Exhibit 4.5
AMENDMENT AND WAIVER
REQUEST
Toronto Dominion (Texas) LLC as Facility
Agent
For the attention of Mr. Rory
McCarthy
Triton Court, 14/18 Finsbury Square
London EC2A 1DB
KBC Bank NV as Security Agent
For the attention of
Havenlaan 2
B-1080 Brussels
Belgium
BY FACSIMILE AND E-MAIL
July 31, 2009
Dear Sirs,
We refer to the credit facilities agreement
dated August 1, 2007 (as amended and restated from time to
time), by and among Telenet BidCo NV, Telenet NV, UPC Belgium NV
(which was subsequently merged into Telenet NV), ABN Amro Bank
N.V., BNP Paribas S.A. and J.P. Morgan plc as Mandated Lead
Arrangers and Initial Original Lenders, Toronto Dominion (Texas)
LLC (originally BNP Paribas) as facility agent and KBC Bank NV as
security agent (the “ Credit Facilities Agreement
”).
Capitalized terms used but not otherwise defined
in this letter have the meaning ascribed to them in the Credit
Facilities Agreement.
We also refer to the following Telenet
Additional Facilities (the “ New Telenet Additional
Facilities ”) which we intend to implement upon receipt
of the consents referred to below:
|
Facility
Name
|
|
Maturity
|
|
Initial
lender
|
|
Telenet Additional
Facility D
|
|
31
December 2014
|
|
Telenet Mobile
NV
|
|
Telenet Additional
Facility E1
|
|
31
March 2015
|
|
Telenet Mobile
NV
|
|
Telenet Additional
Facility E2
|
|
31
March 2015
|
|
Telenet Mobile
NV
|
|
Telenet Additional
Facility F
|
|
31
July 2017
|
|
Telenet Mobile
NV
|
(1)
One-off waiver of Clause
2.7(e)(ii) ( Telenet Additional Facility ) of the
Credit Facilities Agreement
We hereby seek the consent of the Majority
Lenders, in accordance with Clause 26.1 ( Procedure ) of the
Credit Facilities Agreement, to waive their rights under Clause
2.7(e)(ii) ( Telenet Additional Facility ) of the
Credit Facilities Agreement to permit the entry into the New
Telenet Additional Facilities only by the Original Borrower, on the
condition that any Term Loan A Facility Commitment, any Term Loan
B1 Facility Commitment, any Term Loan B2A Facility Commitment, any
Term Loan B2B Facility Commitment or any Term Loan C Facility
Commitment acquired by Telenet Mobile NV shall be held at all times
by Telenet Mobile NV or another member of the Group (other than the
Company). We agree that any breach of this condition will
constitute an immediate Event of Default under the Credit
Facilities Agreement.
(2)
Amendment to the definition of
“Final Maturity Date”
We hereby seek the consent of the Majority
Lenders, in accordance with Clause 26.1 ( Procedure ) of the
Credit Facilities Agreement, to amend the definition of Final
Maturity Date in Clause 1.1 ( Definitions ) so that it reads
as follows:
“ Final Maturity
Date means:
(a)
the Term Loan A Facility Final
Maturity Date;
(b)
the Term Loan B1 Facility Final
Maturity Date;
(c)
the Term Loan B2A Facility Final
Maturity Date;
(d)
the Term Loan B2B Facility Final
Maturity Date;
(e)
the Term Loan C Facility Final
Maturity Date;
(f)
the Revolving Facility Final
Maturity Date; or
(g)
the Final Maturity Date as set
out in any Telenet Additional Facility Accession
Agreement. ”
(3)
Amendment to the Intercreditor
Agreement
We hereby seek the consent of the Majority
Senior Creditors (as defined in the Intercreditor Agreement), in
accordance with Clause 21.2 ( Amendments, waivers and
consents ) of the Intercreditor Agreement and the consent of
the Majority Lenders in accordance with Clause 26.1 (
Procedure ) of the Credit Facilities Agreement,
to:
(a)
amend Clause 20.2(d) (
Obligors, Subordinated Debtors and new Intercompany Creditors
and Debtors ) of the Intercreditor Agreement so that it reads
as follows:
2
“ The Obligors must ensure
that each member of the Group which is not already an Intercompany
Creditor or an Intercompany Debtor but which is the creditor or
debtor in respect of any indebtedness owed by an Obligor to another
member of the Group (other than any such indebtedness which is
comprised of Bank Debt) is bound by this Agreement as an
Intercompany Creditor or an Intercompany Debtor, as appropriate, by
executing and delivering to the Security Agent a Deed of
Accession. ”; and
(b)
replace the definition of
‘Intercompany Debt’ in Clause 1.1 ( Definitions
) of the Intercreditor Agreement with the following:
“ Intercompany
Debt means all indebtedness incurred by the Obligors or
any of them to the Intercompany Creditors or any of them (other
than indebtedness which is comprised of Bank Debt).
”
(4)
Amendment to Clause 19.19 (
Share capital ) of the Credit Facilities
Agreement
Telenet NV would like to proceed with a capital
increase of up to EUR 1,000,000,000 by means of a conversion of
reserves (in particular issue premiums) into capital without
issuing additional shares. This capital increase would be
followed by a capital decrease of the same amount by means of
incorporation of losses (the “ First Capital Decrease
”). Subsequently, Telenet NV would like to decrease its
capital by an amount of up to EUR 500,000,000 (the “
Second Capital Decrease ”). It will, however,
not disburse the amount of the Second Capital Decrease to its
shareholders, Telenet BidCo NV (99.83%) and Telenet Group Holding
NV (0.17%), and thus, i
