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[SKY LOGO] Exhibit 10.44(a)
JCL085.1m
28 July 1995
Mr Henry Emden
Assistant Director Competition Policy
Office of Fair Trading
Field House
15-25 Bream's Buildings
London
EC4A 1PR
Dear Mr Emden
Following David Chance's letter to you of July 26, 1995, I attach a draft
amendment letter (in a form agreed between Sky and Nynex) reflecting the
parties' proposals to date.
Yours sincerely
/s/ Jammes Conyers
___________________________
JAMMES CONYERS
cc: David Chance
British Sky Broadcasting Ltd
Head Office and Registered Office: Grant Way, Isleworth, Middlesex TW7 5GD
Telephone: 0171-705 3000 Facsimile: 0171-705 3030
Registered in England No 2906997 Registered No 1-1062/46/
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Date: [July/August] 1995
To: NYNEX CableComms Limited
From: British Sky Broadcasting Limited
British Sky Broadcasting Group plc.
Dear Sirs
Amendment to Standard Cable Operator Agreement dated 4th May 1995 between the
parties referred to above and the companies whose names, and principal places of
business are set out in the first column of Exhibit A, Part 1 to that Agreement
The parties to the Agreement have agreed to amend the Agreement (such
amendments to take effect from commencement of the Agreement) as follows;
headings, page numbers and Clause numbers correspond to headings, page numbers
and Clause numbers in the Agreement:
1. Clause 1 - Definitions - Page 6
Add after the definition of "Public Premises Subcriber" the following
additional definitions:
"Qualifying Movie Programming": full length feature films:
(i) having (a) US and/or UK theatrical release and/or (b) a US
and/or UK video release; AND
(ii) which are available for exploitation in the Territory
during the UK Pay Television Window, being a period
immediately following the Video and/or Pay-per-View window
in the Territory; AND
(iii) which have not previously been available for any form of
exploitation in the Territory (other than by means of
Pay-per-View)
but, for the avoidance of doubt, excludes made for television
movies which are not released theatrically either in the US or
the UK and which are first exploited on US network television
or UK national television prior to any video or other
exploitation;
"Qualifying Sports Programming rights": rights to exhibit on
television in the Territory (whether live action or delayed) sports
events (whether domestic or international in nature) in any of the
following categories: Football (Soccer), Rugby Union, Rugby League,
Golf, Cricket, Boxing, Motorsports, Wrestling, Tennis, Horse Racing,
Basketball, Ice-Hockey, Speedway, Darts, Snooker,
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American Football and Athletics PROVIDED THAT programming rights
acquired prior to the date of this Agreement to televise in the
Territory Welsh Rugby Union, Secondary rights to the Wimbledon Tennis
Tournament, the Vauxhall Football League (as understood at the date of
this Agreement), the Cricket World Cup 1996, such rights in such
Speedway programming as are held by CPP-I as at the date of this
Agreement, and such sports programming rights as are held by the MSO
at the date of this Agreement, in each case until expiry of the
relevant rights contract, shall not be considered Qualifying Sports
Programming rights hereunder."
2. Clause 2.1(b)-Page 11
The deletion of Clauses 2.1(b)(i) and (ii) and their replacement with the
following:
"(aa) in the case of digital PPV Services:
(i) during the first twelve months after launch by Sky of the
PPV Services, the Operator agrees to carry a minimum of 50
digital PPV Services (or, if less, the number of PPV
Services offered by Sky) PROVIDED THAT in no event will the
Operator by obliged to utilise more than 15% of its total
allocated digital channel capacity (if any) in so doing; and
(ii) during the remainder of the Term, the Operator agrees to
carry a minimum of 100 digital PPV Services (or, if less,
the number of PPV Services offered by SKY) ((i) or (ii) as
the case may be, being "the Minimum PPV Commitment")
The deletion, from the following paragraph (commencing "SUBJECT ALWAYS"),
of the words "but without prejudice to the priority afforded to Sky
pursuant to sub-paragraphs (aa) and (bb) below".
The addition after such paragraph, of the following:
(bb) In the case of analogue PPV Services:
In the event of Sky notifying the MSO prior to 30th June 1996 of
its firm intention to launch analogue PPV Services, the MSO and
the Operators will use all reasonable endeavours to accommodate
the carriage of at least three of such PPV Services on the
Operators' Cable Services within six months of receiving such
notice, to the extent that such PPV Services comprise movies
and/or sports programming. For the avoidance of doubt:
(i) the obligation of the MSO and the Operator is subject
to the Operator having allocated analogue capacity on
its Cable Services for the purpose of offering analogue
PPV Services, (other than such capacity as it shall
have allocated to accommodate foreign language
Pay-per-View
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services); AND
(ii) any PPV Service of Sky so carried will, with effect
from its launch on the Operator's Cable Services,
constitute a "PPV Movie Service" or "PPV Sports
Service", as the case may be, under the Agreement, for
all purposes other than the provisions of Clause 2.1(a)
sub-paragraph (aa) relating to digital PPV Services."
The deletion, on page 11, of the words from "The Operator
recognises" to the end of Clause 2.1, and their replacement with
the following:
"For the avoidance of doubt, the Operator has the right but not
the obligation, to carry the PPV Services on SMATV Systems within
its Licensed Areas, and the provisions of sub-paragraphs (aa) and
(bb) above shall not apply to carriage of PPV Services on such
SMATV Systems".
3. Clause 2.4-Page 16
The deletion of the heading and its replacement with the words,
"Co-operation in Programming",
The deletion of the words, "In consideration of Sky's commitment"
until the end of sub-paragraph (b) on page 17;
The renumbering of sub-paragraph (c) to read sub-paragraph (a)(i); and
the renumbering of the reference to sub-paragraph (e) in that
paragraph to read sub-paragraph (h);
The insertion of a new sub-paragraph (a)(ii) as follows:
"In the event that the MSO or any Operator or any Subsidiary of
either has the opportunity during the Term of the Agreement of
taking a Financial Interest in a television programme service
comprising Qualifying Movie Programming and/or Qualifying Sports
Programming, or a Pay-per-View movies or sports service, in any
case for distribution in the Territory ("New Service"), then the
MSO will notify Sky of any intention to pursue such opportunity
and if Sky notifies the MSO, within 7 days of receipt of such
notification, of Sky's interest in such opportunity, the MSO will
negotiate in good faith with Sky with a view to Sky taking a
Financial Interest in such New Service at least equal to the
Financial Interest to be taken by the MSO, the Operator or the
respective Subsidiary (as the case may be).
In the event of such negotiations, the MSO agrees to use best
endeavours to agree with Sky suitable terms upon which Sky may
participate in such New Service. If no such agreement has been
reached within 120 days of the commencement of discussions, then
the MSO, Operator or Subsidiary (as the case may be) may take a
Financial Interest in such New Service without any participation
by Sky, PROVIDED THAT the MSO will use all reasonable endeavours
to ensure that any such New Service in which such a Financial
Interest is taken by any of the
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- same is offered to Sky for DTH distribution in Sky's territory (as
defined above) on terms consistent with sub-paragraph (b) below.
For the avoidance of doubt, all obligations pursuant to this Clause
2.4(a) shall cease upon expiration or earlier termination of this
Agreement in accordance with its terms."
The deletion of Clause 2.4(d)(i) and (ii).
The renumbering of sub-paragraph (e) to read sub-paragraph (b), the
deletion from such sub-paragraph of the words, "Subject to the provisions
of Sub-Clause (f) below", and the renumbering of the reference to
sub-paragraph (c) in such paragraph to read sub-paragraph (a).
The deletion of sub-paragraph (f).
4. Clause 5.3 - Page 34
The addition at the end of this Clause of the words;
"For the avoidance of doubt, the Operator's obligation to give equal
prominence to the programme schedule for the Channels and the PPV Services
is not intended to mean that, in any event, at least 51% of the physical
space within the guide is to be devoted to publicising the Channels and the
PPV Services."
5. In addition to those amendments set out above, a further Clause shall be
added as Clause 3.1(d).
"The MSO shall have the right to elect, on behalf of all of the Operators,
to move, once at any time during the Term, to the industry rate card then
in force, at which point, at the option of the MSO, to be exercised in
writing, either (i) such rate card (and any subsequent rate cards in force
from time to time) will apply in place of Exhibit B to this Agreement, or
(ii) this Agreement will terminate in its entirety and continued carriage
of Sky's Channels will be in accordance with the industry rate card from
time to time in force."
The above agreement to amend the Agreement of 30th April 1995 is conditional
upon (a) the OFT sanctioning such changes; and (b) the OFT sanctioning the
parties' proposals on the amendments to the Agreement relating to modification
of the pricing structure, such amendments to be incorporated within the
Agreement. In the event that these matters cannot be achieved, the Agreement of
30th April 1995 remains unamended.
It is the intention of the parties to be bound by the terms of this letter
agreement, which shall be construed in accordance with the laws of England and
Wales, and the parties hereby submit to the non-exclusive jurisdiction of the
English Courts.
Except as amended hereby, the Agreement remains in full force and effect.
Please signify your agreement to the terms of this letter agreement by returning
the attached
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duplicate copy duly executed on behalf of NYNEX CableComms Limited, acting for
itself and as agent for the companies set out in the first column of Exhibit A,
Part I, to the Agreement.
Yours faithfully
- - ----------------------------------------
for and on behalf of
British Sky Broadcasting Limited
Signed by
- - ----------------------------------------
for and on behalf of
British Sky Broadcasting Group plc
Accepted and Agreed
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for and on behalf of NYNEX CableComms Limited,
for itself and as agent for the companies set out in
the first column of Exhibit A, Part I of the Agreement