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Exhibit 10.4
QUALIFIED LOAN
Loan Agreement
This loan agreement (this "AGREEMENT") is to be effective as of the date written
on the signature page hereof between
BELMARKEN HOLDING B.V. (the "LENDER"), a private limited liability company
organised and existing under the laws of the Netherlands; and
UPC POLSKA, INC. (the "BORROWER"), a Delaware Corporation.
WHEREAS
A. This Agreement is a "QUALIFIED LOAN" for purposes of the
loan agreement dated 25 May, 2001 made among
Liberty-Belmarken, Inc. as Lender, the Lender hereunder (in
such capacity, the "Company") and United Pan-Europe
Communications N.V. ("UPC") as Obligors and UPC Internet
Holding B.V. as Guarantor ("CHELLO HOLDINGS") (the
"BELMARKEN LOAN AGREEMENT").
B. Undefined capitalized terms used in this Agreement shall
have the meanings set forth in the Belmarken Loan
Agreement.
NOW THE PARTIES HEREBY AGREE AS FOLLOWS:
1. TERM LOAN
1.1 The principal amount (the "PRINCIPAL AMOUNT") hereof is
stated in Appendix I or Appendix II, as the case may be, of
this Agreement.
1.2 Subject to subclause 3 below, the Borrower will repay the
outstanding Principal Amount on 25 May, 2007 (the "REPAYMENT
DATE") with unpaid interest thereon in Euros in immediately
available funds at the bank and to the account that the
Lender dictates.
1.3 The Borrower may, at any time prior to the Repayment Date,
prepay the whole or part of the outstanding Principal
Amount and shall without prejudice to clause 3 hereof,
immediately prepay the whole or part of the outstanding
Principal Amount, if the Lender so requests and if the
Obligors are required to make a mandatory prepayment to the
Holders pursuant to Section 5.2 of the Belmarken Loan
Agreement. In addition, the Borrower shall prepay the whole
or part of the outstanding Principal Amount, if payment
thereof would constitute an application of "Net Cash
Proceeds" (as defined in the Indenture) from an "Asset
Sale" (as defined in the Indenture) permitted under Section
10.16(1)(A)(l) or (2) of the Indenture and such
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application would not constitute a default under a material
agreement of the Borrower or its Affiliates in effect on 29
May, 2001. For the purposes of this Section 1.3, the
"INDENTURE" means that certain indenture dated as of 20
January, 2000 entered into between UPC and Citibank, N.A.
(London branch), as trustee, with respect to UPC's
$600,000,000 11 1/4% Senior Notes Due 2010 and its
[EURO]200,000,000 11 1/4% Senior Notes due 2010.
1.4 Interest shall accrue on the outstanding Principal Amount at
an interest rate per annum set out on Appendix I or such other
rate as is agreed between the Borrower and the Lender from
time to time (the "LENDING RATE") for the period from and
including the date on which such Principal Amount was advanced
by the Lender to the Borrower to but excluding the date on
which such Principal Amount is repaid in full. Unless
otherwise approved by the Lender, accrued interest is payable
on the last business day of each calendar month, and on the
date of each payment or prepayment of the Principal Amount.
1.5 The Lender will endorse from time to time and at such times as
the Lender shall determine the following on Appendix I or
Appendix II as the case may be, of this Agreement (as it may
be amended, renewed, restated or modified from time to time in
accordance with the Belmarken Loan Agreement):
(a) the outstanding Principal Amount;
(b) the amount of any pre-payments of the outstanding
Principal Amount made by the Borrower under Clause 1.3
above;
(c) the Lending Rate applying from time to time;
(d) the amount of money transfers added to the outstanding
Principal Amount pursuant to Clause 1.7 below; and
(e) the amount of invoices sent added to the outstanding
Principal Amount pursuant to Clause 1.8 below;
PROVIDED that the failure so to endorse Appendix I or
Appendix II shall not affect the Borrower's obligations
hereunder.
1.6 Notwithstanding anything to the contrary in this Agreement,
Appendix I of this Agreement may be endorsed, amended and
modified by the Lender without any consent from or writing
executed by the Borrower.
1.7 Money transfers made from the Lender to the Borrower during
the term of and pursuant to this Agreement shall be added to
the outstanding Principal Amount on the value date that money
transfers were made and interest shall accrue
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upon it as of that date.
1.8 At the Lender's option, amounts equal to the amounts of
invoices sent from the Lender to the Borrower may be added to
the outstanding Principal Amount on the last day of the month
they were sent and interest shall accrue upon it as of the
first of the month following.
1.9 Subject to the terms and conditions of this Agreement, the
Lender may make additional loans to the Borrower, following
receipt by the Lender from the Borrower of a drawdown notice
substantially in the form set out in Appendix II of this
Agreement (the "DRAWDOWN NOTICE"),
PROVIDED that the total amount of loans (including loans made
pursuant to a Drawdown Notice), money transfers and invoices
sent added to the outstanding Principal Amount annually will
not exceed the applicable annual funding requirement budget as
determined by the Lender in its sole discretion.
1.10 All payments under this Agreement to the Lender will be made
by the Borrower without reflecting any deduction for any
set-off, suspension or counterclaim and without withholding or
deduction for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever
nature, unless the withholding of such taxes or duties is
required by applicable law, in which case, the relevant
payment shall be increased to the extent necessary to ensure
that, after the making of such withholding or deduction, the
Lender receives (and retains, free from any liability in
respect of such deduction or withholding) a net sum equal to
the sum that it would have received had no such withholding or
deduction been required and the Borrower shall indemnify the
Lender against any losses or costs incurred by any of them by
reason of any failure of the Borrower to make any such
deduction or withholding or by reason of any increased payment
not being made on the due date for such payment.
2. REPRESENTATIONS AND WARRANTIES
The Borrower has all necessary corporate power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by the Borrower of this Agreement
has been duly authorized by all necessary corporate action on its
part; and this Agreement has been duly and validly executed and
delivered by the Borrower and will constitute its legal, valid and
binding obligations, enforceable against the Borrower in accordance
with its terms.
3. EVENTS OF DEFAULT
If one or more of the following events (each herein called an "EVENT
OF DEFAULT") shall occur and be continuing:
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(a) The Borrower shall default in the payment when due of the
Principal Amount or any interest payable by it hereunder; or
(b) The Borrower shall default in the performance of any of its
other obligations under this Agreement and such default (if
capable of remedy before the expiry of such period) continues
unremedied for a period of 28 days from the earlier of the date
on which (i) the Borrower has become aware of the default or
(ii) the Lender gives notice to the Borrower requiring the same
to be remedied, unless no applicable period to remedy such
default exists or is available; or
(c) The Borrower or any of its subsidiaries shall default in the
payment when due or within any originally applicable grace
period, as the case may be, of any principal of or interest on
any of its other indebtedness; or any event specified in any
agreement evidencing or relating to any such indebtedness
shall occur, if the effect of such event is to cause or permit
the lenders in respect of such indebtedness to cause such
indebtedness to become due or to be prepaid in full prior to
its stated maturity or any representation or warranty made by
the Borrower under this Agreement shall prove to have been
false or incorrect in any material respect when made or deemed
made and, in the event that any representation or warranty is
capable of remedy, the misrepresentation is not remedied
within 28 days of the earlier of the date on which (i) the
Borrower has become aware of the misrepresentation or (ii) the
Lender gives notice to the Borrower requiring the same to be
remedied; or
(d) (i) A "Default" as defined in the Loan Agreement shall have
occurred and be continuing or (ii) the "Notes" as defined under
the Loan Agreement shall have become immediately due and
payable;
(e) The Borrower or any of its subsidiaries shall admit in writing
its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) The Borrower shall (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian,
trustee, administrator or liquidator of itself or of all or a
substantial part of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a
voluntary winding up, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
receivership, reorganisation, administration, winding-up, or
composition or readjustment of debts, (v) fail to controvert
in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary winding
up, or (vi) take any corporate action for the purpose of
effecting any of the foregoing;
(g) A proceeding or case shall be commenced, without the
application or consent of the Borrower or any of its
subsidiaries, in any court of competent jurisdiction,
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seeking (i) its liquidation, reorganisation, dissolution or
winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, administrator,
custodian, liquidator or the like of the Borrower or any of
its subsidiaries or of all or any substantial part of its
assets, or (iii) similar relief in respect of the Borrower or
any of its subsidiaries under any law relating to bankruptcy,
insolvency, receivership, reorganisation, winding-up, or
composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgement or
decree approving or ordering any of the foregoing shall be
entered and continue unstated and in effect, for a period of
120 or more days; or an order for relief against the Borrower
or any of its subsidiaries shall be entered in an involuntary
winding up; or
(h) This Agreement or any material provision hereof shall cease to
be in full force and effect as against the Borrower for any
reason other than a termination hereof upon full payment and
satisfaction of the obligations hereunder or the Borrower shall
contest or purport to repudiate or disavow any of its
obligations hereunder or the validity or enforceability
thereof; or
(i) In the opinion of the Lender, a material adverse change has
occurred in the business, operations, prospects or the
condition (financial or otherwise) of the Borrower or any of
its subsidiaries or any event or circumstance has occurred
that could have a material adverse effect on the Borrower's
ability to perform or observe its obligations under this
Agreement or on the legality, validity, binding effect or
enforceability of this Agreement.
THEREUPON: (i) in the case of an Event of Default other than the ones
referred to in paragraph (f) or (g) of this Clause with respect to the
Borrower, the Lender may, by notice to the Borrower, declare the
Principal Amount then outstanding, and the accrued interest thereon
and all other amounts payable by the Borrower hereunder, to be
forthwith due and payable, whereupon such amounts shall be immediately
due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by
the Borrower; and (ii) in the case of the occurrence of an Event of
Default referred to in paragraph (f) or (g) of this Clause with
respect to the Borrower the Principal Amount then outstanding, and the
accrued interest thereon and all other amounts payable by the Borrower
hereunder shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrower.
4. MISCELLANEOUS
4.1 NOTICES
All notices and other communications provided for herein
(including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or
made by telex, facsimile or by hand in writing
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and telexed, transmitted by facsimile, mailed or delivered to
the intended recipient at its "Address for Notices" specified
below its name on the signature page hereof; or, as to any
party, at such other address as shall be designated by such
party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telex or
facsimile, personally delivered or, in the case of a mailed
notice, upon receipt, in each case, given or addressed as
aforesaid.
4.2 AMENDMENTS
Except as otherwise expressly provided in this Agreement, any
provision of this Agreement may be waived, amended or modified
only by an instrument in writing duly executed by the party
against whom enforcement is or will be sought.
4.3 SUCCESSORS AND ASSIGNS
(a) The Borrower may neither assign its rights nor delegate
its duties under this Agreement without obtaining the
Lender's prior written consent. The Lender may assign
all of its rights and delegate its duties under this
Agreement to any affiliate or to any other person.
(b) Any reference in this Agreement to a person shall
include such person's successors and permitted assigns.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and assigns.
4.4 EFFECTIVENESS
This Agreement shall become effective on the date set out on
the signature page hereto.
4.5 COMPLETE AGREEMENT
This Agreement, together with the exhibits and schedules to
this Agreement, is intended by the parties as a final
expression of their agreement regarding the subject matter
hereof and is intended as a complete statement of the terms
and conditions of such agreement and merges and supersedes all
prior discussions, agreements and understandings of every kind
and nature among them as to the subject matter hereof.
4.6 ENFORCEABILITY
The enforceability or invalidity of any provision or
provisions of this
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Agreement does not render any other provision or provisions of
this Agreement unenforceable or invalid, and in lieu of each
such illegal, invalid or unenforceable provision there shall
be added automatically as a part of this Agreement a provision
as similar in terms to such illegal, invalid or unenforceable
provision as may be possible, which provision shall be legal,
valid and enforceable.
4.7 FURTHER ASSURANCES
The parties shall do all acts and things (including the
executing of additional agreements, instruments and documents)
as are required to give effect to this Agreement (and do
nothing to jeopardise the same).
4.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts
with each party executing different counterparts, each of
which, when executed, shall constitute an original and all of
which together shall constitute one instrument.
4.9 PRIORITY OF BORROWER'S OBLIGATIONS
The Borrower shall ensure that the obligations of the Borrower
hereunder shall at all times rank senior in right of payment
upon liquidation to all Investments of UPC and its
Subsidiaries (other than the Lender) in the Borrower or in any
Subsidiary of the Borrower.
4.10 GOVERNING LAW
This Agreement shall be governed and construed in accordance
with the laws of The Netherlands. Any and all disputes related
to this Agreement and/or any agreements arising out of this
Agreement shall be submitted to the exclusive jurisdiction of
the competent court in Amsterdam, The Netherlands.
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APPENDIX I to the Qualified Loan Agreement between THE LENDER and THE BORROWER
This Appendix evidences loans made to the Borrower under the within-described
Qualified Loan Agreement, on the dates and in the principal amounts set forth
below and subject to the Lending Rates and to the payments and prepayments of
principal set forth below.
DATE OUTSTANDING PRINCIPAL AMOUNT PAID OR PREPAID
AMOUNT
31 --07- 2001 14,497,296
LENDING RATE APPLICABLE PERIOD
9.75% 14.10.99-31.12.00
11.00% 01.01.01-
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IN WITNESS WHEREOF, the parties hereto cause this Agreement to be duly executed
on the _______ day of ________________, 2001.
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BELMARKEN HOLDING, B.V.
By /s/ TON TUIJTEN By /s/ GENE MUSSELMAN
-------------------------------------- -----------------------------------------
Name: Ton Tuijten Name: Gene Musselman
Title: Director Title: Director
Boeing Avenue 53
1119 PE Schiphol-Rijk
The Netherlands
UPC POLSKA, INC.
By ___________________________
Name:
Title:
One Commercial Plaza, 24th Floor
Hartford
Connecticut
U.S.A.
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