Exhibit 10.2
To: NTL Incorporated (the "ULTIMATE PARENT") for itself and as agent for
each of the other Obligors party to the Bridge Facilities Agreement
(as defined below)
[o] May, 2006
Dear Sirs,
AMENDMENT LETTER
We refer to the Senior Bridge Facilities Agreement dated 3 March 2006 (as
amended, varied, novated or supplemented from time to time, the "BRIDGE
FACILITIES AGREEMENT") and entered into between, amongst others, NTL
Incorporated (formerly Telewest Global, Inc.), as Ultimate Parent, Neptune
Bridge Borrower LLC, as Initial Borrower, Deutsche Bank AG, London Branch,
J.P. Morgan plc, The Royal Bank of Scotland Plc and Goldman Sachs
International as Bookrunners, Deutsche Bank AG, London Branch, J.P. Morgan
plc, The Royal Bank of Scotland Plc and Goldman Sachs International as
Mandated Lead Arrangers, J.P. Morgan Europe Limited as Facility Agent and
Security Trustee and the financial and other institutions party to it as
Lenders.
Terms defined in the Bridge Facilities Agreement have the same meaning when
used in this letter (the "LETTER"). In this Letter, "AMENDMENT EFFECTIVE
DATE" means the date upon which the Facility Agent notifies the Ultimate
Parent that it has received a copy of this Letter duly countersigned by the
Ultimate Parent. Any reference in this Letter to a Clause is, unless the
context otherwise requires, to be construed as a reference to a Clause of
the Bridge Facilities Agreement.
1. On and with effect from the Amendment Effective Date:
(a) each of the parties hereto confirm that this Letter constitutes a
Finance Document for the purposes of the Bridge Facilities Agreement
(and for the avoidance of doubt, the Structure 2 Bridge Facilities
Agreement);
(b) the Ultimate Parent and NTL Holdings Inc. (as successor to the Initial
Borrower) represent and warrant that each 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) the Ultimate Parent agrees 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. With effect from the Amendment Effective Date:
(a) The following definitions shall be inserted in Clause 1 (Definitions
and Interpretation) of the Bridge Facilities Agreement, in each case,
in alphabetical order:
"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) The definition of "Short Term Note" in Clause 1 (Definitions and
Interpretation) of the Bridge Facilities Agreement shall be deleted
and replaced with the following:
"SHORT TERM NOTE" shall have the meaning assigned to it by the Senior
Facilities Agreement.
(c) The definition of "Structuring Completion Date" in Clause 1
(Definitions and Interpretation) of the Bridge 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".
3. With effect from the Amendment Effective Date, Clause 19.21 (Steps
Paper) of the Bridge Facilities Agreement shall be deleted and
replaced in its entirety by the following:
"19.21 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 Ultimate Parent so elects, to implement each of
Steps 3 to 8 (including, at the Ultimate Parent'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 Ultimate Parent'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
Ultimate Parent:
(1) to deliver a Structure Notice and thereafter to implement each of
Steps 3 to 10 (including, at the Ultimate Parent'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 Ultimate
Parent'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
Ultimate Parent'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."
4. The Facility Agent confirms that the consent of an Instructing Group
has been obtained to the amendments to the Bridge Facility Agreement
referred to in this Letter.
5. Save as amended by this letter, the Finance Documents remain in full
force and effect.
6. This letter may be signed in any number of counterparts. This has the
same effect as if the signatures on the counterparts were on a single
copy of this letter.
7. This letter is governed by English law.
Please sign and return the enclosed copy of this letter as acknowledgement
of your agreement to the above.
Yours faithfully,
- ----------------------------------
For and on behalf of
J.P. Morgan Europe Limited, as Facility Agent for the Lenders
Name:
Title:
Accepted and agreed
- ----------------------------------
For and on behalf of
NTL Incorporated, for itself and as agent for each of the other Obligors.
Name:
Title: