in either case, in connection with that series of transactions, (ii) Subordinated Shareholder Loans or (iii) the issue of one or more securities;
(ii)    the consideration payable by (in the case of an Asset Passthrough of the type described in paragraph (a) above) the Asset Transferring Party is equal to the consideration received or receivable by that Borrower Holdco and (in the case of an Asset Passthrough of the type described in paragraph (b) above) by that Borrower Holdco is equal to the consideration received or receivable by the Asset Transferring Party (and for this purpose, a security issued by one person shall constitute equal consideration to a security issued by another person where such securities have been issued on substantially the same terms and subject to the same conditions);
(iii)    all of the transactions comprising such a series of transactions (from and including the transfer of the assets by that Borrower Holdco to and including the acquisition of those assets by the Asset Transferring Party or vice versa) are completed within two Business Days; and
(iv)    upon completion of all of the transactions comprising such a series of transactions, no person (other than another member of the Borrower Group) has any recourse to any member of the Borrower Group and no member of the Borrower Group which is not an Obligor may have any recourse to an Obligor, in each case in relation to such a series of transactions (other than in respect of (A) the Subordinated Shareholder Loans or any rights and obligations under the securities, in each case, mentioned in sub-paragraph (i) above and (B) covenants as to title provided, in the case of an Asset Passthrough of the type described in paragraph (a) above, in favour of the Asset Transferring Party on the same terms as such covenants were provided by that Borrower Holdco in respect of the relevant assets and, in the case of an Asset Passthrough of the type described in paragraph (b) above, in favour of that Borrower Holdco on the same terms as such covenants were provided by the Asset Transferring Party in respect of the relevant assets).
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Asset Securitisation Subsidiary” means any Subsidiary of UPC Broadband or any Subsidiary of any other member of the Borrower Group (including, without limitation, any Subsidiary of any Permitted Affiliate Parent), as applicable, engaged solely in the business of effecting or facilitating any asset securitisation programme or programmes or one or more receivables factoring transactions.
Asset Security Release Date” means the date on which the Security (other than any Security referred to in paragraph (b)(ii) of the definition of “80% Security Test” and any Security provided over any account in connection with a Borrower providing cash cover for a Documentary Credit or an Ancillary Facility pursuant to Clause 6.9(a) (Cash Cover by Borrower) and Clause 1.2(a)(iv) (Construction)) is released in accordance with Clause 19.28 (Asset Security Release).
Asset Transferring Party” means the member of the Wider Group (or any person in which a member of the Borrower Group owns an interest but which is not a member of the Wider Group) who is the initial transferor or final transferee in respect of a transfer to or from a Borrower Holdco, as the case may be, through one or more members of the Borrower Group.
Associated Company” of a person means:
(a)    any other person which is directly or indirectly Controlled by, under common Control with or Controlling such person; or
(b)    any other person owning beneficially and/or legally directly or indirectly 10 per cent. or more of the equity interest in such person or 10 per cent. of whose equity is owned beneficially and/or legally directly or indirectly by such person.
Auditors” means KPMG or any other firm appointed by UPC Broadband to act as its auditors from time to time.
Availability Period” means:
(a)    in respect of an Additional Facility, its Additional Facility Availability Period; and
(b)    in respect of the Revolving Facility, the period from and including the 2020 Amendment Effective Date up to and including the date falling one month prior to the Final Maturity Date in relation to the Revolving Facility.
Available Additional Facility Commitment” means, in relation to a Lender and an Additional Facility granted by it, at any time and save as otherwise provided in this Agreement, its Additional Facility Commitment in relation to that Additional Facility at such time less the Euro Amount of its share of the Utilisations made under that Additional Facility, adjusted to take account of:
(a)    any cancellation or reduction of, or any transfer by such Lender or any transfer to it of or any increase assumed by it of, any Additional Facility Commitment in relation to that Additional Facility, in each case, pursuant to the terms of this Agreement; and
(b)    in the case of any proposed Utilisation, the Euro Amount of its share of (i) any Utilisation under that Additional Facility which pursuant to any other Request is to be made, or as the case may be, issued under that Additional Facility, and (ii) in relation to an Additional Facility which is an Additional Revolving Facility, any Utilisation in respect of that Additional Facility which is due to be repaid, prepaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,
provided always that such amount shall not be less than zero.
Available Ancillary Facility Commitment” means, in relation to an Ancillary Facility Lender and an Ancillary Facility granted by it at any time, and save as otherwise provided in this Agreement or in the applicable Ancillary Facility Documents, its Ancillary Facility Commitment in relation to that Ancillary Facility at such time, less the Euro Amount of the relevant Ancillary Facility Outstandings at such time, provided always that such amount shall not be less than zero.
Available Commitment” means, in relation to a Lender, the aggregate amount of its Available Additional Facility Commitments, its Available Revolving Facility Commitments and its Available Ancillary Facility Commitments, or, in the context of a particular Facility, its Available Additional Facility Commitments, its
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Available Revolving Facility Commitments or its Available Ancillary Facility Commitments, in respect of that Facility, as the context may require.
Available Credit Balance” means, in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Facility Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Facility Lender against liabilities owed to it by that Borrower under that Ancillary Facility.
Available Facility” means, in relation to a Facility, at any time, the aggregate amount of the Available Commitments in respect of that Facility at that time.
Available Revolving Facility” means, in relation to the Revolving Facility, at any time, the aggregate amount of the Available Revolving Facility Commitments in respect of the Revolving Facility at that time.
Available Revolving Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its Revolving Facility Commitment at such time, less the Euro Amount of its share of the Revolving Facility Outstandings, adjusted to take account of:
(a)    any cancellation or reduction of, or any transfer by such Lender or any transfer to it of, or any increase assumed by it of, any Revolving Facility Commitment, in each case, pursuant to the terms of this Agreement; and
(b)    in the case of any proposed Utilisation, the Euro Amount of its share of (i) any Revolving Facility Advance and/or Documentary Credit which pursuant to any other Request is to be made or, as the case may be, issued under the Revolving Facility and (ii) any Revolving Facility Advance and/or Documentary Credit issued under the Revolving Facility which is due to be repaid, prepaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,
provided always that such amount shall not be less than zero.
Bail-In Action” means the exercise of any Write-down and Conversion Powers.
Bail-In Legislation” means:
(a)    in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law as described in the EU Bail-In Legislation Schedule from time to time;
(b)    in relation to the United Kingdom (if a Withdrawal Event is effected by the United Kingdom), Part I of the UK Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); and
(c)    in relation to any other state, any analogous law from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law.
Bank Levy” means the bank levy which is imposed (i) under section 73 of, and schedule 19 to, the Finance Act 2011 (the “UK Bank Levy”), (ii) the Dutch bankenbelasting as set out in the Dutch bank levy act (Wet bankenbelasting), (iii) the German bank levy as set out in the German Restructuring Fund Act 2010 (Gesetz zur Errichtung eines Restrukturierungsfonds für Kreditinstitute) (as amended) and (iv) any levy or Tax of an equivalent nature imposed in any jurisdiction in a similar context or for a similar reason to that in and/or which the UK Bank Levy has been imposed by reference to the equity and liability of a financial institution or other person carrying out financial transactions.
Basel II” has the meaning given to such term in Clause 15.3(a)(iii) (Exceptions).
Beneficiaries” has the meaning given to such term in the Intercreditor Agreement.
BEPS Action 6” means Action 6 of the Base Erosion and Profit Shifting Action Plan as set out in the Final Report published by the Organisation for Economic and Corporate Development on 5 October 2015.
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Borrower” means UPC Broadband and any Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 29.2 (Transfers by Obligors) and, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Ancillary Facility Lender pursuant to Clause 7.7 (Affiliates of Borrowers).
Borrower Group” means:
(a)    UPC Broadband and any Permitted Affiliate Parent and each of their direct and indirect Subsidiaries from time to time other than the Borrower Group Excluded Subsidiaries;
(b)    UPC Financing; and
(c)    any Affiliate Subsidiary,
provided that at any time after a Group Redesignation Notice has been delivered to the Facility Agent in accordance with Clause 19.32 (Group Redesignation), the “Borrower Group” shall also include each New Group Topco and its Subsidiaries, other than Borrower Group Excluded Subsidiaries.
Borrower Group Excluded Subsidiary” means:
(a)    any Subsidiary of (i) UPC Broadband, (ii) any Permitted Affiliate Parent or (iii) any New Group Topco, in each case, which is a Dormant Subsidiary and which is not a Guarantor;
(b)    any Unrestricted Subsidiary;
(c)    any Subsidiary of (i) UPC Broadband, (ii) any Permitted Affiliate Parent or (iii) any New Group Topco, in each case, which is a Project Company;
(d)    any Asset Securitisation Subsidiary;
(e)    any person which becomes a Subsidiary of UPC Broadband or a Subsidiary of any Permitted Affiliate Parent pursuant to an Asset Passthrough;
(f)    any person which becomes a Subsidiary of any New Group Topco after the 2020 Amendment Effective Date pursuant to an Asset Passthrough; and
(g)    any Subsidiary of a person that is a Borrower Group Excluded Subsidiary pursuant to any of paragraphs (a) to (f) above,
provided that any Borrower Group Excluded Subsidiary may, at the election of UPC Broadband and upon not less than 10 Business Days prior written notice to the Facility Agent, cease to be a Borrower Group Excluded Subsidiary and become a member of the Borrower Group.
Borrower Group Reconciliation” means an unaudited schedule to any financial statements of the Reporting Entity delivered in accordance with Clause 19.2 (Financial information) demonstrating the necessary adjustments that would need to be made to the financial statements of the Reporting Entity to derive financial information applicable to the Borrower Group prepared in accordance with the Relevant Accounting Principles.
Borrower Holdco” means a direct Holding Company of a member of the Borrower Group which is not a member of the Borrower Group.
Break Costs” means:
(a)    the amount (if any) by which:
(i)    the amount of interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in an Advance or Unpaid Sum to the last day of the current Interest Period in respect of that Advance or Unpaid Sum, had the principal amount of that Advance or Unpaid Sum received been paid on the last day of that Interest Period,
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exceeds:
(ii)    the amount of interest which that Lender would be able to obtain by placing an amount equal to the principal amount of such Advance or Unpaid Sum received or recovered by it on deposit with a leading bank in the London interbank market for a period starting on the Business Day following such receipt or recovery and ending on the last day of the current Interest Period; or
(b)    for the purposes of Clause 10.9(a) (Miscellaneous Provisions), the loss suffered by any Lender as a result of having to unwind any funding contract for reinvestment of proceeds which it had entered into or initiated upon receipt of the notice of prepayment and/or cancellation referred to in Clause 10.9(a) (Miscellaneous Provisions).
Business” means:
(a)    any business that consists of the upgrade, construction, creation, development, marketing, acquisition (to the extent permitted under this Agreement), operation, utilisation and maintenance of networks that use existing or future technology for the transmission, reception and delivery of voice, video and/or other data (including networks that transmit, receive and/or deliver services such as multi-channel television and radio, programming, telephony, Internet services and content, high speed data transmission, video, multi-media and related activities);
(b)    any business that consists of the provision, creation, distribution and broadcasting of Content;
(c)    any business that comprises being a Holding Company of one or more persons engaged in any business referred to in paragraphs (a), (b) and (d) of this definition; and
(d)    any business or provision of services substantially the same or similar to that of any member of the Wider Group on the 2016 First Amendment Effective Date,
and any related ancillary or complementary business to any of the services described above and references to “business” or “ordinary course of business” shall be similarly construed.
Business Day” means:
(a)    a day (other than a Saturday or Sunday) on which banks are open for general business in:
(i)    London and Amsterdam;
(ii)    in relation to a transaction involving US Dollars, New York; and
(iii)    in relation to a transaction involving an Additional Currency or an Optional Currency (other than Euros or US Dollars), the principal financial centre of the country of that currency; and
(b)    in relation to a Quotation Date or a payment date for Euros, a TARGET Day.
Business Division Transaction” means any sale, transfer, demerger, partial demerger, contribution, spin off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Borrower Group which comprise all or part of any business division (or its predecessors or successors), to or with any person, whether or not within the Borrower Group.
Cancellation Notice means a notice of cancellation and/or prepayment substantially in the form of Part 2 of Schedule 3 (Form of Cancellation and/or Prepayment Notice).
Capital Expenditure” means any expenditure which is or will be treated as a capital expenditure in the audited consolidated financial statements of the Borrower Group in accordance with the Relevant Accounting Principles.
Cash” means, at any time, without double counting:
(a)    all Cash Equivalent Investments; and
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(b)    cash (in cleared balances) denominated in Euro (or any other currency freely convertible into Euro) and credited to an account in the name of a member of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt (as applicable) with an Acceptable Bank and to which such a member of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt (as applicable) is alone (or, in the case of a member of the Borrower Group, together with other members of the Borrower Group) beneficially entitled and for so long as:
(i)    such cash is repayable on demand (including any cash held on time deposit which is capable of being broken and the balance received within two Business Days of notice provided that any such cash shall only be taken into account net of any penalties or costs which would be incurred in breaking the relevant time deposit); or
(ii)    such cash has been deposited with an Acceptable Bank as security for any performance bond, guarantee, standby letter of credit or similar facility the contingent liabilities relating to such having been included in the calculation of Senior Net Debt or Total Net Debt (as applicable),
and, in any such case:
(A)    repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt (as applicable) or of any other person whatsoever or on the satisfaction of any other condition;
(B)    there is no encumbrance over that cash except for the Security or any encumbrance constituted by a netting or set-off arrangement entered into by members of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt (as applicable) in the ordinary course of their banking arrangements and any Security Interest granted in connection with such banking arrangements; and
(C)    the cash is freely and (except as mentioned in paragraph (ii) above) immediately available to be applied in repayment or prepayment of the Facilities or Financial Indebtedness of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt (as applicable).
Cash Equivalent Investment” means:
(a)    securities or obligations issued, insured or unconditionally guaranteed by the United States government, the government of the United Kingdom, the relevant member state of the European Union (each, a “Qualified Country”) or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof;
(b)    securities or obligations issued by any Qualified Country, or any political subdivision of any such Qualified Country, or any public instrumentality thereof, having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, then from another nationally recognised rating service);
(c)    commercial paper issued by any Lender or any bank holding company owning any Lender;
(d)    commercial paper maturing no more than 12 months after the date of acquisition thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognised rating service);
(e)    time deposits, eurodollar time deposits, bank deposits, certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank or trust company (x) having combined capital and surplus of not less than US$250.0 million in the case of US banks and US$100.0 million (or the US Dollar equivalent thereof) in the case of non-US
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banks or (y) the long-term debt of which is rated at the time of acquisition thereof at least “A-” or the equivalent thereof by Standard & Poor’s, or “A-” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another nationally recognised rating agency);
(f)    auction rate securities rated at least Aa3 by Moody’s and AA- by Standard & Poor’s (or, if at any time either Standard & Poor’s or Moody’s shall not be rating such obligations, an equivalent rating from another nationally recognised rating service);
(g)    repurchase agreements or obligations with a term of not more than 30 days for underlying securities of the types described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognised national standing;
(h)    marketable short-term money market and similar funds (x) either having assets in excess of US$250.0 million (or US Dollar equivalent thereof) or (y) having a rating of at least A-2 or P-2 from either Standard & Poor’s or Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognised rating service in the United States);
(i)    interests in investment companies or money market funds, 95% the investments of which are one or more of the types of assets or instruments described in clauses (a) through (h) above;
(j)    any other debt security approved by the Majority Lenders;
(k)    any other investments used by UPC Broadband, any Permitted Affiliate Parent or any member of the Borrower Group as temporary investments permitted by the Facility Agent in writing in its sole discretion; and
(l)    in the case of investments by UPC Broadband, any Permitted Affiliate Parent or any member of the Borrower Group organised or located in a jurisdiction other than the United States or a member state of the European Union (or any political subdivision or territory thereof), or in the case of investments made in a country outside the United States, other customarily utilised high-quality investments in the country where such member of the Borrower Group is organised or located or in which such investment is made, all as conclusively determined in good faith by UPC Broadband,
in each case to which any member of the Borrower Group, a member of the UGCE Borrower Group, UPC Holding or any other issuer of Holdco Debt is alone (or, in the case of a member of the Borrower Group, together with other members of the Borrower Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Borrower Group or subject to any Security Interest (other than Security Interests arising under the Security Documents).
Cash Flow Hedging Agreement” means transactions and arrangements entered into by any Obligor with a Hedge Counterparty directly relating to the management of currency exchange risk arising out of income denominated in a currency other than a currency in which the relevant member of the Borrower Group whose currency exchange risk is being managed receives income.
Change of Control” has the meaning given to such term in Clause 10.4 (Change of Control).
Code” means the United States Internal Revenue Code of 1986, as amended and any rule or regulation issued thereunder from time to time in effect.
Commitments” means Additional Facility Commitments and/or Revolving Facility Commitments and, where the context so requires, each of them.
Common Holding Company” has the meaning given to such term in Clause 28.7(a)(v) (Permitted Affiliate Group Designation).
Composite Revolving Facility Instructing Group” means, at any time, a Lender or Lenders under Maintenance Covenant Revolving Facilities whose aggregate undrawn Revolving Facility Commitments and Additional Facility Commitments in relation to Maintenance Covenant Revolving Facilities (translated into Euros, where such Commitment is denominated in US Dollars or an Additional Currency, on the basis of the Agent’s Spot Rate
15


of Exchange on the date of the relevant Additional Facility Accession Agreement) and participations in outstanding Utilisations (calculated by reference to the Euro Amounts of such Utilisations), in each case, under the Maintenance Covenant Revolving Facilities, exceed 50 per cent. of the total aggregate undrawn Revolving Facility Commitments and Additional Facility Commitments in relation to Maintenance Covenant Revolving Facilities (translated into Euros, where such Commitment is denominated in US Dollars or an Additional Currency, on the basis of the Agent’s Spot Rate of Exchange on the date of the relevant Additional Facility Accession Agreement) and participations in outstanding Utilisations (calculated by reference to the Euro Amounts of such Utilisations), in each case, under all the Maintenance Covenant Revolving Facilities and calculated in accordance with the provisions of Clause 27.5 (Calculation of Consent).
Confidentiality Undertaking” means a confidentiality undertaking substantially in the recommended form of either the LMA or the LSTA or in any other form agreed between UPC Broadband and the Facility Agent.
Content” means production of and any rights to broadcast, transmit, distribute or otherwise make available for viewing, exhibition or reception (whether in analogue or digital format and whether as a channel or an Internet service, a teletext-type service, an interactive service, or an enhanced television service or any part of any of the foregoing, or on a pay-per-view basis, or near video-on-demand, or video-on-demand basis or otherwise) any one or more of audio and/or visual images, audio content, or interactive content (including hyperlinks, re-purposed web-site content, database content plus associated templates, formatting information and other data including any interactive applications or functionality), text, data, graphics, or other content, by means of any means of distribution, transmission or delivery system or technology (whether now known or herein after invented).
Content Transaction” means any sale, transfer, demerger, contribution, spin-off or distribution of, any creation or participation in any joint venture and/or entering into any other transaction or taking any action with respect to, in each case, any assets, undertakings and/or businesses of the Borrower Group which comprise all or part of the Content business of the Borrower Group, to or with any person whether or not within the Borrower Group.
Control” means the power of a person:
(a)    by means of the holding of shares or the possession of voting power in or in relation to any other person; or
(b)    by virtue of any powers conferred by the articles of association or other documents regulating any other person,
to direct or cause the direction of the management and policies of that other person,
and “Controlled” and “Controlling” have a corresponding meaning.
Conversion Notice” has the meaning given to such term in paragraph (a) of Clause 7.1 (Utilisation of Ancillary Facilities).
Cost” means the cost estimated in good faith by the relevant member of the Borrower Group to have been incurred or to be received by that member of the Borrower Group in the provision or receipt of the relevant service, facility or arrangement, including, without limitation, a proportion of any material employment, property, information technology, administration, utilities, transport and materials or other costs incurred or received in the provision or receipt of such service, facility or arrangement but excluding costs which are either not material or not directly attributable to the provision or receipt of the relevant service, facility or arrangement.
Credit Facility Excluded Amount” means the greater of:
(a)    €400,000,000 (or its equivalent in other currencies); and
(b)    0.25 multiplied by Annualised EBITDA for the most recent Ratio Period.
Dangerous Substance” means any radioactive emissions and any natural or artificial substance (whether in solid or liquid form or in the form of a gas or vapour and whether alone or in combination with any other substance) which, taking into account the concentrations and quantities present and the manner in which it is being used or handled, it is reasonably foreseeable will cause harm to man or any other living organism or damage to the Environment including any controlled, special, hazardous, toxic, radioactive or dangerous waste.
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Default” means:
(a)    an Event of Default; or
(b)    any event or circumstance specified in Clause 21 (Default) which would (with the expiry of a grace period or the giving of notice) be an Event of Default.
Defaulting Lender” means any Lender (other than a Lender which is or becomes a member of the Wider Group):
(a)    which has failed to make its participation in an Advance available (or has notified the Facility Agent or UPC Broadband (which has notified the Facility Agent) that it will not make its participation in an Advance available) by the Utilisation Date of that Advance in accordance with Clause 5.4 (Participations in Advances) or has failed to provide cash collateral (or has notified an L/C Bank or UPC Broadband (which has notified the relevant L/C Bank) that it will not provide cash collateral) in accordance with Clause 6.8 (Cash Collateral by Non-Acceptable L/C Lender);
(b)    which has otherwise rescinded or repudiated a Finance Document;
(c)    which is an L/C Bank which has failed to issue or re-issue a Documentary Credit (or has notified the Facility Agent or UPC Broadband (which has notified the Facility Agent) that it will not issue or re-issue a Documentary Credit) in accordance with Clause 6 (Documentary Credits) or which has failed to pay a claim (or has notified the Facility Agent or UPC Broadband (which has notified the Facility Agent) that it will not pay a claim) in accordance with (and as defined in) Clause 6.6 (Claims under a Documentary Credit); or
(d)    with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of paragraph (a) or (c) above:
(i)    its failure to pay is caused by:
(A)    administrative or technical error; or
(B)    a Disruption Event,
and payment is made within two Business Days of its due date; or
(ii)    the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
Designated Gross Amount” has the meaning given to such term in Clause 7.1(b) (Utilisation of Ancillary Facilities).
Designated Net Amount” has the meaning given to such term in Clause 7.1(b) (Utilisation of Ancillary Facilities).
Designated Party” means any person listed:
(a)    in the Annex to the Executive Order;
(b)    on the “Specially Designated Nationals and Blocked Persons” list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury; or
(c)    in any successor list to either of the foregoing.
Designated Website” has the meaning given to such term in Clause 35.3(a) (Use of Websites/E-mail).
Disruption Event” means either or both of:
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(a)    a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
(b)    the occurrence of any other event which results in a material disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
(i)    from performing its payment obligations under the Finance Documents; or
(ii)    from communicating with other parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the party whose operations are disrupted.
Distribution Business” means:
(a)    the business of upgrading, constructing, creating, developing, acquiring, operating, owning, leasing and maintaining cable television networks (including for avoidance of doubt master antenna television, satellite master antenna television, single and multi-channel microwave single or multi-point distribution systems and direct-to-home satellite systems) for the transmission, reception and/or delivery of multi-channel television and radio programming, telephony and internet and/or data services to the residential markets; or
(b)    any business which is incidental to or related to and, in either case, material to such business.
Documentary Credit” means a letter of credit, bank guarantee, indemnity, performance bond or other documentary credit issued or to be issued by an L/C Bank pursuant to Clause 5.1 (Delivery of request).
Documentary Credit Beneficiary” means a beneficiary in respect of a Documentary Credit.
Dormant Subsidiary” means a member of the Borrower Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including, without limitation, indebtedness owed to it) which in aggregate have a value of more than €10,000 (excluding loans existing on the Signing Date owed to it by members of the Borrower Group) or its equivalent in other currencies.
Dutch Borrower” means a Borrower incorporated in The Netherlands.
Eastern Europe” means Europe other than Western Europe.
EBITDA” has the meaning given to such term in Clause 20.1 (Financial definitions).
EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.
Effective Date” means the day falling no less than five Business Days after the Signing Date, on which the Facility Agent notified UPC Broadband and the Lenders that it had received written confirmation from the Existing Facility Agents that the conditions precedent referred to in Clause 2(b) of the amendment and restatement agreement dated on or around the Signing Date between, inter alia, UPC Broadband and the Existing Facility Agents amending and restating the Existing Facility Agreement had been either satisfied or waived and that such agreement was effective.
Environment” means the media of air, water and land (wherever occurring) and in relation to the media of air and water includes, without limitation, the air and water within buildings and the air and water within other natural or man-made structures above or below ground and any water contained in any underground strata.
Environmental Claim” means any claim by any person:
(a)    in respect of any loss or liability suffered or incurred by that person as a result of or in connection with any violation of Environmental Law; or
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(b)    that arises as a result of or in connection with Environmental Contamination and that could give rise to any remedy or penalty (whether interim or final) that may be enforced or assessed by private or public legal action or administrative order or proceedings including, without limitation, any such claim that arises from injury to persons or property.
Environmental Contamination” means each of the following and their consequences:
(a)    any release, emission, leakage or spillage of any Dangerous Substance at or from any site owned or occupied by any member of the Borrower Group into any part of the Environment; or
(b)    any accident, fire, explosion or sudden event at any site owned or occupied by any member of the Borrower Group which is directly caused by or attributable to any Dangerous Substance; or
(c)    any other pollution of the Environment arising at or from any site owned or occupied by any member of the Borrower Group.
Environmental Law” means all legislation, regulations or orders (insofar as such regulations or orders have the force of law) to the extent that it relates to the protection or impairment of the Environment or the control of Dangerous Substances (whether or not in force at the Signing Date) which are capable of enforcement in any applicable jurisdiction by legal process.
Environmental Licence” means any permit, licence, authorisation, consent, filing, registration or other approval required by any Environmental Law.
ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate” means any person treated as a single employer with any Obligor under section 414 of the Code.
EU Bail-In Legislation Schedule” means the document described as such and published by the LMA (or any successor person) from time to time.
EURIBOR” means, in relation to any Advance under this Agreement in Euro:
(a)    the applicable Screen Rate as of the Specified Time for Euro and for a period equal in length to the Interest Period of that Advance; or
(b)    as otherwise determined pursuant to Clause 14.1 (Unavailability of Screen Rate).
Euro”, “Euros” or “” means the single currency of the Participating Member States.
Euro Amount” means at any time:
(a)    in relation to an Advance denominated in Euros, the amount thereof, and in relation to any other Advance, the Euro equivalent (calculated using the Agent’s Spot Rate of Exchange at the relevant time) of the amount specified in the Request (as at the date thereof) for that Advance, in each case, as adjusted, if necessary, in accordance with the terms of this Agreement and to reflect any repayment, consolidation or division of that Advance;
(b)    in relation to a Documentary Credit, (i) if such Documentary Credit is denominated in Euros, the Outstanding L/C Amount in relation to it at such time or (ii) if such Documentary Credit is not denominated in Euros, the Euro equivalent (calculated using the Agent’s Spot Rate of Exchange at the relevant time) of the Outstanding L/C Amount at such time, calculated as at the later of (A) the date which falls two Business Days before its issue date or any renewal date or (B) the date of any revaluation pursuant to Clause 6.4 (Revaluation of Documentary Credits);
(c)    in relation to any Ancillary Facility granted by a Lender, the amount of its Revolving Facility Commitment or Additional Facility Commitment converted to provide its Ancillary Facility Commitment as at the time of such conversion; and
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(d)    in relation to any Outstandings, the aggregate of the Euro Amounts (calculated in accordance with paragraphs (a), (b) and (c) above) of each outstanding Advance and/or Outstanding L/C Amount, made under the relevant Facility or Facilities (as the case may be) and/or in relation to Ancillary Facility Outstandings, (i) if such Outstandings are denominated in Euro, the aggregate amount of such Outstandings at such time and (ii) if such Outstandings are not denominated in Euro, the Euro equivalent of the aggregate amount of such Outstandings at such time.
Event of Default” means an event specified as such in Clause 21 (Default) and, in respect of any reference to such term:
(a)    in connection with Clause 19 (Undertakings) (including any defined terms when used in Clause 19 (Undertakings)); and
(b)    in connection with any other provision of this Agreement, with respect to any Lender or Lenders under Maintenance Covenant Revolving Facilities only,
shall include a breach of the undertaking set out in Clause 20.2 (Financial Ratio), to the extent tested and not cured (or deemed to be cured) in accordance with Clause 20.2 (Financial Ratio) or pursuant to Clause 20.4 (Cure Provisions) and provided that the cure period in Clause 20.4 (Cure Provisions) has expired.
Excess Capacity Network Services” means the provision of network services, or agreement to provide network services, by a member of the Borrower Group in favour of one or more members of the Wider Group where such network services are only provided in respect of the capacity available to such member of the Borrower Group in excess of that network capacity it requires to continue to provide current services to its existing and projected future customers and to allow it to provide further services to both its existing and projected future customers.
Existing Facility” means a facility made available to a borrower under the Existing Facility Agreement.
Existing Facility Agent” means Toronto Dominion (Texas) LLC as facility agent under the Existing Facility.
Existing Facility Agents” means the facility agents under the Existing Facility.
Existing Facility Agreement” means the senior secured credit facility dated 26 October 2000 made between, inter alia, UPC Broadband, UPC Financing and Toronto Dominion (Texas) LLC as facility agent and the banks and financial institutions listed therein, as amended from time to time.
Existing Finance Document” means a Finance Document as defined in the Existing Facility Agreement.
Existing Intercreditor Deed” means the intercreditor deed entered into on or about the Signing Date between, among others, the Facility Agent and the Security Agent, the facility agent and security agent under the Existing Facility Agreement and UPC Broadband.
Existing Lender” has the meaning given to such term in Clause 28.3 (Transfers by Lenders).
Existing Security Deed” means the security deed dated 26 October 2000 between, among others, UPC Broadband, UPC Financing, UPC, UPC Holding, the Existing Facility Agents, TD Bank Europe as security agent, the lenders and financial institutions listed therein, the senior hedging banks and the high yield hedging banks listed therein and each Subordinated Creditor (as defined in the Existing Security Deed) and includes each Deed of Accession (as defined in the Existing Security Deed) entered into in relation to the Existing Security Deed.
Existing Security Documents” means:
(a)    the Security Documents as defined in paragraph (a) of the definition of Security Documents in the Existing Facility Agreement; and
(b)    any other Security Documents as defined in paragraph (b) of the definition of Security Documents in the Existing Facility Agreement provided that the Security Interest(s) granted under any such Security Document are simultaneously granted on the same terms (save for variations directly attributable to the identity of the parties and the loan amounts) to the Security Agent on behalf of Beneficiaries to secure the Secured Obligations (as defined in the Intercreditor Agreement).
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Expiry Date” means, in relation to a Documentary Credit granted under this Agreement, the date stated in it to be its expiry date or the latest date on which demand may be made under it being a date falling on or prior to the Final Maturity Date in respect of the Revolving Facility or the relevant Additional Revolving Facility (as applicable).
Facility” means the Revolving Facility, any Additional Facility, any Ancillary Facility or any Documentary Credit facility, as the context may require.
Facility Office” means the office(s) notified by a Lender to the Facility Agent:
(a)    on or before the date it becomes a Lender; or
(b)    by not less than five Business Days’ notice,
as the office(s) through which it will perform all or any of its obligations under this Agreement or in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
Fallback Interest Period” means one month.
FATCA” means:
(a)    sections 1471 to 1474 of the Code or any associated regulations;
(b)    any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
(c)    any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
FATCA Application Date” means:
(a)    in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interests and certain other sources within the US), 1 July 2014; or
(b)    in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.
FATCA Deduction” means a deduction or withholding from a payment under a Finance Document required by FATCA.
FATCA Exempt Party” means a Party which is entitled to receive payments free from any deduction on account of FATCA.
Fee Letter” means any letter entered into by reference to this Agreement between a Finance Party and an Obligor which sets out any of the fees payable under Clause 23 (Fees).
Final Maturity Date” means:
(a)    in relation to an Additional Facility, the date specified as the “Final Maturity Date” in the relevant Additional Facility Accession Agreement or, if that day is not a Business Day, the immediately preceding Business Day (and without any such designation means the latest such date); and
(b)    in relation to the Revolving Facility, 31 May 2026.
Finance Document” means:
(a)    this Agreement;
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(b)    a Security Document;
(c)    a Fee Letter;
(d)    an Obligor Accession Agreement;
(e)    an Increase Confirmation;
(f)    an Additional Facility Accession Agreement;
(g)    the Existing Intercreditor Deed;
(h)    the Intercreditor Agreement;
(i)    any Ancillary Facility Document;
(j)    any Documentary Credit; and
(k)    any other document designated in writing as such by the Facility Agent and UPC Broadband.
Finance Lease” means a lease treated as a capital or finance lease pursuant to the Relevant Accounting Principles.
Finance Party” means a Lender, the Facility Agent or the Security Agent.
Financial Indebtedness” means, without double counting, indebtedness in respect of:
(a)    money borrowed or raised and debit balances at banks;
(b)    any bond, note, loan stock, debenture or similar debt instrument;
(c)    acceptance or documentary credit facilities;
(d)    (for the purposes of Clause 21.5 (Cross default) only) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of all or part of that derivative transaction, that amount together with the mark-to-market value of any part of that derivative transaction in respect of which no amount is due as a result of a termination or close-out) shall be taken into account); and
(e)    guarantees in respect of indebtedness of any person falling within any of paragraphs (a) to (d) above (including for the avoidance of doubt, without double counting, guarantees given by a member of the Borrower Group for the indebtedness of the type falling within paragraphs (a) to (d) above of another member of the Borrower Group),
provided that the following shall not be regarded as Financial Indebtedness:
(i)    indebtedness which has been cash-collateralised to the extent so cash-collateralised;
(ii)    indebtedness which is in the nature of equity (other than shares which are redeemable by the holder of such shares on or before the latest Final Maturity Date) or equity derivatives;
(iii)    any deposits or prepayments received by any member of the Borrower Group from a customer or subscriber for its service and any other deferred or prepaid revenue;
(iv)    obligations under Finance Leases and hire purchase contracts;
(v)    any indebtedness in respect of any transaction or series of transactions that may be entered into by any member of the Borrower Group pursuant to which any member of the Borrower Group may sell, convey or otherwise transfer to (1) an Asset Securitisation Subsidiary (in the case of a transfer by any member of the Borrower Group) and (2) any other person (in the case of a
22


transfer by an Asset Securitisation Subsidiary), or may grant a security interest in, any receivables (whether now existing or arising in the future) of any member of the Borrower Group, and any assets related thereto including, without limitation, all collateral securing such receivables, all contracts and all guarantees or other obligations in respect of such accounts receivable, the proceeds of such receivables and other assets which are customarily transferred, or in respect of which security interests are customarily granted, in connection with asset securitisation involving receivables and any indebtedness in respect of Limited Recourse;
(vi)    any pension obligations and any obligation under employee plans or employment agreements;
(vii)    any obligations to make payments in relation to earn outs;
(viii)    any payments or liabilities for assets acquired or services supplied which are deferred (including, without limitation, any liability under an IRU Contract);
(ix)    any “parallel debt” obligations to the extent such obligations mirror other Financial Indebtedness;
(x)    receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any indebtedness in respect of an asset securitisation programme or receivables factoring transaction, or its equivalent in each case, and any related credit support and any indebtedness in respect of Limited Recourse; and
(xi)    any indebtedness of any member of the Borrower Group, in respect of which the person or persons to whom such indebtedness is or may be owed has or have no recourse whatsoever to any member of the Borrower Group for any payment or repayment in respect thereof:
(A)    other than recourse to such member of the Borrower Group which is limited solely to the amount of any recoveries made on the enforcement of any Security Interests securing such indebtedness or in respect of any other disposition or realisation of the assets underlying such indebtedness;
(B)    provided that such person or persons are not entitled, pursuant to the terms of any agreement evidencing any right or claim arising out of or in connection with such indebtedness, to commence proceedings for the winding up, dissolution or administration of any member of the Borrower Group (or proceedings having an equivalent effect) or to appoint or procure the appointment of any receiver, trustee or similar person or officer in respect of any member of the Borrower Group or any of its assets until after the Commitments have been reduced to zero and all amounts outstanding under the Finance Documents have been repaid or paid in full; and
(C)    provided further that the principal amount of all indebtedness incurred and then outstanding pursuant to this paragraph does not exceed the greater of:
(1)    €100,000,000 (or its equivalent in other currencies); and
(2)    3 per cent. of Total Assets.
Financial Quarter” means the period commencing on the day immediately following any Quarter Date in each year, and ending on the next succeeding Quarter Date.
Financial Ratio Test Condition” has the meaning given to such term in Clause 20.2(a) (Financial Condition).
Fitch” means Fitch Ratings Ltd or any successor thereof.
Funded Excluded Subsidiary” means, in respect of a Funding Passthrough, the Borrower Group Excluded Subsidiary or any person in which a member of the Borrower Group owns an interest but which is not a member of the Borrower Group which:
(a)    indirectly receives funding from a Borrower Holdco; and/or
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(b)    by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by it, directly or indirectly, makes a payment to a Borrower Holdco.
Funding Passthrough” means a series of transactions between a Borrower Holdco, one or more members of the Borrower Group and a Funded Excluded Subsidiary where:
(a)    in the case of funding being provided by a Borrower Holdco to the Funded Excluded Subsidiary, that funding is:
(i)    first made available by that Borrower Holdco to UPC Broadband by way of the subscription for new securities, capital contribution or Subordinated Shareholder Loans; and
(ii)    secondly (if relevant) made available by the recipient of the Funding Passthrough under (i) above, to a member of the Borrower Group (other than UPC Broadband) which may be followed by one or more transactions between members of the Borrower Group (other than UPC Broadband) and finally made available by a member of the Borrower Group (other than UPC Broadband) to the Funded Excluded Subsidiary in all such cases by way of either the subscription for new securities, the advancing of loans or capital contribution; or
(b)    in the case of a payment to be made by the Funded Excluded Subsidiary to a Borrower Holdco that payment is:
(i)    first made by the Funded Excluded Subsidiary to a member of the Borrower Group, and thereafter is made between members of the Borrower Group (as relevant), by way of dividend or other distribution, loan or payment of interest on or the repayment of the principal amount of any indebtedness owed by such Funded Excluded Subsidiary or relevant member of the Borrower Group; and
(ii)    finally made by UPC Broadband to that Borrower Holdco by way of dividend or other distribution, loan or the payment of interest on or the repayment of the principal amount of any loan made by way of Subordinated Shareholder Loans.
Funding Rate” means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 14.4(d) (Cost of funds).
GAAP” means generally accepted accounting principles in the United States as in effect as of the OFS Date; provided that at any date after the OFS Date, UPC Broadband may make an election to establish that “GAAP” shall mean GAAP as in effect on a date that is on or prior to the date of such election; provided further that for the purposes of Clause 19.2 (Financial information), GAAP means generally accepted accounting principles in the United States as in effect from time to time.
Group Redesignation Notice” has the meaning given to such term in Clause 19.32 (Group Redesignation).
Guaranteed Document” means each Finance Document and each Hedging Agreement.
Guarantor” means an Original Guarantor and each Additional Guarantor (including each 2021 Amendment Effective Date Guarantor) and any one of them as the context requires, provided that in either case, such person has not been released from its rights and obligations as a Guarantor hereunder pursuant to this Agreement.
Hedge Counterparty” has the meaning given to it in the Intercreditor Agreement.
Hedging Agreement” means any hedging agreement entered into by a Hedge Counterparty with a Hedging Debtor (as amended, increased or novated from time to time) including, without limitation, any Cash Flow Hedging Agreement.
Hedging Debtor” means:
(a)    any member of the Borrower Group or the UGCE Borrower Group;
(b)    UPC Broadband Holdco;
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(c)    any Permitted Affiliate Holdco; or
(d)    any Subsidiary of UPC Broadband Holdco or any Permitted Affiliate Holdco which is permitted to issue, and has issued, Holdco Debt,
in each case that enters into a Hedging Agreement.
Historic Screen Rate” means, in relation to any Advance, the most recent applicable Screen Rate for the currency of that Advance and for a period equal in length to the Interest Period of that Advance and which is as of a day which is no more than 30 days before the Quotation Date.
Holdco Debt” means any Financial Indebtedness of UPC Broadband Holdco, any Permitted Affiliate Holdco and, in each case, one or more of their Subsidiaries (other than a member of the Borrower Group) in the form of:
(a)    Senior Unsecured Notes; and/or
(b)    any Financial Indebtedness incurred after the 2016 First Amendment Effective Date, where the incurrence of such Financial Indebtedness would not result in the pro forma ratio (giving effect to such incurrence and the ultimate use of proceeds thereof, which shall not include any cash balances resulting from such incurrence) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Borrower Group since such date pursuant to any Permitted Payments) of Total Net Debt to Annualised EBITDA being greater than 5.50:1 following such incurrence,
provided that, in respect of any such Financial Indebtedness incurred after the 2016 First Amendment Effective Date, such Financial Indebtedness is designated as “Holdco Debt” by written notice from UPC Broadband to the Facility Agent and the Security Agent by the date when the consolidated financial statements are due to be provided pursuant to Clause 19.2 (Financial information) for the first full Financial Quarter after such incurrence.
Holding Company” means, in relation to a person, a person of which that other person is a Subsidiary.
Holding Company Expenses” means:
(a)    costs (including all professional fees and expenses) incurred by any Parent or any Subsidiary of a Parent in connection with reporting obligations under or otherwise incurred in connection with compliance with applicable laws, applicable rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Financial Indebtedness of any Parent and its Subsidiaries from time to time;
(b)    indemnification obligations of a Parent or any Subsidiary of a Parent owing to directors, officers, employees or other persons under its charter or by-laws or pursuant to written agreements with any such person with respect to its ownership of UPC Broadband, any Permitted Affiliate Parent or any Subsidiary of a Parent or the conduct of the business of the Borrower Group;
(c)    obligations of a Parent or any Subsidiary of a Parent in respect of director and officer insurance (including premiums therefor) with respect to ownership of UPC Broadband, any Permitted Affiliate Parent or any Subsidiary of a Parent or the conduct of the business of the Borrower Group;
(d)    general corporate overhead expenses, including professional fees and expenses and other operational expenses of a Parent or any Subsidiary of a Parent related to the ownership, stewardship or operation of the business of UPC Broadband or any member of the Borrower Group, including acquisitions, dispositions or treasury transactions by a member of the Borrower Group permitted hereunder (whether or not successful) in each case, to the extent such costs, obligations and/or expenses are not paid by another Subsidiary of such Parent; and
(e)    fees and expenses payable by any Parent in connection with a Post-Closing Reorganisation.
IFRS” means the accounting standards issued by the International Accounting Standards Board and its predecessors as in effect as of the OFS Date; provided that at any date after the OFS Date, UPC Broadband may make an election to establish that “IFRS” shall mean IFRS as in effect on a date that is on or prior to the date of such election; provided further that for the purposes of Clause 19.2 (Financial information), IFRS means the
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accounting standards issued by the International Accounting Standards Board and its predecessors as in effect from time to time.
Impaired Agent” means the Facility Agent at any time when:
(a)    it has failed to make (or has notified a Finance Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
(b)    it otherwise rescinds or repudiates a Finance Document;
(c)    (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a), (b) or (c) of the definition of “Defaulting Lender”; or
(d)    an Insolvency Event has occurred and is continuing with respect to the Facility Agent,
unless, in the case of paragraph (a) above:
(i)    its failure to pay is caused by:
(A)    administrative or technical error; or
(B)    a Disruption Event,
and payment is made within three Business Days of its due date; or
(ii)    the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
Increase Confirmation” means a confirmation substantially in the form set out in Schedule 8 (Form of Increase Confirmation).
Increase Lender” has the meaning set out in Clause 2.2(a) (Increase).
Initial Additional Facility Lender” means a person which becomes a Lender under an Additional Facility pursuant to Clause 2.3 (Additional Facilities).
Initial Revolving Facility Lender” means each of the financial institutions listed in Part 2 of Schedule 1 (Original Parties).
Insolvency Event” in relation to a Finance Party or a Holding Company of that Finance Party means that the Finance Party or its Holding Company (as applicable):
(a)    is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(b)    becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c)    makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(d)    institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
(e)    has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person not described in paragraph (d) above and:
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(i)    results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
(ii)    is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
(f)    has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(g)    seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person described in paragraph (d) above);
(h)    has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(i)    has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009; or
(j)    causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above.
Intellectual Property Rights” means all know-how, patents, trade marks, designs and design rights, trading names, copyrights (including any copyright in computer software), database rights and other intellectual property rights anywhere in the world (in each case whether registered or not and including all applications for the same).
Intercreditor Agreement” means:
(a)    the security deed dated 16 January 2004 between, among others, each Obligor, the Facility Agent, the Security Agent, the Lenders, the high yield hedging banks and each Subordinated Creditor, as such security deed is amended and restated from time to time including, without limitation, on the 2016 ICA Amendment Effective Date and includes each Deed of Accession (as defined in the Intercreditor Agreement) entered into in relation to such security deed; or
(b)    any supplemental intercreditor agreement (including any deeds of accession thereunder) entered into from time to time on substantially the same terms as the security deed referred to in paragraph (a) above or on terms which are otherwise satisfactory to the Facility Agent (acting reasonably).
Interest” has the meaning given to such term in Clause 20.1 (Financial definitions).
Interest Date” means the last day of an Interest Period.
Interest Period” means each period determined in accordance with Clause 11 (Interest).
Interpolated Historic Screen Rate” means, in relation to any Advance, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a)    the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Advance; and
(b)    the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Advance,
each for the currency of that Advance and each of which is as of a day which is no more than 30 days before the Quotation Date.
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Interpolated Screen Rate” means, in relation to any Advance, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a)    the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Advance; and
(b)    the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Advance,
each as of the Specified Time for the currency of that Advance.
Intra-Group Services” means any of the following (provided that the terms of each such transaction are not materially less favourable, taken as a whole, to any member of the Borrower Group, as the case may be, than those that could be obtained in a comparable transaction in arm’s length dealings with a person that is not an Affiliate of UPC Broadband (or, in the event that there are no comparable transactions to apply for comparative purposes, is otherwise on terms that, taken as a whole, UPC Broadband or any Permitted Affiliate Parent has conclusively determined in good faith to be fair to that member of the Borrower Group)):
(a)    the sale of programming or other Content by any member(s) of the Wider Group to one or more members of the Borrower Group;
(b)    the lease or sublease of office space, other premises or equipment by one or more members of the Borrower Group to one or more members of the Wider Group or by one or more members of the Wider Group to one or more members of the Borrower Group;
(c)    the provision or receipt of other goods, services, facilities or other arrangements (in each case not constituting Financial Indebtedness) in the ordinary course of business, by or from one or more members of the Borrower Group to or from one or more members of the Wider Group including, without limitation:
(i)    the employment of personnel;
(ii)    provision of employee healthcare or other benefits;
(iii)    acting as agent to buy or develop equipment, other assets or services or to trade with residential or business customers; and
(iv)    the provision of treasury, audit, accounting, banking, strategy, branding, marketing, network, technology, research and development, installation and customer service, telephony, office, administrative, compliance, payroll or other similar services; and
(d)    the extension, in the ordinary course of business and on terms not materially less favourable to the relevant member of the Borrower Group than arms’ length terms, by or to any member of the Borrower Group to or by any such member of the Wider Group of trade credit not constituting Financial Indebtedness in relation to the provision or receipt of Intra-Group Services referred to in paragraph (a), (b) or (c) above.
IRU Contract” means a contract entered into by UPC Broadband, any Permitted Affiliate Parent, or any member of the Borrower Group in the ordinary course of business in relation to the right to use capacity on a telecommunications cable system (including the right to lease such capacity to another person).
Joint Venture” means any joint venture, partnership or similar arrangement between any member of the Borrower Group and any other person that is not a member of the Borrower Group.
Joint Venture Parent” means the joint venture entity formed in a Parent Joint Venture Transaction.
L/C Bank” means any Lender which has been appointed as an L/C Bank in accordance with Clause 6.11 (Appointment and Change of L/C Bank) and which has not resigned in accordance with paragraph (c) of Clause 6.11 (Appointment and Change of L/C Bank).
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L/C Bank Accession Certificate” means a duly completed accession certificate substantially in the form set out in Schedule 6 (Form of L/C Bank Accession Certificate).
L/C Lender” has the meaning set out in Clause 6.1(b) (Issue of Documentary Credits).
L/C Proportion” means:
(a)    in relation to a Lender in respect of any Documentary Credit issued under an Additional Facility and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lender’s Available Additional Facility Commitment in relation to that Additional Facility to the aggregate of all Available Additional Facility Commitments in relation to that Additional Facility, in each case, immediately prior to the issue of such Documentary Credit; and
(b)    in relation to a Lender in respect of any Documentary Credit issued under the Revolving Facility and save as otherwise provided in this Agreement, the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Facility Commitment to the Available Revolving Facility, in each case, immediately prior to the issue of such Documentary Credit.
Law” means:
(a)    common or customary law;
(b)    any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction; and
(c)    any directive, regulation, practice, requirement which has the force of law and which is issued by any governmental body, agency or department or any central bank or other fiscal, monetary, regulatory, self-regulatory or other authority or agency.
Lender” means:
(a)    an Initial Additional Facility Lender and each Initial Revolving Facility Lender;
(b)    any person which has become a Party as a “Lender” in accordance with Clause 2.2 (Increase); and
(c)    any person (including each L/C Bank and each Ancillary Facility Lender) which becomes a Lender after the Signing Date in accordance with this Agreement,
which in each case has not ceased to be a Lender in accordance with the terms of this Agreement.
Lender Asset Security Release Confirmation” means a notice delivered from the Facility Agent to the Lenders confirming that the consents required under Clause 27 (Amendments and Waivers) to release all of the Security other than (i) that referred to in paragraph (b) of the definition of “80% Security Test” and (ii) any Security provided over any account in connection with a Borrower providing cash cover for a Documentary Credit or an Ancillary Facility pursuant to Clause 6.9(a) (Cash Cover by Borrower) and Clause 1.2(a)(iv) (Construction), have been obtained.
Lending Transaction” has the meaning given to such term in Clause 19.15(r).
LGEF” means:
(a)    Liberty Global Europe Financing B.V., a private limited liability company incorporated under the laws of The Netherlands under company registration number 33201321 and, as of the Signing Date, with its registered office at Amsterdam and its business office at Boeingavenue 53, 1119 PE Schiphol Rijk, The Netherlands; and
(b)    if the person referred to in paragraph (a) above:
(i)    consolidates with or merges with any other person or persons; or
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(ii)    directly or indirectly, sells, leases, conveys or transfers all or substantially all of its assets to any other person or persons,
the successor person formed by such consolidation or into which such person is merged or to which such conveyance, transfer or lease is made.
LGEF Subsidiary” means:
(a)    any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50 per cent. of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or persons performing similar functions); or
(b)    any partnership, joint venture limited liability company or similar person of which more than 50 per cent. of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is at the time owned or controlled, directly indirectly, by:
(i)    LGEF;
(ii)    LGEF and one or more LGEF Subsidiaries; or
(iii)    one or more LGEF Subsidiaries.
For the purposes of the above definition:
(A)    “Capital Stock” of any LGEF Subsidiary means any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such LGEF Subsidiary, including any Preferred Stock, but excluding any debt securities convertible into such equity; and
(B)    “Preferred Stock”, as applied to the Capital Stock of any LGEF Subsidiary, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such LGEF Subsidiary, over shares of Capital Stock of any other class of such LGEF Subsidiary.
LIBOR” means, in relation to any Advance:
(a)    the applicable Screen Rate as of the Specified Time for the currency of that Advance and for a period equal in length to the Interest Period of that Advance; or
(b)    as otherwise determined pursuant to Clause 14.1 (Unavailability of Screen Rate).
Licence” means each approval, consent, authorisation and licence from, and all filings, registrations and agreements with any governmental or regulatory authority, in each case granted, issued, made or entered into pursuant to any Telecommunications and Cable Law necessary in order to enable each member of the Borrower Group to carry on its business as may be permitted by the terms of this Agreement.
Limited Condition Transaction” means (i) any investment or acquisition, in each case, by a member of the Borrower Group of any assets, business or person, the consummation of which is not conditional on the availability of, or on obtaining, third party finance, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Financial Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any Restricted Payment.
Limited Recourse” means a letter of credit, revolving loan commitment, cash collateral account, guarantee or other credit enhancement issued by any member of the Borrower Group (other than an Asset Securitisation Subsidiary) in connection with the incurrence of Financial Indebtedness by an Asset Securitisation Subsidiary in relation to an asset securitisation programme or programmes or one or more receivables factoring transactions; provided that, the aggregate amount of such letter of credit reimbursement obligations and the aggregate available amount of such revolving loan commitments, cash collateral accounts, guarantees or other such credit
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enhancements of members of the Borrower Group (other than an Asset Securitisation Subsidiary) shall not exceed 25 per cent. of the principal amount of such Financial Indebtedness at any time.
Liquidation Transfer” has the meaning given to such term in Clause 19.29 (Internal Reorganisations).
LMA” means the Loan Market Association.
LSTA” means the Loan Syndications & Trading Association.
Maintenance Covenant Revolving Facilities” means:
(a)    the Revolving Facility; and
(b)    any Additional Revolving Facilities which are designated by UPC Broadband as such by notice in writing to the Facility Agent (including in the relevant Additional Facility Accession Agreement) at any time to have the benefit of Clause 20.2 (Financial Ratio).
Majority Acquisition” has the meaning given in paragraph (b) of the definition of Permitted Acquisition.
Majority Lenders” means, at any time Lenders the aggregate of whose undrawn Commitments (translated into Euros, where such Additional Facility Commitment is denominated in US Dollars or an Additional Currency on the basis of the Agent’s Spot Rate of Exchange on the date of the Additional Facility Accession Agreement) and participations in outstanding Utilisations (calculated by reference to the Euro Amounts of such Utilisations) exceeds 50 per cent. of the aggregate undrawn Total Commitments and the Euro Amount of outstanding Utilisations calculated in accordance with Clause 27.5 (Calculation of Consent).
Management Fees” means any management, consultancy, stewardship or other similar fees payable by any member of the Borrower Group to any Restricted Person, including any fees, charges and related expenses incurred by any Parent on behalf of and/or charged to any member of the Borrower Group.
Margin” means:
(a)    in relation to an Additional Facility, the amount specified in and, if applicable, adjusted in accordance with the Additional Facility Accession Agreement; and
(b)    in relation to the Revolving Facility, the Revolving Facility Margin.
Margin Regulations” means Regulation T, Regulation U and Regulation X issued, in each case, by the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or any portion thereof.
Margin Stock” means “margin stock” or “margin securities” as defined in the Margin Regulations.
Marketable Securities” means any security which is listed on any publicly recognised stock exchange and which has, or is issued by a person which has, a capitalisation of not less than €210,000,000 (or its equivalent in other currencies) as at the time such Marketable Securities are acquired by any member of the Borrower Group by way of consideration for any disposal permitted under Clause 19.11 (Disposals).
Material Adverse Effect” means any event or circumstance which has a material adverse effect on the ability of the Obligors (taken as a whole) to perform their payment obligations under any of the Finance Documents.
Material Subsidiary” means any Subsidiary of UPC Broadband or any Subsidiary of any Permitted Affiliate Parent (in each case, other than a Borrower Group Excluded Subsidiary) which accounts for more than five per cent. on an unconsolidated basis of consolidated EBITDA of the Borrower Group as shown in the financial statements most recently delivered under Clause 19.2(a)(i) or (ii) (Financial information) (except that for purposes of determining the consolidated EBITDA of the Borrower Group in respect of the financial statements delivered under Clause 19.2(a)(ii) (Financial information), the amount of such EBITDA shall equal two times the consolidated EBITDA of the Borrower Group during the relevant Ratio Period ending on the date to which such financial statements are prepared).
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If a Subsidiary which is not a Material Subsidiary on the basis of the most recent such financial statements most recently delivered receives on any date (the “Relevant Date”) a transfer of assets or the right to receive any earnings which, taken together with the existing earnings of that Subsidiary, would satisfy the test above, then that Subsidiary shall also be a Material Subsidiary on and from the Relevant Date. If a Material Subsidiary disposes of any assets or the right to receive any earnings such that it would on the basis of the most recent such financial statements most recently delivered cease to be a Material Subsidiary, then it shall be excluded as a Material Subsidiary on and from the date it makes such disposal.
Maturing Advance” has the meaning given to such term in Clause 9.2 (Rollover).
Mid-Interest Period Transfer” means an assignment, transfer or novation by an Existing Lender of all or any of its rights and/or obligations in respect of an Advance under this Agreement in accordance with Clause 28.3 (Transfers by Lenders) where such assignment, transfer or novation:
(a)    includes the assignment or transfer of the right to receive an amount of principal and interest under this Agreement; and
(b)    is made on a day other than the last day of an Interest Period.
Moody’s” means Moody’s Investors Service, Inc. or any successor thereof.
Necessary Authorisations” means all material approvals, consents, authorisations and licences (other than the Licences) from, all rights granted by and all filings, registrations and agreements with, any government or other regulatory authority necessary in order to enable each member of the Borrower Group to carry on its business as may be permitted by the terms of this Agreement as carried on by it at the relevant time.
Net Proceeds” means the aggregate cash (or cash equivalent) proceeds received by any member of the Borrower Group in consideration for or otherwise in respect of a relevant disposal, net of all Taxes applicable on, or to any gain resulting from, that disposal and of all costs, fees and expenses properly incurred by continuing members of the Borrower Group in arranging and effecting that disposal.
Network” means the networks operated from time to time by any member of the Borrower Group pursuant to the Licences and in accordance with this Agreement.
New Equity” means a subscription for capital stock of UPC Broadband or any other form of equity contribution to a member of the Borrower Group, in each case, where such subscription or contribution does not result in a Change of Control and is provided by a member of the Wider Group.
New Group Topco” means any Holding Company of UPC Broadband and/or any Holding Company of any Permitted Affiliate Parent designated as such in a Group Redesignation Notice.
New Lender” has the meaning given to such term in Clause 28.3 (Transfers by Lenders).
Non-Acceptable L/C Lender” means a Lender under the Revolving Facility or an Additional Revolving Facility which the Facility Agent has determined:
(a)    is not an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” (other than a Lender which each L/C Bank has agreed is acceptable to it notwithstanding that fact, a 2016 First Amendment Effective Date Lender or any Affiliate of a 2016 First Amendment Effective Date Lender);
(b)    is a Defaulting Lender; or
(c)    has failed to make (or has notified the Facility Agent or UPC Broadband (which has notified the Facility Agent) that it will not make) a payment to be made by it under Clause 22.12 (Indemnities) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at (i) or (ii) of the definition of “Defaulting Lender”.
Non-Consenting Lender” is a Lender which does not agree to a consent to an amendment to, or a waiver of, any provision of the relevant Finance Documents where:
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(a)    UPC Broadband or the Facility Agent has requested the Lenders to consent to an amendment to, or waiver, of any provision of the Finance Documents;
(b)    the consent or amendment in question requires the agreement of the Lenders affected thereby pursuant to Clause 27.2 (Exceptions) (and such Lender is one of the Lenders affected thereby);
(c)    Lenders representing not less than 80 per cent. of the Commitments or Outstandings, as the case may be, of the Lenders affected thereby have agreed to such consent or amendment; and
(d)    UPC Broadband has notified the Lender it will treat it as a Non-Consenting Lender.
Non-Distribution Business Assets” has the meaning given to such term in Clause 19.11(b)(xxxiv) (Disposals).
Non-Funding Lender” is either:
(a)    a Lender which fails to comply with its obligation to participate in any Utilisation where:
(i)    all conditions to the relevant Utilisation (including without limitation, delivery of a Request) have been satisfied or waived by the Majority Lenders in accordance with the terms of this Agreement;
(ii)    Lenders representing not less than 80 per cent. of the relevant Commitments have agreed to comply with their obligations to participate in such Utilisation; and
(iii)    UPC Broadband has notified the Lender that it will treat it as a Non-Funding Lender;
(b)    a Lender which has given notice to a Borrower or the Facility Agent that it will not make, or it has disaffirmed or repudiated any obligation to participate in, an Utilisation; or
(c)    a Defaulting Lender.
Novation Certificate” has the meaning given to such term in Clause 28.4(a)(i) (Procedure for novations).
Obligor” means a Borrower or a Guarantor.
Obligor Accession Agreement” means a deed in the form of Part 3 of Schedule 4 (Obligor Accession Agreement), with such amendments as the Facility Agent may approve or reasonably require (including, without limitation, any limitation on the obligations of the relevant Additional Guarantor which has been approved by the Facility Agent pursuant to Clause 28.8(a)(v) (Additional Obligors)).
Obligor Pledge of Shareholder Loans” means the deeds of pledge of shareholder loans entered into between certain Obligors and the Security Agent listed in paragraphs 3(a), (c), (d), (e), (f) and (g) of Schedule 5 (Security Documents) and any other deed of pledge of shareholder loans in substantially the same form entered into by an Obligor pursuant to any such deed of pledge or Clause 19.15(a) (Loans and guarantees) or Clause 28.8 (Additional Obligors).
Obligors’ Framework Agreement” means the Framework Agreement (as defined in any Obligor Pledge of Shareholder Loans).
OFS Date” means the date on which the Original Borrower Group Financial Statements were prepared.
Operational Expenditure” means any expenditure which is or will be treated as operational expenditure in the financial statements of the Borrower Group prepared in accordance with the Relevant Accounting Principles and delivered to the Facility Agent pursuant to Clause 19.2 (Financial information).
Optional Currency” means, in relation to any Utilisation, any currency other than Euros and US Dollars which:
(a)    is readily available to banks in the London interbank market, and is freely convertible into Euros on the Quotation Date and the Utilisation Date for the relevant Utilisation; and
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(b)    has been approved by the Facility Agent (acting on the instructions of all the affected Lenders in relation to that Utilisation) on or prior to receipt by the Facility Agent of the relevant Request.
Original Borrower Group Financial Statements” means the financial statements of the Borrower Group for the Accounting Period ended 31 March 2003 (comprising the unaudited compiled financial statements of each of the Obligors for the Accounting Period ended 31 March 2003 and a combination of those financial statements).
Outstanding L/C Amount” means each sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit which has not been reimbursed or in respect of which cash cover has not been provided by or on behalf of a relevant Borrower.
Outstandings” means, at any time, the aggregate principal amount of:
(a)    any Advances outstanding under this Agreement;
(b)    each Lender under the Revolving Facility’s participation in an Outstanding L/C Amount;
(c)    each Additional Facility Lender’s participation in an Outstanding L/C Amount; and
(d)    any Ancillary Facility Outstandings.
Paper Form Lender” has the meaning given to such term in Clause 35.3(b) (Use of Websites/E-mail).
Parent” means:
(a)    the Ultimate Parent;
(b)    any Subsidiary of the Ultimate Parent of which UPC Broadband or any Permitted Affiliate Parent is a Subsidiary (including, for the avoidance of doubt, the Spin Parent and any Subsidiary of the Spin Parent following any Spin-Off); and
(c)    any Joint Venture Parent, any Subsidiary of the Joint Venture Parent and any Parent Joint Venture Holders following any Parent Joint Venture Transaction.
Parent Joint Venture Holders” means the holders of the share capital of the Joint Venture Parent.
Parent Joint Venture Transaction” means a transaction pursuant to which a joint venture is formed by the contribution of some or all of the assets of a Holding Company of any member of the Borrower Group or issuance or sale of shares of a Holding Company of any member of the Borrower Group to one or more persons which are not Affiliates of the Ultimate Parent.
Pari Passu Debt Documents” has the meaning given to such term in the Intercreditor Agreement.
Participating Member State” means any member state of the European Union that at the relevant time has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Party” means a party to this Agreement.
Patriot Act” means the USA Patriot Act (Title 111 of Pub. L. 107-65 (signed into law October 26, 2001)).
Paying Lender” has the meaning given to such term in Clause 7.3 (Ancillary Facility Default).
Permitted Acquisition” means:
(a)    any Acquisition of a member of the Borrower Group by any other member of the Borrower Group as part of the solvent reorganisation of the Borrower Group;
(b)    any Acquisition where, upon completion of the Acquisition, the person acquired will be a Subsidiary of UPC Broadband or a Subsidiary of any Permitted Affiliate Parent or where UPC Broadband or one of its Subsidiaries or any Permitted Affiliate Parent or one of its Subsidiaries which is a member of the
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Borrower Group will own directly or indirectly greater than a 50 per cent. interest in the asset or assets constituting the acquired business (a “Majority Acquisition”) and where the business of the acquired person or the business acquired, as the case may be, is substantially of the same nature as the Business;
(c)    any Acquisition of further share capital (or equivalent) of a person which was a member of the Borrower Group immediately prior to the completion of the Acquisition;
(d)    any Acquisition by a member of the Borrower Group for the purposes of a solvent reorganisation of the Borrower Group where the Acquisition is of share capital or equivalent of a person which:
(i)    has not traded and does not own any assets; or
(ii)    is a dormant Subsidiary of the Ultimate Parent,
and in each case, which has no liabilities;
(e)    the purchase of or investment in Cash Equivalent Investments (including without limitation by way of consideration in respect of any disposal as contemplated in Clause 19.11 (Disposals) and subject to the conditions set out therein) or Marketable Securities;
(f)    the incorporation of a company or the acquisition of an “off-the-shelf” company which is or becomes a member of the Borrower Group;
(g)    any acquisition by any member of the Borrower Group in connection with a disposal permitted by the provisions of Clause 19.11 (Disposals) and any acquisition or subscription by a member of the Borrower Group of shares issued by a Subsidiary of UPC Broadband or a subsidiary of any Permitted Affiliate Parent which in any such case, is a member of the Borrower Group which will, after the acquisition of such shares become a wholly-owned direct or indirect Subsidiary of UPC Broadband or a Subsidiary of any Permitted Affiliate Parent as the case may be, provided that if the other shares of such Subsidiary are subject to existing Security and if such shares are required to remain subject to Security in order to comply with this Agreement either (i) such newly issued shares shall also be subject to Security (in form and substance substantially similar to any existing Security or otherwise in such form and substance as may be reasonably required by the Facility Agent) upon their issue or (ii) such shares shall be made subject to Security (in form and substance substantially similar to any existing Security or otherwise in such form and substance as may be reasonably required by the Facility Agent) within 60 days of their issue;
(h)    any acquisition made by a member of the Borrower Group pursuant to the implementation of an Asset Passthrough or a Funding Passthrough;
(i)    any acquisition by a member of the Borrower Group of any loan receivable, security or other asset by way of capital contribution or in consideration of the issue of any securities or of Subordinated Shareholder Loans;
(j)    the acquisition of any leasehold interest in any assets which are the subject of a sale and lease back permitted under Clause 19.11(b) (Disposals);
(k)    any acquisition arising from the conversion of any company (the “Original Company”) from one form of organisation into another form of organisation provided that (i) if, prior to the time of such conversion, the Security Agent has the benefit of Security over the shares of such Original Company or such Original Company is an Obligor, then UPC Broadband shall, in the event that it is required by the 80% Security Test, ensure that the Security Agent is, within 60 days of the date of such conversion, provided with Security over the equivalent ownership interests in, and substantially all of the assets of, the converted organisation of at least equivalent nature and ranking to the Security previously provided by the Original Company and (ii) the Security Agent is satisfied that any possibility of such additional Security being challenged or set aside is not materially greater than any such possibility in relation to the Security entered into by or in respect of the share capital of the Original Company;
(l)    investments in any Asset Securitisation Subsidiary in connection with any asset securitisation programme or receivables factoring transaction that is reasonably necessary or advisable (in the reasonable judgment
35


of the board of directors or governing body of the relevant person) to effect such asset securitisation programme or receivables factoring transaction;
(m)    any Permitted Transaction;
(n)    any purchase or acquisition of assets in the ordinary course of business;
(o)    any purchase or acquisition of further share capital or equivalent in any person in respect of which a member of the Borrower Group owns an interest of 50 per cent. or less in the share capital or equivalent of such person;
(p)    any acquisition of tax losses pursuant to sub-paragraphs (xxvii) and (xxxvii) of the definition of Permitted Payments;
(q)    the acquisition of shares or other interests representing a nominal or non-substantial part of the share capital of a person which is not a member of the Borrower Group, provided that such person is a Subsidiary of UPC Broadband Holdco;
(r)    the acquisition of shares or other interests in any person pursuant to a merger, demerger, partial demerger, contribution, spin off, distribution or similar transaction, provided that such transaction is permitted under the Finance Documents;
(s)    any acquisition by any member of the Borrower Group of any Senior Unsecured Notes provided that an amount equal to the purchase price paid for the acquisition of any such Senior Unsecured Notes could have been used by such member of the Borrower Group to fund a Permitted Payment and provided further that to the extent any such acquisition is made in reliance on any basket amount provided for under the definition of “Permitted Payment”, such amount shall be reduced by an amount equal to the consideration paid for such acquisition;
(t)    any acquisition permitted by the Majority Lenders; and
(u)    acquisitions which are not otherwise permitted under the definition of Permitted Acquisition provided that the aggregate consideration paid in respect of such acquisitions does not exceed the greater of €300,000,000 and 5.00% of Total Assets in any financial year.
All references in this definition to Euro or € shall, where applicable, mean the equivalent in any other currency, converted to Euro, based on the Agent’s Spot Rate of Exchange at the relevant time.
Permitted Affiliate Group Designation Date” means any date on which the Facility Agent provides confirmation to UPC Broadband that the conditions set out in Clause 28.7 (Permitted Affiliate Group Designation) are satisfied.
Permitted Affiliate Holdco” means the immediate Holding Company of any Permitted Affiliate Parent and any other Holding Company of any Permitted Affiliate Parent that is an issuer of, or has otherwise incurred, Holdco Debt and, in each case, which is a Subsidiary of the Common Holding Company.
Permitted Affiliate Parent” has the meaning given to such term in Clause 28.7 (Permitted Affiliate Group Designation).
Permitted Borrower Group Guarantee Facilities” means the guarantee facilities under which UPC Broadband and/or any of its Subsidiaries can draw guarantees up to a maximum aggregate principal amount of €10,000,000.
Permitted Borrower Group Revolving Credit Facility” means the revolving credit facility to be entered into after the date of the Amendment Agreement by UPC Broadband as borrower, under which UPC Broadband can borrow revolving advances for general corporate and working capital purposes of the Borrower Group up to a maximum principal amount of €10,000,000.
Permitted Business Division Transaction” means a Business Division Transaction provided that after giving pro forma effect thereto, an Obligor could incur at least €1.00 of additional Financial Indebtedness pursuant to sub-paragraph (xxii) of the definition of Permitted Financial Indebtedness.
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Permitted Credit Facility” means one or more of any Facility or any other debt facilities, notes, bonds, debentures or arrangements that may be entered into by any member of the Borrower Group providing for credit, loans, letters of credit, notes, bonds, debentures or other indebtedness or other advances, in each case, incurred in compliance with this Agreement.
Permitted Disposal” has the meaning given to such term in Clause 19.11(b) (Disposals).
Permitted Financial Indebtedness” has the meaning given to such term in Clause 19.13(b) (Restrictions on Financial Indebtedness).
Permitted Financing Action” means, to the extent that any incurrence of Financial Indebtedness is permitted under Clause 19.13 (Restrictions on Financial Indebtedness), any transaction to facilitate or otherwise in connection with a cashless rollover of any Commitment or participation in any Utilisation in relation to the incurrence of that Financial Indebtedness.
Permitted Joint Venture” means:
(a)    any Acquisition referred to in paragraph (a) of the definition of “Permitted Acquisition” and any Acquisition as a result of a reorganisation of a person that is not a Subsidiary of UPC Broadband or a Subsidiary of any Permitted Affiliate Parent but in which a member of the Borrower Group has an interest, provided that such reorganisation does not result in an overall increase in the value of the Borrower Group’s interest in that person, other than adjustments to the basis of any member of the Borrower Group’s interest in accordance with the Relevant Accounting Principles; or
(b)    any Acquisition where, upon completion of the Acquisition, the person acquired will not be a Subsidiary of UPC Broadband or a Subsidiary of any Permitted Affiliate Parent or where UPC Broadband or one of its Subsidiaries or any Permitted Affiliate Parent or one of its Subsidiaries which is a member of the Borrower Group will own directly or indirectly no more than a 50 per cent. interest in the asset or assets constituting the acquired business (a “JV Minority Acquisition”) and where the business of the acquired person or the business acquired, as the case may be, is of substantially the same nature as the Business.
Permitted Payment” has the meaning given to such term in Clause 19.14(c) (Restricted Payments).
Permitted Security Interest” means:
(a)    any Security Interests arising hereunder or under any Senior Secured Finance Document, which is subject to the terms of the Intercreditor Agreement;
(b)    any Security Interest which arises by operation of law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Borrower Group and in each case arising or entered into the ordinary course of business of the relevant member of the Borrower Group;
(c)    any Security Interest arising under any Existing Security Document;
(d)    any liens arising in the ordinary course of business by way of contract which secures indebtedness under any agreement for the supply of goods or services in respect of which payment is not deferred for more than 180 days (or 360 days if such deferral is in accordance with the terms pursuant to which the relevant goods were acquired or services provided);
(e)    any Security Interest imposed by any taxation or governmental authority in respect of amounts which are being contested in good faith and not yet payable and for which adequate reserves have been set aside in the books of the Borrower Group (or, as the case may be, UPC Broadband Holdco) in respect of the same in accordance with the Relevant Accounting Principles;
(f)    any Security Interest which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i)    arises in the ordinary course of business and/or by operation of law;
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(ii)    is entered into by any member of the Borrower Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Borrower Group operated on a net balance basis (and any Security Interests over bank accounts granted in connection therewith);
(iii)    arises in respect of netting or set off arrangements contained in any Hedging Agreement (after the 2016 ICA Amendment Effective Date) or other hedging contract permitted by this Agreement;
(iv)    is entered into by any member of the Borrower Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Borrower Group; or
(v)    which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(g)    any Security Interests approved in writing by the Facility Agent (acting on the instructions of the Majority Lenders);
(h)    any Security Interest in favour of any bank incurred in relation to any cash management arrangements;
(i)    any Security Interest over or affecting any asset of, or shares in, any person which becomes a member of the Borrower Group after the Signing Date, where such Security Interest is created prior to the date on which such person becomes a member of the Borrower Group (including Security Interests created, incurred or assumed in connection with or in contemplation of the relevant acquisition or transaction); provided, however, that such Security Interests may not extend to any other property owned by any member of the Borrower Group (other than pursuant to after-acquired property clauses in effect with respect to such Security Interests at the time of acquisition on property of the type that would have been subject to such Security Interests notwithstanding the occurrence of the relevant acquisition or transaction);
(j)    any Security Interest over Non-Distribution Business Assets referred to in Clause 19.13(b)(xii) (Restrictions on Financial Indebtedness), securing Financial Indebtedness described therein or any other obligation in respect of such Non-Distribution Business Assets;
(k)    any Security Interest arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 19.13(b)(xviii) (Restrictions on Financial Indebtedness);
(l)    Security Interests arising under agreements entered into in the ordinary course of business relating to:
(i)    network leases; or
(ii)    the leasing of:
(A)    buildings;
(B)    cars; and
(C)    other operational equipment;
(m)    any Security Interest over or affecting any asset (including any shares) acquired by a member of the Borrower Group after the Signing Date (including Security Interests created, incurred or assumed in connection with or in contemplation of the relevant acquisition or transaction); provided, however, that such Security Interests may not extend to any other property owned by any member of the Borrower Group (other than pursuant to after-acquired property clauses in effect with respect to such Security Interests at the time of acquisition on property of the type that would have been subject to such Security Interests notwithstanding the occurrence of the relevant acquisition or transaction);
(n)    any Security Interest over any property or other assets to satisfy any pension plan contribution liabilities;
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(o)    any Security Interest constituted by a rent deposit deed entered into on arm’s length commercial terms and in the ordinary course of business securing the obligations of a member of the Borrower Group in relation to property leased to a member of the Borrower Group;
(p)    any Security Interest which is granted over the shares of, Financial Indebtedness owed by or other interests held in, or over the assets (including, without limitation, present or future revenues), attributable to a Borrower Group Excluded Subsidiary or a Permitted Joint Venture;
(q)    any Security Interest securing Financial Indebtedness arising under the Permitted Borrower Group Revolving Credit Facility or the Permitted Borrower Group Guarantee Facilities provided that any such Security Interest will constitute a Security Interest over assets that are not secured or required to be secured as at the date of the Amendment Agreement under the Finance Documents or the Existing Finance Documents;
(r)    any Security Interest over cash deposited as security for the obligations of a member of the Borrower Group in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business of the Borrower Group;
(s)    any Security Interest which is created by any member of the Borrower Group in substitution for any Security Interest under any existing Security Document, provided that the principal amount secured thereby may not be increased unless any Security Interest in respect of such increased amount would be permitted under another paragraph of this definition;
(t)    after the 2016 ICA Amendment Effective Date, Security Interests securing any Financial Indebtedness on a pari passu basis (to the extent that any Financial Indebtedness is permitted under the terms of this Agreement) with respect to any part of the Facilities, provided that such Financial Indebtedness constitutes Senior Liabilities (under and as defined in the Intercreditor Agreement) and:
(i)    the ratio of Senior Net Debt to Annualised EBITDA (giving pro forma effect to any such Financial Indebtedness and the use of proceeds thereof) would not be greater than 4.50:1.00 or such Financial Indebtedness is Refinancing Indebtedness in respect of (x) any Facility, (y) any Senior Secured Notes or (z) any other Financial Indebtedness which is secured by assets that are subject to Security; or
(ii)    such Financial Indebtedness constitutes:
(A)    Financial Indebtedness which is permitted under sub-paragraph (ii) of the definition of Permitted Financial Indebtedness as it relates to guarantees permitted under paragraph (h) of Clause 19.15 (Loans and guarantees);
(B)    Financial Indebtedness which is permitted under sub-paragraph (vii) of the definition of Permitted Financial Indebtedness;
(C)    Financial Indebtedness which is permitted under sub-paragraph (xi) of the definition of Permitted Financial Indebtedness (provided that at the time of the acquisition or other transaction pursuant to which such Financial Indebtedness was incurred and after giving effect to such incurrence on a pro forma basis:
(1)    an Obligor could incur at least €1.00 of Financial Indebtedness under sub-paragraph (xxii) of the definition of Permitted Financial Indebtedness; or
(2)    the ratio of Senior Net Debt to Annualised EBITDA would not be greater than it was immediately prior to giving pro forma effect to such acquisition or other transaction and to the incurrence of such Financial Indebtedness);
(D)    Financial Indebtedness which is permitted under sub-paragraph (xxii) of the definition of Permitted Financial Indebtedness;
(E)    Financial Indebtedness which is permitted under sub-paragraph (xxiii) of the definition of Permitted Financial Indebtedness;
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(F)    Financial Indebtedness which is permitted under sub-paragraph (xxxii) of the definition of Permitted Financial Indebtedness; or
(G)    Financial Indebtedness which is permitted under sub-paragraph (xxxiv) of the definition of Permitted Financial Indebtedness,
including, in each case, guarantees in respect of such Financial Indebtedness;
(u)    any Security Interest created to secure any Financial Indebtedness incurred on a second lien ranking basis provided that such Financial Indebtedness constitutes Second Lien Liabilities (under and as defined in the Intercreditor Agreement) or is subject to other intercreditor arrangements on terms satisfactory to the Facility Agent and the Security Agent (in each case, acting reasonably) under which the rights of the holders of such Financial Indebtedness will be contractually subordinated to the rights of the Lenders, on terms comparable to the All3Media Intercreditor Agreement (as amended from time to time up to the date of the Additional Facility Accession Agreement relating to Additional Facility “AS”) with such adjustments and amendments as agreed between UPC Broadband, the Security Agent and the Facility Agent (in each case, acting reasonably) and:
(i)    such Financial Indebtedness constitutes Refinancing Indebtedness or the ratio of Total Net Debt to Annualised EBITDA (giving pro forma effect to any such Financial Indebtedness and the use of proceeds thereof) would not be greater than 5.50:1.00; or

(ii)    such Financial Indebtedness constitutes:
(A)    Financial Indebtedness which is permitted under sub-paragraph (ii) of the definition of Permitted Financial Indebtedness as it relates to guarantees permitted under paragraph (h) of Clause 19.15 (Loans and guarantees);
(B)    Financial Indebtedness which is permitted under sub-paragraph (vii) of the definition of Permitted Financial Indebtedness;
(C)    Financial Indebtedness which is permitted under sub-paragraph (xi) of the definition of Permitted Financial Indebtedness (provided that at the time of the acquisition or other transaction pursuant to which such Financial Indebtedness was incurred and after giving effect to such incurrence on a pro forma basis:
(1)    an Obligor could incur at least €1.00 of Financial Indebtedness under sub-paragraph (xxii) of the definition of Permitted Financial Indebtedness; or
(2)    the ratio of Total Net Debt to Annualised EBITDA would not be greater than it was immediately prior to giving pro forma effect to such acquisition or other transaction and to the incurrence of such Financial Indebtedness);
(D)    Financial Indebtedness which is permitted under sub-paragraph (xxxii) of the definition of Permitted Financial Indebtedness; or
(E)    Financial Indebtedness which is permitted under sub-paragraph (xxxiv) of the definition of Permitted Financial Indebtedness,
including, in each case, guarantees in respect of such Financial Indebtedness and provided further that any additional Financial Indebtedness the proceeds of which are used to refinance existing Financial Indebtedness secured on a second lien ranking basis may also be secured by assets subject to the Security on a second lien ranking basis;
(v)    any Security Interest over cash deposits or other Security Interests constituting or for the purpose of securing Limited Recourse;
(w)    any Security Interest comprising of a right of set-off granted to any financial institution acting as a lockbox bank in connection with any asset securitisation programme or one or more receivables factoring transactions;
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(x)    any Security Interest created for the purpose of perfecting the ownership interests of a purchaser of receivables and related assets pursuant to any asset securitisation programme or one or more receivables factoring transactions;
(y)    any Security Interest on investments in Asset Securitisation Subsidiaries;
(z)    any Security Interest in respect of any Permitted Transaction;
(aa)    any Security Interest arising in connection with other sales of receivables permitted under this Agreement without recourse to any member of the Borrower Group;
(bb)    any Security Interest over:
(i)    proceeds from the offering of any debt securities or other Financial Indebtedness (and accrued interest thereon) paid into escrow accounts with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow accounts upon satisfaction of certain conditions or the occurrence of certain events for the benefit of the related holders of debt securities or other Financial Indebtedness (or the underwriters or arrangers thereof); or
(ii)    cash set aside at the time of the incurrence of any Financial Indebtedness or government securities purchased with such cash, in either case, to the extent such cash or government securities prefund the payment of interest on such Financial Indebtedness and are held in escrow accounts or similar arrangement to be applied for such purpose;
(cc)    any Security Interest created to secure any Financial Indebtedness incurred under paragraph (xxiv) of the definition of Permitted Financial Indebtedness or any guarantees in respect of such Financial Indebtedness provided that:
(i)    such Security Interest ranks junior to the Security Interests securing the liabilities under this Agreement and related guarantees (as applicable); and
(ii)    such Financial Indebtedness and any guarantees thereof constitute Second Lien Liabilities (under and as defined in the Intercreditor Agreement) or are contractually subordinated to the rights of the Lenders, on the terms of an intercreditor agreement in accordance with paragraph (xxiv) of the definition of Permitted Financial Indebtedness;
(dd)    Security Interests on receivables and any assets related thereto including, without limitation, all Security Interests securing such receivables, all contracts and all guarantees or other obligations in respect of such accounts receivable, the proceeds of such receivables and other assets which are customarily transferred, or in respect of which Security Interests are customarily granted, in connection with asset securitisations involving receivables and any hedging obligations entered into by any member of the Borrower Group in connection with such receivables that arise in connection with an asset securitisation programme or receivables factoring transactions, and Security Interests on investments in Asset Securitisation Subsidiaries;
(ee)    Security Interests in respect of (i) any facilities or services related to cash management, cash pooling, treasury, depository, overdraft, credit or debit card, p-cards (including purchasing cards or commercial cards), electronic funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade financial services or other cash management and cash pooling arrangements and (ii) daylight exposures of the Borrower Group in respect of banking and treasury arrangements entered into in the ordinary course of business;
(ff)    Security Interests on Cash, Cash Equivalent Investments or other property arising in connection with the defeasance, discharge or redemption of indebtedness; provided that such defeasance, discharge or redemption is permitted hereunder;
(gg)    Security Interests or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property or assets over which any member of the Borrower Group has easement rights or on any leased property and subordination or
41


similar arrangements relating thereto (including, without limitation, the right reserved to or vested in any governmental authority by the terms of any lease, license, franchise, grant or permit acquired by that member of the Borrower Group or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof);
(hh)    any Security Interest in respect of any condemnation or eminent domain proceedings affecting any real property;
(ii)    Security Interests securing hedging obligations so long as the related Financial Indebtedness is permitted to be incurred under this Agreement and is secured by a Security Interest on the same property securing such hedging obligation;
(jj)    Security Interests (i) encumbering reasonable customary initial deposits and margin deposits and similar Security Interests attaching to brokerage accounts incurred in the ordinary course of business and not for speculative purposes or (ii) deposits made in the ordinary course of business to secure liability to insurance carriers;
(kk)    Security Interests in respect of the ownership interests in, or assets owned by, any joint ventures or similar arrangements securing obligations of such joint ventures or similar agreements;
(ll)    Security Interests on equipment of any member of the Borrower Group granted in the ordinary course of business to a client of that member of the Borrower Group at which such equipment is located;
(mm)    any Security Interest in respect of subdivision agreements, site plan control agreements, development agreements, servicing agreements, cost sharing, reciprocal and other similar agreements with municipal and other governmental authorities affecting the development, servicing or use of a property; provided the same are complied with in all material respects except as such non-compliance does not interfere in any material respect as determined in good faith by UPC Broadband with the business of the Borrower Group taken as a whole;
(nn)    any Security Interest in respect of facility cost sharing, servicing, reciprocal or other similar agreements related to the use and/or operation a property in the ordinary course of business; provided the same are complied with in all material respects;
(oo)    any Security Interest in respect of deemed trusts created by operation of law in respect of amounts which are (i) not yet due and payable, (ii) immaterial, (iii) being contested in good faith and by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP or (iv) unpaid due to inadvertence after exercising due diligence;
(pp)    Security Interests (i) over the segregated trust accounts set up to fund productions, (ii) required to be granted over productions to secure production grants granted by regional and/or national agencies promoting film production in the relevant regional and/or national jurisdiction and (iii) over assets relating to specific productions funded by Production Facilities;
(qq)    Security Interests arising solely by virtue of any statutory or common law provisions or customary business provisions relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution;
(rr)    any Security Interests attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business;
(ss)    any Security Interests arising under any retention of title arrangement contained in any contract for the acquisition of any asset by a member of the Borrower Group in the ordinary course of its business from any person and on customary terms unless in relation to such a retention of title arrangement, there are payments of €15,000,000 or more which are overdue and unpaid; and
(tt)    Security Interests securing Financial Indebtedness the principal amount of which (when aggregated with the principal amount of any other Financial Indebtedness which has the benefit of a Security Interest other than as permitted pursuant to another paragraph of this definition) does not exceed the greater of (i) €300,000,000 (or its equivalent in other currencies) and (ii) five per cent. of Total Assets:
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(i)    which may be secured on assets not subject to Security; or
(ii)    which may be secured on a junior ranking basis over assets subject to Security provided that such junior ranking security shall be granted on terms where the rights of the relevant mortgagee, chargee or other beneficiary of such security in respect of any payment will be subordinated to the rights of the Finance Parties under an intercreditor arrangement on terms satisfactory to the Facility Agent (acting reasonably) (providing for contractual subordination on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt unless otherwise agreed between the Facility Agent (acting on the instructions of the Majority Lenders) and UPC Broadband) and each of the Finance Parties hereby agree to execute such intercreditor agreement as soon as practicable following request from UPC Broadband.
Permitted Tax Reorganisation” means any reorganisations and other activities related to tax planning and tax reorganisation entered into prior to, on or after the Signing Date so long as such Permitted Tax Reorganisation is not materially adverse to the Lenders (as determined by UPC Broadband in good faith).
Permitted Transaction” means:
(a)    any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security given, or other transaction arising, under the Senior Secured Finance Documents;
(b)    the solvent liquidation or reorganisation of any member of the Borrower Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Borrower Group;
(c)    transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security Interests or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm’s length terms;
(d)    a Post-Closing Reorganisation;
(e)    the Spin-Off;
(f)    any internal corporate reorganisation reasonably required in connection with, or to effect, any asset securitisation programme or a receivables factoring transaction;
(g)    any transaction with the prior consent of the Majority Lenders; and
(h)    a Permitted Tax Reorganisation.
Person” has the meaning given to such term in Clause 10.4 (Change of Control).
Plan” means an “employee benefit plan” as defined in section 3(3) of ERISA, which is subject to Title IV of ERISA:
(a)    maintained by any Obligor or any ERISA Affiliate; or
(b)    to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.
Pledge of Subordinated Shareholder Loans” means the deed of pledge (and, prior to the 2016 ICA Amendment Effective Date only, the deed of subordination) of Subordinated Shareholder Loans entered into between certain Restricted Persons and the Security Agent listed in paragraph 3(b) of Schedule 5 (Security Documents) and any other deed of pledge entered into pursuant to any such deed of pledge or Clause 19.22(a) (Shareholder Loans).
Polska Holdco” means:
(a)    UPC Poland Holding B.V. (previously called UPC Telecom NV), a limited liability company incorporated under the laws of The Netherlands under company registration number 34142854 and, as of
43


the Signing Date, with its registered office at Amsterdam and its business office at Boeingavenue 53, 1119 PE Schiphol-Rijk, The Netherlands; and
(b)    if the person referred to in paragraph (a) above:
(i)    consolidates with or merges with or is acquired by any other person or persons; or
(ii)    directly or indirectly, sells, leases, conveys or transfers all or substantially all of its assets to any other person or persons,
the successor person (including any Holding Company which holds all the shares of Polska Holdco) formed by such consolidation or into which such person is merged or to which such conveyance, transfer or lease is made.
Post-Closing Reorganisation” has the meaning given to such term in Clause 10.4 (Change of Control).
Predecessor Obligor” has the meaning given to such term in Clause 19.29 (Internal Reorganisations).
Priority Pledge” means the pledge entered into between UPC Broadband as pledgee and Priority Telecom Netherlands N.V. as pledgor dated 30 August 2002 in relation to telephony switches.
Production Facilities” means any facilities provided to any member of the Borrower Group to finance a production.
Project Company” means a Subsidiary of a person (or a person in which such person has an interest) which has a special purpose and whose creditors have no recourse to any member of the Borrower Group in respect of Financial Indebtedness of that Subsidiary or person, as the case may be, or any of such Subsidiary’s or person’s Subsidiaries (other than recourse to such member of the Borrower Group who had granted a Security Interest over its shares or other interests in such Project Company beneficially owned by it provided that such recourse is limited to an enforcement of such a Security Interest).
Proportion” in relation to a Lender, means:
(a)    in relation to an Advance to be made under this Agreement, the proportion borne by such Lender’s Available Commitment in respect of the relevant Facility, the relevant Borrowers and the relevant currency to the relevant Available Facility;
(b)    in relation to an Advance or Advances outstanding under this Agreement, the proportion borne by such Lender’s share of the Euro Amount of such Advance or Advances to the total Euro Amount thereof;
(c)    if paragraph (a) above does not apply and there are no Outstandings, the proportion borne by the aggregate of such Lender’s Available Commitments to the Available Facilities (or if the Available Facilities are then zero, by its Available Commitments to the Available Facilities immediately prior to their reduction to zero); and
(d)    if paragraph (b) above does not apply and there are any Outstandings, the proportion borne by such Lender’s share of the Euro Amount of the Outstandings to the Euro Amount of all the Outstandings for the time being.
Proposed Affiliate Subsidiary” has the meaning given to that term in Clause 28.8 (Additional Obligors).
Quarter Date” means each of 31 March, 30 June, 30 September and 31 December in each financial year of UPC Broadband.
Quotation Date” means, in relation to any currency and any period for which an interest rate is to be determined:
(a)    if the relevant currency is Euro, two TARGET Days before the first day of that period; or
(b)    in relation to any other currency, two Business Days before the first day of that period,
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provided that if market practice differs in the Relevant Interbank Market for a currency, the Quotation Date for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Date will be the last of those days).
Ratio Period” has the meaning given to such term in Clause 20.1 (Financial definitions).
Receivables Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a person that is not an Asset Securitisation Subsidiary in connection with, any asset securitisation programme or receivables factoring transaction.
Reference Bank Quotation” means any quotation supplied to the Facility Agent by a Reference Bank or an Alternative Reference Bank.
Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks:
(a)    in relation to LIBOR:
(i)    (other than where paragraph (ii) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or
(ii)    if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
(b)    in relation to EURIBOR:
(i)    (other than where paragraph (ii) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in Euro within the Participating Member States for the relevant period; or
(ii)    if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.
Reference Banks” means, subject to Clause 28.9 (Reference Banks), the principal London offices of JPMorgan Chase Bank, The Toronto-Dominion Bank and CIBC World Markets plc.
Refinanced Debt” has the meaning given to such term in Clause 2.3(h) (Additional Facilities).
Refinancing Additional Facility” has the meaning given to such term in Clause 2.3(h) (Additional Facilities).
Refinancing Indebtedness” means Financial Indebtedness that is incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance”, “refinances”, and “refinanced” shall have a correlative meaning) any Financial Indebtedness existing on the 2020 Amendment Effective Date or incurred in compliance with this Agreement including Financial Indebtedness that refinances Refinancing Indebtedness, including successive refinancings, provided, however, that:
(a)    such Refinancing Indebtedness is incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Financial Indebtedness being refinanced plus an amount to pay any interest, fees and expenses, premiums and defeasance costs, incurred in connection with such Refinancing Indebtedness and Financial Indebtedness being refinanced; and
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(b)    if the Financial Indebtedness being refinanced constitutes Subordinated Obligations, such Refinancing Indebtedness is subordinated in right of payment to the Facilities on terms at least as favorable to the Lenders as those contained in the documentation governing the Financial Indebtedness being refinanced.
Refinancing Indebtedness in respect of any Financial Indebtedness may be incurred from time to time after the termination, discharge or repayment of all or any part of any such Financial Indebtedness.
Regulatory Authority Disposal” means any direct or indirect sale, lease, transfer, issuance or distribution of any part of a present or future undertaking, shares, property, rights, remedies or other assets by one or a series of transactions related or not (each referred to for the purposes of this definition as a “disposal”) by any member of the Borrower Group to another member of the Borrower Group or any other person, provided that such disposal is required by a regulatory authority or court of competent jurisdiction or such disposal is made in response to concerns raised by a regulatory authority or court of competent jurisdiction.
Related Fund” means, with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is administered or managed by (a) that Lender, (b) any Affiliate of that Lender or (c) the same investment adviser (or an Affiliate of that investment adviser) that administers or manages that Lender.
Relevant Accounting Principles” means GAAP, or, if at the relevant time IFRS has been adopted in accordance with Clause 19.4 (Change in Accounting Practices), IFRS.
Relevant Eastern European Subsidiary” means any Subsidiary of any Obligor which Subsidiary is incorporated and has all its material operations in Eastern Europe, provided that the aggregate of the contributions of the Relevant Eastern European Subsidiaries to the consolidated EBITDA of the Borrower Group attributable to Eastern Europe does not exceed in aggregate 10 per cent.
For the purposes of this definition, consolidated EBITDA of the Borrower Group or any Subsidiary of an Obligor shall be determined by reference to the 12 month period ending on the most recent date in respect of which financial statements have been delivered to the Facility Agent under Clause 19.2(a)(ii) (Financial information).
Relevant Event” means a Default in relation to (a) Clause 21.2 (Non-payment) or (b) Clause 20.2 (Financial Ratio).
Relevant Interbank Market” means, in relation to Euro, the European interbank market and in relation to any other currency, the London interbank market therefor.
Renewal Request” means, in relation to a Documentary Credit, a Request therefor, in respect of which the proposed Utilisation Date stated in it is the Expiry Date of an existing Documentary Credit and the proposed Euro Amount is the same or less than the Euro Amount of that existing Documentary Credit.
Repayment Instalment” has the meaning given to that term in Clause 9.1 (Repayment of Advances).
Reporting Entity” means:
(a)    prior to any Permitted Affiliate Group Designation Date, UPC Broadband Holdco or any other Holding Company of UPC Broadband notified by UPC Broadband to the Facility Agent; and
(b)    on or following any Permitted Affiliate Group Designation Date, the Common Holding Company or any other Holding Company of the Common Holding Company notified by UPC Broadband to the Facility Agent.
Request” means:
(a)    in relation to an Advance, a duly completed notice substantially in the form set out in Part 1 to Schedule 3 (Form of Request (Advances)); or
(b)    in relation to a Documentary Credit, a duly completed notice substantially in the form set out in Part 3 to Schedule 3 (Form of Request (Documentary Credits)).
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Reserved Indebtedness Amount” has the meaning given to such term in Clause 19.13(e) (Restrictions on Financial Indebtedness).
Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.
Restricted Payment” has the meaning given to such term in Clause 19.14(b) (Restricted Payments).
Restricted Person” means any Affiliate of a Borrower and, following any Parent Joint Venture Transaction, any Joint Venture Parent, any Subsidiary of the Joint Venture Parent and any Parent Joint Venture Holders (in each case, other than a member of the Borrower Group) provided that any Designated Notes Issuer (as defined in the definition of Affiliate) that is not a member of the Borrower Group shall, notwithstanding the proviso to the definition of “Affiliate”, be a “Restricted Person” except for the purposes of:
(a)    the definition of “Pledge of Subordinated Shareholder Loans”;
(b)    the definition of “Subordinated Creditor”;
(c)    Clause 19.22 (Shareholder Loans);
(d)    Clause 19.13(c) (Restrictions on Financial Indebtedness); and
(e)    paragraph 3(d) of Part 2 of Schedule 2 (Conditions Precedent Documents).
Restricted Person’s Framework Agreement” means the Framework Agreement as defined in any Pledge of Subordinated Shareholder Loans.
Revolving Facility” means the revolving loan facility made available pursuant to Clause 2.1 (Revolving Facility).
Revolving Facility Commitment” means in relation to:
(a)    an Initial Revolving Facility Lender, the amount set out opposite its name in Part 2 of Schedule 1 (Original Parties) and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and
(b)    any other Lender, the amount specified in the Novation Certificate, Transfer Agreement or Increase Confirmation pursuant to which such Lender becomes a Party and any amount of any other Revolving Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
in each case to the extent not cancelled, reduced or transferred by it under this Agreement.
Revolving Facility Instructing Group” means:
(a)    before any Utilisation of the Revolving Facility under this Agreement, a Lender or group of Lenders whose Available Revolving Facility Commitments amount in aggregate to more than 50 per cent. of the Available Revolving Facility; and
(b)    thereafter, a Lender or group of Lenders to whom in aggregate more than 50 per cent. of the aggregate amount of the Revolving Facility Outstandings are (or if there are no Revolving Facility Outstandings at such time, immediately prior to their repayment, were then) owed,
in each case calculated in accordance with the provisions of Clause 27.5 (Calculation of Consent) and provided that the “Revolving Facility Instructing Group” as used in Clause 4.2 (Further conditions precedent) in relation to a Rollover Loan in respect of an Advance under an Additional Revolving Facility shall mean a Lender or group of Lenders to whom in aggregate more than 50 per cent. of the aggregate amount of that Advance is owed calculated in accordance with the provisions of Clause 27.5 (Calculation of Consent).
Revolving Facility Margin” means 2.50 per cent. per annum.
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Revolving Facility Outstandings” means, at any time, the aggregate outstanding principal amount of each Revolving Facility Advance and of each Lender under the Revolving Facility’s participation in an Outstanding L/C Amount at such time.
Rollover Advance” has the meaning given to such term in Clause 9.2 (Rollover).
Rollover Loan” means:
(a)    a Rollover Advance that is for an amount which is equal to or less than the Maturing Advance in respect of which that Rollover Advance is being drawn to refinance; and
(b)    a Revolving Facility Advance or an Advance under an Additional Revolving Facility:
(i)    made or to be made on the same day that a demand by the Facility Agent pursuant to a drawing in respect of a Documentary Credit is due to be met;
(ii)    the aggregate amount of which is equal to or less than the amount of the relevant claim in respect of that Documentary Credit;
(iii)    in the same currency as the relevant claim in respect of that Documentary Credit; and
(iv)    made or to be made for the purpose of satisfying the relevant claim in respect of that Documentary Credit.
Sale and Purchase Agreements” means the following sale and purchase agreements relating to the sale and transfer of shares and receivables entered into on 9 April 2003 between:
(a)    UPC, LGEF, UPC Holding, UPC Broadband and UPC Broadband Operations B.V. (previously called UPC Operations B.V.);
(b)    UPC, LGEF, UPC Holding and UGC Europe Services B.V. (previously called UPC Services B.V.);
(c)    UPC, LGEF, UPC Holding, UPC Broadband and UPC Broadband Holding Services B.V. (previously called UPC Holding Services B.V.); and
(d)    UPC, LGEF, UPC Holding, UPC Broadband and UPC Services Ltd.
Sanctioned Country” means any country or other territory subject to comprehensive countrywide or territory wide Sanctions.
Sanctioned Lender” means any person acting through a Facility Office situated in, or which is a branch of an institution situated in, a Sanctioned Country.
Sanctions” has the meaning given to that term in Clause 18.19 (Sanctions).
Screen Rate” means:
(a)    in relation to LIBOR:
(i)    at any time prior to an Alternative Benchmark Commencement Date in relation to LIBOR, the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
(ii)    at any time on or following an Alternative Benchmark Commencement Date in relation to LIBOR, the Alternative Benchmark Rate for the relevant currency and period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with UPC Broadband on or about the relevant Alternative Benchmark Commencement Date; and
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(b)    in relation to EURIBOR:
(i)    at any time prior to an Alternative Benchmark Commencement Date in relation to EURIBOR, the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); or
(ii)    at any time on or following an Alternative Benchmark Commencement Date in relation to EURIBOR, the Alternative Benchmark Rate for Euro for the relevant period displayed on any page of any screen of an information service as the Facility Agent may specify after consultation with UPC Broadband on or about the relevant Alternative Benchmark Commencement Date,
provided that, in each case, if such page is replaced or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with UPC Broadband.
SEC” means the United States Securities and Exchange Commission.
Security” means the Security Interests created or purported to be created pursuant to the Security Documents.
Security Documents” means:
(a)    the documents listed in Schedule 5 (Security Documents); and
(b)    such other security documents as may from time to time be entered into in favour of any Beneficiary pursuant to any of the Finance Documents (including without limitation any other Obligor Pledge of Shareholder Loans or Pledge of Subordinated Shareholder Loans, any security document referred to in Clause 19.21 (Share security) or Clause 19.23 (Further security over receivables) and any security document provided to the Security Agent in connection with the accession of an Additional Obligor pursuant to Clause 28.8 (Additional Obligors) and Part 2 of Schedule 2 (Conditions Precedent Documents) or otherwise),
in each case, to the extent that all of the Security in relation to such Security Document has not been released.
Security Interest” means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment by way of security, trust arrangement for the purpose of providing security or other security interest of any kind securing any obligation of any person or any other arrangement having the effect of conferring rights of retention or other disposal rights over an asset (including without limitation title transfer and/or retention arrangements having a similar effect or a deposit of money with the primary intention of affording a right of set-off) and includes any agreement to create any of the foregoing but does not include (a) liens arising in the ordinary course of business by operation of law and not by way of contract and (b) any grant of indefeasible rights of use or equivalent arrangements with respect to network capacity, communications, fibre capacity or conduit.
Security Provider’s Deed of Accession” has the meaning given to such term in the Intercreditor Agreement.
Senior Beneficiary” has the meaning given to the term in the Intercreditor Agreement.
Senior Debt” has the meaning given to such term in Clause 20.1 (Financial definitions).
Senior Net Debt” has the meaning given to such term in Clause 20.1 (Financial definitions).
Senior Secured Finance Documents” means:
(a)    any Finance Document;
(b)    after the 2016 ICA Amendment Effective Date, any Senior Secured Notes Document;
(c)    any Hedging Agreement;
(d)    any Pari Passu Debt Document; and
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(e)    any other agreement or document designated a “Senior Secured Finance Document” in writing by the Facility Agent and UPC Broadband.
Senior Secured Notes” means:
(a)    any notes issued after the 2016 ICA Amendment Effective Date:
(i)    where the incurrence of any Financial Indebtedness under such notes would not result in the ratio of:
(A)    Senior Net Debt to Annualised EBITDA being greater than 4.50:1; or
(B)    Total Net Debt to Annualised EBITDA being greater than 5.50:1,
in each case, on a pro forma basis (taking into account the issuance of such notes and the use of proceeds of such notes and not taking into account the cash proceeds of such notes but after giving pro forma effect to any movement of cash out of the Borrower Group since the date on which Senior Net Debt and/or Total Net Debt is calculated pursuant to any Permitted Payments) or where the incurrence of any Financial Indebtedness under such notes would otherwise be Permitted Financial Indebtedness (other than to the extent that such Financial Indebtedness is incurred by way of Senior Secured Notes pursuant to sub-paragraph (xxiii) of the definition of Permitted Financial Indebtedness);
(ii)    that are issued by UPC Broadband, any Borrower, any Permitted Affiliate Parent or any other SSN Finance Subsidiary;
(iii)    in respect of which some or all of the Obligors have granted security and guarantees on the terms specified in the Intercreditor Agreement; and
(iv)    that are designated as “Senior Secured Notes” (A) by written notice from UPC Broadband to the Facility Agent, and (B) in accordance with the Intercreditor Agreement including by written notice from UPC Broadband to the Facility Agent and the Security Agent, in each case, by the date when the consolidated financial statements are due to be provided pursuant to Clause 19.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes; and
(b)    any Senior Secured Notes Refinancing.
Senior Secured Notes Documents” means any Senior Secured Notes and any indenture for any Senior Secured Notes, the Intercreditor Agreement, any guarantee given by any member of the Borrower Group in respect of any Senior Secured Notes, any security documents granting security in favour of the holders of any Senior Secured Notes (or any trustee for such holders or security agent or trustee for such holders or trustee), any note depository agreement, any fee letter and any indemnity letter in relation thereto.
Senior Secured Notes Refinancing” means any notes issued by UPC Broadband, any Borrower, any Permitted Affiliate Parent or any other SSN Finance Subsidiary at any time after the 2016 ICA Amendment Effective Date, for the purposes of refinancing all or a portion of:
(a)    the Senior Secured Notes;
(b)    the Facilities; or
(c)    any other Financial Indebtedness of the Borrower Group which is secured and ranks pari passu as to right of payment with the Facilities pursuant to and in compliance with the terms of the Intercreditor Agreement,
(provided that, in each case, such Financial Indebtedness being refinanced would have been permitted to be incurred at the time of issuance of any such notes), in each case, outstanding from time to time (including all fees, expenses, commissions, make-whole and any other contractual premium payable under such Financial Indebtedness being refinanced and any fees, costs and expenses incurred in connection with such refinancing) and designated as “Senior Secured Notes Refinancing” by written notice from UPC Broadband to the Facility Agent
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and the Security Agent by the date when the consolidated financial statements are due to be provided pursuant to Clause 19.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes, in respect of which the following terms apply:
(i)    the principal amount of any such notes shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing) unless any excess principal amount otherwise constitutes Senior Secured Notes meeting the conditions set out in paragraph (a)(i) of the definition of Senior Secured Notes; and
(ii)    such notes satisfy the requirements of paragraphs (a) (ii), (iii) and (iv) of the definition of “Senior Secured Notes”.
Senior Unsecured Notes” means:
(a)    any notes:
(i)    where the incurrence of Financial Indebtedness under such notes would not result in the pro forma ratio (giving effect to such incurrence and the ultimate use of proceeds thereof, which shall not include any cash balances) on the Quarter Date prior to such incurrence (giving pro forma effect to any movement of cash out of the Borrower Group since such date pursuant to any Permitted Payments) of Total Net Debt to Annualised EBITDA being greater than 5.50:1 following such incurrence;
(ii)    issued by UPC Broadband Holdco or any Permitted Affiliate Holdco pursuant to a Senior Unsecured Offering at any time after the 2016 ICA Amendment Effective Date;
(iii)    that are not secured by any Security Interest over any shares in any member of the Borrower Group, any asset of any member of the Borrower Group or any rights of any creditor in relation to any Subordinated Shareholder Loans;
(iv)    that, if guaranteed by any member of the Borrower Group, such guarantee or guarantees so provided are granted on subordination and release terms and subject to the terms of the Intercreditor Agreement; and
(v)    that are designated as:
(A)    “Senior Unsecured Notes” and “Holdco Debt” by written notice from UPC Broadband to the Facility Agent and the Security Agent; and
(B)    “Senior Unsecured Notes” in accordance with the Intercreditor Agreement including by written notice from UPC Broadband to each Agent (as defined in the Intercreditor Agreement),
in each case, by the date when the consolidated financial statements are due to be provided pursuant to Clause 19.2 (Financial information) for the first full Financial Quarter after the issuance of the relevant notes; and
(b)    any Senior Unsecured Refinancing.
Senior Unsecured Offering” means one or more offerings of Senior Unsecured Notes on a registration statement filed with the SEC or pursuant to an exemption from registration under the United States Securities Act of 1933, as amended, including pursuant to Rule 144A and/or Regulation S under the United States Securities Act of 1933, as amended.
Senior Unsecured Refinancing” means any Financial Indebtedness incurred by UPC Broadband Holdco or any Permitted Affiliate Holdco at any time after the 2016 ICA Amendment Effective Date, for the purposes of refinancing all or a portion of any Senior Unsecured Notes and/or any Senior Unsecured Refinancing and/or any Senior Secured Notes and/or any Financial Indebtedness permitted to be incurred or outstanding pursuant to Clause 19.13 (Restrictions on Financial Indebtedness) in each case, including any Financial Indebtedness incurred for the purpose of the payment of all principal, interest, fees, expenses, commissions, make-whole and any other
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contractual premium payable under such Financial Indebtedness being refinanced and any fees, costs and expenses incurred in connection with such refinancing, in respect of which the following terms apply:
(a)    the principal amount of any such Financial Indebtedness shall not exceed the principal amount of, and any outstanding interest on, the Financial Indebtedness being refinanced (plus all fees, expenses, commissions, make-whole or other contractual premium payable in connection with such refinancing) unless any excess principal amount otherwise constitutes Senior Unsecured Notes meeting the conditions set out in paragraph (a) of the definition of Senior Unsecured Notes;
(b)    that, if guaranteed, by any member of the Borrower Group such guarantee or guarantees so provided are granted on subordination and release terms and subject to the terms of the Intercreditor Agreement; and
(c)    are not secured by any Security Interest over any shares in any member of the Borrower Group, any asset of any member of the Borrower Group or any rights of any creditor in relation to any Subordinated Shareholder Loans,
provided that such Financial Indebtedness is designated as (i) “Senior Unsecured Refinancing” and “Holdco Debt” by written notice from UPC Broadband to the Facility Agent and the Security Agent and (ii) “Senior Unsecured Notes” in accordance with the Intercreditor Agreement including by written notice from UPC Broadband to each Agent (as defined in the Intercreditor Agreement), in each case, by the date when the consolidated financial statements are due to be provided pursuant to Clause 19.2 (Financial information) for the first full Financial Quarter after the incurrence of the relevant Financial Indebtedness.
Shareholder” means LGEF or an LGEF Subsidiary.
Signing Date” means 16 January 2004.
Solvent Liquidation” has the meaning given to such term in Clause 19.29 (Internal Reorganisations).
Specified Time” means a time determined in accordance with Schedule 10 (Timetable).
SSN Finance Subsidiary” means any Subsidiary directly and wholly-owned by UPC Broadband or any Subsidiary directly and wholly-owned by any Permitted Affiliate Parent, in each case, engaged in the business of effecting or facilitating the issuance of Senior Secured Notes and on-lending the proceeds to any other member of the Borrower Group and in either case having no Subsidiaries.
Standard & Poor’s” means Standard & Poor's Rating Services or any successor thereof.
Subordinated Creditor” means any Restricted Person who has, at any relevant time, entered into a Pledge of Subordinated Shareholder Loans and is a party to, or has acceded to, the Intercreditor Agreement.
Subordinated Obligations” means any Financial Indebtedness that is expressly subordinated or junior in right of payment to the liabilities under this Agreement pursuant to a written agreement.
Subordinated Shareholder Loans” means any Financial Indebtedness of any member of the Borrower Group owed to a Subordinated Creditor.
Subscriber” means any person who has entered into an agreement (which has not expired or been terminated) with an Obligor to be provided with services by an Obligor through the operation of telecommunications and/or television systems operated by the Borrower Group in accordance with applicable Telecommunications and Cable Laws (including any part of such system and all modifications, substitutions, replacements, renewals and extensions made to such systems).
Subsidiary” of a person means any other person directly or indirectly controlled by the first-mentioned person, for which purpose control means ownership of more than 50 per cent. of the economic and/or voting share capital (or equivalent right of ownership of such other person).
Successor Entity” has the meaning given to such term in Clause 19.29 (Internal Reorganisations).
Target” means any assets or person which is or are the subject of an Acquisition in accordance with the terms of this Agreement.
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TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilise a single shared platform and which was launched on 19 November 2007.
TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euro.
Taxes” or “Tax” means all present and future taxes, imposts, duties, levies, fees or charges of a similar nature, together with interest thereon and penalties in respect thereof.
Tax Credit” means a credit against, relief or remission for, or repayment of any tax.
Telecommunications and Cable Law” means all laws, statutes, regulations and judgments relating to telecommunications, cable television and data services applicable to any member of the Borrower Group and/or the business carried on by any member of the Borrower Group in any jurisdiction in which a member of the Borrower Group is incorporated or formed or in which such member has its principal place of business or owns any material assets.
Term” means the period from the date of the issuance of a Documentary Credit until its Expiry Date.
Term Facility” means an Additional Facility pursuant to which one or more Term Facility Advances have been or may be made.
Term Facility Advance” means any Advance (other than any Advance under the Revolving Facility or any Additional Revolving Facility), and “Term Facility Advances” shall be construed accordingly.
Third Parties Act” has the meaning given to such term in Clause 1.2(e) (Construction).
Total Additional Facility Commitments” means in relation to an Additional Facility, the aggregate for the time being of the Additional Facility Commitments for that Additional Facility.
Total Assets” means the consolidated total assets of the Borrower Group as shown on the most recent balance sheet (excluding the footnotes thereto) of the Borrower Group delivered in accordance with Clause 19.2(a)(i) or 19.2(a)(ii) (Financial information), as applicable (and, in the case of any determination relating to any incurrence of indebtedness or any investment, on a pro forma basis including any property or assets being acquired in connection therewith).
Total Commitments” means the aggregate for the time being of: (i) the aggregate Total Additional Facility Commitments for all Additional Facilities and (ii) the Total Revolving Facility Commitments, in each case as may be increased or reduced in accordance with this Agreement.
Total Debt” has the meaning given to such term in Clause 20.1 (Financial definitions).
Total Net Debt” has the meaning given to such term in Clause 20.1 (Financial definitions).
Total Revolving Facility Commitments” means the aggregate for the time being of the Revolving Facility Commitments of all the Lenders, being €736,360,000 as at the 2021 Amendment Effective Date.
Tower Company” means a person whose principal activity relates to Towers Assets and substantially all of whose assets are Towers Assets.
Towers Assets” means:
(a)    all present and future wireless and broadcast towers and tower sites that host or assist in the operation of plant and equipment used for transmitting telecommunications signals, being tower and tower sites that are owned by or vested in UPC Broadband or any other member of the Borrower Group (whether pursuant to title, rights in rem, leases, rights of use, site sharing rights, concession rights or otherwise) and include, without limitation, any and all towers and tower sites under construction;
(b)    all rights (including, without limitation, rights in rem, leases, rights of use, site sharing rights and concession rights), title, deposits (including, without limitation, deposits placed with landlords, electricity boards and transmission companies) and interest in, or over, the land or property on which such towers and tower sites referred to in paragraph (a) above have been or will be constructed or erected or installed;
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(c)    all current assets relating to the towers or tower sites and their operation referred to in paragraph (a) above, whether movable, immovable or incorporeal;
(d)    all plant and equipment customarily treated by telecommunications operators as forming part of the towers or tower sites referred to in paragraph (a) above, including, in particular, but without limitation, the electricity power connections, utilities, diesel generator sets, batteries, power management systems, air conditioners, shelters and all associated civil and electrical works;
(e)    all permits, licences, approvals, registrations, quotas, incentives, powers, authorities, allotments, consents, rights, benefits, advantages, municipal permissions, trademarks, designs, copyrights, patents and other intellectual property and powers of every kind, nature and description whatsoever, whether from government bodies or otherwise, pertaining to or relating to paragraphs (a) to (d) above; and
(f)    shares or other interests in Tower Companies.
Transfer Agreement” means a duly completed assignment and assumption substantially in the form set out at Part 2 of Schedule 4 (Transfer Agreement).
UGC” means:
(a)    UnitedGlobalCom LLC, a limited liability company incorporated in the State of Delaware with file number 3309619 and having its registered office at 251 Little Falls Drive, Wilmington, Delaware, DE 19808; and
(b)    if the person referred to in paragraph (a) above:
(i)    consolidates with or merges with any other person or persons; or
(ii)    directly or indirectly, sells, leases, conveys or transfers all or substantially all of its assets to any other person or persons,
the successor person formed by such consolidation or into which such person is merged or to which such conveyance, transfer or lease is made.
UGCE Borrower Group” means:
(a)    UPC Holding; and
(b)    any other person of which UPC Broadband is a Subsidiary and which is a Subsidiary of UPC Holding.
UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
Ultimate Parent” means:
(a)    Liberty Global PLC, together with its successors;
(b)    following consummation of a Spin-Off, the Spin Parent and its successors; and
(c)    following consummation of a Parent Joint Venture Transaction, each of the ultimate Holding Companies of the Parent Joint Venture Holders and their successors.
United States” or “US” means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.
Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents (other than any Ancillary Facility Document).
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Unrestricted Subsidiary” means each Subsidiary of UPC Broadband and each Subsidiary of any Permitted Affiliate Parent which is not an Obligor which is designated by UPC Broadband or any Permitted Affiliate Parent (as applicable) in writing as an Unrestricted Subsidiary.
UPC” means Liberty Global Europe Holding B.V. (formerly known as United Pan-Europe Communications N.V.), a private limited liability company incorporated under the laws of The Netherlands under company registration number 34359572 and with its registered office at Amsterdam and its business office at Boeingavenue 53, 1119 PE Schiphol-Rijk, The Netherlands.
UPC Broadband Holdco” means the immediate Holding Company of UPC Broadband from time to time, being UPC Holding as of the Signing Date.
UPC Financing” means UPC Financing Partnership, a general partnership formed under the laws of Delaware, United States with file number 5081283 and its principal place of business at 4643 South Ulster Street, Suite 1300, Denver, Colorado 80237, United States.
UPC Holding” means UPC Holding B.V., a limited liability company incorporated under the laws of The Netherlands under company registration number 34136926 and, as of the Signing Date, with its registered office at Amsterdam and its business office at Boeingavenue 53, 1119 PE Schiphol-Rijk, The Netherlands
UPC Holding II” means UPC Holding II B.V., a limited liability company incorporated under the laws of The Netherlands under company registration number 34142964 and, as of the Signing Date, with its registered office at Amsterdam and its business office at Boeingavenue 53, 1119 PE Schiphol-Rijk, The Netherlands.
UPC Polska” means UPC Polska LLC.
US Borrower” means any Additional Borrower under this Agreement which is incorporated or formed under the laws of a State of the United States or that resides or has a domicile, a place of business or property in the United States which, in each case, has not ceased to be a Borrower.
US Dollars” and “US$” means the lawful currency for the time being of the United States.
US Obligor” has the meaning given to such term in Clause 21.6(e) (Insolvency).
Utilisation” means the utilisation of a Facility under this Agreement, whether by way of an Advance, the issue of a Documentary Credit or the utilisation of an Ancillary Facility.
Utilisation Date” means:
(a)    in relation to an Advance, the date on which such Advance is (or is requested) to be made;
(b)    in relation to a utilisation by way of Ancillary Facility, the date on which such Ancillary Facility is established; and
(c)    in relation to a utilisation by way of Documentary Credit, the date on which such Documentary Credit is to be issued,
in each case, in accordance with the terms of this Agreement.
VAT” means value added or similar tax.
Vendor Financing Arrangements” means any arrangement, contractual or otherwise, pursuant to which credit or other financing is provided or arranged by a supplier (or any of its Affiliates) of assets (including equipment) and/or related services to a member of the Borrower Group in connection with such supply of assets and/or services.
Website Lenders” has the meaning given to such term in Clause 35.3(a) (Use of Websites/E-mail).
Western Europe” means the countries that comprise: (a) the European Union from time to time or as of a specified date as selected by the Borrower, being a date more recent than the Effective Date; and (b) Norway and Switzerland.
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Wider Group” means:
(a)    UGC (as the successor person following the merger of UGC Europe Inc. into UGC) and each of its Affiliates including (for the avoidance of doubt), Liberty Global, Inc. and Liberty Media International, Inc. or any of their respective Subsidiaries (other than a member of the Borrower Group); and
(b)    following consummation of a Parent Joint Venture Transaction, each of the ultimate Holding Companies of the Parent Joint Venture Holders, the Parent Joint Venture Holders and the Joint Venture Parent and, in each case, their successors and their Subsidiaries (other than a member of the Borrower Group).
Write-down and Conversion Powers” means:
(a)    in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
(b)    in relation to any other applicable Bail-In Legislation:
(i)    any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
(ii)    any similar or analogous powers under that Bail-In Legislation; and
(c)    in relation to any UK Bail-In Legislation:
(i)    any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
(ii)    any similar or analogous powers under that UK Bail-In Legislation.
1.2    Construction
(a)    In this Agreement, unless the contrary intention appears, a reference to:
(i)    a document being in the “agreed form” means a document (A) in a form previously agreed in writing by or on behalf of the Facility Agent and UPC Broadband, or (B) in a form substantially as set out in any Schedule to any Finance Document, or (C) (if not falling within (A) or (B) above) in form and substance satisfactory to the Lenders and initialled by or on behalf of the Facility Agent and UPC Broadband for the purposes of identification;
(ii)    “amendment” includes a supplement, novation or re-enactment and “amended” is to be construed accordingly;
(iii)    “assets” includes all or any part of any business, undertaking, real property, personal property, uncalled capital and any rights (whether actual or contingent, present or future) to receive, or require delivery of, any of the foregoing;
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(iv)    a Borrower providing “cash cover” for a Documentary Credit or an Ancillary Facility means that Borrower paying an amount in the currency of the Documentary Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account in the name of that Borrower and the following conditions being met:
(A)    the account is with the Security Agent or with the L/C Bank or Ancillary Facility Lender for which that cash cover is to be provided;
(B)    subject to Clause 6.9(b) (Cash Cover by Borrower), until no amount is or may be outstanding under that Documentary Credit or Ancillary Facility, withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit or Ancillary Facility; and
(C)    if requested by the relevant L/C Bank or Ancillary Facility Lender, that Borrower has executed a security document in respect of that account or a Security Document over that account, in form and substance satisfactory to the Security Agent or the L/C Bank or Ancillary Facility Lender, each acting reasonably, with which that account is held, creating a first ranking Security Interest over that account;
(v)    a Default (other than an Event of Default) is “continuing” if it has not been remedied or waived, an Event of Default is “continuing” if it has not been remedied or waived and a breach of the undertaking set out in Clause 20.2 (Financial Ratio) is “continuing” if it has not been remedied, waived or cured in accordance with paragraph (b) of Clause 20.2 (Financial Ratio) or Clause 20.4 (Cure provisions);
(vi)    “determines” or “determined” means, save as otherwise provided herein, a determination made in the absolute discretion of the person making the determination;
(vii)    references to the “equivalent” of an amount specified in a particular currency (the “specified currency amount”) shall be construed as a reference to the amount of the other relevant currency which can be purchased with the specified currency amount in the London foreign exchange market at or about 11.00 a.m. on the day on which the calculation falls to be made for spot delivery as determined by the Facility Agent in accordance with its customary practices;
(viii)    “European interbank market” means the interbank market for Euro operating in Participating Member States;
(ix)    a “guarantee” includes a reference to an indemnity or other assurance against financial loss including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any indebtedness and “guaranteed” and “guarantor” shall be construed accordingly;
(x)    “indebtedness” is a reference to any obligation for the payment or repayment of money, whether as principal or as surety and whether present or future, actual or contingent;
(xi)    a “month” is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that, if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that month;
(xii)    a Lender’s “participation” in relation to a Documentary Credit, shall be construed as a reference to the relevant amount that is or may be payable by that Lender in relation to that Documentary Credit;
(xiii)    “permanent prepayment and cancellation” means, in relation to any facility, a permanent prepayment of outstanding advances under that facility with a corresponding permanent cancellation of the total commitments in relation to that facility;
(xiv)    a “repayment” shall include a “prepayment” and references to “repay” or “prepay” shall be construed accordingly;
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(xv)    a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
(xvi)    a Borrower “repaying” or “prepaying” a Documentary Credit or a letter of credit, bank guarantee, indemnity, performance bond or other documentary credit under an Ancillary Facility (each a “Relevant Documentary Credit”) means:
(A)    that Borrower providing cash cover for that Documentary Credit or in respect of the Ancillary Facility Outstandings;
(B)    the maximum amount payable under the Documentary Credit or Ancillary Facility being reduced or cancelled in accordance with its terms;
(C)    the relevant L/C Bank or Ancillary Facility Lender being satisfied that it has no further liability under that Documentary Credit or Ancillary Facility, and the amount by which a Documentary Credit is, or Ancillary Facility Outstandings are, repaid or prepaid under paragraphs (A) and (B) above is the amount of the relevant cash cover or reduction;
(D)    in the case of a Documentary Credit, a Borrower has made a payment under paragraph (b) of Clause 6.6 (Claims under a Documentary Credit) in respect of that Documentary Credit or a Borrower has made a reimbursement in respect of that Documentary Credit under Clause 6.7 (Documentary Credit Indemnities) (but in each case only to the extent of such payment or reimbursement);
(E)    the Relevant Documentary Credit (as the case may be) expires in accordance with its terms or is otherwise returned by the beneficiary with its written confirmation that it is released and cancelled; or
(F)    a bank or financial institution having a long term credit rating from any of Moody’s, Standard & Poor’s or Fitch at least equal to Baa3/BBB- (as applicable or its equivalent or such other rating as the Facility Agent and the applicable L/C Bank or Ancillary Facility Lender (as the case may be) may agree), or by any other institution satisfactory to the applicable L/C Bank or Ancillary Facility Lender (as the case may be) (acting reasonably), having issued an unconditional and irrevocable guarantee, indemnity, counter-indemnity or similar assurance against financial loss in respect of amounts due under that Relevant Documentary Credit;
(xvii)    an amount “borrowed” includes any amount utilised by way of Documentary Credit or under an Ancillary Facility;
(xviii)    a reference to a party to any Finance Document shall be construed so as to include its respective and any subsequent successors, transferees, permitted assigns and merged entities;
(xix)    a Lender funding its participation in a Utilisation includes a Lender participating in a Documentary Credit;
(xx)    the “outstanding amount” of a Documentary Credit at any time is the maximum amount that is or may be payable by a Borrower in respect of that Documentary Credit at that time;
(xxi)    a “regulation” includes any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law but, if not having the force of law, only if compliance therewith is in accordance with the general practice of the relevant persons to whom it is intended to apply or, in the case of Clause 15 (Increased Costs) only, the relevant Finance Party or its Holding Company) of any agency, authority, central bank or government department or any self-regulatory or other national or supra-national authority;
(xxii)    a provision of a law is a reference to that provision as amended, re-enacted or extended;
(xxiii)    a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement;
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(xxiv)    a person includes its successors, transferees and assigns;
(xxv)    (or to any specified provision of) this Agreement or any other document shall be construed, save where expressly provided to the contrary in this Agreement, as a reference to this Agreement, that provision or that document as in force for the time being and as from time to time amended in accordance with its terms, or, as the case may be, with the agreement of the relevant parties and (where such consent is, by the terms of this Agreement or the relevant document, required to be obtained as a condition to such amendment being permitted) the prior written consent of the Facility Agent, all of the requisite Lenders or the Majority Lenders (as the case may be);
(xxvi)    unless otherwise specified, a time of day is a reference to London time;
(xxvii)    words importing the plural include the singular and vice versa;
(xxviii)    “wholly-owned Subsidiary” means, in respect of any Person:
(A)    a Person all of the Capital Stock of which (other than (x) directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law, regulation or to ensure limited liability and (y) in the case of an Asset Securitisation Subsidiary, shares held by a Person that is not an Affiliate of UPC Broadband solely for the purpose of permitting such Person (or such person’s designee) to vote with respect to customary major events with respect to such Asset Securitisation Subsidiary, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or other customary events), is owned by that Person directly; or
(B)    a Person all of the Capital Stock of which is owned indirectly by a Person that satisfies the requirements of sub-paragraph (A) above;
(xxix)    “fair market value” unless otherwise specified in this Agreement, may be conclusively established by means of an officer’s certificate or a resolution of the board of directors (or equivalent) of UPC Broadband, any Permitted Affiliate Parent or any Affiliate Subsidiary setting out such fair market value as determined by such officer or such board of directors (or equivalent) in good faith;
(xxx)    any matter being “permitted” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or any other such Finance Document;
(xxxi)    “consolidated” in connection with the financial position of, financial statements of or accounts of or financial definitions in relation to, the Borrower Group shall be construed to mean that the accounts of any Affiliate Subsidiary shall be combined for the purpose of determining such financial position, financial statements, accounts or financial definitions;
(xxxii)    following the delivery of a Group Redesignation Notice to the Facility Agent designating any Holding Company of UPC Broadband and/or any Holding Company of any Permitted Affiliate Parent as a “New Group Topco”, any references to “UPC Broadband” and/or a “Permitted Affiliate Parent” (as applicable) in this Agreement shall be deemed to refer instead to that New Group Topco; and
(xxxiii)    No Default, Event of Default or breach of any representation and warranty or undertaking under the Finance Documents shall arise merely as a result of a subsequent change in the Euro equivalent of any relevant amount due to fluctuations in exchange rates.
(b)    When determining the Euro equivalent amount for any purpose other than under Clause 20 (Financial Covenant), the Facility Agent shall determine the amount of (i) any undrawn Commitments denominated in US Dollars or any Additional Currency on the basis of the Agent’s Spot Rate of Exchange on the 2020 Amendment Effective Date (in the case of the Revolving Facility) or on the date of the relevant Additional Facility Accession Agreement (in the case of an Additional Facility); and (ii) any participations in Utilisations denominated in US Dollars, an Additional Currency or an Optional
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Currency on the basis of the Agent’s Spot Rate of Exchange on the date of receipt by the Facility Agent of the Request for the relevant Utilisation.
(c)    Unless the contrary intention appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
(d)    The index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement.
(e)    Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”).
(f)    Notwithstanding any term of any Finance Document, the consent of any third party is not required for any variation (including any release or compromise of any liability under) or termination of that Finance Document.
(g)    Where paragraph or clause numbers have changed in this Agreement as a result of the amendments to this Agreement implemented on the 2016 First Amendment Effective Date, the 2016 Second Amendment Effective Date, the 2017 First Amendment Effective Date, the 2020 Amendment Effective Date and the 2021 Amendment Effective Date and such paragraph and clause numbers are referred to in any Finance Document in force on the 2016 First Amendment Effective Date, the 2016 Second Amendment Effective Date, the 2017 First Amendment Effective Date, the 2020 Amendment Effective Date or the 2021 Amendment Effective Date (as applicable), such paragraph or clause numbers shall be read and construed in this Agreement, for the purposes of the relevant Finance Document only, so that the relevant equivalent provision in this Agreement is referred to in each such Finance Document.
(h)    The knowledge or awareness or belief of any member of the Borrower Group shall be limited to the actual knowledge, awareness or belief of the board of directors (or equivalent body) of such member of the Borrower Group at the relevant time.
(i)    Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Advances in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrowers, the Facility Agent and such Lender and any such exchange, continuation or rollover shall be deemed to comply with any requirement hereunder or under any other Finance Document that any payment be made in “US Dollars” (or any other relevant currency), “in immediately available funds”, “in cash” or any other similar requirements.
(j)    No personal liability shall attach to any director, officer or employee of any member of the Borrower Group or any member of the Wider Group for any representation or statement made by that member of the Borrower Group or that member of the Wider Group in a certificate by such director, officer or employee.
(k)    The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period determined pursuant to the terms of this Agreement.
(l)    This Agreement is entered into subject to, and with the benefit of, the terms of the Intercreditor Agreement.
(m)    Notwithstanding anything to the contrary in this Agreement, the terms of the Intercreditor Agreement will prevail if there is a conflict between the terms of this Agreement and the terms of the Intercreditor Agreement.
(n)    Polish terms
In this Agreement, a reference to:
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(i)    Polish Bankruptcy Law means the Polish Bankruptcy Law dated 28 February 2003, as amended;
(ii)    Polish Civil Code means the Polish Civil Code dated 23 April 1964, as amended;
(iii)    Polish Civil Procedure Code means the Polish Civil Procedure Code dated 17 November 1964, as amended;
(iv)    Polish Commercial Companies Code means the Polish Commercial Companies Code dated 15 September 2000, as amended; and
(v)    Polish Restructuring Law means the Polish Restructuring Law dated 15 May 2015, as amended.
(o)    In each Finance Document, where it relates to a person incorporated or having its centre of main interests in Poland, a reference to:
(i)    an agent includes an attorney (pełnomocnik), delivery agent (pełnomocnik do doręczeń), pledge administrator (administrator zastawu), mortgage administrator (administrator hipoteki) and mandatory (zleceniobiorca) of a person;
(ii)    a composition, compromise, assignment, reorganisation or similar arrangement with any creditor includes a układ concluded or approved during insolvency proceedings under Polish Bankruptcy Law or restructuring proceedings (postępowanie restrukturyzacyjne) under Polish Restructuring Law. This also includes a partial composition (układ częściowy);
(iii)    a compulsory manager, receiver or administrator includes a tymczasowy nadzorca sądowy, tymczasawy zarządca, nadzorca, nadzorca sądowy, nadzorca układu, syndyk, zarządca or zarządca przymusowy, as defined in Polish Bankruptcy Law or Polish Restructuring Law. This also includes zarządca appointed under the Act on Registered Pledges or the Polish Civil Procedure Code and a kurator sądowy appointed under the Polish Civil Code;
(iv)    a dissolution includes a rozwiązanie spółki in accordance with the Polish Commercial Companies Code;
(v)    a liquidator includes a likwidator appointed under the Polish Commercial Companies Code;
(vi)    a moratorium includes a odroczenie spłaty zobowiązań pieniężnych;
(vii)    a security, Security, security interest or Security Interest means any mortgage (hipoteka), pledge (zastaw), registered pledge (zastaw rejestrowy), financial pledge (zastaw finansowy), security assignment (przelew praw na zabezpieczenie), security transfer of title (przewłaszczenie na zabezpieczenie), retention right (prawo zatrzymania) or right to reclaim sold goods (zastrzeżenie własności rzeczy sprzedanej);
(viii)    a quasi security means any power of attorney to bank accounts (pełnomocnictwo do rachunków bankowych) and voluntary submission to enforcement (oświadczenie o poddaniu się egzekucji); and
(ix)    a winding up includes a declaration of bankruptcy.
1.3    Existing Facility Agreement
(a)    Unless expressly stated to the contrary, and subject to paragraph (b), references in any of the Finance Documents to the Existing Finance Documents and to terms defined in, and provisions of, any of the Existing Finance Documents, shall be references to the relevant Existing Finance Document and such terms and provisions as at the Effective Date, as the same may be amended with the prior written approval of the Facility Agent (acting on the instructions of the Majority Lenders) from time to time.
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(b)    References in any of the Finance Documents to any Finance Party (as defined in the Existing Facility Agreement) shall include such Finance Party’s permitted successors, transferees or assigns from time to time.
1.4    Permitted Affiliate Group Designation Date
On and from any Permitted Affiliate Group Designation Date any obligation in this Agreement of UPC Broadband to procure that members of the Borrower Group comply with any covenant shall be construed such that UPC Broadband shall be obliged to procure that only its Subsidiaries that are members of the Borrower Group comply with that obligation and the relevant Permitted Affiliate Parent shall be obliged to procure that its Subsidiaries that are members of the Borrower Group comply with that obligation.
1.5    Exchange Rates
When applying any monetary limits, thresholds and other exceptions to the representations and warranties, undertakings and Events of Default under the Finance Documents, the equivalent to an amount in Euro shall be calculated at a rate for the conversion of the relevant non-Euro currency into Euro which is, at the election of UPC Broadband (a) a rate selected by UPC Broadband (acting reasonably and in good faith) or (b) the Agent’s Spot Rate of Exchange, in each case, as at the time of any relevant action.
1.6    Baskets
(a)    In the event that any amount or transaction meets the criteria of more than one of the baskets or exceptions set out in this Agreement, UPC Broadband, in its sole discretion, will classify and may from time to time reclassify that amount or transaction to a particular basket or exception and will only be required to include that amount or transaction in one of those baskets or exceptions (and, for the avoidance of doubt, an amount or transaction may at the option of UPC Broadband be split between different baskets or exceptions).
(b)    Any amounts incurred or actions taken on the basis of any basket, test or permission where an element is set by reference to a percentage of EBITDA or Total Assets (“EBITDA or Total Assets based basket”) shall (provided that such amounts or actions taken are, at the time of incurrence or being taken, duly and properly incurred or taken in accordance with the relevant basket, test or permission) be treated as having been duly and properly incurred or taken without the occurrence of a Default or Event of Default in the event that such EBITDA or Total Assets based basket subsequently decreases.
1.7    Interpretation of Events of Default
(a)    If any Default or Event of Default occurs due to (x) the failure by any person to take any action by a specified time, such Default or Event of Default shall be deemed to have been remedied at the time, if any, that the applicable person takes such action or (y) the taking of any action by any person that is not then permitted by the terms of this Agreement or any other Finance Document, such Default or Event of Default shall be deemed to be remedied on the earlier to occur of (A) the date on which such action would be permitted at such time to be taken under this Agreement and the other Finance Documents and (B) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by this Agreement and the other Finance Documents. If any Default or Event of Default occurs that is subsequently remedied (a “Cured Default”), any other subsequent Default or Event of Default resulting from the taking or omitting to take any action by any person, which subsequent Default or Event of Default would not have arisen had the Cured Default not occurred, shall be deemed to be remedied automatically upon, and simultaneously with, the remedy of the Cured Default. Notwithstanding anything to the contrary in this paragraph, a Default or Event of Default (the “Initial Default”) may not be cured pursuant to this Clause 1.7:
(i)    in the case of an Initial Default described in sub-paragraph (y) above, if an officer of UPC Broadband had Knowledge at the time of taking any such action that such Initial Default had occurred and was continuing; or
(ii)    if the Facility Agent shall have declared all Outstandings to be immediately due and payable pursuant to the provisions described under Clause 21.18 (Acceleration) prior to the date such Initial Default would have been deemed to be remedied under this paragraph.
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(b)    For purposes of this Clause 1.7, “Knowledge” shall mean, with respect to an officer of UPC Broadband, (i) the actual knowledge of such individual or (ii) the knowledge that such individual would have obtained if such individual had acted in good faith to discharge his or her duties with the same level of diligence and care as would reasonably be expected from an officer in a substantially similar position.
(c)    Notwithstanding anything to the contrary herein, (i) if a Default occurs for a failure to report or deliver a required certificate in connection with an Initial Default then at the time such Initial Default is remedied, such Default for a failure to report or deliver a required certificate in connection with the Initial Default will also be remedied without any further action and (ii) any Default or Event of Default for the failure to comply with the time periods prescribed in Clause 19.2 (Financial information), or otherwise to deliver any notice or certificate pursuant to any other provision of this Agreement shall be deemed to be remedied upon the delivery of any such report required by such covenant or notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Agreement.
2.    THE FACILITIES
2.1    Revolving Facility
The Lenders grant upon the terms and subject to the conditions of this Agreement a multicurrency revolving loan facility to UPC Financing Partnership in an amount equal to the Total Revolving Facility Commitments, as may be increased in accordance with Clause 2.2 (Increase), which shall be available for drawing in Euro, US Dollars and any Optional Currency.
2.2    Increase
(a)    In addition to paragraph (b) below, UPC Broadband may with the prior consent of a Lender, any bank, financial institution, trust, fund or any other person selected by UPC Broadband (each an “Increase Lender”) and by giving 10 Business Days prior notice to the Facility Agent, increase the Commitments under any Facility by including any new Commitments of any Increase Lender provided that:
(i)    at the election of UPC Broadband acting in its sole discretion, it shall be a condition:
(A)    that the aggregate principal amount of any proposed increase in the Commitments shall not exceed, mutatis mutandis, the Additional Facilities Cap on the date that such increase in the Commitments becomes effective (giving pro forma effect to the intended use of proceeds of such increased Commitment and assuming that the entire amount of that increased Commitment is drawn on such date, and provided that an election that this paragraph (A) shall apply may not be made in relation to that increased Commitment if an election that paragraph (B) below shall apply has previously been made in relation to that increased Commitment); or
(B)    to any Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (Renewal of Documentary Credits)) of that increased Commitment that the aggregate principal amount of that increased Commitment to be drawn would not exceed, mutatis mutandis, the Additional Facilities Cap on the date of that Utilisation (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that increased Commitment is drawn); and
(ii)    each Borrower for that Facility is or becomes an Obligor.
(b)    UPC Broadband may by giving prior notice to the Facility Agent by no later than the date falling 30 Business Days after the effective date of a cancellation of:
(i)    the Available Commitments of a Defaulting Lender in accordance with Clause 10.8 (Right of Cancellation in Relation to a Defaulting Lender);
(ii)    the Commitments of a Lender in accordance with Clause 16.1 (Illegality) and Clause 16.2 (Illegality in Relation to an L/C Bank); or
(iii)    the Commitments of a Lender in accordance with Clause 10.7 (Right of prepayment and cancellation of a Single Lender),
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request that the Commitments relating to any Facility be increased (and the Commitments under that Facility shall be so increased) in an aggregate amount in the relevant currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled.
(c)    The increased Commitments will be assumed by one or more Increase Lenders selected by UPC Broadband each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume as if it had been a Party as a Lender on the Signing Date; each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been a Party as a Lender on the Signing Date.
(d)    Each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other relevant Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those relevant Finance Parties would have assumed and/or acquired had the Increase Lender been a Party as a Lender on the Signing Date.
(e)    The Commitments of the other Lenders shall continue in full force and effect.
(f)    An increase in the Commitments shall take effect on the date specified by UPC Broadband in the relevant notice referred to above or any later date on which the conditions set out in paragraph (g) below are satisfied.
(g)    An increase in the Commitments will only be effective on:
(i)    the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender;
(ii)    in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:
(A)    the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and
(B)    the performance by the Facility Agent of all necessary “know your client” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to UPC Broadband, the Increase Lender and each L/C Bank; and
(iii)    each relevant Increase Lender consenting to such increase.
(h)    UPC Broadband may pay to any Increase Lender a fee in the amount and at the times agreed between UPC Broadband and the Increase Lender.
(i)    Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.
(j)    The execution by UPC Broadband of an Increase Confirmation constitutes confirmation by each Guarantor that its obligations under Clause 17 (Guarantee) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the new Commitments of any Increase Lender and shall be owed to each Finance Party including the relevant Lender.
(k)    Paragraphs (f) to (h) of Clause 28.3 (Transfers by Lenders) shall apply mutatis mutandis in this Clause 2.2 (Increase) in relation to an Increase Lender as if references in that Clause to:
(i)    an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;
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(ii)    the “New Lender” were references to that “Increase Lender”; and
(iii)    a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.
2.3    Additional Facilities
(a)    Any person may, subject to the terms of this Agreement, become a Lender by delivering to the Facility Agent an Additional Facility Accession Agreement in each case duly completed and executed by that person, UPC Broadband and, if the Additional Facility is to be granted to an Additional Borrower, the relevant Additional Borrower. That person shall become a Lender on the date specified in the Additional Facility Accession Agreement or any later date on which the conditions set out in paragraph (e) below are satisfied.
(b)    Upon the relevant person becoming a Lender, the Total Commitments shall be increased by the amount set out in the relevant Additional Facility Accession Agreement as that Lender’s Additional Facility Commitment.
(c)    Each Lender under an Additional Facility shall become a Party and be entitled to share in the Security in accordance with the terms of the Intercreditor Agreement and the Security Documents pari passu with the Lenders under the other Facilities provided that UPC Broadband and the relevant Lenders may agree that an Additional Facility shares in the Security on a junior basis to the other Facilities or shall not be entitled to share in the Security either in accordance with the terms of the Intercreditor Agreement or pursuant to ancillary intercreditor agreements.
(d)    Subject to paragraphs (g) and (h) below, each Lender will grant to the relevant Borrower a term loan facility or a revolving loan facility (which may include any Ancillary Facility and/or Documentary Credit facility) (an “Additional Facility”) in the amount specified in the relevant Additional Facility Accession Agreement in Euros, US Dollars or an Additional Currency (as applicable) during the Additional Facility Availability Period specified in such Additional Facility Accession Agreement, subject to the terms of this Agreement.
(e)    On the date that the Facility Agent executes an Additional Facility Accession Agreement:
(i)    each Lender party to that Additional Facility Accession Agreement, each other Finance Party, UPC Broadband and the Obligors shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had each Lender been a Lender on the Effective Date, with the rights and/or obligations assumed by it as a result of that accession and with the Commitment specified by it as its Additional Facility Commitment; and
(ii)    each Additional Facility Lender shall become a Party as a “Lender”.
(f)    The execution by UPC Broadband of an Additional Facility Accession Agreement constitutes confirmation by each Guarantor that its obligations under Clause 17 (Guarantee) shall continue unaffected except that those obligations shall extend to the Total Commitments as increased by the addition of the relevant Lender’s Commitment and shall be owed to each Finance Party including the relevant Lender.
(g)    Subject to paragraph (h) below, the aggregate principal amount of any proposed Additional Facility shall not, at the election of UPC Broadband acting in its sole discretion (x) on the date that the Additional Facility becomes effective (giving pro forma effect to the intended use of proceeds of such Additional Facility and assuming that the entire amount of that Additional Facility is drawn on such date, and provided that an election that this sub-paragraph (x) shall apply may not be made in relation to that Additional Facility if an election that sub-paragraph (y) shall apply has previously been made in relation to that Additional Facility) or (y) on the date of each Utilisation (other than a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (Renewal of Documentary Credits)) of that Additional Facility (giving pro forma effect to the use of proceeds of such Utilisation but not assuming that the entire amount of that Additional Facility is drawn) exceed the aggregate of the sum of:
(i)    an unlimited amount provided that on a pro forma basis the ratio of Senior Net Debt to Annualised EBITDA is equal to or less than 4.50:1, or in the case of an Additional Facility
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proposed to be used for Acquisition Debt, the ratio of Senior Net Debt to Annualised EBITDA would not be greater than it was immediately prior to the relevant acquisition or such other transaction;
(ii)    if the proceeds of the Additional Facility are being used to refinance existing indebtedness that ranks pari passu or senior in right of security to the Facilities, an amount equal to the accrued interest, premiums and other amounts owing or paid relating to such existing indebtedness together with related fees and expenses;
(iii)    any amount of Financial Indebtedness available to be incurred pursuant to sub-paragraph (xxxiv) of the definition of Permitted Financial Indebtedness; and
(iv)    the aggregate amount of any voluntary prepayments of (A) Term Facility Advances that are secured on a pari passu basis with any other Facilities or (B) Revolving Facility Advances and any Advances under an Additional Revolving Facility (to the extent accompanied by a corresponding permanent cancellation of the relevant Revolving Facility Commitments or Additional Facility Commitments, as applicable), in each case, to the extent the relevant prepayment or cancellation is not funded or effected with any long-term Financial Indebtedness (including Financial Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced with long-term Financial Indebtedness),
provided, that (A) any Additional Facility may be incurred under one or more of the above sub-paragraphs as selected by UPC Broadband, in its sole discretion, (B) UPC Broadband may elect to incur Additional Facilities under sub-paragraph (i) prior to using amounts available under sub-paragraphs (iii) and (iv), (C) amounts incurred pursuant to sub-paragraph (iii) substantially concurrently with amounts incurred pursuant to sub-paragraph (i) will not count as Financial Indebtedness for the purposes of calculating Senior Net Debt and (D) UPC Broadband shall have the ability to classify such amounts of Financial Indebtedness on the date of their incurrence and shall only be required to include the amount and type of such Financial Indebtedness in one of the sub-paragraphs above and will be permitted on the date of such incurrence to divide and classify an item of such Financial Indebtedness in more than one of the types of Financial Indebtedness described in such paragraphs, and, from time to time, may reclassify all or a portion of such Financial Indebtedness, in any manner,
(the “Additional Facilities Cap”).
(h)    There shall be no limit on the aggregate principal amount of any proposed Additional Facility (a “Refinancing Additional Facility”) to the extent established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, existing Utilisations or Commitments (the “Refinanced Debt”) provided that if the obligations under such Refinancing Additional Facility do not rank equal to or junior to such existing Utilisations and Commitments the principal amount of such Refinancing Additional Facility shall not exceed an amount equal to the Additional Facilities Cap (or its equivalent in other currencies). A Refinancing Additional Facility may only be established if the following conditions are met:
(i)    it provides for Additional Facility Commitments which are in an aggregate principal amount that is not less than:
(A)    in the case of any Additional Revolving Facility, €1,000,000 (where the Refinancing Additional Facility is denominated in Euros) or US$1,000,000 (where the Refinancing Additional Facility is denominated in US Dollars); and
(B)    in the case of any Term Facility, €15,000,000 (where the Refinancing Additional Facility is denominated in Euros) or US$1,000,000 (where the Refinancing Additional Facility is denominated in US Dollars),
in each case provided that such amount may be less than €1,000,000 US$1,000,000, €15,000,000 and US$15,000,000, respectively, if such amount is equal to the entire outstanding principal amount of the Refinanced Debt;
(ii)    in the case of Refinancing Additional Facilities which are Term Facilities:
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(A)    it does not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees, premiums (if any) and penalties thereon and fees, expenses, OID and upfront fees associated with the refinancing of the Refinanced Debt;
(B)    it ranks pari passu or junior in right of payment with any Additional Facility Commitments which are senior in right of payment and shall rank pari passu or junior in right of Security with the Additional Facility Commitments which are secured on a first ranking basis in accordance with the terms of the Intercreditor Agreement or other intercreditor agreement or arrangement reasonably satisfactory to UPC Broadband and the Facility Agent; and
(C)    to the extent applicable, it is subject to the Intercreditor Agreement; and
(iii)    in the case of Refinancing Additional Facilities which are Additional Revolving Facilities:
(A)    it ranks pari passu or junior in right of payment with the Additional Facility Commitments that are senior in right of payment and shall rank pari passu in right of Security with the Additional Facility Commitments which are secured on a first ranking basis;
(B)    it does not have a greater principal amount of Additional Facility Commitments than the principal amount of the Refinanced Debt and accrued interest, fees, premiums (if any) and penalties thereon and fees, expenses, OID and upfront fees associated with the refinancing of the Refinanced Debt; and
(C)    it shall be subject to the Intercreditor Agreement.
(i)    Notwithstanding anything to the contrary in any Finance Document or any document entered into for the benefit of any Finance Party, and for the avoidance of doubt, an Affiliate of UPC Broadband that issues any notes, bonds or other securities for the purpose of on-lending the proceeds of such issuance under a Facility and to a Borrower under this Agreement:
(i)    shall be entitled to exercise its voting rights in respect of any request for a consent, waiver or amendment or other vote under any Finance Document in relation to any Commitment (including for the avoidance of doubt, under any sub-participation agreement or similar agreement in respect of that Commitment) held by it in its sole discretion and in accordance with the terms of any indenture or other document governing such notes, bonds or other securities;
(ii)    shall be entitled to attend any meeting or conference call to which all Lenders are invited to attend or participate; and
(iii)    shall not be required to give any undertaking that is contrary to the rights set out in paragraphs (i) and (ii) above, and no breach of any Finance Document will occur as a result of a failure by such an Affiliate to give such an undertaking.
(j)    With the prior written consent of UPC Broadband, the Facility Agent is authorised and instructed to enter into such documentation as is reasonably required to amend this Agreement and any other Finance Document (in accordance with terms of this Clause 2.3 (Additional Facilities)) to reflect the terms of each Additional Facility without the consent of any Lender other than the applicable Additional Facility Lender.
(k)    Each Party (other than each proposed Additional Facility Lender, UPC Broadband and the proposed Borrower of the Additional Facility) irrevocably authorises and instructs the Facility Agent to execute on its behalf any Additional Facility Accession Agreement which has been duly completed and signed on behalf of each proposed Additional Facility Lender, UPC Broadband and each proposed Borrower of the Additional Facility, and each Obligor agrees to be bound by such accession.
(l)    Each proposed Additional Facility Lender, by executing an Additional Facility Accession Agreement, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any
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amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which that Additional Facility Accession Agreement becomes effective.
2.4    Overall facility limits
(a)    The aggregate amount of all outstanding Utilisations under an Additional Facility shall not at any time exceed the relevant Total Additional Facility Commitments for that Additional Facility.
(b)    The aggregate amount of the participations of a Lender in Utilisations under an Additional Facility shall not at any time exceed that Lender’s Additional Facility Commitment for that Additional Facility at that time.
(c)    The aggregate amount of all outstanding Utilisations under the Revolving Facility shall not at any time exceed the Total Revolving Facility Commitments.
(d)    The aggregate amount of the participations of a Lender in Utilisations under the Revolving Facility shall not at any time exceed that Lender’s Revolving Facility Commitment at that time.
2.5    Number of Requests and Advances
(a)    No more than one Request may be made under each Additional Facility unless the relevant Additional Facility Accession Agreement specifies otherwise, in which case the maximum number of requests for Advances under that Additional Facility will be as set out in that Additional Facility Accession Agreement.
(b)    Unless the Facility Agent agrees otherwise, no more than five Advances may be outstanding at any one time under each Additional Facility (other than Additional Revolving Facilities), no more than ten Advances may be outstanding at any one time under each Additional Revolving Facility and no more than 10 Advances may be outstanding at any time under the Revolving Facility.
2.6    Nature of a Finance Party’s rights and obligations
(a)    The obligations of a Finance Party under the Finance Documents are several. Failure of a Finance Party to carry out those obligations does not relieve any other Party of its obligations under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
(b)    The rights of a Finance Party under the Finance Documents are divided rights. A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights.
(c)    Each of the Obligors and each of the Finance Parties agrees that the Security Agent shall be the joint and several creditor (hoofdelijk crediteur) of each and every obligation of any Obligor towards each of the Finance Parties under any Finance Document, and that accordingly the Security Agent will have its own independent claim as creditor and not as agent against each Obligor to demand performance by the relevant Obligor of those obligations. However, any discharge of any such obligation to either of the Security Agent or the relevant Finance Party shall, to the same extent, discharge the corresponding obligation owing to the other.
(d)    Without limiting or affecting the Security Agent’s rights against any Obligor (whether under this paragraph or under any other provision of the Finance Documents), the Security Agent agrees with each other Finance Party (on a several and divided basis) that, subject as set out in the next sentence, it will not exercise its rights as a joint and several creditor with a Finance Party except with the prior written consent of the relevant Finance Party. However, for the avoidance of doubt, nothing in the previous sentence shall in any way limit the Security Agent’s right to act in the protection or preservation of rights under or to enforce any Security Document or the Intercreditor Agreement as contemplated by the Finance Documents (or to do any act reasonably incidental to any of the foregoing).
2.7    UPC Broadband as Obligors’ agent
(a)    Each Obligor (other than UPC Broadband):
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(i)    irrevocably authorises and instructs UPC Broadband to give and receive as agent on its behalf all notices (including Requests) and sign all documents in connection with the Finance Documents on its behalf (including but not limited to amendments and variations and execution of any new Finance Documents) and take such other action as may be necessary or desirable under or in connection with the Finance Documents; and
(ii)    confirms that it will be bound by any action taken by UPC Broadband under or in connection with the Finance Documents.
(b)    If (notwithstanding the fact that the guarantees granted under this Agreement are and the Security is, intended to guarantee and secure, respectively, all obligations arising under the Finance Documents), any guarantee or Security does not automatically extend from time to time to any (however fundamental and of whatsoever nature and whether or not more onerous) amendment, variation, increase, extension or addition of or to any of the Finance Documents and/or any Facility or amount made available under any of the Finance Documents, each Obligor (other than UPC Broadband) expressly confirms that UPC Broadband as Obligors’ agent is authorised to confirm such guarantee and/or Security on behalf of such Obligor.
(c)    For the avoidance of doubt, each Obligor (other than UPC Broadband) hereby releases UPC Broadband from the restrictions set out in Article 108 of the Polish Civil Code.
2.8    Actions of UPC Broadband as Obligors’ agent
The respective liabilities of each of the Obligors under the Finance Documents shall not be in any way affected by:
(a)    any irregularity (or purported irregularity) in any act done by or any failure (or purported failure) by UPC Broadband;
(b)    UPC Broadband acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
(c)    the failure (or purported failure) by or inability (or purported inability) of UPC Broadband to inform any Obligor of receipt by it of any notification under this Agreement or any other Finance Document.
3.    PURPOSE
3.1    Purpose
(a)    Each Utilisation under an Additional Facility will be applied to finance the general corporate and working capital purposes of the Borrower Group, including, without limitation, to finance capital expenditure and the making of Acquisitions by the Borrower Group (to the extent permitted by this Agreement) and the repayment or prepayment of any Facilities.
(b)    Each Utilisation under the Revolving Facility shall be applied for the purposes of financing the ongoing working capital requirements and the general corporate purposes of the Borrower Group, including without limitation, the redemption, refinancing, repayment or prepayment of existing indebtedness of any member of the Borrower Group and/or the payment of any fees and expenses in connection with the Revolving Facility or other transactions related thereto, and may be utilised by way of Revolving Facility Advances, Documentary Credits or, subject to the provisions of Clause 7 (Ancillary Facilities), Ancillary Facilities.
3.2    No monitoring
Without affecting the obligations of the Borrowers in any way, no Finance Party is bound to monitor or verify the application of the proceeds of any Utilisation.
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4.    CONDITIONS PRECEDENT
4.1    Conditions precedent documents
(a)    No Borrower may draw a Utilisation under this Agreement until the Facility Agent has notified UPC Broadband and the Lenders that it has received all of the documents set out in Schedule 2 (Conditions Precedent Documents) in form and substance satisfactory to the Facility Agent.
(b)    No Borrower may draw a Utilisation under the Revolving Facility until the Facility Agent has notified UPC Broadband and the Lenders that it has received the documents set out in schedule 1 (Conditions Precedent) to the 2020 Supplemental Deed or the requirement to provide such documents has been waived by the Revolving Facility Instructing Group.
(c)    The Facility Agent will confirm to UPC Broadband and to the Existing Facility Agents that it has received the documents referred to in paragraph (a) above as soon as practicable upon receiving all of them in form and substance satisfactory to it.
(d)    The Facility Agent will confirm to UPC Broadband and to the Initial Revolving Facility Lenders that it has received the documents referred to in paragraph (b) above as soon as practicable upon receiving all of them in form and substance satisfactory to it (acting reasonably).
4.2    Further conditions precedent
The obligations of each Lender to participate in any Advance and each L/C Bank to issue a Documentary Credit are subject to the further conditions precedent that:
(a)    in the case of a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (Renewal of Documentary Credits), on both the date of the Request and on the proposed Utilisation Date for that Advance or Documentary Credit, the Facility Agent shall not have received instructions from the relevant Revolving Facility Instructing Group requiring the Facility Agent to refuse such rollover or renewal of a Documentary Credit, in each case, by reason of the Acceleration Date having occurred;
(b)    in any other case, on the proposed Utilisation Date for that Advance or Documentary Credit:
(i)    the representations and warranties in Clause 18 (Representations and Warranties) to be repeated on those dates are and will be immediately after the relevant Advance is drawn down or Documentary Credit is issued correct in all material respects; and
(ii)    no Default is continuing or would result from the proposed Advance or Documentary Credit,
provided that, in relation to any Advance or Documentary Credit under a Facility in relation to a Limited Condition Transaction, the Lenders under that Facility may agree to amend or waive any of the conditions under paragraphs (i) and (ii) above;
(c)    in the case of a Utilisation under a Maintenance Covenant Revolving Facility (other than in relation to a Utilisation (i) that is a Rollover Loan or a Documentary Credit which is being renewed pursuant to Clause 6.2 (Renewal of Documentary Credit) or (ii) under any Facility in relation to a Limited Condition Transaction), subject to the expiry of the cure period in Clause 20.4(Cure Provisions), no Default is continuing under Clause 20 (Financial Covenant);
(d)    the relevant Borrower confirms to the Facility Agent in the Request that the proceeds of such Advance are only to be applied in accordance with Clause 3.1 (Purpose) and specifies the relevant purpose of the proposed Advance in such Request;
(e)    in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit ends on or before the Final Maturity Date in respect of the Revolving Facility or the relevant Additional Revolving Facility under which that Documentary Credit is issued and immediately after the making of the relevant Request there shall be no more than 25 Documentary Credits then outstanding; and
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(f)    in the case of a Utilisation by way of a Documentary Credit which is not substantially in the form set out in Schedule 7 (Form of Documentary Credit), the relevant L/C Bank shall have approved the terms of such Documentary Credit (acting reasonably).
5.    UTILISATIONS
5.1    Delivery of Request
Subject to the terms of this Agreement, an Advance will be made by the Lenders to a Borrower or a Documentary Credit will be issued by an L/C Bank at a Borrower’s request if:
(a)    in the case of an Advance, the Facility Agent has received from such Borrower a duly completed Request in the relevant form; and
(b)    in the case of a Documentary Credit, both the Facility Agent and the relevant L/C Bank have received from such Borrower a duly completed Request in the relevant form,
in each case, (unless otherwise agreed with the Facility Agent (and, in relation to a Documentary Credit only, the L/C Bank)) by the Specified Time or (if applicable) by not later than the time specified in the relevant Additional Facility Accession Agreement.
5.2    Form of Request
Each Request shall specify (where applicable):
(a)    the relevant Facility and the corresponding Utilisation Date which shall be a Business Day falling during the Availability Period for that Facility;
(b)    the currency of the proposed Advance (which must be Euros, US Dollars or an Additional Currency (in each case as specified in the relevant Additional Facility Accession Agreement) or, in relation to the Revolving Facility, Euros, US Dollars or an Optional Currency;
(c)    in the case of an Advance in relation to a term loan facility, the principal amount of the proposed Advance which:
(i)    if denominated in Euros, shall be a minimum amount of €10,000,000;
(ii)    if denominated in US Dollars, shall be a minimum amount of US$10,000,000; and
(iii)    if denominated in any Additional Currency, shall be a minimum amount equivalent to €10,000,000 (in each case using the Agent’s Spot Rate of Exchange on the date of receipt by the Facility Agent of the Request and rounded up to the nearest million units in the relevant Additional Currency);
(d)    in the case of a Revolving Facility Advance or an Advance in relation to an Additional Revolving Facility, the principal amount of the proposed Advance which:
(i)    if denominated in Euros, shall be a minimum amount of €1,000,000;
(ii)    if denominated in US Dollars, shall be a minimum amount of US$1,000,000; and
(iii)    if denominated in any Additional Currency or Optional Currency, shall be a minimum amount equivalent to €1,000,000 (in each case using the Agent’s Spot Rate of Exchange on the date of receipt by the Facility Agent of the Request and rounded up to the nearest million units in the relevant Additional Currency or Optional Currency);
(e)    in the case of a Documentary Credit, the proposed Euro Amount of such Documentary Credit which shall be a minimum of €1,000,000 or such lesser amount as the relevant L/C Bank may agree (acting reasonably);
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(f)    the Interest Period of the Advance, which must be a period complying with Clause 11 (Interest) or the Expiry Date of the Documentary Credit (as applicable); and
(g)    unless previously notified to the Facility Agent in writing and not revoked the details of the bank and account to which the proceeds of the proposed Advance are to be made available, which must comply with Clause 12 (Payments).
Subject to the terms of this Agreement, each Request shall be irrevocable and the relevant Borrower shall be bound to borrow an Advance or Documentary Credit (as applicable) in accordance with such Request.
5.3    Notification to the Lenders
The Facility Agent shall promptly notify each Lender participating in the relevant Advance of each Request for an Advance and the amount of its participation in the Advance.
5.4    Participations in Advances
(a)    The Facility Agent shall determine the Euro Amount of each Advance under the Revolving Facility or an Additional Revolving Facility which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Euro Amount of such Advance, the amount of its participation in that Advance and, if different, the amount of that participation to be made available in accordance with Clause 12.2 (Funds) by the Specified Time.
(b)    Subject to the terms of this Agreement, each Lender shall, on the date specified in any Request for an Advance, make available to the Facility Agent for the account of the relevant Borrower the amount of its participation in that Advance. All such amounts shall be made available to the Facility Agent in accordance with Clause 12.2 (Funds) for disbursement to or to the order of the relevant Borrower in accordance with the provisions of this Agreement.
(c)    The amount of a Lender’s participation in an Advance will be the proportion (applied to the amount set out in the Request) which its relevant Additional Facility Commitment bears to the relevant Total Additional Facility Commitments or, in the case of a Revolving Facility Advance, the proportion (applied to the amount set out in the Request) which its Revolving Facility Commitment bears to the Total Revolving Facility Commitments.
(d)    Advances denominated in Euro will only be made available in Euro.
6.    DOCUMENTARY CREDITS
6.1    Issue of Documentary Credits
(a)    Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.2 (Further Conditions Precedent) by:
(i)    completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and
(ii)    executing and delivering such Documentary Credit to the relevant Documentary Credit Beneficiary on the relevant Utilisation Date.
(b)    Each Lender having a Revolving Facility Commitment or an Additional Facility Commitment in relation to an Additional Revolving Facility (an “L/C Lender”) will participate by way of indemnity in each Documentary Credit issued under the relevant Facility in an amount equal to its L/C Proportion.
(c)    The Facility Agent shall notify each L/C Lender and the relevant L/C Bank of the details of any requested Documentary Credit (including the Euro Amount of it, and, if such Documentary Credit is not to be denominated in Euro, the relevant currency in which it will be denominated and the amount of it) and its participation in that Documentary Credit.
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6.2    Renewal of Documentary Credits
(a)    Each Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Facility Agent and the relevant L/C Bank a Renewal Request which complies with Clause 4.2 (Further conditions precedent) and Clause 5.2 (Form of Request).
(b)    The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):
(i)    its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and
(ii)    its Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
(c)    If the conditions set out in this Clause 6.2 (Renewal of Documentary Credits) have been met, the relevant L/C Bank shall amend and re-issue the relevant Documentary Credit pursuant to a Renewal Request.
6.3    Reduction of a Documentary Credit
(a)    If, on the proposed Utilisation Date of a Documentary Credit, any Lender under the Revolving Facility or the relevant Additional Revolving Facility (as applicable) is a Non-Acceptable L/C Lender and:
(i)    that Lender has failed to provide cash collateral to the relevant L/C Bank in accordance with Clause 6.8 (Cash Collateral by Non-Acceptable L/C Lender); and
(ii)    either:
(A)    the relevant L/C Bank has not required the relevant Borrower which requested the Documentary Credit to provide cash cover pursuant to Clause 6.9 (Cash Cover by Borrower); or
(B)    the relevant Borrower which requested the Documentary Credit has failed to provide cash cover to the relevant L/C Bank in accordance with Clause 6.9 (Cash Cover by Borrower),
the relevant L/C Bank may reduce the amount of that Documentary Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Documentary Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the relevant L/C Bank) in respect of that Documentary Credit for the purposes of the Finance Documents.
(b)    The relevant Borrower shall notify the Facility Agent (with a copy to the relevant L/C Bank) of each reduction made pursuant to this Clause 6.3 (Reduction of a Documentary Credit).
(c)    This Clause 6.3 (Reduction of a Documentary Credit) shall not affect the participation of each other Lender in that Documentary Credit.
6.4    Revaluation of Documentary Credits
(a)    If any Documentary Credit is denominated in a currency other than Euro, the Facility Agent shall on the last Business Day of each financial year recalculate the Euro Amount of that Documentary Credit by notionally converting into Euro, the outstanding amount of that Documentary Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation.
(b)    The relevant Borrower shall, if requested by the Facility Agent within two days of any calculation under paragraph (a) above, ensure that within ten Business Days sufficient outstanding amounts under the Revolving Facility or the Additional Revolving Facility in relation to that Documentary Credit (as applicable) are repaid (subject to Break Costs, if applicable, but otherwise without penalty or premium which might otherwise be payable), to prevent the Euro Amount of the outstanding amounts under the
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Revolving Facility or that Additional Revolving Facility (as applicable) exceeding the Total Revolving Facility Commitments or the Total Additional Facility Commitments in relation to that Additional Revolving Facility (as applicable), adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.
6.5    Immediately Payable
(a)    If a Documentary Credit or any amount outstanding under a Documentary Credit becomes immediately payable under this Agreement, the relevant Borrower that requested (or on behalf of which UPC Broadband requested) the issue of that Documentary Credit shall repay or prepay that Documentary Credit or that amount within three Business Days of demand.
(b)    Each L/C Bank shall promptly notify the Facility Agent of any demand received by it under and in accordance with any Documentary Credit (including details of the Documentary Credit under which such demand has been received and the amount demanded). The Facility Agent shall promptly notify UPC Broadband, the relevant Borrower for whose account the Documentary Credit was issued and each of the Lenders under the Revolving Facility or the relevant Additional Revolving Facility (as applicable).
6.6    Claims Under a Documentary Credit
(a)    Each Borrower irrevocably and unconditionally authorises each L/C Bank to pay any claim made or purported to be made under a Documentary Credit requested by it (or by UPC Broadband on its behalf) and which appears on its face to be in order (a “claim”).
(b)    Each Borrower shall within three Business Days of demand pay to the Facility Agent for the account of the relevant L/C Bank an amount equal to the amount of any claim under that Documentary Credit.
(c)    On receipt of any demand or notification under Clause 6.5 (Immediately Payable), the relevant Borrower shall (unless UPC Broadband notifies the Facility Agent otherwise) be deemed to have delivered to the Facility Agent a duly completed Request requesting a Revolving Facility Advance or an Advance under the relevant Additional Revolving Facility (as applicable):
(i)    in an amount and currency equal to the amount and currency of the relevant claim (if applicable, net of any available cash cover);
(ii)    for an Interest Period or Term of three months or such other period of up to six months as notified by the relevant Borrower to the relevant L/C Bank prior to the Utilisation Date applicable to such currency; and
(iii)    with a Utilisation Date on the date of receipt of the relevant demand or notification.
The proceeds of any such Advance shall be used to pay the relevant claim.
(d)    Each Borrower acknowledges that each L/C Bank:
(i)    is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
(ii)    deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
(e)    The obligations of each Borrower under this Clause 6.6 (Claims Under a Documentary Credit) will not be affected by:
(i)    the sufficiency, accuracy or genuineness of any claim or any other document; or
(ii)    any incapacity of, or limitation on the powers of, any person signing a claim or other document.
(f)    Without prejudice to any other matter contained in this Clause 6.6 (Claims Under a Documentary Credit), the relevant L/C Bank shall notify the relevant Borrowers as soon as reasonably practicable after receiving a claim.
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6.7    Documentary Credit Indemnities
(a)    The relevant Borrower shall within three Business Days of demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit requested by such Borrower.
(b)    Each L/C Lender shall (according to its L/C Proportion) promptly on demand indemnify an L/C Bank against any cost, loss or liability incurred by such L/C Bank (otherwise than by reason of such L/C Bank’s gross negligence, wilful misconduct or wilful breach of the terms of this Agreement) in acting as an L/C Bank under any Documentary Credit (except to the extent that such L/C Bank has been reimbursed by an Obligor pursuant to a Finance Document).
(c)    If any L/C Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that L/C Lender will not be obliged to comply with paragraph (b) above and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that L/C Lender’s participation in the Documentary Credit is transferred or assigned to that L/C Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit. On receipt of demand from the Facility Agent, that L/C Lender shall pay to the Facility Agent (for the account of the relevant L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.
(d)    The Borrower which requested the Documentary Credit shall within three Business Days of demand reimburse any L/C Lender for any payment it makes to an L/C Bank under this Clause 6.7 (Documentary Credit Indemnities) in respect of that Documentary Credit unless such Lender or an Obligor has already reimbursed such L/C Bank in respect of that payment.
(e)    The obligations of each L/C Lender and Borrower under this Clause 6.7 (Documentary Credit Indemnities) are continuing obligations and will extend to the ultimate balance of sums payable by that L/C Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.
(f)    The obligations of any L/C Lender or Borrower under this Clause 6.7 (Documentary Credit Indemnities) will not be affected by any act, omission, matter or thing which, but for this Clause 6.7 (Documentary Credit Indemnities) would reduce, release or prejudice any of its obligations under this Clause 6.7 (Documentary Credit Indemnities) (without limitation and whether or not known to it or any other person) including:
(i)    any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or any other person;
(ii)    the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Borrower Group;
(iii)    the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Documentary Credit or any other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv)    any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;
(v)    any amendment or restatement (however fundamental) or replacement of a Finance Document, any Documentary Credit or any other document or security;
(vi)    any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Documentary Credit or any other document or security; or
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(vii)    any insolvency or similar proceedings.
6.8    Cash Collateral by Non-Acceptable L/C Lender
(a)    If, at any time, a Lender under the Revolving Facility or an Additional Revolving Facility is a Non-Acceptable L/C Lender, the relevant L/C Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling three Business Days after the request by such L/C Bank, an amount equal to that Lender’s L/C Proportion of the outstanding amount of a Documentary Credit issued by such L/C Bank and in the currency of that Documentary Credit to an interest-bearing account held in the name of that Lender with such L/C Bank.
(b)    The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the relevant L/C Bank, as collateral for any amounts due and payable under the Finance Documents by that Lender to the L/C Bank in respect of that Documentary Credit.
(c)    Until no amount is or may be outstanding under that Documentary Credit, withdrawals from the account may only be made to pay to the relevant L/C Bank amounts due and payable to the relevant L/C Bank by the Non-Acceptable L/C Lender under the Finance Documents in respect of that Documentary Credit.
(d)    Each Lender under the Revolving Facility or an Additional Revolving Facility shall notify the Facility Agent and UPC Broadband:
(i)    on the 2020 Amendment Effective Date or on any later date on which it becomes such a Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Additional Facilities) or Clause 28 (Changes to the Parties) whether it is a Non-Acceptable L/C Lender; and
(ii)    as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,
and an indication in a Novation Certificate, a Transfer Agreement, an Additional Facility Accession Agreement or an Increase Confirmation or, in the case of an Initial Revolving Facility Lender, next to their name in Part 2 of Schedule 1 (Original Parties), to that effect will constitute a notice under paragraph (d)(i) to the Facility Agent (and in the case of the Initial Revolving Facility Lenders, UPC Broadband) and, upon delivery in accordance with Clause 28.11 (Copy of Novation Certificate Transfer Agreement or Increase Confirmation to UPC Broadband) or otherwise, to UPC Broadband.
(e)    Any notice received by the Facility Agent pursuant to paragraph (d) above shall constitute notice to each L/C Bank of that Lender’s status and the Facility Agent shall, upon receiving each such notice, promptly notify each L/C Bank of that Lender’s status as specified in that notice.
(f)    If a Lender who has provided cash collateral in accordance with this Clause 6.8 (Cash Collateral by Non-Acceptable L/C Lender):
(i)    ceases to be a Non-Acceptable L/C Lender; and
(ii)    no amount is due and payable by that Lender in respect of a Documentary Credit,
that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the relevant L/C Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Documentary Credit (together with any accrued interest) standing to the credit of the relevant account held with that L/C Bank be returned to it and that L/C Bank shall pay that amount to the Lender within three Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).
6.9    Cash Cover by Borrower
(a)    If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the relevant L/C Bank that it will not provide cash collateral) in accordance with Clause 6.8 (Cash Collateral by Non-Acceptable L/C Lender) and that L/C Bank notifies UPC Broadband (with a copy to the Facility Agent) that it requires the relevant Borrower of the relevant Documentary Credit or proposed
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Documentary Credit to provide cash cover to an account with that L/C Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Documentary Credit and in the currency of that Documentary Credit then that Borrower shall do so within five Business Days after the notice is given.
(b)    Notwithstanding Clause 1.2 (Construction), the relevant Borrower shall be entitled to withdraw amounts up to the level of that cash cover from the account if:
(i)    the relevant L/C Bank is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender;
(ii)    the relevant Lender’s obligations in respect of the relevant Documentary Credit are transferred to a New Lender in accordance with the terms of this Agreement; or
(iii)    an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Documentary Credit.
(c)    To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 6.9 (Cash Cover by Borrower), the relevant Lender’s L/C Proportion in respect of that Documentary Credit will remain (but that Lender’s obligations in relation to that Documentary Credit may be satisfied in accordance with Clause 1.2 (Construction)). However, the relevant Borrower’s obligation to pay any Documentary Credit fee in relation to the relevant Documentary Credit to the Facility Agent (for the account of that Lender) in accordance with Clause 23 (Fees) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).
(d)    The relevant L/C Bank shall promptly notify the Facility Agent of the extent to which the relevant Borrower provides cash cover pursuant to this Clause 6.9 (Cash Cover by Borrower) and of any change in the amount of cash cover so provided.
6.10    Rights of Contribution
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 6 (Documentary Credits).
6.11    Appointment and Change of L/C Bank
(a)    UPC Broadband, with the prior written consent of the relevant Lender, may designate any Lender with a Revolving Facility Commitment or an Additional Facility Commitment in relation to an Additional Revolving Facility that permits Documentary Credits as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.
(b)    Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Facility Agent an executed L/C Bank Accession Certificate.
(c)    An L/C Bank may resign as issuer of further Documentary Credits at any time if (i) UPC Broadband and the Majority Lenders in relation to the Facility in respect of which such Documentary Credits are issued consent to such resignation or so require; (ii) there is, in the reasonable opinion of each L/C Bank, an actual or potential conflict of interest in it continuing to act as L/C Bank; or (iii) its Revolving Facility Commitment or its Additional Facility Commitment in relation to the relevant Additional Revolving Facility (as applicable) is reduced to zero, provided that an L/C Bank shall not resign until a replacement L/C Bank is appointed.
7.    ANCILLARY FACILITIES
7.1    Utilisation of Ancillary Facilities
(a)    Each Borrower may, subject to paragraph (b) below, at any time at least 35 days prior to the Final Maturity Date in respect of the Revolving Facility or an Additional Revolving Facility (as applicable) by delivery of a notice (a “Conversion Notice”) to the Facility Agent, request an Ancillary Facility to be established by the conversion of any Lender’s Available Revolving Facility Commitment (or any part of
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it) or Available Additional Facility Commitment in relation to an Additional Revolving Facility (or any part of it) into an Ancillary Facility Commitment with effect from the date (in this Clause 7 (Ancillary Facilities), the “Ancillary Facilities Effective Date”) specified in the Conversion Notice (being a date not less than three Business Days after the date such Conversion Notice is received by the Facility Agent).
(b)    Each Conversion Notice shall specify:
(i)    the proposed Borrower(s) (or any Affiliate of the Borrower(s) that is a member of the Borrower Group) which may use the Ancillary Facility;
(ii)    the nominated Ancillary Facility Lender;
(iii)    the type of Ancillary Facility and the currency or currencies in which the relevant Borrower wishes such Ancillary Facility to be available;
(iv)    the proposed Euro Amount of the original Ancillary Facility Commitment, being an amount (A) equal to the Available Revolving Facility Commitment or Available Additional Facility Commitment in relation to the relevant Additional Revolving Facility (as applicable) of the nominated Ancillary Facility Lender or, if less, (B) equal to or more than €1,000,000;
(v)    the Ancillary Facilities Effective Date and expiry date for the Ancillary Facility (such expiry date not to extend beyond the Final Maturity Date in respect of the Revolving Facility or the relevant Additional Revolving Facility (as applicable));
(vi)    if the Ancillary Facility is an overdraft facility comprising more than one account, its maximum gross amount (that amount being the “Designated Gross Amount”) and its maximum net amount (that amount being the “Designated Net Amount”); and
(vii)    such other details as to the nature, amount, fees for and operation of the proposed Ancillary Facility as the Facility Agent and the nominated Ancillary Facility Lender may reasonably require.
(c)    The Facility Agent shall promptly notify UPC Broadband, the nominated Ancillary Facility Lender and the Lenders of each Conversion Notice received pursuant to paragraph (a) above.
(d)    Any Lender nominated as an Ancillary Facility Lender which has notified the Facility Agent of its consent to such nomination shall be authorised to make the proposed Ancillary Facility available in accordance with the Conversion Notice (as approved by the Facility Agent) with effect on and from the Ancillary Facilities Effective Date. No other Lender shall be obliged to consent to the nomination of the Ancillary Facility Lender.
(e)    Any material variation from the terms of the Ancillary Facility or any proposed increase or reduction or extension of the Ancillary Facility Commitment shall be effected on and subject to the provisions of this Clause 7 (Ancillary Facilities) mutatis mutandis as if such Ancillary Facility were newly requested (including, for the avoidance of doubt, that such newly requested Ancillary Facility shall only take effect from a date not less than three Business Days after the date the Facility Agent has received notice of the modification or variation or extension), provided that the Euro Amount of the Ancillary Facility Outstandings under each Ancillary Facility provided by an Ancillary Facility Lender shall at no time exceed the Available Revolving Facility Commitment or the Available Additional Facility Commitment for the relevant Additional Revolving Facility (as applicable) of that Ancillary Facility Lender.
(f)    Each relevant Borrower may (subject to compliance with the applicable terms of the relevant Ancillary Facility) at any time by giving written notice to the Facility Agent and the relevant Ancillary Facility Lender cancel any Ancillary Facility Commitment pursuant to and in accordance with Clause 10.2 (Voluntary cancellation), provided that on the date of such cancellation, that part of such Ancillary Facility Commitment as shall have been so cancelled shall be converted back into the Revolving Facility Commitment or the Additional Facility Commitment for the relevant Additional Revolving Facility (as applicable) of the relevant Lender unless those Revolving Facility Commitments or Additional Facility Commitments (as applicable) are also cancelled on such date.
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(g)    The Ancillary Facility Commitment of any Ancillary Facility Lender shall terminate and be cancelled on the date agreed therefor between the relevant Ancillary Facility Lender and the relevant Borrower, provided such date shall be no later than the Final Maturity Date in respect of the Revolving Facility or the relevant Additional Revolving Facility (as applicable) (the “Ancillary Facility Termination Date”). Any Ancillary Facility Outstandings on the applicable Ancillary Facility Termination Date shall be repaid in full by the relevant Borrower on such date.
(h)    The Revolving Facility Commitment or Additional Facility Commitment in relation to an Additional Revolving Facility (as applicable) of each Lender at any time shall be reduced by the amount of any relevant Ancillary Facility Commitment of such Lender at such time but such reduced Commitment shall, subject to any other provisions of this Agreement, automatically be increased by the amount of any portion of its Ancillary Facility Commitment which ceases to be made available to the relevant Borrowers for any reason (other than as a result of utilisation of it) in accordance with the terms of such Ancillary Facility or is cancelled pursuant to paragraph (f) or (g) above.
7.2    Operation of Ancillary Facilities
(a)    Subject to paragraph (b) below, the terms governing the operation of any Ancillary Facility (including the rate of interest (including default interest), fees, commission and other remuneration in respect of such Ancillary Facility) shall be those determined by agreement between the Ancillary Facility Lender and the relevant Borrower, provided that such terms shall be based upon the normal commercial terms and market rates of the relevant Ancillary Facility Lender.
(b)    In the case of any inconsistency or conflict between the terms of any Ancillary Facility, the applicable Ancillary Facility Documents and this Agreement, the terms and provisions of the applicable Ancillary Facility Document shall prevail unless the contrary intention is expressly provided for in this Agreement.
(c)    Each relevant Borrower and Ancillary Facility Lender will promptly upon request by the Facility Agent, supply the Facility Agent with such information relating to the operation of each Ancillary Facility (including without limitation details of the Ancillary Facility Outstandings and the Euro Amount thereof) as the Facility Agent may from time to time reasonably request (and each relevant Borrower consents to such documents and information being provided to the Facility Agent and the other Lenders).
7.3    Ancillary Facility Default
(a)    If a default occurs under any Ancillary Facility, no Ancillary Facility Lender may demand repayment of any monies or demand cash cover for any Ancillary Facility Outstandings, or take any analogous action in respect of any Ancillary Facility, until the Acceleration Date.
(b)    If an Acceleration Date occurs, the claims of each Lender with a Revolving Facility Commitment or an Additional Facility Commitment in relation to an Additional Revolving Facility (as applicable) and each Ancillary Facility Lender in respect of amounts outstanding to them under the Revolving Facility or that Additional Revolving Facility (as applicable) and the related Ancillary Facilities respectively shall be adjusted in accordance with this Clause 7.3 (Ancillary Facility Default) by making all necessary transfers of such portions of such claims such that following such transfers the Revolving Facility Outstandings or the outstandings under the relevant Additional Revolving Facility (as applicable) and the related Ancillary Facility Outstandings (together with the rights to receive interest, fees and charges in relation thereto) of (i) each Lender with a Revolving Facility Commitment or an Additional Facility Commitment in relation to that Additional Revolving Facility (as applicable) and (ii) each Ancillary Facility Lender, in each case as at the Acceleration Date shall be an amount corresponding pro rata to the proportion that the sum of such Lender’s Revolving Facility Commitment or Additional Facility Commitment in relation to that Additional Revolving Facility (as applicable) and/or (as the case may be) related Ancillary Facility Commitment bears to the sum of all of the Revolving Facility Commitments or Additional Facility Commitments in relation to that Additional Revolving Facility (as applicable) and the related Ancillary Facility Commitments, each as at the Acceleration Date.
(c)    No later than the third Business Day following the Acceleration Date each of the Ancillary Facility Lenders shall notify the Facility Agent in writing of the Euro Amount of its Ancillary Facility Outstandings as at the close of business on the Acceleration Date, such amount to take account of any clearing of debits which were entered into the clearing system of such Ancillary Facility Lenders prior to
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the Acceleration Date and any amounts credited to the relevant accounts prior to close of business on the Acceleration Date.
(d)    On receipt of the information referred to in paragraph (c) above, the Facility Agent will promptly determine what adjustment payments (if any) are necessary as between the Lenders participating in the Revolving Facility or the relevant Additional Revolving Facility (as applicable) and each related Ancillary Facility Lender in order to ensure that, following such adjustment payments, the requirements of paragraph (b) above are complied with.
(e)    The Facility Agent will notify all the Lenders as soon as practicable of its determinations pursuant to paragraph (d) above, giving details of the adjustment payments required to be made. Such adjustment payments shall be payable by the relevant Lenders and shall be made to the Facility Agent within 5 Business Days following receipt of such notification from the Facility Agent. The Facility Agent shall distribute the adjustment payments received, among the Ancillary Facility Lenders and the Lenders participating in the Revolving Facility or the relevant Additional Revolving Facility (as applicable) in order to satisfy the requirements of paragraph (b) above.
(f)    If at any time following the Acceleration Date, the amount of the Revolving Facility Outstandings or amounts outstanding under the relevant Additional Revolving Facility (as applicable) of any Lender or related Ancillary Facility Outstandings of any Ancillary Facility Lender used in the Facility Agent’s calculation of the adjustments required under paragraph (d) above should vary for any reason (other than as a result of currency exchange fluctuation or other reason which affects all relevant Lenders equally), further adjustment payments shall be made on the same basis (mutatis mutandis) provided for in this Clause 7.3 (Ancillary Facility Default).
(g)    In respect of any amount paid by any Lender (a “Paying Lender”) pursuant to either of paragraph (e) or (f) above, as between a relevant Borrower and the Paying Lender, the amount so paid shall be immediately due and payable by such relevant Borrower to the Paying Lender and the payment obligations of such relevant Borrower to the Lender(s) which received such payment shall be treated as correspondingly reduced by the amount of such payment.
(h)    Each Lender shall promptly supply to the Facility Agent such information as the Facility Agent may from time to time request for the purpose of giving effect to this Clause 7.3 (Ancillary Facility Default).
(i)    If an Ancillary Facility Lender has the benefit of any Security Interest securing any of its Ancillary Facilities, the realisations from such security when enforced will be treated as an amount recovered by such Ancillary Facility Lender in its capacity as a Lender which is subject to the sharing arrangements in Clause 32 (Pro Rata Sharing) to the intent that such realisation should benefit all Lenders pro rata.
7.4    Repayment of Ancillary Facilities
(a)    No Ancillary Facility Lender may demand repayment or prepayment of any amounts under its Ancillary Facility unless:
(i)    the relevant Revolving Facility Commitment or Additional Facility Commitment in relation to the relevant Additional Revolving Facility (as applicable) has been cancelled in full, or the Facility Agent has declared the Revolving Facility Outstandings or all amounts outstanding under the relevant Additional Revolving Facility (as applicable) immediately due and payable; or
(ii)    the Ancillary Facility Outstandings under that Ancillary Facility can be repaid by an Advance under the Revolving Facility or any Additional Revolving Facility (as applicable) (and not less than 7 Business Days’ notice (or such shorter period as agreed to by UPC Broadband) is given to the relevant Borrower before payment becomes due).
(b)    For the purposes of repaying Ancillary Facility Outstandings (so long as paragraph (a)(i) above does not apply) an Advance under the Revolving Facility or an Additional Revolving Facility may be borrowed irrespective of whether a Default is continuing or any other applicable condition precedent is not satisfied.
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(c)    The share of the Ancillary Facility Lender in an Advance under the Revolving Facility or an Additional Revolving Facility (as applicable) being used to refinance that Ancillary Facility Lender’s Ancillary Facility will be that amount which will result (so far as possible) in:
(i)    the proportion which its share of the Revolving Facility Outstandings or all amounts outstanding under the relevant Additional Revolving Facility (as applicable) bears to the Revolving Facility Outstandings or the aggregate amount of the amounts outstanding under the relevant Additional Revolving Facility (as applicable),
being equal to:
(ii)    the proportion which its Available Commitment with respect to the Revolving Facility or the relevant Additional Revolving Facility (as applicable) bears to the aggregate of the Available Commitments with respect to the Revolving Facility or the relevant Additional Revolving Facility (as applicable),
in each case, assuming the repayment of the relevant Ancillary Facility has taken place. The share of the other Lenders in any such Advance under the Revolving Facility or the relevant Additional Revolving Facility (as applicable) will be adjusted accordingly.
7.5    Continuation of Ancillary Facilities
(a)    A Borrower and an Ancillary Facility Lender may, as between themselves only, agree to continue to provide the same banking facilities following (i) the Final Maturity Date applicable to the Revolving Facility or the relevant Additional Revolving Facility or (ii) the Revolving Facility Commitments or Additional Facility Commitments in relation to the relevant Additional Revolving Facility (as applicable) being cancelled under this Agreement.
(b)    If any arrangement contemplated in paragraph (a) above is to occur, the relevant Borrower and the Ancillary Facility Lender shall each confirm that to be the case in writing to the Facility Agent. Upon such Final Maturity Date or, as the case may be, date of cancellation, any such facility shall continue as between the said persons on a bilateral basis and not as part of, or under, the Finance Documents. Save for any rights and obligations against any Finance Party under the Finance Documents prior to such Final Maturity Date or, as the case may be, date of cancellation, no such rights or obligations in respect of such Ancillary Facility shall, as between the Finance Parties, continue and the Security shall not support any such facility in respect of any matters that arise after such Final Maturity Date or, as the case may be, date of cancellation.
7.6    Affiliates of Lenders as Ancillary Facility Lenders
(a)    Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Facility Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose (i) Revolving Facility Commitment is the amount set out opposite the relevant Lender’s name in Part 2 of Schedule 1 (Initial Revolving Facility Lenders) and/or the amount of any Revolving Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement or (ii) Additional Facility Commitment in relation to the relevant Additional Revolving Facility is the amount set out opposite that Lender’s name in the relevant Additional Facility Accession Agreement and/or the amount of any relevant Additional Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement (as applicable). For the purposes of calculating the Lender’s Available Revolving Facility Commitment or Available Additional Facility Commitment in relation to the relevant Additional Facility (as applicable), the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Facility Commitments of its Affiliates.
(b)    UPC Broadband shall specify any relevant Affiliate of a Lender in any Conversion Notice delivered by UPC Broadband to the Facility Agent pursuant to Clause 7.1 (Utilisation of Ancillary Facilities).
(c)    An Affiliate of a Lender which becomes an Ancillary Facility Lender shall accede to this Agreement as an Ancillary Facility Lender, and the Intercreditor Agreement as a Senior Lender (as defined therein).
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(d)    If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (in accordance with Clause 28 (Changes to the Parties)), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Facility Document.
(e)    Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Facility Lender and the relevant Ancillary Facility Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
7.7    Affiliates of Borrowers
(a)    Subject to the terms of this Agreement, an Affiliate of a Borrower that is a member of the Borrower Group may with the approval of the relevant Ancillary Facility Lender become a Borrower with respect to an Ancillary Facility.
(b)    UPC Broadband shall specify any relevant Affiliate of the Borrower in any Conversion Notice delivered by UPC Broadband to the Facility Agent pursuant to Clause 7.1 (Utilisation of Ancillary Facilities).
(c)    If any Borrower ceases to be a Borrower under this Agreement in accordance with Clause 28 (Changes to the Parties), its Affiliates, provided that any such Affiliate is not an Affiliate of any other Obligor, shall cease to have any rights under this Agreement or any Ancillary Facility Document.
(d)    Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
(e)    Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Facility Document.
8.    OPTIONAL CURRENCIES
8.1    Selection of Currency
Each Borrower under the Revolving Facility or an Additional Revolving Facility shall select the currency of the Advance made to it (which shall be US Dollars, Euro, an Additional Currency or an Optional Currency) in the Request relating to the relevant Advance.
8.2    Unavailability of Optional Currency
(a)    If before the Specified Time on the Quotation Date for the relevant Advance:
(i)    a Lender notifies the Facility Agent that the relevant Optional Currency is not readily available to it in the amount required; or
(ii)    a Lender notifies the Facility Agent that compliance with its obligation to participate in that Advance in the proposed Optional Currency would contravene a law or regulation applicable to it,
the Facility Agent will give notice to the relevant Borrower to that effect by the Specified Time. In this event, any Lender that gives notice pursuant to this Clause 8.2 will be required to participate in the relevant Advance in Euros (in an amount equal to that Lender’s Proportion of the Euro Amount of the relevant Advance or, in respect of a Rollover Loan, an amount equal to that Lender’s Proportion of the Euro Amount of any amount that the Lenders are actually required to advance in accordance with Clause 9.2 (Rollover)), and its participation will be treated as a separate Advance denominated in Euros during that Interest Period.
(b)    Any part of an Advance treated as a separate Advance under this Clause 8 (Optional Currencies) will not be taken into account for the purposes of any limit on the number of Advances or currencies outstanding at any one time.
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9.    REPAYMENT
9.1    Repayment of Advances
(a)    Subject to paragraph (b) below, each Borrower must repay the Advances made to it in accordance with the provisions of the relevant Additional Facility Accession Agreement, which shall provide for repayment of the relevant Additional Facility to be made:
(i)    in full on the relevant Final Maturity Date; or
(ii)    by payment of instalments (each a “Repayment Instalment”) on any date or dates up to and including the relevant Final Maturity Date. Each Repayment Instalment shall be in the amount and on the date or dates set out in or calculated in accordance with the relevant Additional Facility Accession Agreement.
(b)    The Borrower shall (subject to Clause 9.2 (Rollover)) repay the full amount of each Revolving Facility Advance and each Advance under an Additional Revolving Facility on the last day of its Interest Period.
9.2    Rollover
Without prejudice to each Borrower’s obligation to repay the full amount of each Revolving Facility Advance on the last day of its Interest Period and each Advance made to it under an Additional Revolving Facility on the last day of its Interest Period, where, on the same day on which such Borrower is due to repay such Revolving Facility Advance or such Advance in relation to an Additional Revolving Facility (as applicable) (a “Maturing Advance”) such Borrower has also requested that one or more Revolving Facility Advances or one or more Advances under that Additional Revolving Facility (as applicable) in the same currency as the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders being obliged to make such Rollover Advance under Clause 4.2 (Further conditions precedent), the aggregate amount of the Rollover Advance shall be treated as if applied in or towards repayment of the Maturing Advance so that:
(a)    if the amount of the Maturing Advance exceeds the aggregate amount of the Rollover Advance:
(i)    the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and
(ii)    each Lender’s participation (if any) in the Rollover Advance shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation (if any) in the Maturing Advance and that Lender will not be required to make its participation in the Rollover Advance available in cash.
(b)    if the amount of the Maturing Advance is equal to or less than the aggregate amount of the Rollover Advance:
(i)    the relevant Borrower will not be required to make any payment in cash; and
(ii)    each Lender will be required to make its participation in the Rollover Advance available in cash only to the extent that its participation (if any) in the Rollover Advance exceeds that Lender’s participation (if any) in the Maturing Advance and the remainder of that Lender’s participation in the Rollover Advance shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation in the Maturing Advance.
9.3    Cash Collateralisation of Documentary Credits
(a)    If not previously repaid in accordance with paragraph (b) below, each Borrower must repay each Documentary Credit issued on its behalf in full on the date stated in that Documentary Credit to be its Expiry Date.
(b)    A Borrower may give the Facility Agent not less than five Business Days prior written notice of its intention to repay all or any portion of a Documentary Credit requested by it prior to its stated Expiry Date and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of
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such Documentary Credit is reduced in accordance with such notice by providing cash cover therefor in accordance with Clause 1.2 (Construction) (in each case) or by reducing the Outstanding L/C Amount of such Documentary Credit or by cancelling such Documentary Credit and returning the original to the relevant L/C Bank or the Facility Agent on behalf of the Lenders.
9.4    Notification
The Facility Agent shall notify the relevant Lender(s) and UPC Broadband of US Dollar, Additional Currency or Optional Currency amounts (and the applicable Agent’s Spot Rate of Exchange) promptly after they are ascertained under this Agreement.
9.5    Repayment of Revolving Facility
UPC Broadband shall procure that all amounts outstanding under the Revolving Facility shall be repaid on its Final Maturity Date.
10.    CANCELLATION AND PREPAYMENT
10.1    Automatic Cancellation of the Commitments
The undrawn Revolving Facility Commitments and Additional Facility Commitment under each Additional Facility shall be automatically cancelled at the close of business in London on the last day of the relevant Availability Period.
10.2    Voluntary cancellation
(a)    UPC Broadband may, by delivering to the Facility Agent a duly completed Cancellation Notice not less than three Business Days (or such other time period as agreed between UPC Broadband and the Facility Agent) prior to the due date of cancellation, cancel the unutilised portion of any Total Additional Facility Commitments or Total Revolving Facility Commitments in whole or in part in such proportions as UPC Broadband may specify in the Cancellation Notice on the date specified in the Cancellation Notice. Any cancellation in part shall (subject to the provisions of Clause 7.1(f) (Utilisation of Ancillary Facilities)) be applied against the relevant Additional Facility Commitment or Revolving Facility Commitment (as applicable) of each Lender pro rata.
(b)    Partial cancellation of any Additional Facility Commitments in relation to a Term Facility must be in a minimum of €10,000,000.
(c)    Partial cancellation of any Revolving Facility Commitments or Additional Facility Commitments in relation to an Additional Revolving Facility must be in a minimum of €1,000,000.
10.3    Voluntary prepayment
(a)    UPC Broadband may, by delivering to the Facility Agent a duly completed Cancellation Notice not less than three Business Days (or such other time period as agreed between UPC Broadband and the Facility Agent) prior to the due date of prepayment, prepay the whole or any part of the outstanding Advances made to a Borrower under the Revolving Facility or any Additional Facility.
(b)    A prepayment of part of an Advance in relation to a Term Facility must be in an aggregate minimum Euro Amount of €10,000,000 or such other minimum amount as is agreed by UPC Broadband and the relevant Additional Facility Lenders.
(c)    A prepayment of part of a Revolving Facility Advance or an Advance in relation to an Additional Revolving Facility must be in an aggregate minimum Euro Amount of €1,000,000 or such other minimum amount as is agreed by UPC Broadband and the relevant Lenders.
(d)    Any voluntary prepayment made under this Clause 10.3 will be applied against the Revolving Facility and/or the relevant Additional Facilities (as applicable) in such proportion as may be specified by UPC Broadband in the notice of prepayment and:
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(i)    (in the case of the Revolving Facility or any Additional Revolving Facility) against all outstanding Advances under the Revolving Facility or such Additional Revolving Facility (as applicable) pro rata or against such Advances as UPC Broadband may designate in the Cancellation Notice; and
(ii)    (in the case of any other Additional Facility) against all the outstanding Advances made under the relevant Additional Facility pro rata (and, if applicable, against the Repayment Instalments for the relevant Additional Facility or Additional Facilities in such order as may be specified by UPC Broadband).
10.4    Change of Control
(a)    “Change of Control” means:
(i)    the Controlling Company does not or ceases to own, directly or indirectly through one or more of its Subsidiaries or other persons Controlled by it, the legal and beneficial interest in more than 50 per cent. of the voting rights attaching to the issued share capital of, or otherwise ceases to Control, UPC Broadband Holdco, (except as a result of a merger or consolidation of UPC Broadband Holdco with or into a Shareholder, provided that such merger or consolidation is in accordance with paragraph (d) below) or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent; or
(ii)    in accordance with the terms of any share pledge in favour of the Security Agent over the issued share capital of UPC Broadband Holdco and UPC Holding II, UPC Broadband Holdco does not or ceases to own directly (or indirectly through one or more of its Subsidiaries or other persons Controlled by it, subject to such Subsidiary or person complying with Clause 28.8(a) (Additional Obligors)) the legal and beneficial interest in 100 per cent. of the issued share capital of UPC Broadband and UPC Holding II or otherwise ceases to Control UPC Broadband and UPC Holding II; or
(iii)    UPC Broadband Holdco and UPC Holding II do not or cease to own, in accordance with the terms of the pledge referred to in paragraph 2 of Schedule 5 (Security Documents), the legal and beneficial interest in 100 per cent. of the partnership interests of, or otherwise ceases to Control, UPC Financing; or
(iv)    the sale, lease, transfer, conveyance or other disposition (other than by way of a merger or consolidation) in one or a series of related transactions, of all or substantially all of the assets of UPC Broadband, a Permitted Affiliate Parent (after any Permitted Affiliate Group Designation Date) and the Restricted Subsidiaries (taken as a whole), as applicable, to any “person” (as such term is used in sections 13(d) and 14(d) of the 1934 Act) other than a Permitted Holder (other than as a result of the transfer of receivables to any Asset Securitisation Subsidiary in connection with any asset securitisation programme or programmes and/or one or more factoring transactions); or
(v)    at any time after a Permitted Affiliate Group Designation Date, any Permitted Affiliate Holdco ceases to be the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the 1934 Act) directly or indirectly of 100 per cent. of the total voting power of the Voting Stock of any Permitted Affiliate Parent,
provided that a Change of Control shall not be deemed to have occurred:
(A)    pursuant to paragraph (a)(i) of this definition upon the consummation of the Post-Closing Reorganisation or a Spin-Off;
(B)    pursuant to paragraphs (a)(i), (a)(iv) and (a)(v) of this definition upon the liquidation on a solvent basis of a Permitted Affiliate Holdco provided that:
(1)    100 per cent. of the shares in the relevant Permitted Affiliate Parent continue to be pledged in favour of the Finance Parties on a first ranking basis without any material adverse effect on the interests of the Finance Parties;
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(2)    the successor Permitted Affiliate Holdco is not organised in a jurisdiction which would result in a materially adverse effect on the ability of the Finance Parties to enforce the share pledge over the shares in the relevant Permitted Affiliate Parent; and
(3)    the successor Permitted Affiliate Holdco is the sole shareholder of the relevant Permitted Affiliate Parent; and
(C)    pursuant to paragraph (a)(i), (a)(iv) and (a)(v) of this definition as a result of any sale, lease, transfer or other disposition of 100 per cent. of the shares in a Permitted Affiliate Parent provided that such sale, lease, transfer, conveyance or other disposition falls within one or more of the paragraphs of the definition of Permitted Disposal.
(b)    Notwithstanding the foregoing, upon consummation of (i) the Post-Closing Reorganisation, “Controlling Company” (as defined below) will mean New Intermediate Holdco and its successors or (ii) a Spin-Off in which LGEF and its successors (or if a Permitted Affiliate Group Designation Date has occurred, the Common Holding Company and its successors) is no longer a Parent of UPC Broadband Holdco (or if a Permitted Affiliate Designation Date has occurred, a common Parent of UPC Broadband Holdco and any Permitted Affiliate Parent), “Controlling Company” will mean a Parent of UPC Broadband Holdco (or if a Permitted Affiliate Designation Date has occurred, a common Parent of UPC Broadband Holdco and any Permitted Affiliate Parent) designated by UPC Broadband Holdco and any successors of such Parent.
For the purpose of this Clause 10.4 (Change of Control) and the definition of Ultimate Parent, wholly-owned Subsidiary and Permitted Transaction:
(i)    “Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of interests in (howsoever designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity;
(ii)    “Controlling Company” means, subject to paragraph (b) above:
(A)    at any time prior to any Permitted Affiliate Group Designation Date, LGEF and its successors; and
(B)    at any time on or after a Permitted Affiliate Group Designation Date, the Common Holding Company and its successors;
(iii)    “New Intermediate Holdco” means the relevant direct Subsidiary of the Ultimate Parent following the Post-Closing Reorganisation;
(iv)    “Permitted Holder” means, collectively:
(A)    the Ultimate Parent;
(B)    in the event of a Spin-Off, the Spin Parent and any Subsidiary of the Spin Parent;
(C)    each Affiliate or Related Person of a Permitted Holder described in paragraph (A) above, and any successor to such Permitted Holder, Affiliate or Related Person;
(D)    any Person who is acting as an underwriter in connection with any public or private offering of Capital Stock of UPC Broadband or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, acting in such capacity; and
(E)    any “person” or “group” of related persons (as such terms are used in sections 13(d) and 14(d) of the 1934 Act) whose acquisition of “beneficial ownership” (within the meaning of Rules 13d-3 and 13d-5 under the 1934 Act) of Voting Stock or all or substantially all of the assets of UPC Broadband or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, and its Restricted Subsidiaries (taken as a whole) would constitute a Change of Control in respect of which UPC Broadband, or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as
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applicable, has provided a notice to the Facility Agent under paragraph (c)(i) below and the Facility Agent has not, within sixty Business Days of receipt of such notice, provided a notice to UPC Broadband or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, under paragraph (c)(ii) below cancelling the Facilities and/or declaring all outstanding Advances to be immediately due and payable;
(v)    “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organisation, limited liability company, government or any agency of political subdivision hereof or any other entity;
(vi)    “Post-Closing Reorganisation” means a distribution or other transfer of UPC Broadband Holdco (or, after any Permitted Affiliate Group Designation Date, the Controlling Company) and its Subsidiaries or a Holding Company of UPC Broadband Holdco (or, after any Permitted Affiliate Group Designation Date, the Controlling Company) and its Subsidiaries to the Ultimate Parent or another direct Subsidiary of the Ultimate Parent through one or more mergers, transfers, consolidations or other similar transactions such that UPC Broadband Holdco (or, after any Permitted Affiliate Group Designation Date, the Controlling Company) or such Holding Company will become the direct Subsidiary of the Ultimate Parent or such other direct Subsidiary of the Ultimate Parent;
(vii)    “Preferred Stock”, as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation;
(viii)    “Related Person” with respect to any Permitted Holder, means:
(A)    any controlling equity holder or majority (or more) owned Subsidiary of such Permitted Holder; or
(B)    in the case of an individual, any spouse, family member or relative of such individual, any trust or partnership for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator, committee or beneficiaries of any thereof; or
(C)    any trust, corporation, partnership or other person for which one or more of the Permitted Holders and other Related Persons of any thereof constitute the beneficiaries, stockholders, partners or owners thereof, or Persons beneficially holding in the aggregate a majority (or more) controlling interest therein;
(ix)    “Restricted Subsidiary” means any Subsidiary of UPC Broadband or any Subsidiary of any Permitted Affiliate Parent, other than an Unrestricted Subsidiary;
(x)    “Spin-Off” means a transaction by which all outstanding ordinary and/or equity shares of UPC Broadband and any Permitted Affiliate Parent or a Holding Company of UPC Broadband or such Permitted Affiliate Parent directly or indirectly owned by the Ultimate Parent are distributed to (A) all of the Ultimate Parent’s shareholders or (B) all of the shareholders comprising one or more groups of the Ultimate Parent’s shareholders as provided by the Ultimate Parent’s articles of association, in each case, either directly or indirectly through the distribution of shares in a company holding UPC Broadband’s and any Permitted Affiliate Parent’s shares or such Holding Company’s shares;
(xi)    “Spin Parent” means the person the shares of which are distributed to the shareholders of the Ultimate Parent pursuant to the Spin-Off; and
(xii)    “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors.
(c)    Upon becoming aware of a Change of Control:
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(i)    UPC Broadband or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Facility Agent upon becoming aware of a Change of Control; and
(ii)    if the Majority Lenders so require, the Facility Agent shall, by not less than 30 Business Days’ notice to UPC Broadband, cancel each Facility and declare all outstanding Utilisations, together with accrued interest and all other relevant amounts accrued under the Finance Documents immediately due and payable, whereupon each Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
(d)    UPC Broadband Holdco shall not enter into a merger or consolidation with or into a Shareholder (the resulting person being the “UPC Merged Entity”) unless:
(i)    reasonable details of the proposed merger concerning the matters set out in paragraphs (d)(ii) and (d)(iii) below are provided to the Facility Agent at least 10 days before the merger is to be entered into;
(ii)    the UPC Merged Entity will be liable for the obligations of UPC Broadband Holdco (including the obligations under the Finance Documents), which obligations will continue in full force and effect after the merger, and entitled to the benefit of all rights of UPC Broadband Holdco; and
(iii)    the UPC Merged Entity has entered into Security Documents (if applicable) which provide security over the same assets of at least an equivalent nature and ranking to the security provided by UPC Broadband Holdco pursuant to any Security Documents entered into by it and such Security Documents are the legal, valid and binding obligations of UPC Merged Entity enforceable in accordance with their terms subject (to the extent applicable) to substantially similar qualifications to those made in the legal opinions referred to in Schedule 2 (Conditions Precedent Documents).
10.5    Mandatory prepayment from disposal proceeds
(a)    Other than as provided in paragraph (b) below, on a Permitted Disposal (other than (i) the first €250,000,000 of Net Proceeds (or, if greater, an amount equal to five per cent. of Total Assets) of each Content Transaction or (ii) a disposal in accordance with paragraphs (b)(i) to (b)(liii) of Clause 19.11 (Disposals)), UPC Broadband shall procure that an amount of the Facilities is prepaid which is equal to the lesser of:
(i)    the amount of the Net Proceeds of such a disposal; and
(ii)    an amount so as to ensure that the financial ratio set out in Clause 20.2 (Financial Ratio) for the most recent Ratio Period ending prior to the receipt of such Net Proceeds would not be breached if such financial ratio was tested for that most recent Ratio Period taking into account (on a pro-forma basis) all disposals made since the last day of that Ratio Period and the amount of such prepayment (but ignoring such Net Proceeds),
provided that there shall be no requirement to make a prepayment if the financial ratio set out in Clause 20.2 (Financial Ratio) was not required to be tested for the most recent Ratio Period ending prior to the receipt of such Net Proceeds.
Such amount shall be applied in prepayment of the Facilities in accordance with Clause 10.6(a) (Order of application).
(b)    No prepayment in accordance with paragraph (a) above is required:
(i)    where the amount of any such prepayment would be less than the greater of €250,000,000 (or its equivalent in other currencies) and five per cent. of Total Assets; or
(ii)    in connection with any Permitted Disposal where an amount equal to the amount that would otherwise be required to be prepaid under paragraph (a) above is reinvested in assets in the Business (for the avoidance of doubt, including Permitted Acquisitions, Capital Expenditure,
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Operational Expenditure and Permitted Joint Ventures) provided that any amount that has not been:
(A)    reinvested or contracted to be so reinvested within 12 months of the relevant Permitted Disposal; and
(B)    if contracted to be reinvested, so reinvested within 18 months of the relevant Permitted Disposal (the “Reinvestment End Date”),
shall be applied in prepayment of the Facilities in accordance with Clause 10.6(a) (Order of application), and provided further that on the Reinvestment End Date, UPC Broadband shall procure that an amount of the Facilities is prepaid which is equal to the lesser of:
(1)    the amount of the Net Proceeds of such a disposal; and
(2)    an amount so as to ensure that the financial ratio set out in Clause 20.2 (Financial Ratio) for the most recent Ratio Period ending prior to the Reinvestment End Date would not be breached if such financial ratio was tested for that most recent Ratio Period taking into account (on a pro-forma basis) all disposals made since the last day of that Ratio Period and the amount of such prepayment (but without taking into account in the calculation of Cash any Net Proceeds that have not been reinvested as at such Reinvestment End Date),
provided that there shall be no requirement to make a prepayment if the financial ratio set out in Clause 20.2 (Financial Ratio) was not required to be tested for the most recent Ratio Period ending prior to the Reinvestment End Date.