Exhibit 10.2


 


CONFORMED COPY


 


 


AMENDMENT AND
RESTATEMENT AGREEMENT


 


 


DATED 16th January, 2004


 


 


BETWEEN


 


 


UPC DISTRIBUTION HOLDING B.V.


 


and


 


UPC FINANCING PARTNERSHIP


 


as Borrowers


 


and


 


THE COMPANIES LISTED IN SCHEDULE 1


 


as Guarantors


 


with


 


TD BANK EUROPE LIMITED


 


and


 


TORONTO DOMINION (TEXAS), INC.


 


as Facility Agents


 


 


relating to a CREDIT AGREEMENT


 


originally dated 26th October,
2000


 


 





LONDON


 

















 


CONTENTS


 


	
  Clause

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Interpretation

  	
   

  
	
  2.

  	
  Amendments

  	
   

  
	
  3.

  	
  Representations and
  Warranties

  	
   

  
	
  4.

  	
  Miscellaneous

  	
   

  
	
  5.

  	
  Counterparts

  	
   

  
	
  6.

  	
  Governing law

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Guarantors

  	
   

  
	
  2.

  	
  Conditions precedent
  documents

  	
   

  
	
  3.

  	
  Restated Credit Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Signatories

  	
   

  



 

















 


THIS AGREEMENT is dated 16th
January, 2004 between:


 


(1)           UPC DISTRIBUTION HOLDING B.V. (UPC Distribution) and UPC FINANCING PARTNERSHIP (the US Borrower)
as Borrowers;


 


(2)           THE COMPANIES whose names and addresses are set out in Schedule 1 (Guarantors)
as Guarantors; and


 


(3)           TD BANK EUROPE LIMITED and TORONTO DOMINION (TEXAS), INC. as Facility Agents.


 


BACKGROUND


 


(A)          This
Agreement is supplemental to and amends a credit agreement originally dated
26th October, 2000, as amended from time to time, between, among others, the
Borrowers, the Guarantors and the Facility Agents (the Credit Agreement).


 


(B)           The
Majority Lenders (as defined in the Credit Agreement) have consented to the
amendments to the Credit Agreement contemplated by this Agreement.  Accordingly, the Facility Agents are
authorised to execute this Agreement on behalf of the Finance Parties.


 


IT IS AGREED as follows:


 


1.             INTERPRETATION


 


1.1          Definitions


 


In this Agreement:


 


Amended and Restated
Security Deed means the Security Deed as
amended and restated on or about the date of this Agreement.


 


Amendment Fee Letter means the letter between the Facility Agent and UPC Distribution
dealing with the amendment fees payable to the Lenders in connection with this
Agreement.


 


Effective Date has the meaning given to it in Clause 2(b) (Amendments).


 


New Facility Agent means TD Bank Europe Limited in its capacity as facility agent
under the New Facility Agreement.


 


New Facility Agreement means the €1,072,000,000 senior secured credit agreement between,
among others, the New Facility Agent and UPC Distribution as borrower dated on
or about the date of this Agreement.


 


1.2          Construction


 


(a)           Capitalised terms defined
in the Credit Agreement as amended and restated in Schedule 3 to this
Agreement have, unless expressly defined in this Agreement, the same meaning in
this Agreement.


 


(b)           The provisions of Clause
1.2 (Construction) of the Credit Agreement apply to this Agreement as though
they were set out in full in this Agreement except that references to the
Credit Agreement are to be construed as references to this Agreement.


 


1

















 


2.             AMENDMENTS


 


(a)           The Credit Agreement will
be amended, with effect from the Effective Date, so that it reads as if it were
restated in the form set out in Schedule 3 (Restated Credit Agreement).


 


(b)           The amendments to be made
to the Credit Agreement by this Agreement shall take effect on or from the
later of the Allocation Date (as defined in the New Facility Agreement) or the
date (the Effective
Date) on which the Facility Agent notifies UPC Distribution, the
Lenders and the New Facility Agent that it has received:


 


(i)            the documents and evidence
set out in Schedule 2, in each case in form and substance satisfactory to
it or, as the case may be, that the requirement to provide any of such
documents or evidence has been waived by the Majority Banks; and


 


(ii)           confirmation by the New
Facility Agent that all of the conditions set out in clause 4.1(b) (Documentary
conditions precedent) of the New Facility Agreement have been satisfied.


 


(c)           The Facility Agent will
confirm to UPC Distribution and the New Facility Agent as soon as practicable
upon receiving all of the documents and evidence set out in Schedule 2, in
each case in form and substance satisfactory to it, and the confirmation from
the New Facility Agent referred to in paragraph b(ii) above.


 


3.             REPRESENTATIONS
AND WARRANTIES


 


(a)           The representations and
warranties set out in Clause 15 (Representations and Warranties) of the Credit
Agreement (as amended and restated in Schedule 3 to this Agreement) (with
the exception of Clauses 15.6 (Consents), 15.10 (Financial condition), 15.12
(Security Interests), 15.13(b) (Litigation and insolvency proceedings), 15.14
(Information), 15.15 (Tax liabilities), 15.16 (Ownership of assets), 15.20
(ERISA), 15.24 (US Borrower) and 15.25 (Dutch Banking Act)) are true and
correct as if made on the date of this Agreement and on the Effective Date,
with reference to the facts and circumstances then existing, and as if each
reference to (i) the Finance Documents includes a reference to this Agreement
and (ii) the Credit Agreement is a reference to the Credit Agreement as amended
and restated by this Agreement.


 


(b)           The representations and
warranties set out in Clause 15.25 (Dutch Banking Act) of the Credit Agreement
are true and correct on the dates specified therein.


 


(c)           UPC Distribution represents
and warrants to each Finance Party that:


 


(i)            there has been no material
adverse change in the consolidated financial position of the Borrower Group
(taken as a whole) since the date of the financial statements most recently
provided under clause 16.2(a) (Financial Information) of the Credit Agreement
which would or is reasonably likely to have a Material Adverse Effect; and


 


(ii)           each Obligor (other than
the US Borrower) is part of the same fiscal unity for Dutch corporate income
tax purposes.  The US Borrower is
transparent for Dutch corporate income tax purposes and all the partners in the
US Borrower are part of the fiscal unity for Dutch corporate income tax
purposes as all the other Obligors.


 


4.             MISCELLANEOUS


 


(a)           This Agreement is a Finance
Document.


 


2

















 


(b)           Subject to the terms of
this Agreement, the Credit Agreement will remain in full force and effect and
the Credit Agreement and this Agreement will be read and construed as one
document.


 


(c)           The Majority Lenders
confirm that the Facility Agent is authorised to execute the New Facility
Agreement on behalf of the Finance Parties solely for the purposes of giving
the confirmation set out in clause 5.5 (Relationship between Facility D and the
Existing Facility) thereof.


 


(d)           Each Obligor confirms:


 


(i)            that the Security
Interests granted to the Beneficiaries pursuant to the Security Documents and
its obligations under the Finance Documents shall continue and remain
unaffected by the entry into this Agreement;


 


(ii)           in accordance with
Article 1278 of the Belgian Civil Code, its duties and obligations under
the share pledge listed in paragraph (i) of Schedule 7 (Security
Documents) of the Existing Facility Agreement shall not be affected or impaired
by the entry into of this Agreement and that this Agreement does not constitute
a novation.


 


5.             COUNTERPARTS


 


This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts
each of which, when executed and delivered shall constitute an original, but all
the counterparts together shall constitute but one and the same Agreement.


 


6.             GOVERNING LAW


 


This Agreement is governed by English law.


 


This Agreement has been entered into on the
date stated at the beginning of this Agreement.


 


3

















 


SCHEDULE 1


 


GUARANTORS


 


	
  Name

  	
   

  	
  Address

  
	
   

  	
   

  	
   

  
	
  UPC Financing Partnership

  	
   

  	
  4643
  South Ulster Street

  Suite 1300

  Denver, Co 80237

  United States

  
	
   

  	
   

  	
   

  
	
  UPC Distribution Holding B.V.

  	
   

  	
  Boeing
  Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Holding II B.V.

  	
   

  	
  Boeing
  Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Holding B.V.

  	
   

  	
  Boeing
  Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC France Holding B.V.

  	
   

  	
  Boeing
  Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Scandinavia Holding B.V.

  	
   

  	
  Boeing
  Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Cable Network Austria Holding B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  Stipdon Investments B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  
	
   

  	
   

  	
   

  
	
  UPC Nederland B.V.

  	
   

  	
  Boeing Avenue 53

  1119 PE Schiphol Rijk

  Amsterdam

  The Netherlands

  



 


4

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT
DOCUMENTS


 


1.             Constitutional
Documents


 


(a)           A copy
of the articles of association and certificate of incorporation of each Obligor
(other than the US Borrower) and the partnership agreement in relation to the
US Borrower or, if the Facility Agent already has a copy, a certificate of an
authorised signatory of the relevant Obligor confirming that the copy in the
Facility Agent’s possession is still correct, complete and in full force and
effect as at a date no earlier than the date of this Agreement.


 


(b)           An extract
of the registration in the trade register of the Dutch Chamber of Commerce of
each Obligor established in The Netherlands.


 


2.             Authorisations


 


(a)           A copy
of an extract of a resolution of the board of managing or supervisory directors
(or equivalent) and, to the extent that a shareholders’ resolution is required
under the constitutional documents of any Obligor established in The
Netherlands, a copy of an extract of the shareholders’ resolution of each
Obligor:


 


(i)            approving
the terms of, and the transactions contemplated by, this Agreement, the Amended
and Restated Security Deed and the Intercreditor Agreement and resolving that
it execute the same; and


 


(ii)           authorising
a specified person or persons to execute this Agreement, the Amended and
Restated Security Deed and the Intercreditor Agreement on its behalf.


 


(b)           A
specimen of the signature of each person authorised by the resolutions referred
to in paragraph (a) above.


 


(c)           A
certificate of an authorised signatory of each of UPC Distribution and the US
Borrower respectively certifying that each copy of the documents specified in
this Schedule 2 and supplied by UPC Distribution or the US Borrower (as
the case may be) is a true copy and in full force and effect as at a date no
earlier than the date of this Agreement.


 


(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 Agreement have been complied with by each
Obligor established in The Netherlands.


 


3.             Legal
opinions


 


Legal opinions of Allen & Overy,
London, Amsterdam and New York, legal advisers to the Lead Arrangers.


 


4.             Other
documents


 


(a)           Duly
executed copy of the New Facility Agreement, the New Security Deed, the Amended
and Restated Security Deed and the Intercreditor Agreement.


 


(b)           A copy
of (and of all applications for) any and all approvals, consents, licences,
exemptions and other requirements of governmental and other authorities
required for the entering into or 


 


5

















 


performance of this Agreement to be entered
into on or about the date of this Agreement by each party.


 


(c)           A copy
of any other authorisation or other document, opinion or assurance which the
Facility Agent has notified UPC Distribution is necessary in connection with
the entry into and performance of, and the transactions contemplated by, this
Agreement or for the validity and enforceability of this Agreement.


 


(d)           The
Amendment Fee Letter duly executed by all parties thereto.


 


(e)           A copy
of the Business Plan.


 


(f)            A
copy of the amendment to the assignment agreement listed in paragraph 2 of
Schedule 7 (Security Documents) of the Credit Agreement.


 


(g)           A copy
of a securities account pledge between UPC Scandinavia Holding B.V., Fortis
Bank (Nederland) N.V. and the Security Agent in relation to the shares in the
capital of NBS Nordic Broadband Services AB.


 


(h)           UCC-1
Financing Statements duly executed by UPC Holding and UPC Holding II in
relation to the Obligor Pledge of Shareholder Loans listed in
paragraph 3(a) of Schedule of the Credit Agreement.


 


(i)            A
copy of the amendment to the framework agreement between UPC Scandinavia
Holding B.V. as lender and NBS Nordic Broadband Services A.B. as borrower.


 


6

















 


SCHEDULE 3


 


RESTATED CREDIT AGREEMENT


 


7

















 


SIGNATORIES


 


 


Borrowers


 


	
  UPC DISTRIBUTION HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC FINANCING PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  Guarantors

  
	
   

  	
   

  	
   

  
	
  UPC DISTRIBUTION HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC HOLDING II B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC FINANCING PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  



 


8

















 


	
  UPC FRANCE HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC SCANDINAVIA HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  CABLE NETWORK AUSTRIA HOLDING B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  STIPDON INVESTMENTS B.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  UPC NEDERLAND N.V.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ JEREMY EVANS

  	
   

  
	
   

  	
  JEREMY EVANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ DENNIS OKHUIJSEN

  	
   

  
	
   

  	
  DENNIS OKHUIJSEN

  	
   

  
	
   

  	
   

  	
   

  
	
  Facility Agents

  
	
   

  	
   

  	
   

  
	
  TD BANK EUROPE LIMITED

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ RORY MCCARTHY

  	
   

  
	
   

  	
  RORY MCCARTHY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  
	
  TORONTO DOMINION (TEXAS), INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ RORY MCCARTHY

  	
   

  
	
   

  	
  RORY MCCARTHY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (as attorney)

  	
   

  



 


9