Exhibit 10.1
[ON THE LETTERHEAD OF DEUTSCHE BANK AG, LONDON BRANCH]
AMENDMENT LETTER
To: NTL Investment Holdings Limited
NTL Inc.
NTL Dover LLC
c/o NTL House
Bartley Wood Business Park
Hook
Hampshire
RG27 9UP
Date: [o] May 2006
Dear Sirs,
AMENDMENT LETTER
We refer to a facilities agreement dated 3 March 2006 (as from time to time
amended, varied, novated or supplemented, the "SENIOR FACILITIES
AGREEMENT") and made between, NTL Incorporated (formerly known as Telewest
Global, Inc.) as Ultimate Parent, NTL Cable plc as Parent, NTL Investment
Holdings Limited, Telewest Communications Networks Limited and NTLIH Sub
Limited as UK Borrowers, NTL Dover LLC as the US Borrower, Deutsche Bank
AG, London Branch, J.P. Morgan Plc, The Royal Bank of Scotland Plc and
Goldman Sachs International as Bookrunners and Mandated Lead Arrangers,
Deutsche Bank AG, London Branch as Facility Agent, Deutsche Bank AG, London
Branch as Security Trustee, GE Corporate Banking Europe SAS as
Administrative Agent, Deutsche Bank AG, London Branch as Original L/C Bank
and the financial and other institutions named in it as Lenders and B
Facility Lenders.
Save as defined in this Letter, words and expressions defined in the Senior
Facilities Agreement shall have the same meanings when used in this Letter.
In this Letter "FIRST AMENDMENT EFFECTIVE DATE" means the date upon which
the Facility Agent notifies NTLIH that it has received a copy of this
Letter duly countersigned by the Ultimate Parent, NTLIH and the US
Borrower.
1. On and with effect from the First Amendment Effective Date:
(a) each of the parties hereto confirm that this Letter constitutes a
Finance Document for the purposes of the Senior Facilities Agreement
(and for the avoidance of doubt, the Structure 2 Senior Facilities
Agreement);
(b) each of the Ultimate Parent, NTLIH and the US Borrower represent and
warrant that it is a company duly organised and validly existing under
the laws of its jurisdiction of incorporation with power to enter into
this Letter and to exercise its rights and perform its obligations
hereunder and all corporate and (subject to paragraphs (d) and (e) of
the definition of Reservations) other action required to authorise its
execution of this Letter and its performance of its obligations have
been duly taken; and
(c) NTLIH agrees pursuant to Clause 38.4 (Amendments and Waivers) of the
Senior Facilities Agreement, to reimburse the Facility Agent promptly
on demand for all reasonable out-of-pocket costs and expenses
(together with VAT or any similar tax), including, without limitation,
the reasonable fees and expenses of the Facility Agent's legal
advisers, incurred in connection with the negotiation, preparation and
execution of this Letter.
2. On and with effect from the First Amendment Effective Date, the
parties agree that the Senior Facilities Agreement (and to the extent
relevant, the Structure 2 Senior Facilities Agreement) shall be
amended in accordance with the provisions set out in the Schedule (The
Amendments) of this Letter.
3. The Obligors' Agent confirms, for and on behalf of itself and the
other Guarantors, that on and after the First Amendment Effective Date
the provisions of the guarantees contained in Clause 29 (Guarantee and
Indemnity) of the Senior Facilities Agreement shall remain in full
force and effect and shall apply equally to the obligations of NTLIH
and the US Borrower in this Letter as if set out in full in this
Letter save that references in the Senior Facilities Agreement to
"this Agreement" shall be construed as references to the Senior
Facilities Agreement as amended pursuant to this Letter.
4. The Facility Agent confirms that the consent of an Instructing Group
has been obtained to the amendments to the Senior Facilities Agreement
referred to in the Schedule (The Amendments) to this Letter.
5. Save as amended by this Letter, the provisions of the Senior
Facilities Agreement shall continue in full force and effect and the
Senior Facilities Agreement and this Letter shall be read and
construed as one instrument.
6. On and with effect from the First Amendment Effective Date, references
in the Senior Facilities Agreement (and for the avoidance of doubt,
the Structure 2 Senior Facilities Agreement) to "this Agreement"
shall, unless the context otherwise requires, be construed as
references to the Senior Facilities Agreement (and Structure 2 Senior
Facilities Agreement) as waived or amended by this Letter.
6. This Letter may be executed in counterparts each of which, when taken
together, shall constitute one and the same agreement.
7. This Letter is governed by and shall be construed in accordance with
English law and the provisions of Clause 48 (Jurisdiction) of the
Senior Facilities Agreement shall be deemed to be incorporated in this
Letter in full, mutatis mutandis, save that references to "this
Agreement" shall be construed as references to the Senior Facilities
Agreement as amended pursuant to this Letter.
Please sign, date and return the enclosed copy of this Letter to signify
your acceptance and acknowledgement of its terms and conditions.
Yours faithfully
For and on behalf of
DEUTSCHE BANK AG, LONDON BRANCH
as Facility Agent for and on behalf of itself and the
other Finance Parties
- -------------------------------
Authorised Signatory
- -------------------------------
Authorised Signatory
To: Deutsche Bank AG, London Branch, as Facility Agent for and on behalf
of itself and the other Finance Parties
We acknowledge receipt of your Letter of [ ] 2006 of which this is a copy
and hereby confirm our acknowledgement and agreement to the terms and
conditions stated in it.
Yours faithfully
For and on behalf of
NTL INCORPORATED (FORMERLY KNOWN AS TELEWEST GLOBAL, INC.)
as Ultimate Parent
- ----------------------------------------
For and on behalf of
NTL INVESTMENT HOLDINGS LIMITED
as Borrower and Obligors' Agent for and on
behalf of itself and the other Obligors
- ----------------------------------------
For and on behalf of
NTL DOVER LLC
as US Borrower
- ----------------------------------------
SCHEDULE
THE AMENDMENTS
1. CLAUSE 1 (DEFINITIONS AND INTERPRETATION) OF THE SENIOR FACILITIES
AGREEMENT
(a) The following definitions shall be inserted in Clause 1 (Definitions
and Interpretation) of the Senior Facilities Agreement and of the
Structure 2 Senior Facilities Agreement, in each case, in alphabetical
order:
"FIRST AMENDMENT EFFECTIVE DATE" has the meaning given to it in an
amendment letter dated [o] between the Ultimate Parent, NTLIH, the US
Borrower and the Facility Agent.
"STRUCTURING LONG-STOP DATE" means the 31 July 2006.
"STRUCTURE 2 OPINIONS" means:
(a) an opinion from a big four accounting firm; and
(b) an opinion from an internationally recognized law firm,
in each case:
(i) substantially in the form approved by the Mandated Lead
Arrangers prior to the issuance of any Structure Notice;
(ii) issued on the date of the Structure Notice; and
(iii) to the effect that (i) NTLIH's acquisition of NTL (UK)
Group, Inc. shares from NTL (UK) Group, Inc. should not
result for US federal income tax purposes in NTL (UK)
Group, Inc., the Parent or NTLIH recognising income or
gain, and (ii) NTLIH's acquisition of all the stock of
Telewest UK in exchange for the NTL (UK) Group, Inc.
shares should not result for US federal income tax
purposes in the Ultimate Parent, any member of the
Ultimate Parent's US consolidated federal tax group, NTL
(UK) Group, Inc., the Parent or NTLIH recognising income
or gain, in each case, pursuant to the implementation of
the steps set out on the pages headed "Post Combination
Restructuring - Second Alternative (Structure 2)" of the
Steps Paper (including, at the Company's option,
alternative Steps 6Y-10Y described therein)."
(b) Paragraph (e) of the definition of "PERMITTED PAYMENTS" in Clause 1
(Definitions and Interpretation) of the Senior Facilities Agreement
and of the Structure 2 Senior Facilities Agreement, shall be deleted
in its entirety and replaced by the following:
"(e) any payments made pursuant to and in accordance with the Tax
Cooperation Agreement, provided that:
(i) a copy of the certification or filings referred to in
clause 5 of the Tax Cooperation Agreement, as the case may
be, shall have been provided to the Facility Agent not
less than five Business Days before such payment is to be
made; and
(ii) any payments made to any Holding Company of NTLIH for the
purposes of settling any liabilities owed to the United
States Internal Revenue Service which have arisen
following delivery of a Structure Notice and
implementation of the relevant steps set out in the Steps
Paper, in reliance upon the Structure 2 Opinions:
(A) at any time prior to and including 31 December 2009,
shall not be made without the prior written consent
of an Instructing Group; or
(B) at any time on or after 1 January 2010, may be made
in an amount not exceeding (pound)185 million from
cash reserves of the Bank Group and in respect of any
amount in excess of (pound)185 million from:
(i) any Net Proceeds which is not required to be
applied in or towards prepayment of the
Outstandings pursuant to paragraph (a) of
Clause 12.2 (Repayment from Net Proceeds);
(ii) any Excess Cash Flow which is not required to
be applied in or towards prepayment of the
Outstandings pursuant to paragraph (a) of
Clause 12.4 (Repayment from Excess Cash Flow);
(iii) any Debt Proceeds which is not required to be
applied in or towards prepayment of the
Outstandings pursuant to paragraph (a) of
Clause 12.5 (Repayment from Debt Proceeds);
(iv) any Equity Proceeds which is not required to
be applied in or towards prepayment of the
Outstandings pursuant to paragraph (a) of
Clause 12.6 (Repayment from Equity Proceeds);
or
(v) the proceeds of any Parent Intercompany Debt
or the proceeds of any Equity Equivalent
Funding,
and provided always that immediately prior to
and immediately after such payment, the Bank
Group remains in compliance with the financial
covenants set out in Clause 23.2 (Ratios) as
applicable for the Quarter Date falling
immediately prior to such payment and
calculated on a pro forma basis after giving
effect to such payment;"
(c) The definition of "SHORT TERM NOTE" in Clause 1 (Definitions and
Interpretation) of the Senior Facilities Agreement shall be deleted
and replaced with the following:
"SHORT TERM NOTE" means the notes to be issued by one or more Obligors
to the US Borrower after the first utilisation of the B1 Facility
hereunder".
(d) The definition of "SHORT TERM NOTE" in Clause 1 (Definitions and
Interpretation) of the Structure 2 Senior Facilities Agreement shall
be deleted and replaced with the following:
"SHORT TERM NOTE" means the notes to be issued by one or more Obligors
to the US Borrower after the first utilisation of the B Facility or B1
Facility hereunder".
(f) The definition of "STRUCTURING COMPLETION DATE" in Clause 1
(Definitions and Interpretation) of the Senior Facilities Agreement
and of the Structure 2 Senior Facilities Agreement, shall be deleted
and replaced with the following:
"STRUCTURING COMPLETION DATE" means the date falling 10 Business Days
after the Structuring Long-Stop Date".
2. CLAUSE 24.21 (STEPS PAPER) OF THE SENIOR FACILITIES AGREEMENT
Clause 24.21 (Steps Paper) of the Senior Facilities Agreement shall be
deleted and replaced in its entirety by the following:
"24.21 STEPS PAPER
The Ultimate Parent shall (and it shall procure that each member of the
Group shall, as applicable) implement each of the steps required for the
consummation of the Merger and reorganisation of the Group in accordance
with the Steps Paper and in particular, without limitation to the foregoing
provision:
(a) to implement each of Steps 1 and 2 set out on the page headed
"Combination of NTL and Telewest" of the Steps Paper, culminating in
the structure set out on the page headed "Interim Structure After Step
2" such that all of those steps are completed on the Merger Closing
Date, and thereafter:
(i) if a negative IRS Ruling is obtained prior to the
Structuring Long-Stop Date or the Company so elects, to
implement each of Steps 3 to 8 (including, at the
Company's option, the alternative Step 6x described
therein) set out on the page headed "Post-Combination
Restructuring - First Alternative (Structure 1)" of the
Steps Paper, culminating in the structure set out on the
page headed "First Alternative (Structure 1) - Final
Structure (assumes Step 6)" or the structure set out on
the page headed "Post-Combination Restructuring -
Alternative Step 6x (Structure 1)", such that all such
steps are completed on the same Business Day and in any
event by no later than 10 Business Days after such
negative IRS Ruling is received, or in the case of the
Company's election, by no later than the Structuring
Completion Date;
(ii) if either a positive IRS Ruling or the Structure 2
Opinions are obtained prior to the Structuring Long-Stop
Date, at the option of the Borrowers:
(1) to deliver a Structure Notice and thereafter to
implement each of Steps 3 to 10 (including, at the
Company's option, alternative Steps 6Y-10Y described
therein) set out on the pages headed "Post
Combination Restructuring - Second Alternative
(Structure 2)" of the Steps Paper, culminating in the
structure set out on the page headed "Second
Alternative (Structure 2) - Final Structure", such
that all such steps are completed on the same
Business Day and in any event, in the case of a
positive IRS Ruling, by no later than 10 Business
Days after such positive IRS Ruling is received or,
in the case of a Structure 2 Opinion, by no later
than the Structuring Completion Date; or
(2) to implement each of Steps 3 to 8 (including, at the
Company's option, the alternative Step 6x described
therein) set out on the page headed "Post-Combination
Restructuring - First Alternative (Structure 1)" of
the Steps Paper, culminating in the structure set out
on the page headed "First Alternative (Structure 1) -
Final Structure (assumes Step 6)" or the structure
set out on the page headed "Post-Combination
Restructuring - Alternative Step 6x (Structure 1)",
such that all such steps are completed on the same
Business Day and in any event, in the case of a
positive IRS Ruling, by no later than 10 Business
Days after such positive IRS Ruling is received or,
in the case of a Structure 2 Opinion, by no later
than the Structuring Completion Date; and
(iii) if a negative IRS Ruling, a positive IRS Ruling or either
of the Structure 2 Opinions are not obtained prior to the
Structuring Long-Stop Date, to implement each of Steps 3
to 8 (including, at the Company's option, the alternative
Step 6x described therein) set out on the page headed
"Post-Combination Restructuring - First Alternative
(Structure 1)" of the Steps Paper, culminating in the
structure set out on the page headed "First Alternative
(Structure 1) - Final Structure (assumes Step 6)" or the
structure set out on the page headed "Post-Combination
Restructuring - Alternative Step 6x (Structure 1)", such
that all such steps are completed on the same Business Day
and in any event by no later than the Structuring
Completion Date;
(b) if the Baseball Effective Date occurs (and Step V1 and V2 described
below can be implemented prior to the Structuring Completion Date), to
implement each of the Steps V1 and V2 on the page headed "Acquisition
of Virgin Mobile Pre-Restructuring", culminating in the structure set
out on the page headed "After Virgin Mobile Pre-Restructuring", such
that both of those steps are completed on the same Business Day, on a
date falling not more than 15 days after the Baseball Effective Date;
(c) if the Baseball Effective Date occurs after the Structuring Completion
Date (or Steps V1 and V2 referred to above cannot be implemented
before the Structuring Completion Date) and the provisions of either
sub-paragraphs (a)(i), (a)(ii)(2) or (a)(iii) above have been
implemented, to implement each of the Steps 0a and 0b on the page
headed "Structure 1 Acquisition of Virgin Mobile", culminating in the
structure set out on the page headed "Structure 1 Post Virgin Mobile
Acquisition (assumes Step 6)" or the structure set out on the page
headed "Structure 1 Post Virgin Mobile Acquisition (assumes Step 6x)",
such that both of those steps are completed on the same Business Day,
on a date falling not more than 15 days after the Baseball Effective
Date; or
(d) if the Baseball Effective Date occurs after the Structuring Completion
Date (or Steps V1 and V2 referred to above cannot be implemented
before the Structuring Completion Date) and the provision of
sub-paragraph (a)(ii)(1) above has been implemented, to implement each
of the Steps 0a and 0b on the page headed "Structure 2 Virgin Mobile
Acquisition", culminating in the structure set out on the page headed
"Structure 2 Post-Virgin Mobile Acquisition", such that both of those
steps are completed on the same Business Day, on a date falling not
more than 15 days after the Baseball Effective Date,
in each case, with such amendments, variations or modifications as the
Ultimate Parent shall deem necessary, provided that no such amendment,
variation or modification could reasonably be expected to be materially
adverse to the interests of the Lenders."
3. CLAUSE 25.19 (US BORROWER) OF THE SENIOR FACILITIES AGREEMENT
Paragraph (a) of Clause 25.19 (US Borrower) of the Senior Facilities
Agreement and the Structure 2 Senior Facilities Agreement shall be deleted
in its entirety and replaced by the following:
"(a) carry on any trade or business, other than the management of its own
financial affairs and operations to the extent necessary in connection
with the Finance Documents and the acquisition and ownership of the
Notes, including without limitation, the opening and maintenance of
bank accounts outside of the United Kingdom, the granting of loans or
other credit, the borrowing of monies, the making of any
distributions, and the payment of fees, costs, taxes and other charges
properly incurred by it in the conduct of its operations from time to
time, provided always that none of the foregoing activities shall
render the US Borrower as resident for tax purposes in the United
Kingdom;"
4. CLAUSE 37.2 (ASSIGNMENT OR TRANSFERS BY OBLIGORS)
Clause 37.2 (Assignment or Transfers by Obligors) of the Senior Facilities
Agreement and the Structure 2 Senior Facilities Agreement shall be deleted
and replaced in its entirety by the following:
"None of the rights, benefits and obligations of an Obligor under this
Agreement shall be capable of being assigned or transferred and each
Obligor undertakes not to seek to assign or transfer any of its rights,
benefits and obligations under this Agreement other than, following not
less than 10 Business Days prior consultation with the Facility Agent, an
assignment or transfer to another Borrower provided that no Event of
Default is continuing or would arise as a result of such assignment or
transfer."