Exhibit 4.22
(Free Translation)
ASSET PLEDGE AGREEMENT WITH AN AMICABLE SALE CLAUSE AND
OTHER COVENANTS
This Asset Pledge Agreement with an Amicable Sale Clause, and Other Covenants
("AGREEMENT") dated [ ], 2005 is entered into by and between the following
parties:
(a) NET SERVICOS DE COMUNICACAO S.A., a sociedade anonima, with
headquarters in the City of Sao Paulo, State of Sao Paulo, at Rua Verbo Divino,
No. 1,356, enrolled in the National Register of Legal Entities (CNPJ) under No.
00.108.786/0001-65, herein represented pursuant to its Bylaws ("NET SERVICOS");
(b) the companies identified and described in "Schedule 1" hereto, herein
represented pursuant to their Bylaws and Articles of Association, and in the
case of Jonquil Ventures Limited and Dabny, L.L.C., according to their
respective organizational documents (collectively with Net Servicos, the "NET
COMPANIES", or the companies that have make up the Pledge, as specified and
defined below);
(c) each of the institutions listed and identified in "Schedule 2" hereto
(the "CREDITORS"), herein represented by the Collateral Agent referred to below;
and
(d) BANCO ITAU S.A., a Brazilian financial institution headquartered in
the City of Sao Paulo, State of Sao Paulo, at Praca Xxxxxxx Xxxxxx Xxxxx Aranha,
100, Torre Itausa, enrolled in CNPJ under No. 60.701.190/0001-04, herein
represented pursuant to its Bylaws, as the Collateral Agent (the "COLLATERAL
AGENT").
WHEREAS:
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(1) Net Servicos and some of its controlled companies were originally the
debtors in a series of loans contracted in Brazil and abroad ("DEBT"), which
were not paid in accordance with the terms of respective instruments, and all of
the loans that make up the Debt are stated in the Term Sheet mentioned in
whereas clause (2) below;
(2) Net Servicos, on its own behalf and on behalf of some of its
controlled companies, and the Creditors negotiated in good faith a Debt
restructuring plan, according to the Term Sheet which is an integral part of the
commitment letters entered into by Net Servicos and certain companies controlled
by Net Servicos and several Creditors, which was the subject matter of the
material fact published by Net Servicos on June 28, 2004 ("RESTRUCTURING PLAN");
(3) As part of the actual implementation of the Restructuring Plan, Net
Servicos and certain companies controlled by Net Servicos, on the one part, and
the Creditors, on the other part, amended and/or formalized, or undertook to
formalize and/or amend, the replacement of the original Debt Instruments
relating to the Debt in order to reflect the terms of the Restructuring Plan,
through the debt instruments, which are listed and identified in "Schedule 3"
(the "DEBT INSTRUMENTS");
(4) In addition to the Debt Instruments and this Agreement, as part of the
formalization of the Restructuring Plan, Net Servicos entered into other
instruments, including the following:
(a) On this date, jointly with certain duly identified controlled
companies, the Creditors and the Collateral Agent, Net Servicos entered into the
Intercreditor Agreement, a copy of which is an integral part of this Agreement
as "Schedule 4" ("INTERCREDITOR AGREEMENT");
(b) On the date hereof, jointly with Net Sao Paulo Ltda., the
Creditors
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represented by the Collateral Agent, and the Centralizing Bank, Net Servicos
entered into the Receivables Pledge Agreement with an Enforcement Clause;
(c) On the date hereof, jointly with Net Rio S.A., the Creditors
represented by the Collateral Agent, and the Centralizing Bank, Net Servicos
entered into the Receivables Pledge Agreement with an Enforcement Clause;
(d) On the date hereof, jointly with some duly identified controlled
companies and the Creditors represented by the Collateral Agent, Net Servicos
entered into the Share Pledge Agreement with an Amicable Sale Clause, and Other
Covenants
(e) On the date hereof, jointly with some duly identified controlled
companies and the Creditors represented by the Collateral Agent, Net Servicos
entered into the Quota Pledge Agreement with an Amicable Sale Clause, and Other
Covenants (the pledge agreements mentioned in whereas clauses 4(b), (c), (d) and
(e) shall hereafter be referred to jointly as the "ADDITIONAL PLEDGE
AGREEMENTS");
(5) In compliance with the terms agreed in the Debt Instruments, in the
Intercreditor Agreement and herein, NET Companies, in order to guarantee full
compliance with all the pecuniary obligations mentioned in the Debt Instruments,
agree, according to the terms and conditions hereof, to create a pledge in favor
of the Creditors on the total assets which they own or will own, and which are
used in NET Companies' transmission network, as defined in Clause 1.1.1.
(6) Subject to the terms and conditions established in the Debt
Instruments, in the Intercreditor Agreement and in this Agreement, of which
content NET Companies, Net Servicos, for itself and its controlled companies,
the Creditors and the Collateral Agent declare to be fully aware and irrevocably
and irreversibly commit themselves to honor, the Collateral Agent was appointed
as agent for the Creditors, with the functions, rights and
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obligations contained in the Intercreditor Agreement and in this Agreement,
including in relation to any enforcement of the guarantees referred to in
whereas clause (5) above, and to the allocation of the enforcement funds among
the Creditors.
NOW, THEREFORE, the parties resolve to enter into this Agreement, which shall be
governed by the following terms and conditions:
I. - CREATION OF THE PLEDGE
1.1. - Subject to the provisions of the Intercreditor Agreement and this
Agreement, and as security for full performance of all pecuniary obligations
assumed in the Debt Instruments, including full payment of the amount of
principal, interest, and any and all other charges due by the NET Companies
and/or the companies controlled by Net Servicos under the Debt Instruments,
including reimbursement of any and all amounts provenly and justifiably
disbursed by the Collateral Agent by virtue of the creation, maintenance and/or
enforcement of the pledge hereunder (collectively, the "SECURED OBLIGATIONS"),
based on the general provisions of Articles 1419 et seq. of the Brazilian Civil
Code in force (the "CIVIL CODE"), by this Agreement and in the best form of law,
irrevocably and irreversibly, each of the NET Companies hereby pledges (and, in
the case of Dabny, L.L.C. and Jonquil Ventures Limited, grants a security
interest) to the Creditors the assets owned by them, as listed and identified in
"Schedule 5" of this Agreement (the "ASSETS" or "PLEDGE"), which represent the
entirety of the assets that on [ ] compose the transmission network of Net
Companies for the provision of services of any nature (the "TRANSMISSION
NETWORK").
1.1.1. - The Assets shall correspond to the entirety of the assets that compose
the Transmission Network of the NET Companies, including, but not limited to,
the following equipment: (i) trunk coaxial cables; (ii) distribution coaxial
cables; (iii) fiber optic cables; (iv) divisors; (v) couplings; (vi) power
sources; (vii) trunk amplifiers; (viii) extensor amplifiers; (ix) taps; and (x)
optical receivers; (xi) equipment for receiving and transmitting signals
situated in head ends.
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1.2. - With due regard for the provisions of the Debt Instruments, the
Intercreditor Agreement and this Agreement, the NET Companies hereby undertake
to include in this Pledge all and any assets that they may acquire in order to
become part of the Transmission Network, either directly or through any of its
controlled companies, except in the case of the assets of companies qualified as
Unrestricted Controlled Companies, according to the terms of the Debt
Instruments, which will not be pledged ("NEW ASSETS").
1.2.1. - For purposes of compliance with the provisions of Clause 1.2. above,
the NET Companies, in order to formalize the pledge related to the New Assets in
accordance with the provisions of Clause 10.2 below, undertake to update
"Schedule 5" hereof on a quarterly basis, by amending this Agreement. If there
are no New Assets to be included in the Pledge, NET Companies shall inform the
Collateral Agent of this fact until the 15th (fifteenth) day of the month
immediately succeeding the civil quarter ended, if it is a business day, or on
the first succeeding business day.
1.3. - With due regard for the provisions of the Debt Instruments, the
Intercreditor Agreement and this Agreement, the NET Companies hereby irrevocably
and irreversibly undertake to make sure that, as guarantee for the full
performance of the Secured Obligations relating to the Debt Instruments, between
the date hereof and the Pledge Termination Date, the Assets and New Assets
(jointly the "PLEDGED ASSETS") are duly pledged in favor of the Creditors.
1.4.- If the Collateral Agent discovers any irregularities in the fulfillment of
the obligations set out in Clauses 1.3, 1.9 and 10.2, the NET Companies, after
being duly notified by the Collateral Agent, shall have 5 (five) business days
to regularize the fulfillment of the obligations stipulated in such clauses.
1.4.1 With respect to the obligations contemplated herein for which there is no
specific
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regularization period, if any irregularity in compliance is verified, the
responsible party, after duly notified, will have 10 (ten) business days to
effect the regularization.
1.5. - The Pledged Assets will remain in possession of the respective NET
Company that owns such assets, which will be deemed to be the depositary for all
legal effects, assuming the obligation set out in Article 627 et seq. of the
Civil Code, except for the Collateral Agent's obligations established in this
Agreement, until the Pledge Termination Date (as defined in Clause 1.7 below).
Thus, the NET companies shall only transfer direct ownership of the Pledged
Assets upon the extinguishing of the Secured Obligations in the case of
enforcement of the Pledge hereby created, or in the cases expressly authorized
under the respective Debt Instruments and/or Intercreditor Agreement. To avoid
any doubts, the direct possession of the Pledged Assets by the NET Companies
will not entail any legal presumption of waiver of the pledge established herein
in favor of the Creditors, including for the purposes of Article 1436, III of
the Civil Code.
1.5.1.- The NET Companies further confirm that the deposit contemplated hereby
is made free of charge, and no amount will be payable by the Creditors and/or
the Collateral Agent by virtue of the deposit of the Pledged Assets with the NET
Companies, as provided for in Clause 1.5 above.
1.6. - For the purposes of Article 1424 of the Civil Code, it is hereby
expressly agreed by the parties that the major conditions and characteristics of
the Secured Obligations are as set forth in each of the Debt Instruments. The
total estimated principal amount of the Secured Obligations, the final maturity
date, and the maximum interest rate applicable to such Secured Obligations as of
this date, are set forth in "Schedule 6" hereto, which Schedule, irrespectively
of any formality, and in accordance with the payments made according to the Debt
Instruments, shall automatically reflect the amortizations of the Secured
Obligations, as well as any additions resulting from the inclusion of new
credits from Joining Creditors, and the respective contractual and legal charges
assessed on the
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Secured Obligations.
1.7. - The Pledge hereby established shall be in full force and effect as from
the date hereof, and shall remain complete and in full force until such date on
which all the Secured Obligations related to the Debt Instruments have been
fully and definitely paid ("PLEDGE TERMINATION DATE").
1.8. - During the period between the date hereof and the Pledge Termination
Date, the Pledge shall only benefit the Creditors.
1.9. - The NET Companies hereby irrevocably and irreversibly undertake to make
sure that, as guarantee for the full performance of the Secured Obligations
relating to the Debt Instruments, between the date hereof and the Pledge
Termination Date relating to the Debt Instruments, the Pledged Assets will be
duly pledged in favor of the Creditors.
1.10. - The NET Companies hereby and pursuant to law, irrevocably and
irreversibly appoint and constitute Net Servicos as their proxy, giving it full
and special ad negotia powers to represent the NET Companies with respect to all
the purposes of this Agreement, before the Creditors and/or the Collateral
Agent, whereupon Net Servicos is hereby authorized, subject to the provisions of
this Agreement and the Intercreditor Agreement, to take all measures believed to
be necessary for compliance with the obligations covenanted hereunder and also
for the defense and protection of the interests of the NET Companies, and to
this effect it may, without any limitation, sign all and any documents, send and
receive all and any notices or communications, sign amendments to this
Agreement, receive and grant release, represent the NET Companies in real estate
registry offices and any other notary offices, and perform all acts that may be
necessary for the validity and effectiveness of this Agreement. Whenever, due to
the nature of the act, it is necessary for Net Servicos to be granted powers
from an appropriate public or private instrument or furthermore, special powers
and/or powers in addition to those granted by the companies
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controlled by Net Servicos to Net Servicos, the latter shall, at its account and
risk, arrange for the regular granting of powers, and, upon request by the
Collateral Agent, shall supply evidence of compliance with the provisions
contained herein.
II. - ENFORCEMENT OF THE PLEDGE
2.1. - AMICABLE SALE. Subject to the provisions of the Intercreditor Agreement
and this Agreement, if for any reason the NET Companies are proven to have
failed to perform the Secured Obligations, and the Creditors, in accordance with
the terms and conditions of the Intercreditor Agreement and this Agreement,
instruct the Collateral Agent to enforce the Pledge, then the Collateral Agent
shall, on behalf of the Creditors, in accordance with the terms and conditions
of the Intercreditor Agreement, enforce the Pledge in keeping with the
formalities set out in Clause 2.2. below and the Intercreditor Agreement, by
selling the Pledged Assets to any third party, in cash, and may immediately
exercise all such rights and perform all such acts as set out in Article 1433,
IV and in Article 1459 of the Civil Code, as well as in Article 120, paragraph 2
of Decree-Law No. 7661 of June 21, 1945.
2.2. - If the right of enforcement dealt with in Clause 2.1 above is exercised,
the Collateral Agent is hereby expressly authorized, on an irrevocable and
irreversible basis, to arrange for the amicable sale of the Pledged Assets
according to the procedures below. The Collateral Agent shall use the proceeds
from such amicable sale to pay and settle the Secured Obligations as stipulated
in the Intercreditor Agreement, as well as to pay any and all costs, expenses
and taxes assessed on the sale, assignment or transfer of the Pledged Assets,
and shall deliver any outstanding balance to the NET Companies on the date of
receipt of the proceeds as provided for herein. The procedure for disposal of
the Pledged Assets shall be as follows:
(a) The value of the Pledged Assets shall be calculated by appraisers, who
may not be a Creditor and/or Collateral Agent, nor a company controlling,
controlled by, or
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affiliated to a Creditor and/or the Collateral Agent, which shall necessarily be
independent consulting firms or firms specialized in the sale of assets,
trustworthy, reputable and with proven performance and knowledge of the
Brazilian Cable TV or telecommunications' market, or first class investment
banks, and which, in any of the three cases, have operated with financial
advisers in assets sale transactions the sum of which, in a single transaction,
was equal to or higher than [R$100,000,000.00 (one hundred million reais)]
(individually, the "APPRAISER" and collectively, the "APPRAISERS");
(b) The Collateral Agent shall send written notice to Net Servicos, with a
copy to Creditors, informing the decision of Creditors, according to the
Intercreditor Agreement, of giving effect to the disposal of the Pledged Assets;
(c) Within 10 (ten) consecutive days of the date of receipt by Net
Servicos of the notice referred to in item (a) above, Net Servicos and the
Collateral Agent, the latter acting exclusively in the name of the Creditors,
shall individually contract an Appraiser. No evaluation shall be made until the
Collateral Agent has indicated its Appraiser. If Net Servicos fails to indicate
an Appraiser, the Collateral Agent shall indicate two Appraisers;
(d) The evaluation criteria to be used by the Appraisers for the Pledged
Assets shall be the market value, considering the real nature of the business
for which the Pledged Assets are intended. The appraisal reports prepared by the
appraisers shall be given to Net Servicos and the Collateral Agent within 30
(thirty) consecutive days, though this deadline can be extended at the request
of any appraiser upon the agreement of the parties
(e) The appraisal reports shall necessarily mention the market value of
all the Pledged Assets as set forth in the Agreement, so that they can be
jointly evaluated, as if they were an indivisible unit, for joint sale of all
the Pledged Assets. The appraisal reports shall also contain the individual
market value of each of the Pledged Assets pertaining to each of the NET
Companies, in order to allow for the subsequent separate sale of such
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Pledged Assets if and when applicable, always in compliance with the provisions
hereof. If an appraisal report indicates a price band, the value appraised in
this report shall be considered as the minimum value suggested in such report,
and such arithmetic mean shall be used as the value of the respective report for
purposes of application of the provisions of item (f) below;
(f) If the difference in value between the two reports is less than 10%
(ten percent), the minimum price for the sale of the Pledged Assets shall be the
arithmetic mean between the two values. If the difference between the two
reports is higher than 10% (ten percent), obtained by dividing the higher value
by the lower one, a third Appraiser shall be chosen by Net Servicos, within 10
(ten) business days from the date of delivery of the reports referred to in item
(d) above, from a list of 3 (three) Appraisers appointed by the Collateral
Agent. The third Appraiser thus chosen shall define in a period of 30 (thirty)
consecutive days, the minimum price for the sale of the Pledged Assets, taking
into account for this the evaluation criteria for the market value of the
Pledged Assets. The minimum price for the sale of Pledged Assets shall be the
arithmetic mean between the price defined by the third Appraiser and the closest
price to this among the prices defined by the two Appraisers. The third
Appraiser shall receive from the Collateral Agent and/or Net Servicos a copy of
the two reports prepared by each of the other Appraisers. If Net Servicos does
not choose the third Appraiser within 10 (ten) business days from submission of
the list containing the three names, the Collateral Agent shall make this
choice;
(g) The minimum price attributed to the Pledged Assets by each Appraiser,
according to item (f) above, both when considered as an indivisible unit and
individually, will be final and conclusive, in the absence of manifest error,
binding the parties for all purposes;
(h) Net Servicos shall bear all costs and expenses related to engagement
of the
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Appraisers, and with the structuring of the disposal process of the Pledged
Assets, once these are reasonably and duly proven and justified, and Net
Servicos shall ensure that each appraiser has the same level of information on
the Pledged Assets;
(i) The Collateral Agent shall have up to 270 (two hundred and seventy)
consecutive days from determination of the minimum price for the disposal of the
Pledged Assets, in accordance with the provisions of this Clause, to contract
the joint disposal of the Pledged Assets, as if they were an indivisible unit,
based on the minimum price calculated in accordance with this Clause II, with
the partial sale thereof being forbidden at this point;
(j) If the joint disposal is not contracted within the period of time
stipulated in (i) above, the Collateral Agent, based on the minimum price
stipulated individually as provided for in this Clause II for the Pledged Assets
of each of the NET Companies, in accordance with (e) above, shall have 270 (two
hundred and seventy) consecutive days counting from the end of the period of the
joint disposal of the Pledged Assets to contract the isolated sale of any of the
Pledged Assets. If even then the contracting of the disposal is not done within
the period established herein, Net Servicos can request that the appraisal
procedures set out in Clause 2.2 be repeated and the procedure be restarted, and
so forth;
(k) If Net Servicos, within 15 (fifteen) consecutive days counting from
the end of the period for joint disposal of the Pledged Assets mentioned in (i)
above, presents a report listing the Pledged Assets that have not been
evaluated, the sale of these non-evaluated Pledged Assets shall be forbidden
until they are actually evaluated, in compliance with the procedures stipulated
in Clause 2.2. If no report is submitted within the period mentioned in this
item, the individual sale of the Pledged Assets shall be authorized,
irrespective of an appraisal;
(l) The disposal of the Pledged Assets, in any of the ways stipulated in
(i) and
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(j) above, shall be undertaken preferentially through a competitive process, or
a similar procedure; the sale price, in any event, shall not be less than the
minimum price determined as established above, and it is hereby agreed that in
the event of partial enforcement of the Pledge, the Pledged Assets shall be
disposed of in sufficient quantities to obtain the intended sum;
(m) The minimum price shall be given in Brazilian currency or in United
States dollars. If the price is given in Brazilian currency, the minimum price
shall be adjusted by the variation in the General Price Index - Internal
Availability (IGP-DI), calculated and published by Xxxxxxx Xxxxxx Foundation
(FGV), or any index that may substitute it, from the date this price is
determined, and shall be in effect from the date of the setting of the minimum
price for the disposal of the Pledged Assets until the date of actual payment;
(n) Unless otherwise agreed by Net Servicos and the Creditors, represented
by the Collateral Agent, the sale price of the Pledged Assets shall only be paid
in cash on the date of transfer of the Pledged Assets; and
(o) For all the purposes of this Agreement and Article 684 of the Civil
Code, the parties acknowledge that the Collateral Agent can carry out all acts
required to ensure the proper and efficient functioning of the amicable sale
procedure described in Clause II, it being certain, however, that the Collateral
Agent shall totally observe all procedures, requirements and stages stipulated
in Clause II.
2.3. - Disposal of the Pledged Assets shall be subject to the rules established
in applicable laws and regulations, including those issued by the National
Telecommunications Agency ("ANATEL") and by the Administrative Economic Defense
Council ("XXXX"), and NET Companies undertake to cooperate promptly and to the
extent necessary before such agencies.
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2.4. - In compliance with the provisions of Clause 2.2. above, in the event of
default on the Secured Obligations, it is expressly stipulated that any act or
measure aimed at the enforcement of the Pledge may be taken solely and
exclusively by the Collateral Agent, in compliance with the terms and conditions
of the Intercreditor Agreement, so that no Creditor can individually take
advantage of any judicial, extrajudicial or other restrictions on the assets
that are the subject matter of this Pledge, under penalty of the provisions of
Clause 2.7.
2.5. - Without prejudice to collection of any debt balances related to the
Secured Obligations, once the provisions of Clause II have been effected, the
corresponding Secured Obligations shall be automatically settled in relation to
the values that have been obtained through the amicable sale procedure
stipulated herein, irrespective of any formality, with which the Collateral
Agent, in the name of the Creditors and in its own name, hereby irrevocably and
irreversibly agrees, and the Collateral Agent and Creditors shall not make any
claims against the NET Companies in relation to values that have been obtained
through the aforementioned amicable sale.
2.6. - Although the Creditors hold legal preemptive rights to the Pledged Assets
mentioned in this Agreement, the Creditors, through the Collateral Agent that
represents them in this Agreement, hereby expressly declare and irrevocably and
irreversibly agree, under the penalty of the law, that while this Agreement is
in force they may only perform acts that result or can result in the attachment,
judicial seizure, or any other form of constriction on the Pledged Assets,
provided this is done solely and exclusively through the Collateral Agent and
with due regard for the provisions set out in the Intercreditor Agreement and in
this Agreement.
2.7. - If any of the Creditors and/or the Collateral Agent breach the provisions
of Clause 2.6, Net Servicos and/or any of the NET Companies shall notify the
Collateral Agent and such Creditor(s) to the effect that the latter undo the
act, which they are forced to abstain
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from as a result of Clause 2.6 above within 10 (ten) consecutive days from such
notice, and they shall answer for the losses and damages caused to Net Servicos
and/or NET Companies and/or the other Creditors and/or the Collateral Agent, as
the case may be. If the default is not remedied within this period, in case the
breach is imputable to one or more Creditors, the Creditor(s) that have caused
the breach shall immediately cease to be part of this Agreement, and the rights
ensuing from the respective Debt Instrument(s) shall cease to be part of the
Secured Guarantees, and shall thus cease to benefit from this Pledge. In the
events above, such default shall not affect in any way the rights and legal and
contractual prerogatives hereby conferred on the other Creditors and/or the
Collateral Agent.
2.8. - Without prejudice to other causes of early maturity of the Secured
Obligations contemplated in the Debt Instruments or in the Intercreditor
Agreement, for purposes hereof, it is expressly forbidden for the Collateral
Agent and any Creditors to consider the Secured Obligations to have early
matured, based on Articles 333, II and III, 1425, I, IV and V, of the Civil
Code. The Collateral Agent can, in compliance with the provisions of this
Agreement, especially Clauses 1.4 and 1.4.1 above and Clause 10.5 below,
consider the Secured Obligations to have early matured in any of the following
cases: (i) if the obligations stipulated in Clause 1.3 above are not fulfilled;
(ii) if the obligations stipulated in "a", "b", "c" and "d" of Clause 3.4 below
are not fulfilled; or (iii) if the obligations stipulated in Clause 10.2 below
are not complied with.
2.9. - The Parties acknowledge that the Creditors, always acting solely through
the Collateral Agent, shall have the right to demand enforcement of the Pledge
hereby created in conjunction with any other guarantee granted to Creditors,
including Additional Pledge Agreements, at the sole discretion of Creditors,
pursuant to this Agreement and the Intercreditor Agreement.
2.10. - In order to allow this Agreement to be fulfilled and without prejudice
to other
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powers granted by NET Companies to the Collateral Agent and/or Creditors, the
NET Companies hereby grant the Collateral Agent, in its capacity as
representative of the Creditors, irrevocably, irreversibly and unconditionally,
as an essential condition for the business, in accordance with Article 684
of the Civil Code, exclusive and specific powers so that the Collateral Agent,
in the name of the Creditors, subject to the provisions of the Intercreditor
Agreement, can: (a) perform all necessary acts to dispose of the Pledged Assets
in the cases established herein, subject to the provisions of this Agreement;
(b) use the proceeds of the amicable sale of the Pledged Assets to pay for the
Secured Obligations, in the terms established in the Intercreditor Agreement;
and (c) additionally to the powers granted under the power of attorney issued as
established in Clause 10.6.1, sign all and any documents, perform all and any
acts, including representing the NET Companies before third parties, any real
estate registries, and any other government agencies for the purpose of taking
all the procedures required for the effectiveness and enforcement of the Pledge.
III. - RESTRICTIONS ON THE DISPOSAL OR ENCUMBRANCE OF PLEDGED ASSETS
3.1. - From the date of this Agreement up to the Pledge Termination Date
relating to the Debt Instruments, except for the cases (i) expressly permitted
in the Debt Instruments, to which the Restructuring Creditors (as defined in the
Intercreditor Agreement) are parties, and (ii) that are not expressly prohibited
by any Joining Debt Instrument (as defined in the Intercreditor Agreement), NET
Companies and Net Servicos cannot dispose of, sell, assign, transfer, give in
free loan, lend, exchange, capitalize, create usufruct or trust or any other
encumbrance, lien or security interest in addition to the Pledge hereunder, or
otherwise dispose of in any way, wholly or in part, directly or indirectly, free
of charge or otherwise, the respective Pledged Assets.
3.1.1. If any of the NET Companies perform any acts mentioned in Clause 3.1
above in the events (i) expressly permitted under the Debt Instruments, to which
the Restructuring
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Creditors (as defined in the Intercreditor Agreement) are parties, and (ii)
that are not expressly prohibited by any Joining Debt Instrument (as defined in
the Intercreditor Agreement), the Collateral Agent shall immediately, within 5
(five) business days of a request from Net Servicos, sign any waiver, notice,
addendum or another document reasonably requested by Net Servicos, and prepared
by it, which may be necessary for release of the pledge created on the
corresponding assets and implementation of such acts, regardless of previous
consultation and/or approval by the Creditors, and all costs related to such
acts shall be borne by the Net Companies and/or Net Servicos.
3.2. - Except in the case of the already existing encumbrance listed in
"Schedule 8" and the Permitted Guarantees provided in the Debt Instruments, as
soon as they become aware of any third parties' act that can imply a threatened
lien, and/or actually result in the encumbrance of the Pledged Assets ("THIRD
PARTY ACT"), Net Servicos or any of the NET Companies shall inform the
Collateral Agent about this Third Party Act, providing it with the information
and documents held thereby, irrespective of any act of Net Servicos and/or the
NET Companies. The Creditors, acting solely through the Collateral Agent as
stipulated in the Intercreditor Agreement, shall immediately have preference,
and all judicial and extrajudicial measures shall be taken, for all legal
purposes and for this Agreement, to preserve and keep unchanged and in full
force the Pledge, and/or fully reconstitute the Pledge, so that the Pledge
remains complete and fully effective at all times and, in the case of default on
the Secured Obligations, continues to allow the Creditors, exclusively through
the Collateral Agent, to enforce the Pledge, in the manner stipulated in this
Agreement. Without prejudice to the above, the NET Companies undertake to
immediately take all judicial and extrajudicial measures necessary to preserve
the Pledge and to ensure the full exercise of the contractual and legal rights
hereby granted to the Creditors.
3.3. - The reimbursement of the judicial costs and expenses and legal fees
arising out of the use of the right of preference of the Creditors, shall be
made upon submission of the
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slips evidencing these expenses, and it is hereby agreed that in relation to the
reimbursement of legal fees, these shall only be reimbursed (a) if they are in
line with the market value charged by the most important law firms situated in
the Sao Paulo - Rio de Janeiro area, and are compatible with the value involved
in the lawsuit; and (b) if they are duly proven and justified through the proper
documentation for such purposes, such as the corresponding invoices or debit
notes for the rendering of services.
3.4. - The NET Companies shall be required, in relation to lawsuits filed
against them by third parties, to exert their best efforts to cause compliance
with this Pledge, and to that end they shall: (a) not indicate the Pledged
Assets for attachment; (b) refute, in a timely and substantiated manner, in all
instances of jurisdiction, with all appropriate appeals, the possible attachment
of the Pledged Assets; (c) submit, in a timely and substantiated manner, all
appropriate defenses in the enforcement; (d) not hinder the exercise of the
preference right by the Creditors, but rather, cooperate with the Creditors for
such right to actually prevail; (e) inform the Collateral Agent of the existence
of any enforcement or collection action filed against any of NET Companies,
involving an amount equal to or higher than R$1,000,000.00 (one million reais),
even if the Pledged Assets are not attached, immediately, but always within 5
(five) business days after becoming aware by any means of the existence of said
actions; and (f) send, whenever requested, reports to the Collateral Agent for
the benefit of Creditors with updated information on the status of the
enforcement or collection actions filed against any of NET Companies, involving
an amount equal to or higher than R$1,000,000.00 (one million reais). For
purposes of this clause, "collection action" means any procedural,
administrative or judicial means, including arbitral, in which the NET Companies
are sentenced to pay any debt in an amount equal to or higher than the above
amount.
IV. - OBLIGATIONS OF NET SERVICOS AND NET COMPANIES
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4.1. - Without prejudice to the other obligations stipulated in the Debt
Instruments, the Intercreditor Agreement, this Agreement or the legislation
currently in force, Net Servicos and/or the NET Companies, until the Pledge
Termination Date, hereby undertake:
(a) to perform all acts necessary or advisable to effectuate, perfect and
maintain the Pledge hereunder, as well as to keep all authorizations necessary
for the execution and implementation of this Agreement always valid, effective,
in perfect order and in full force;
(b) to maintain the Pledge at all times existing, valid, effective, in
perfect order and in full force, without any restriction or condition,
undertaking to keep the Pledged Assets free and clear of any liens or
encumbrances, whether of a judicial or extrajudicial nature, with due regard for
the exceptions stipulated in the Debt Instruments and in this Agreement;
(c) to fully perform all their obligations under this Agreement;
(d) to defend themselves timely and efficiently against any act, action,
proceeding or lawsuit that could in any way affect this Agreement or the Pledge;
(e) in compliance with the provisions of Clause III above, not to dispose
of, sell, assign, transfer, give in free loan, lend, exchange, capitalize,
create usufruct or trust or any other encumbrance, lien or security interest in
addition to the Pledge hereunder, or otherwise dispose of in any way, wholly or
in part, directly or indirectly, free of charge or otherwise, the Pledged
Assets; and
(f) to respect the representation of Creditors by the Collateral Agent, as
provided for in the Intercreditor Agreement and in this Agreement, since this is
an essential condition for the legal business now covenanted, with the validity
and effectiveness of such representation being hereby ratified for all purposes
of this Agreement.
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V. - OBLIGATIONS OF THE COLLATERAL AGENT
5.1. - In addition to the other obligations stipulated in this Agreement and in
the Intercreditor Agreement, the Collateral Agent agrees:
(a) to take all measures that are necessary or advisable to ensure that
the guarantee hereby created will remain complete and enforceable;
(b) to manage the resources arising out of any enforcement of the
guarantee hereby tendered to the benefit of the Creditors, in accordance with
the terms of the Intercreditor Agreement and this Agreement;
(c) to immediately notify Net Servicos and the Creditors about any
lawsuits related to enforcement of the Pledged Assets for payment of the Secured
Obligations;
(d) to respect and observe that all and any measures to be undertaken for
the purposes and effects of this Agreement, especially in relation to
enforcement of the Pledge, can only be irreplaceably undertaken by the
Collateral Agent once the terms and conditions of the Intercreditor Agreement
and this Agreement are observed.
(e) to provide the corresponding Creditor with copy of any additional
documents prepared hereunder as may be reasonably requested thereby, including
any updates on the schedules hereto as well as evidence as to filing of this
Agreement as provided for herein, with the exception of any document that may
include financial and/or secret and/or confidential information regarding Net
Servicos, the NET Companies and/or any of the Creditors, in compliance with the
provisions of the Intercreditor Agreement;
(f) to verify with Net Servicos whether the filings and registrations set
forth in
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this Agreement were duly made within the periods set forth herein.
(g) in the name of the Creditors, to take all the measures necessary to
protect the preference right over the Pledged Assets, once they become aware of
any third-party act that implies a threatened lien, and/or can effectively
result in the lien of the Pledged Assets, according to the terms hereof;
(h) to arrange for NET Companies and/or Net Servicos not to encounter any
hindrances in obtaining the signature of the legal representatives of the
Collateral Agent for amendments to this Agreement, when necessary; and
(i) within 5 (five) business days of the request from Net Servicos, to
sign any waiver, notice, amendment or another document reasonably requested by
Net Servicos and prepared by it, whether necessary for release of the pledge on
the Pledged Assets and implementation of any act mentioned in Clause 3.1 above,
regardless of previous consultation and/or approval by Creditors, in the events
(i) expressly permitted under the terms of the Debt Instruments, to which the
Restructuring Creditors (as defined in the Intercreditor Agreement) are
parties, and (ii) that are not expressly prohibited by any Joining Debt
Instrument (as defined in the Intercreditor Agreement).
5.2. - If the Collateral Agent breaches any of the obligations assumed under the
terms of this Agreement, and if this breach is not remedied within 48
(forty-eight) hours of the event, the Collateral Agent shall be required to
compensate the Creditors and/or Net Servicos and/or NET Companies for any losses
and damages arising out of this breach, as applicable.
VI. - REPRESENTATIONS AND WARRANTIES OF NET SERVICOS AND NET COMPANIES
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6.1. - Net Servicos, by itself and the NET Companies, and the NET Companies,
represent and warrant on this date, under the penalties of the law, that:
(a) except for (i) Dabny L.L.C., which is a limited liability company duly
organized and existing under the laws of the State of Delaware; and (ii) Jonquil
Ventures Limited, which is an instructional business company duly organized and
existing under the laws of the British Virgin Islands, the NET Companies and Net
Servicos are companies duly organized and existing under the Brazilian law, and
are free to manage their assets;
(b) all authorizations required for the NET Companies and Net Servicos to
execute this Agreement and to assume and perform all obligations hereunder have
been obtained and are valid, effective and in full force, with the exception of
the approval of Anatel and XXXX (if necessary) for the sale (if and at the time
of enforcement) of the Pledged Assets;
(c) NET Companies and Net Servicos are authorized by their Articles of
Association and Bylaws, and in the case of Jonquil Ventures Limited and Dabny,
L.L.C., according to their organizational formation documents, and applicable
law, as well as by proper government entities to tender the guarantee set forth
in this Agreement and to perform the obligations contained herein, with the
exception of the approval of Anatel and XXXX (if necessary) for the sale (if
and at the time of enforcement) of the Pledged Assets;
(d) the persons that represent the NET Companies and Net Servicos in the
execution of this Agreement have been duly authorized to do so;
(e) there is no judicial or extrajudicial, administrative, arbitration or
tax action or proceeding in an amount equal to or in excess of R$ 1,000,000.00
(one million Reais), which may in any way hinder or invalidate the Pledge or the
obligations assumed hereunder, except for the actions, procedures, liens,
encumbrances and restrictions
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mentioned in "Schedule 8" hereof;
(f) to the best of its knowledge, no judicial action or extrajudicial,
administrative, arbitration, or tax action or proceeding, regardless of who the
Plaintiff is, seeking to cancel, alter, invalidate, question or in any way
affect the Pledge and/or obligations assumed herein, is threatened to be filed
or commenced, except for any actions or proceedings that may be filed by the
holders of Debt Not Included, as defined in the Intercreditor Agreement;
(g) the Pledged Assets are free and clear of any encumbrances, whether
judicial, extrajudicial or tax-related, are the legal property of the NET
Companies, are not subject to any restriction on their disposal or transfer,
except for shares, encumbrances, liens and restrictions outlined in "Schedule
8", as well as the restrictions on disposal and/or transfer imposed by force of
(i) this Agreement or the Debt Instruments or other agreements that make up the
Restructuring Plan; (ii) the applicable regulations, including those of Anatel;
(iii) the contractual instruments of the holders of Debt Not Included, as
defined in the Intercreditor Agreement; and the NET Companies and Net Servicos
shall answer, in accordance with the provisions of the law, for the existence
and integrity of the Pledged Assets;
(h) the terms and conditions of this Agreement as well as the assumption
and performance of all obligations set forth herein (i) shall not result in
default by the NET Companies and/or Net Servicos on any contract, document or
relevant instrument to which the NET Companies or Net Servicos are parties, or
by which any of their assets and properties are bound, which entails or may
reasonably entail a payment obligation on the part of Net Servicos or any of the
NET Companies, in an amount exceeding R$ 30,000,000.00 (thirty million Reais),
with the exception of the contractual instruments of the holders of Debt Not
Included, as defined in the Intercreditor Agreement; (ii) do not violate any
law, decree or regulation to which the NET Companies and/or Net Servicos
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may be subject; (iii) do not violate any pending administrative or court order,
decree or decision against the NET Companies and/or Net Servicos, (except for
the Unibanco Action, as defined in the Intercreditor Agreement), which
individually entails or may reasonably entail a payment obligation on the part
of Net Servicos or any of the NET Companies in an amount exceeding R$
30,000,000.00 (thirty million Reais); and (iv) do not violate the bylaws and
articles of association of the NET Companies and/or Net Servicos;
(i) the obligations assumed in this Agreement are valid, payable and
enforceable according to the terms and conditions hereof;
(j) the Pledged Assets listed in "Schedule 5" represent all of the assets
comprising the Transmission Network of the NET Companies, according to the
financial statements of the NET Companies dated September 30, 2004, and it is
hereby agreed that the NET Companies shall guarantee for the purposes of this
clause, that these Pledged Assets have not undergone any material change to
date; and
(k) all the powers of attorney granted by NET Companies according to the
terms hereof are granted irrevocably and irreversibly, according to the terms of
Article 684 of the Civil Code.
6.2. - The NET Companies and Net Servicos shall be held jointly and severally
liable for any losses and damages resulting from the proven inaccuracy or
untruthfulness of these declarations, in accordance with the time periods
stipulated in the relevant legislation.
VII. - REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL AGENT
7.1. - The Collateral Agent represents and warrants, under penalty of the law,
that:
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(a) it is a company duly organized and validly existing under Brazilian
law, and is free to administer its assets;
(b) all authorizations required to execute this Agreement and assume and
perform all of its obligations hereunder have been obtained, and are valid,
effective and in full force, without having been altered in any way;
(c) it is duly authorized under its Bylaws and applicable law, as well as
by other public administration bodies to perform the obligations hereunder;
(d) the persons that represent it in the execution of this Agreement have
been duly authorized to do so;
(e) the terms and conditions of this Agreement as well as the assumption
and performance of all obligations set forth herein (i) shall not result in the
Collateral Agent's default under any contract, document or instrument to which
it is a party or to which any of its assets and properties are bound; (ii) do
not violate any law, decree or regulation to which the Collateral Agent is
subject; (iii) do not violate any pending administrative or court order,
judgment or decision against the Collateral Agent; and (iv) do not violate the
Bylaws of the Collateral Agent;
(f) the obligations assumed in this Agreement are valid, payable and
enforceable according to the terms hereof;
(g) it is aware of all the terms and conditions of the Intercreditor
Agreement and the instruments that substantiate the Secured Obligations; and
(h) it is aware that all and any measures to be undertaken, for the
purposes and
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effects of this Agreement, especially in relation to enforcement of
the Pledge, can only be irreplaceably carried out by the Collateral Agent, in
compliance with all the terms and conditions of the Intercreditor Agreement and
this Agreement.
7.2. - The Collateral Agent shall be liable for any losses and damages that may
result from the proven untruthfulness or inaccuracy of such representations and
warranties within the time limits prescribed by applicable law.
VIII. - NOTICES
8.1. - Any and all notices between the parties regarding any matter in
connection with this Agreement shall be sent in writing to the following
addresses:
(a) If to any of NET Companies and/or Net Servicos:
NET SERVICOS DE COMUNICACAO S.A.
Attn.: Xx. Xxxxx Xxxxxx Xxxxxx and/or Xx. Xxxxxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxx
Telephone: (00-00) 0000-0000
Fax: (00-00) 0000-0000
Address: Xxx Xxxxx Xxxxxx, 0000, Xxxxxxx Xxxxx Xxxxxxx, Xxx Xxxxx -
SP Brasil, CEP 04719-002
(b) If to the Creditors, to the addresses and telephone and fax numbers
mentioned in each of the Debt Instruments, or preferentially to the addresses,
telephone and fax numbers of the Collateral Agent as mentioned in (c) below;
(c) If to the Collateral Agent:
BANCO ITAU S.A.
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Diretoria de Servicos para x Xxxxxxx de Capitais
Address: Xx. Xxxxxxxxxx Xxxxxxx xx Xxxxxx Xxxxxxx, 000 - 9(a) andar -
Jabaquara
CEP: 04344-902 - Sao Paulo - S.P.
Attn: Mr. Antonio Xxxxxx Xxxxxxxxx
Tel: (00 00) 0000-0000
Fax: (00 00) 0000-0000
e-mail: xxxxxxx-xxxxxx.xxxxxxxxx@xxxx.xxx.xx
8.2. - Notices shall be deemed delivered on the date of their receipt when
forwarded by registered letter or when sent with "return receipt requested"
through the Brazilian mail service (Empresa Brasileira de Correios e
Telegrafos), and if delivered to the above addresses. When sent by fax or email,
they shall be deemed delivered on the next business day, once the originals of
the documents have been forwarded to the above addresses, through the means
mentioned above, within two business days of their transmission.
8.3. - Any change in address or other data required for the above notices shall
only come into effect 10 (ten) business days after Net Servicos and the
Collateral Agent have been informed.
IX. - THE INCLUSION OF OTHER CREDITORS
9.1.- Other creditors that may join this Agreement under the terms of the Debt
Instruments and the Intercreditor Agreement ("JOINING CREDITORS") shall be
admitted as parties to this Agreement and shall have the same rights and
obligations, and in this way they can share in the Pledge with the other
Creditors listed in "Schedule 2" of this Agreement. Joining Creditors shall
adhere to the terms of this instrument by adhering to the Intercreditor
Agreement in accordance with the terms and conditions contained in it and by
signing the relevant Term of Adhesion as contained in "Schedule 9" ("TERM OF
ADHESION"). The Term of Adhesion duly signed by the Joining Creditor shall
hereby become an integral part of this Agreement.
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9.2. - The Term of Adhesion shall reflect the substance of a related document
signed by the legal representatives of the Joining Creditor, which shall (i)
contain the request that the relevant credit be inserted as a beneficiary of the
Pledge, and (ii) show the Joining Creditor's unconditional acceptance of all the
terms and conditions of this Agreement and the Intercreditor Agreement,
especially in relation to its representation through the Collateral Agent.
9.2.1. The Joining Creditors, on signing the Term of Adhesion, shall have the
same rights and obligations of this Agreement and of the Intercreditor
Agreement, pari passu, with respect to the other Creditors, without any
exception and/or limitation (other than those exceptions or limitations
expressly set forth in the Intercreditor Agreement).
9.3. - For the Term of Adhesion to come into force, the Joining Creditor shall
register it in the Real Estate Registries in which this Agreement is registered
and, within at most 5 (five) business days of this registration, it shall send
certified copies proving this registration to the Collateral Agent, the NET
Companies and Net Servicos.
9.4. Any defects that may be found in the Term of Adhesion shall not affect nor
harm any of the provisions stipulated in this Agreement, which shall remain
valid and effective for all effects and purposes.
X. - REGISTRATION AND PENALTIES
10.1.- The NET Companies shall, within a maximum period of 30 (thirty)
consecutive days of receipt of the original counterparts of this Agreement, duly
signed by the Parties, submit this Agreement for registration with the Real
Estate Registry in each jurisdiction where there is a Pledged Asset and, within
a maximum period of 20 (twenty) business consecutive days from the date of the
aforementioned registration, they shall send certified copies
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proving such registration to the Collateral Agent, subject always to the
provisions of Clause 10.4 below.
10.2. - In relation to amendments to this Agreement and in compliance with the
provisions of Clause 1.2.1. above, the NET Companies shall on the 15th
(fifteenth) day of the month immediately after the completed calendar quarter,
if it is a business day, or otherwise on the next business day, provide to the
Collateral Agent, subject to the provisions of Clauses 5.1(h) and 8.2 above, all
counterparts of the relevant amendment, duly signed by the legal representatives
of NET Companies and Net Servicos, with all the signatures having been
certified, so that the Collateral Agent on its own behalf and on behalf of the
Creditors, sign the counterparts of the amendment, certify the relevant
signatures and return the counterparts to NET Companies at the address mentioned
in Clause 8.1 (a) above, keeping only one of the counterparts for itself. Within
30 (thirty) consecutive days from receipt of the original counterparts of the
amendment to the Agreement, duly signed by the Collateral Agent, NET Companies
shall submit the amendment for registration with the Real Estate Registry with
jurisdiction to register the inclusion of New Assets, and, within a maximum
period of 20 (twenty) consecutive days from the day of the aforementioned
registration, forward certified copies proving this registration to the
Collateral Agent, except in the case of the provisions of Clause 10.4 below.
10.3.- Irrespective of any other penalty imposed by the relevant legislation, by
this Agreement, by Clause 10.5 below, by the Debt Instruments and/or by the
Intercreditor Agreement, the noncompliance by the NET Companies with any of the
periods stipulated in Clause 10.2 above, for any reason, shall result in the
imposition of a fine in favor of the Creditors, to be distributed ratably to the
value of their respective Secured Obligations, in the amount of R$100,000.00
(one hundred thousand reais) per day, or fraction of a day of delay.
10.3.1.- The value of the fine stipulated above shall be adjusted annually, or
at a shorter
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period of time if allowed or not forbidden by the relevant legislation, counting
from this date, including according to the variation in the General Market Price
Index (IGP-M - Indice Geral de Precos - Xxxxxxx) or in its absence for any
reason, by the General Price Index - Internal Availability (Indice Geral de
Precos - Disponibilidade Interna - IGP-DI), both published by the Xxxxxxx Xxxxxx
Foundation.
10.4.- Delays in complying with the periods stipulated herein, resulting from
acts of God or force majeure, such as, for example, strikes, delays, failures
and omissions by the Real Estate Registry, not imputable to the NET Companies,
shall not be deemed to involve any contractual default, nor the imposition of
the fine referred to in Clause 10.3. In this case, the terms established will be
suspended from the date of commencement of the event of act of God or force
majeure until the date of its cessation, and NET Companies shall, on the first
business day immediately after the cessation of the events caused by an act of
God or force majeure, take all necessary measures to undertake the relevant
registration, resuming the computing of the period for compliance with the
obligations as from such date of cessation of the act of God or force majeure.
10.5. - After the periods stipulated in Clauses 1.4, 1.4.1, 10.1, 10.2 and 10.4
have elapsed, the Creditors can choose, with due regard for the provisions of
Clauses 2.8 and 11.9, of the Intercreditor Agreement and of the Debt
Instruments, to declare the early maturity of the Secured Obligations. Upon this
declaration of early maturity, the incurrence of the penalties stipulated in
Clause 10.3 above shall be suspended, without affecting the penalties imposed by
applicable legislation and by the Debt Instruments.
10.6. Without prejudice to the obligations hereby assumed by the NET Companies
in relation to these measures, and in addition to the penalties resulting from
any noncompliance, the Collateral Agent may decide, at its exclusive discretion,
upon notice to Net Servicos, to make the public registrations referred to in
Clauses 10.1 and 10.2.
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10.6.1. Without prejudice to the other powers granted by NET Companies to the
Collateral Agent and/or Creditors, NET Companies, through the instrument of
power of Attorney, according to the model included in "Schedule 7", grant to the
Collateral Agent, in the capacity of representative of Creditors, irrevocably
and irreversibly, as condition for the business, according to Article 684 of the
Civil Code, certain powers for the Collateral Agent, on behalf of Creditors, in
compliance with the provisions hereof, to represent NET Companies before any and
all Real Estate Registries, and to sign any and all documents, and perform any
and all acts necessary specifically and exclusively for the performance of the
registrations contemplated in Clauses 10.1 and 10.2.
10.7. - It is hereby agreed that on the Pledge Termination Date, Net Servicos
and/or the NET Companies, at their own expense and risk, shall take all relevant
measures to cancel the Pledge registration, and the Collateral Agent shall
undertake to immediately render all the cooperation necessary to this effect,
providing a term of release in relation to the Secured Obligations and all
relevant information and documentation that may be reasonably requested by Net
Servicos and/or the NET Companies, it being hereby agreed that in any case the
aforementioned cancellation shall depend on the full satisfaction of the Secured
Obligations, and, in this case, in accordance with articles 319 and 1436 of the
Civil Code, as well as with article 250 of the Public Registration Law, the NET
Companies and Net Servicos are hereby authorized to use all administrative
and/or judicial mechanisms, with no limitations of any kind, to obtain the
release of the Pledge and ensure the cancellation of the Pledge registration.
XI. - MISCELLANEOUS
11.1. - All terms, conditions, covenants, dealings, undertakings and commitments
assumed in this Agreement shall be binding on the parties themselves and their
successors in any way, on an irrevocable and irreversible basis.
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11.2. - Any change in the terms and conditions of this Agreement shall only be
deemed valid if made in a written instrument signed by all the Parties, except
in the specific cases determined herein and in its schedules, always with due
regard for the provisions of the Intercreditor Agreement, it being agreed,
however, that the Collateral Agent shall represent the Creditors, exclusively
and with ample powers for such purpose, in making any amendments to this
Agreement, in compliance with the terms and conditions of the Intercreditor
Agreement
11.3. - With due regard for the provisions in the Intercreditor Agreement, the
Creditors, acting through the Collateral Agent, at their exclusive discretion,
may demand the specific performance of the obligations assumed by the Parties
hereunder, according to Articles 461, 621 and 632 through 645 of the Brazilian
Code of Civil Procedure, as well as the enforcement of the guarantee granted
herein.
11.3.1. - Without prejudice to the other rights conferred on the Collateral
Agent, acting in the capacity of collateral agent for the Creditors, the
Collateral Agent is hereby irrevocably and irreversibly authorized to enforce
this guarantee in a private manner as set forth in Article 1433, IV of the Civil
Code, provided the terms and conditions of this Agreement, the Debt Instrument
and the Intercreditor Agreement have been complied with.
11.4. - As a condition for this Agreement, the NET Companies and Net Servicos
hereby agree to take any and all additional measures and to produce any and all
documents necessary to formalize the Pledge and for the validity and
effectiveness of this Agreement
11.5. - Net Servicos and/or NET Companies shall bear any and all costs or
expenses provenly incurred by the Collateral Agent in connection with
performance of the obligations or exercise of the rights set out in this
Agreement or in applicable law, including costs and expenses incurred with
registrations, filings or enforcement of the guarantee hereunder, as well as in
connection with proceedings, suits and/or other judicial
-32-
or extrajudicial action necessary to secure their rights and prerogatives set
forth in this Agreement, including costs, fees, expenses, emoluments, attorney's
and expert's fees or any other charges related to such proceedings, suits or
actions. Such amounts shall be reimbursed within 10 (ten) business days after
the date of receipt of notice to this effect, to be sent to Net Servicos and/or
NET Companies, at the discretion of the Collateral Agent. Reimbursements for
judicial expenses and attorneys' fees related to the clauses of this Agreement
shall comply with the provisions of Clause 3.3.
11.6. - The full or partial invalidity or nullity of any clauses of this
Agreement shall not affect the other clauses, which shall always remain valid
and effective until the Parties have performed all their obligations hereunder.
If any clause in this Agreement is held invalid or null, the Parties hereby
undertake to negotiate, as quickly as possible, in replacement of the invalid or
null clause, the inclusion in this Agreement of valid terms and conditions that
reflect the terms and conditions of the clause rendered invalid or null, with
due regard for the original intent and objective of the Parties at the time of
negotiation of the invalid or null clause and the underlying context.
11.7. - Under the terms and for the purposes of Decree No. 3048 of May 6, 1999,
the NET Companies hereby deliver to the Collateral Agent a certified copy of
Debt Clearance Certificate No. [ ] issued by the National Social Security
Institute (INSS), attesting to the timely compliance with all their social
security obligations until the date of established therein.
11.8. - Waiver by any of the Parties in connection with the exercise of any
rights conferred under the terms of this Agreement or applicable legislation,
shall only be effective if made in writing. No forbearance, delay or indulgence
by any of the Parties in enforcing any provision of this Agreement shall hinder
or restrict the rights of such Party nor shall it prevent such Party from
exercising such rights or any others whenever it deems fit to do so,
irrespective of any prior communication or notice.
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11.9. - For all legal purposes, it is expressly stipulated herein that the only
cases of early maturity, in addition to the cases expressly foreseen in this
Agreement, in the Debt Instruments and in the Intercreditor Agreement are those
mentioned in subsections II and III of article 1425 of the Civil Code.
11.10. - The confidentiality commitment established in, and pursuant to, Clause
10.14 of the Intercreditor Agreement shall apply to this Agreement.
11.11. - Without prejudice to the joint responsibility of the NET Companies
stipulated in the Intercreditor Agreement, in the Debt Instruments and in the
Additional Pledge Agreements, the NET Companies hereby and pursuant to law, on
an irrevocable and irreversible basis, for the purposes stipulated in article
265 of the Civil Code, represent, in relation to this Agreement, to be the joint
and principal payers solely with regard to the obligations mentioned in Clauses
3.1.1, 3.3, 6.2, 10.1 to 10.7 and 11.5 herein.
11.12. - This Agreement shall be ruled and governed by the laws of Federative
Republic of Brazil. The Parties elect the courts in the Judicial District of
Sao Paulo, State of Sao Paulo, to settle any doubts or disputes arising out of
this Agreement, to the exclusion of any other courts, however privileged they
may be.
IN WITNESS WHEREOF, the parties, binding themselves and their successors, sign
this Agreement in four (4) counterparts of equal form and content, to one sole
effect, in the presence of the two (2) undersigned witnesses.
Sao Paulo, [_______], 2005
FOR CREDITORS
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--------------------------------------
By BANCO ITAU S.A.
Name:
Title:
COLLATERAL AGENT
--------------------------------------
BANCO ITAU S.A.
Name:
Title:
NET SERVICOS
--------------------------------------
NET SERVICOS DE COMUNICACAO S.A.
Name:
Title:
NET COMPANIES
- ALNOR ALUMINIO DO NORTE LTDA. - NET FRANCA LTDA.
- ANTENAS COMUNITARIAS - NET GOIANIA LTDA.
BRASILEIRAS LTDA. - NET INDAIATUBA LTDA.
- CABODINAMICA TV CABO - NET JOINVILLE LTDA.
SAO PAULO S.A. - NET LONDRINA LTDA.
- CMA PARTICIPACOES S.A. - NET MARINGA LTDA.
- DABNY, L.L.C. - NET PARANA COMUNICACOES
- DR EMPRESA DE DISTRIBUICAO LTDA.
E RECEPCAO DE TV LTDA. - NET PIRACICABA LTDA.
- HORIZONTE SUL - NET RECIFE LTDA.
COMUNICACOES LTDA. - NET RIBEIRAO PRETO S.A.
- JONQUIL VENTURES LIMITED - NET RIO S.A.
- MULTICANAL - NET SAO XXXXXX S.A.
TELECOMUNICACOES S.A. - NET SAO XXXX DO RIO PRETO
- NET ANAPOLIS LTDA. LTDA.
- NET ARAPONGAS LTDA. - NET SAO PAULO LTDA.
-35-
- NET BAURU LTDA. - NET SOROCABA LTDA.
- NET BELO HORIZONTE LTDA. - NET SUL COMUNICACOES LTDA.
- NET BRASIL S.A. - REYC COMERCIO
- NET BRASILIA LTDA. E PARTICIPACOES LTDA.
- NET CAMPINAS LTDA. - TV CABO DE CHAPECO LTDA.
- NET CAMPO GRANDE LTDA. - TV VIDEO CABO
- NET CURITIBA LTDA. DE BELO HORIZONTE S.A.
- NET FLORIANOPOLIS LTDA.
--------------------------------------------
Name:
Title:
Witnesses:
1. - ____________________________
Name:
RG (Identity Card):
2. - ____________________________
Name:
RG (Identity Card):
SCHEDULE 1 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
LIST OF THE COMPANY SUBSIDIARIES THAT ARE PARTIES TO THIS AGREEMENT
ALNOR ALUMINIO DO NORTE LTDA., a Brazilian limited company with its headquarters
in the City of Manaus, State of Amazonas, at Xxx Xxxxxx Xxxxxxx 0000, Xxxxx,
Xxxxx 00 de Janeiro, enrolled in C.N.P.J. under No. 34.534.750/0001-65, herein
represented according to its Articles of Association;
ANTENAS COMUNITARIAS BRASILEIRAS LTDA., a Brazilian limited company with its
headquarters in the City of Blumenau, State of Santa Catarina, at Xxxxxxx Xxxxxx
Xx. 00, Xxxxx Xxxxx, enrolled in C.N.P.J. under No. 79.375.606/0001-61, herein
represented according to its Articles of Association;
CABODINAMICA TV CABO SAO PAULO S.A., a Brazilian joint-stock company with its
headquarters in the City of Sao Paulo, State of Sao Paulo, at Rua Verbo Divino,
1.356, Chacara Xxxxx Xxxxxxx, enrolled in C.N.P.J. under No. 65.516.254/0001-02,
herein represented according to its Bylaws;
CMA PARTICIPACOES S.A., a Brazilian joint-stock company with its headquarters in
the City of Sao Paulo, State of Sao Paulo, at Rua Verbo Divino, 1.356, Chacara
Xxxxx Xxxxxxx, enrolled in C.N.P.J. under No. 31.959.356/0001-80, herein
represented according to its Bylaws;
DABNY, L.L.C., a limited liability company organized and existing under the laws
of Delaware, with its headquarters at c/o The Corporation Trust Company,
Corporation Trust Center,
-37-
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000, herein
represented according to its Limited Liability Company Agreement dated
January 13, 1995 (as amended, modified or supplemented from time to time);
JONQUIL VENTURES LIMITED, an international business company duly organized and
existing under the laws of the British Virgin Islands, with its headquarters at
Criagmuir Xxxxxxxx, P.O. Box 71, Road Town, Tortola, British Virgin Islands
herein represented according to its Memorandum and Articles of Association;
MULTICANAL TELECOMUNICACOES S.A., a company with its headquarters in the City of
Sao Paulo - SP, at Xxx Xxxxx Xxxxxx Xx. 0000 - 0xx xxxxx - part, CEP 04719-002,
Chacara Xxxxx Xxxxxxx, enrolled in C.N.P.J. under No. 31.963.481/0001-64,
herein represented according to its Bylaws;
NET BELO HORIZONTE LTDA., a company with its headquarters in the City of Belo
Horizonte, State of Minas Gerais, at Xxxxxxx Xxxxxxxxxx Xx. 000, Xxxxxxxxxx, XXX
00000-000, enrolled in C.N.P.J. under No. 38.738.308/0001-01, herein
represented according to its Articles of Association;
NET BRASILIA LTDA., a company with its headquarters in Xxxxxxxx, Xxxxxxx
Xxxxxxxx, XXX/Xxx, Xxxxxx 00, No. 725, CEP 70000-000, enrolled in C.N.P.J. under
No. 26.499.392/0001-79, herein represented according to its Articles of
Association;
-38-
NET LONDRINA LTDA., a Brazilian limited company with its headquarters in the
City of Londrina, State of Parana, at Xxx Xxxxxx, 000, Xxxxxx, enrolled in
C.N.P.J. under No. 80.924.459/0001-10, herein represented according to its
Articles of Association;
NET RIO S.A., a Brazilian joint-stock company with its headquarters in the City
of Rio de Janeiro, State of Rio de Janeiro, at Xxx Xxxxxxx xx Xxxxxx, 000, Xxxxx
02, Xxxx 000, 0xx Xxxxx, Xxxxx xx Xxxxxx, enrolled in C.N.P.J. under No.
28.029.775/0001-09, herein represented according to its Bylaws;
TV CABO DE CHAPECO LTDA., a Brazilian limited company with its headquarters in
the City of Chapeco, State of Santa Catarina, at Xxxxxxx Xxxxx Xxxxx, 000 E
room 01, enrolled in C.N.P.J. under No. 00.647.530/0001-26, herein represented
according to its Articles of Association;
TV VIDEO CABO DE BELO HORIZONTE S.A., a Brazilian joint-stock company with its
headquarters in the City of Belo Horizonte, State of Minas Gerais, at Xxxxxxx
Xxxxxxxxxx, 000, enrolled in C.N.P.J. under No. 64.195.522/0001-79, herein
represented according to its Bylaws;
NET RECIFE LTDA., a company with its headquarters in the City of Recife, State
of Pernambuco, at Xxx Xxxxxxxxx Xxxxx Xx. 000, XXX 00000-000, Xxxxxx da Ilha do
-39-
Xxxxx, enrolled in C.N.P.J. under No. 08.828.469/0001-25, herein represented
according to its Articles of Association;
NET SAO PAULO LTDA., a limited company with its headquarters in the City of Sao
Paulo, State of Sao Paulo, at Xxx Xxxxx Xxxxxx Xx. 0.000, xxxxxx, xxxxxx 0 and
2, CEP 04719-002, Chacara Xxxxx Xxxxxxx, Sao Paulo - SP, enrolled in C.N.P.J.
under No. 65.697.161/0001-21, herein represented according to its Articles of
Association;
NET CAMPINAS LTDA., a limited company with its headquarters in the City of
Campinas, State of Sao Paulo, at Xxx Xxxxxx Xx. 000, XXX 00.000-000, Xxxxxxx
Primavera, enrolled in C.N.P.J. under No. 61.698.510/0001-79, herein represented
according to its Articles of Association;
NET INDAIATUBA LTDA., a company with its headquarters in the City of Indaiatuba,
State of Sao Paulo, at Xxx 00 xx xxxxx xx Xx.0.000/0.000, Xxxx Xxxxxxxx, CEP
13.330-050, enrolled in C.N.P.J. under No. 58.393.695/0001-07, herein
represented according to its Articles of Association;
NET FRANCA LTDA., a company with its headquarters in the City of Franca, State
of Sao Paulo, at Xxx Xxxxxx Xxxxx Xxxxxxx No. 2.837, Jardim Samello, CEP
14405-135, enrolled in C.N.P.J. under No. 60.348.414/0001-38,
-40-
herein represented according to its Articles of Association;
NET SUL COMUNICACOES LTDA., a company with its headquarters in the City of Porto
Alegre - RS, at Xxx Xxxxxxxx Xx. 0000, Xxxxx Santa Xxxxxx, CEP 90850-000,
enrolled in C.N.P.J. under No. 73.676.512/0001-46, herein represented according
to its Articles of Association;
DR- EMPRESA DE DISTRIBUICAO E RECEPCAO DE TV LTDA., a company with its
headquarters in the City of Porto Alegre - RS, at Xxx Xxxxxxxx Xx. 0000, Xxxxx
Santa Xxxxxx, CEP 90850-000, enrolled in C.N.P.J. under No. 93.088.342/0001-96,
herein represented according to its Articles of Association;
NET JOINVILLE LTDA., a company with its headquarters in the City of Joinville,
State of Santa Catarina, at Avenida Xxxxxxxx Xxxxx Xx. 000, Xxxxxxx, XXX
00000-000, enrolled in C.N.P.J. under No. 85.271.898/0001-95, herein
represented according to its Articles of Association;
NET FLORIANOPOLIS LTDA., a company with its headquarters in the City of
Florianopolis, State of Santa Catarina, at Xxxxxxx Xxx Xxxxxx Xx. 000, Xxxxxx,
XXX 00000-000, enrolled in C.N.P.J. under No. 72.461.072/0001-47,
-41-
herein represented according to its Articles of Association;
NET MARINGA LTDA., a company with its headquarters in the City of Maringa, State
of Parana, at Xxxxxxx Xxxxxxx Xx. 000, Xxxx 00, XXX 87013-330, enrolled in
C.N.P.J. under No. 81.712.416/0001-34, herein represented according to its
Articles of Association;
NET SAO XXXX DO RIO PRETO LTDA., a company with its headquarters in the City of
Sao Xxxx do Rio Preto, State of Sao Paulo, at Rua Lafaiete Xxxxxxx xx Xxxxxx No.
1922, Boa Vista, CEP 15025-510, enrolled in C.N.P.J. under No.
69.082.832/0001-09, herein represented according to its Articles of Association;
NET PIRACICABA LTDA., a company with its headquarters in the City of Piracicaba,
State of Sao Paulo, at Xxxxxxx Xxxxxxxxxxxxx Xx. 0000, Xxxxxxx, CEP 13416-230,
enrolled in C.N.P.J. under No. 64.592.116/0001-40, herein represented according
to its Articles of Association;
NET GOIANIA LTDA., a company with its headquarters in the City of Goiania, State
of Goias, at Xxx 00, Xxxxxx x-00, Xxxx 00, Xx. 000, Xxxxx Xxxxxxx, XXX
74000-000, enrolled in C.N.P.J. under No. 33.659.475/0001-43, herein
represented according to its Articles of Association;
-42-
NET CAMPO GRANDE LTDA., a company with its headquarters in the City of Campo
Grande, State of Mato Xxxxxx do Sul, at Avenida Xxxxxx Xxxx No. 3.004, CEP
79002-075, Centro, enrolled in C.N.P.J. under No. 24.615.965/0001-57, herein
represented according to its Articles of Association;
NET SOROCABA LTDA., a company with its headquarters in the City of Sorocaba,
State of Sao Paulo, at Avenida Xxxxxxx Xxxxxx Xxxxxxx No. 1.074, corner with Xxx
Xxxxx Xxxxxx Xx. 00, Xxxxxx Xxxxxxxx, CEP 18047-000, enrolled in C.N.P.J. under
No. 64.637.903/0001-60, herein represented according to its Articles of
Association;
NET SAO XXXXXX S.A., a company with its headquarters in the City of Sao Xxxxxx,
State of Sao Paulo, at Avenida Xx. Xxxxxx Xxxxxxx, No. 1.986, enrolled in
C.N.P.J. under No. 57.724.759/0001-34, herein represented according to its
Bylaws;
HORIZONTE SUL COMUNICACOES LTDA., a company with its headquarters in the City of
Porto Alegre, State of Rio Grande do Sul, at Rua Silveiro, No. 1.111, part,
enrolled in C.N.P.J. under No. 94.319.209/0001-66, herein represented according
to its Articles of Association;
NET PARANA COMUNICACOES LTDA., a company with its headquarters in the City of
Curitiba, State of Parana, at Xxx Xxxxx Xxxxxxx Xxxxxxxx, Xx. 000, Merces,
enrolled
-43-
in C.N.P.J. under No. 84.922.681/0001-35, herein represented according to its
Articles of Association;
NET CURITIBA LTDA., a company with its headquarters in the City of Curitiba,
State of Parana, at Xxx Xxxxxx Xx. 000, enrolled in C.N.P.J. under No.
82.342.833/0001-03, herein represented according to its Articles of Association;
NET ARAPONGAS LTDA., a company with its headquarters in the City of Arapongas,
State of Parana, at Xxx Xxxxxx, Xx. 000, enrolled in C.N.P.J. under No.
81.897.118/0001-66, herein represented according to its Articles of Association;
NET RIBEIRAO PRETO S.A., a company with its headquarters in the City of Ribeirao
Preto, State of Sao Paulo, at Avenida Nove de Julho, No. 1.266, enrolled in
C.N.P.J. under No. 64.807.456/0001-40, herein represented according to its
Bylaws;
NET BAURU LTDA., a company with its headquarters in the City of Bauru, State of
Sao Paulo, at Xxxxxxx Xxxxx xx Xxxxxx, Xx. 000, enrolled in C.N.P.J. under No.
64.083.561/0001-84, herein represented according to its Articles of Association;
NET ANAPOLIS LTDA., a company with its headquarters in the City of Anapolis,
State of Goias, at Xxx Xxxxx, Xx. 000, enrolled in C.N.P.J. under No.
33.584.277/0001-68, herein represented according to its Articles of Association;
and
-44-
REYC COMERCIO E PARTICIPACOES LTDA., a company with its headquarters in the City
of Sao Xxxx, State of Santa Catarina, at Xxx Xxxxxxxxx Xxxx Xxxxxxxx, Xx. 000,
enrolled in C.N.P.J. under No. 95.853.263/0001-50, herein represented according
to its Articles of Association.
SCHEDULE 2 TO THE ASSET PLEDGE
AGREEMENT WITH AN AMICABLE
SALE CLAUSE, AND OTHER
COVENANTS
List of Creditors
(1) PLANNER CORRETORA DE VALORES S.A., a joint-stock company with its
headquarters in the City of Sao Paulo, State of Sao Paulo, at Avenida Paulista,
2.439, 11th floor, enrolled in the National Register of Legal Entities
(C.N.P.J.) under no. 00.806.535/0001-54, representing, as fiduciary agent and
proxy of the Securities of the Forth Public Issue of Debentures, Not Convertible
Into Shares, with Collateral Guarantee and Suretyship, of Net Servicos de
Comunicacao S.A., in this act represented jointly by the owners of the
Debentures by Banco Itau S.A., as Collateral Agent;.
(2) THE BANK OF NEW YORK, a financial institution with its headquarters in New
York, at Xxxxxxx Xxxxxx, 000, Xxx Xxxx, Xx, 00000, as Trustee of owners of the
Net Sul Notes (according to the Creditors Agreement) in this act represented
jointly by the owners of Net Sul Notes and by Banco Itau S.A., as Collateral
Agent;
(3) THE BANK OF NEW YORK, a financial institution with its headquarters in New
York, at Xxxxxxx Xxxxxx, 000, Xxx Xxxx, Xx, 00000, as Trustee of the owners of
the Company Notes, (according to the Creditors Agreement) in this act
represented jointly by the owners of the Company Notes and by Banco Itau S.A.,
as Collateral Agent;
(4) BANCO DO BRASIL S.A., a financial institution duly organized and existing
according to the laws of Brazil, with its headquarters in [ ], represented by
Banco Itau S.A., as Collateral Agent;
(5) BANCO ITAU BBA S.A., a financial institution duly organized and existing
according to the laws of Federative Republic of Brazil, with its headquarters in
the city of Sao Paulo, in Sao Paulo State, at Praca Xxxxxxx Xxxxxx xx Xxxxx
Aranha, 100 - Xxxxx Xxxxxxxxx - 9th floor, enrolled in the National Register of
Legal Entities (C.N.P.J./MF) under no 17.298.092/0001-30, represented by Banco
Itau S.A., as Collateral Agent;
(6) BANKBOSTON BANCO MULTIPLO S.A., a financial institution duly organized and
existing according to the laws of Federative Republic of Brazil, with its
headquarters in [ ], represented by Banco Itau S.A., as Collateral Agent;
(7) BANCO BRASCAN S.A., a financial institution duly organized and existing
according to the laws of Federative Republic of Brazil, with its headquarters in
the city of Rio de Janeiro, at Avenida Almirante Xxxxxxx, 52 30th floor,
enrolled in the National Register of Legal Entities (C.N.P.J./MF) under
no 33.923.111/0001-29, represented by Banco Itau S.A., as Collateral Agent;
(8) UNIBANCO - UNIAO DE BANCOS BRASILEIROS S.A., a financial institution duly
organized and existing according to the laws of Federative Republic of Brazil,
with its headquarters in the city and State of Sao Paulo, at Avenida Xxxxxxx
Xxxxxx, 891, enrolled in the National Register of Legal Entities (C.N.P.J./MF)
under no 33.700.394/0001-40, represented by Banco Itau S.A., as Collateral
Agent;
(9) BANCO DO ESTADO DO RIO GRANDE DO SUL S.A., a financial institution duly
organized and existing according to the laws of Brazil, with its headquarters in
[ ], represented by Banco Itau S.A., as Collateral Agent;
2
(10) MARATHON FUND, L.P., a financial institution duly organized and existing
according to the laws of [ ], with its headquarters in [ ], represented by Banco
Itau S.A., as Collateral Agent;
(11) BANCO UNICO S.A., new corporate name of Banco BNL do Brasil S.A., a
financial institution duly organized and existing according to the laws of
Federative Republic of Brazil, with its headquarters in the city and State of
Sao Paulo, at Av. Paulista, 1.963, enrolled in the National Register of Legal
Entities (C.N.P.J./MF) under no 00.086.413/0001-30, represented by Banco Itau
S.A., as Collateral Agent;
(12) BANCO DE CREDITO NACIONAL S.A., a financial institution duly organized and
existing according to the laws of Brazil, with its headquarters in [ ],
represented by Banco Itau S.A., as Collateral Agent;
3
SCHEDULE 3 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
DEBT INSTRUMENTS
(1) INDENTURE FOR THE FOURTH PUBLIC ISSUE OF DEBENTURES NOT CONVERTIBLE INTO
SHARES WITH COLLATERAL GUARANTEE AND SURETYSHIP, BY NET SERVICOS DE
COMUNICACAO S.A. dated as of [..../..../....] with Planner Corretora de
Valores S.A. (Trustee), in the amount of [.....];
(2) SECURITY INDENTURE FOR NET SUL COMUNICACOES LTDA., dated as of
[..../..../....] and entered by The Bank of New York (Trustee), RELATIVE
TO US$[ ] 7.0% SENIOR SECURED NOTES DUE 2009 AND THE U.S.$[ ] SENIOR
SECURED FLOATING RATE NOTES DUE 2009 dated as of [..../..../....] and
connected instruments, as such: PRIVATE INSTRUMENT OF DEBT CONFESSION,
dated as of [..../..../....] with [Marathon Fund, L.P.] in the amount of
[....], PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of
[..../..../....] with [UBS], in the amount of [....], PRIVATE INSTRUMENT
OF DEBT Confession, dated as of [..../..../....] with [XX Xxxxxx] in the
amount of [....] and PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of
[..../..../....] with [Banco do Espirito Santo - BES] in the amount of
[....], PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of
[..../..../....] with [Cargill] in the amount of [....], PRIVATE
INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with [Banco do
Brasil] in the amount of [....], PRIVATE INSTRUMENT OF DEBT CONFESSION,
dated as of [..../..../....] WIth [Moneda] in the amount of [....];
(3) SECURITY INDENTURE FOR NET SERVICOS DE COMUNICACAO S.A., dated as of
[..../..../....] and entered by The Bank of New York (Trustee), RELATIVE
TO US$76,593,068 7.0% SENIOR SECURED NOTES DUE 2009;
(4) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with
Banco do Brasil S.A. in the amount of [....] and corresponding to the
Common Terms Agreement;
(5) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with
Banco do Brasil S.A. in the amount of [....] and corresponding to the
Common Terms Agreement;
(6) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 30/12/2004 with Banco
do Itau BBA S.A. in the amount of R$ 61,144,097.23 and corresponding to
the Common Terms Agreement;
(7) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 30/12/2004 with Banco
Itau BBA S.A. in the amount of R$ 4,509,403.14 and corresponding to the
Common Terms Agreement;
(8) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 30/12/2004 with Banco
Itau BBA S.A. in the amount of R$ 4,039,613.40 and corresponding to the
Common Terms Agreement;
(9) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with
BankBoston Banco Multiplo S.A. in the amount of [....] and corresponding
to the Common Terms Agreement;
(10) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with
BankBoston Banco Multiplo S.A. in the amount of [....] and corresponding
to the Common Terms Agreement;
(11) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of [..../..../....] with
BankBoston Banco Multiplo S.A. in the amount of [....] and corresponding
to the Common Terms Agreement;
(12) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 27/12/2004 with Banco
Brascan S.A. in the amount of R$ 19,270,986.76 and corresponding to the
Common Terms Agreement;
(13) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 28/12/2004 with
Unibanco - Uniao de Bancos Brasileiros in the amount of R$ 103,988,711.06
and corresponding to the Common Terms Agreement;
(14) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 28/12/2004 with
Unibanco - Uniao de Bancos Brasileiros in the amount of R$ 368,951.88 and
corresponding to the Common Terms Agreement;
(15) PRIVATE INSTRUMENT OF DEBT CONFESSION, dated as of 28/12/2004 with Banco
Unico S.A. in the amount of R$ 20,541,104.80 and corresponding to the
Common Terms Agreement;
(16) Private Instrument of Debt Confession, dated as of [..../..../....] with
Marathon Fund, L.P. in the amount of R$ [..........] and corresponding to
the Common Terms Agreement;
(17) Private Instrument of Debt Confession, dated as of [..../..../....] with
Banco de Credito Nacional S.A. in the amount of R$ [..........] and
corresponding to the Common Terms Agreement;
-48-
SCHEDULE 4 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
COPY OF INTERCREDITOR AGREEMENT
-49-
SCHEDULE 5 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
LIST OF PLEDGED ASSETS
-50-
SCHEDULE 6 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
CHARACTERISTICS OF THE SECURED OBLIGATIONS
The estimated value for the Secured Obligations on the date hereof is US$[ ]
and R$[ ], which shall be increased by quarterly remuneratory interest at
the following maximum rates, as defined on the respective Debt Instruments::
-For debts in Brazilian Reais-CDI plus spread of 2% (two percent) per year
between June 30th, 2004 and December 14th, 2005, and CDI plus spread of 3%
(three percent) per year from December 15th, 2005 (including) until the
final payment of such amount, and
-For debts in American Dollars-fixed rate of 7% (c) quarterly LIBOR plus
spread of 3% (three percent) per year.
The amortization of the outstanding principal amount of the Debt Instrument
shall be as following: (i) 40% at the first 5 (five) days following the
effectiveness of the Debt Instruments and the remaining 60% shall be amortized
quarterly from 2006 until, at the most, 2010, starting on March 15th, 2006; or
(ii) 100% (one hundred percent) shall be amortized quarterly from 2006 until, at
the most, 2010, starting on March 15th 2006, according to the terms and
conditions at the Debt Instruments.
SCHEDULE 7 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
COPY OF THE POWER OF ATTORNEY
[MODEL - NET SHALL INCLUDE ORIGINAL COUNTERPART AT CLOSING]
[May all those to whom this IRREVOCABLE PUBLIC POWER OF ATTORNEY shall come that
on [ ], 2005, in this Capital of the State of Sao Paulo, there came before me,
Notary Public [ ], [ ], hereinafter referred to as "Principals". Principals
declared that: (1) on the date hereof, they signed with certain creditors,
hereinafter referred to jointly as "Creditors", represented by [ ], as
collateral agent, hereinafter referred to as "Collateral Agent", a private
instrument named "Asset Pledge Agreement with an Amicable Sale Clause, and Other
Covenants", hereinafter referred to as "Pledge Agreement"; (2) pursuant to
article 684 of the Civil Code and exclusively for the purposes of the Pledge
Agreement, Principals grant to the Collateral Agent specific and restricted
powers to, on behalf of the Creditors, represent Principals before any and all
Real Estate Registries, as well as sign any and all documents, perform any and
all acts specifically and exclusively required for the registrations prescribed
by law and for the Pledge Agreement to be valid; (3) since this public power of
attorney is granted in the interest of Creditors and as a condition precedent
for the business established in the Pledge Agreement and in the agreements
related thereto, this power of attorney is IRREVOCABLE; (4) this public power of
attorney, as a rule, shall be used before third parties for the Collateral Agent
to perform the registration acts indicated above on behalf of Creditors,
whereupon Principals shall not be required to directly perform any acts other
than the granting of this public power of attorney; (5) the powers granted to
the Collateral Agent hereunder shall only be extinguished upon expiration and
termination of the Pledge Agreement. In the event of substitution of the
Collateral Agent,
-52-
the latter is hereby authorized to delegate such powers to the institution that
becomes the new Collateral Agent. After read by all, Principals sign this
irrevocable public power of attorney.]
SCHEDULE 8 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
List of Actions, Procedures, Liens, Encumbrances and Restrictions
I. JUDICIAL PROCEEDINGS
OPERATOR PLAINTIFF IN SUBJECT OBSERVATIONS
ENFORCEMENT ACTION MATTER
NO.
NET SAO PAULO FEDERAL GOVERNMENT Tax
1999.61.82.053713-2
6th Lower Court of
Federal Tax
Enforcements
NET SAO PAULO MUNICIPALITY Tax Attachment of
705.673-7/97-8 different assets
1st Lower Court of that make up the
Municipal Tax network.
Enforcements - SP
NET SAO PAULO FEDERAL GOVERNMENT Tax
(XXXXXX XXXXXX) 2004.61.04.008510-2
0xx Xxxxx Xxxxxxx
Xxxxx in Xxxxxx
NET SAO XXXX STATE OF SAO PAULO Tax Cable network
RIO PRETO 20.497/01 attachment.
Ancillary Service
of the SJRPRETO
Internal Revenue
NET SERVICOS FEDERAL GOVERNMENT Tax
2004.61.82.037766-7
5th Lower Court of
Federal Tax
Enforcements - SP
NET SERVICOS FEDERAL GOVERNMENT Tax
2004.61.82.051947-4
5th Lower Court of
Tax Enforcements - SP
NET SERVICOS UNIBANCO Loan
000.02.222752-0, Agreement
16th Lower Civil
Court of the
Central Courts -
SP
NET RIO STATE OF RIO DE Tax
JANEIRO
2001/100-004.229-8
Motion to
Stay Execution No.
2004.001.044.800-3
11th Rio de
Janeiro Internal
Revenue Service.
NET RIO STATE OF RIO DE Tax Attachment of 5%
JANEIRO of Net Xxxx'x
2001/100-004.230-4 monthly
11th Rio de revenues.
Janeiro Internal
Revenue Service.
NET RIO STATE OF RIO DE Tax
JANEIRO Attachment
2001/100-004.231-6 of Net Rio's
11th Rio de revenues.
Janeiro Internal
Revenue Service.
NET RIO STATE OF RIO DE Tax
JANEIRO
2003/100.000.355-8
11th Rio de
Janeiro Internal
Revenue Service.
II. ADMINISTRATIVE PROCEEDINGS:
Operator Tax Authority Subject Observations
Proceeding No. Matter
NET SAO PAULO Federal Revenue Tax
Office
AI 52385
NET SAO PAULO Federal Revenue Tax
Office
AI 00503
NET SAO PAULO Federal Revenue Tax
Office
AI 1998.00902-7
NET SAO PAULO 08.1.81912-35
Federal Revenue TAX
Office
Cabodinamica Federal Revenue Tax
Office
08.109000/03695/03
CABODINAMICA Federal Revenue Tax
Office
08.109000/03695/03
NET RIO Rio de Janeiro Tax
Internal Revenue
Service
E-04/603.358/94
AI n. 791.691
NET RIO Rio de Janeiro
Internal Revenue TAX
Service
E-04/146.770/97
AI 01.041552-9
NET RIO Rio de Janeiro
Internal Revenue TAX
Service.
AI 01.049922-6
E-04.177.374/98
NET RIO Rio de Janeiro Tax
Internal Revenue
Service
AI 01.053492-3
E-04.147.573/97
NET RIO RIO DE JANEIRO Tax
INTERNAL REVENUE
SERVICE.
E - 04/085.241/2002
Infraction Notice
No. 03.007333-2
NET RIO Federal Revenue Tax
Office
15374.001438/99-84
NET RIO Federal Revenue Tax
Office
04203/02-A
NET RIO Federal Revenue Tax
Office
04203/02-B
NET RIO Federal Revenue Tax
Office
04203/02-C
MULTICANAL Federal Revenue Tax
Office
AI n.
15374.004005/2001-20
DR (Porto Federal Revenue Tax
Alegre) Office
11080.013354/
2002-68
DR (Porto Federal Revenue Tax
Alegre) Office
11080-013.353/2002-13
NET SUL Municipality of Tax
Porto Alegre
0085/98
NET BELO Federal Revenue Tax
HORIZONTE Office
0610100/01055/03
III. AGREEMENTS:
Operator Encumbered Type of Contract benefiting from
Properties Lien the Lien
NET CAMPINAS 3,073 Feet of Conditional Financing Agreement with
RG/ Coaxial Sale Transfer of Loan in
MT cables, Foreign Currency - BONY
year of signed with UNIBANCO -
manufacture Xxxxx xx Xxxxxx
0000, Xxxxxxxxxxx S/A., filed
Manufacturer with the 1st Registry of
CommScope, Deeds and Documents of
Inc. Xxxxxxxx - XX, xxxxxxxxx
Xx. 000000, value: US$
364,116.59
NET Attenuators, Conditional Financing Agreement with
CAMPINAS Equalizers, Sale Transfer of Loan in
Amplifiers Foreign Currency - BONY
and Carcass signed with UNIBANCO -
for Uniao de Bancos
Amplifiers, Brasileiros S/A., filed
year of with the 1st Registry of
manufacture Deeds and Documents of
1998, Campinas - SP, microfilm
Manufacturer: No. 283302, value: US$
Scientific 635,800.07
Atlanta, Inc.
Attenuators, Conditional Financing Agreement with
NET Equalizers, Sale Transfer of Loan in
CAMPINAS Amplifiers Foreign Currency - BONY
and Carcass signed with UNIBANCO -
for Uniao de Bancos
Amplifiers, Brasileiros S/A., filed
year of with the 1st Registry of
manufacture Deeds and Documents of
1998, Campinas - SP, microfilm
Manufacturer: No. 283303, value: US$
Scientific 342,868.14
Atlanta, Inc.
IV. Nonparticipating Debt, as defined in the Intercreditor Agreement:
SCHEDULE 9 TO THE ASSET
PLEDGE AGREEMENT WITH AN
AMICABLE SALE CLAUSE, AND
OTHER COVENANTS
MODEL OF TERM OF ADHESION
TERM OF ADHESION
This Term of Adhesion, dated [ ] (the "TERM"), is entered into by and between
the parties below (the "PARTIES"):
(a) NET SERVICOS DE COMUNICACAO S.A., a joint-stock company with its
headquarters in the City and State of Sao Paulo, at Rua Verbo Divino, 1356,
Chacara Xxxxx Xxxxxxx, enrolled in the National Register of Legal Entities
(C.N.P.J.) under No. 00.108.786/0001-65 (the "COMPANY"), herein represented
pursuant to its Bylaws by its officers, MesMessrs. [ ] and [ ];
(b) The Company's subsidiaries listed on "Schedule A" to this Term (the
"SUBSIDIARIES" and collectively with the Company, the "NET GROUP"), herein
represented by the Company;
(c) Banco ITAU S.A., a financial institution with its headquarters in the
City and State of Sao Paulo, at Praca Xxxxxxx Xxxxxx Xxxxx Aranha, 100, Torre
Itausa, enrolled in the National Register of Legal Entities (C.N.P.J.) under No.
60.701.190/0001-04, in the capacity of collateral agent (the "COLLATERAL
AGENT"), herein represented pursuant to its Bylaws;
(d) Each of the financial institutions listed and identified on "Schedule
B" to this Term (the "Creditors"), herein represented by the Collateral Agent;
and
(e) [ ], a financial institution with its headquarters in the City of
[ ], State of [ ], at [ ], enrolled in the National Register of Legal
Entities (C.N.P.J.) under No. [ ] (the "Joining Creditor"),
WHEREAS:
(a) The Company, the Subsidiaries mentioned in each of the agreements listed
below, the Collateral Agent, on its own behalf and on behalf of the creditors
mentioned in the agreements below, and the Creditors, as applicable, have
executed the following agreements:
(i) The Intercreditor Agreement, dated [ ];
(ii) The Receivables Pledge Agreement with an Enforcement Clause, dated
[ ], referring to the receivables and credit rights of Net Sao Paulo
Ltda. and the Receivables Pledge Agreement with an Enforcement Clause
dated [ ], referring to the receivables and credit rights of Net Rio
S.A. ("RECEIVABLES PLEDGE AGREEMENTS");
(iii) The Share Pledge Agreement with an Amicable Sale Clause and Other
Covenants, dated [ ] ("SHARE PLEDGE AGREEMENT");
(iv) The Quota Pledge Agreement with an Amicable Sale Clause and Other
Covenants, dated [ ] ("QUOTA PLEDGE AGREEMENT"); and
(v) The Asset Pledge Agreement with an Amicable Sale Clause and Other
Covenants, dated [ ] ("ASSET PLEDGE AGREEMENT", collectively with the
Receivables Pledge Agreements, the Share Pledge Agreement, the Quota
Pledge Agreement and the Intercreditor Agreement, the "PLEDGE DOCUMENTS");
(b) The Pledge Documents allow for the adhesion of new creditors of the Net
Group, subject to the rules and restrictions of the Debt Instruments (as defined
in the Pledge Documents);
(c) On [ ], the Joining Creditor entered into with [ ] (1), the [loan
agreement] (the "NEW DEBT INSTRUMENT")
(d) The Joining Creditor wishes to adhere to the Pledge Documents, in order to
share with the Creditors the guarantees granted by the Net Group by means of the
Pledge Documents, subject to all the terms and conditions set out therein, to
the effect that the Pledge Documents also secure the obligations of the Net
Companies ensuing from the New Debt Instrument; and
(e) The Net Group represents and warrants that this adhesion of the Joining
Creditor is made strictly in accordance with the terms and conditions of the
Debt Instruments (as defined in the Pledge Documents) and of the Pledge
Documents.
NOW THEREFORE, the Parties resolve to enter into this Term, which shall be
governed by the following terms and conditions:
1. - Upon execution of this Term, the Joining Creditor declares to be totally
aware of each of the Pledge Documents, to which it hereby adheres without any
restrictions,and
----------
(1)INCLUDE NAME OF THE NET COMPANIES THAT ARE PARTIES TO THE NEW CREDIT
INSTRUMENT.
irrevocably and irreversibly undertakes to comply with all the terms, conditions
and obligations established therein. Accordingly, the Pledge Documents will also
secure the obligations assumed by the Net Companies as a result of the New
Credit Instrument.
2. - For all purposes and effects of the Pledge Documents, the Joining Creditor
shall have the same rights and obligations as the other Creditors under the
Pledge Documents, without any reservations and/or limitations except those
expressly set forth in the Intercreditor Agreement).
3. - As an essential condition for the transactions contemplated in this Term,
the Pledge Documents, the Debt Instruments and in accordance with Article 684 of
the Brazilian Civil Code, the Joining Creditor hereby irrevocably and
irreversibly appoints and constitutes the Collateral Agent, as further
identified in the preamble of this Term, as its attorney-in-fact to take any and
all of the following measures, acting on behalf of the Joining Creditor:
(a) to take any actions on behalf of the Joining Creditor, as Collateral
Agent, and to exercise such powers and decisions under the Pledge Documents as
are delegated to it by this Term and the Pledge Documents, as well as to
exercise all other powers and decisions required for the full compliance with
this instrument, subject to applicable law;
(b) to act as its attorney-in-fact with any and all powers required for
the exercise of the rights relating to the Collateral in connection with which
any lien is or may be created, as defined in the relevant Debt Instrument,
including the power to dispose of the Collateral according to the provisions of
the Pledge Agreements, and to represent the Creditors before the National
Telecommunications Agency - Anatel, the Administrative Economic Defense Council
- XXXX and any Registries of Deeds and Documents, Real Estate Registries and
Boards of Trade.
(c) to act as its attorney-in-fact with any and all powers required for
the exercise of its rights ensuing from this Term or the Pledge Documents,
including the necessary powers to allow the Collateral Agent to retain attorneys
to represent the Joining Creditor
before any court, tribunal or arbitration court, it being certain and agreed
that the Joining Creditor hereby expressly authorizes the Collateral Agent to
grant to such attorneys any and all ad judicia et extra powers that shall be
required under the applicable legislation to assure the valid representation of
the Joining Creditors' interests before any court, tribunal or arbitration
court;
(d) to act as attorney-in-fact for the purpose of receiving any judicial
or extrajudicial notice addressed to the Joining Creditor, or any summons and
service of process; and
(e) to act as attorney-in-fact with any and all powers required for the
purpose of executing, delivering and, to the extent necessary, registering (i)
any Term of Adhesion according to the terms and conditions of this Term and the
Pledge Agreements, and (ii) any document, notice, waiver, declaration of
compliance, instrument of release, amendment, discharge and/or release of
guarantees and, if necessary, release of any liens on the Collateral, according
to the terms and conditions set out in this Term and the Transaction Documents.
4. - This Term of Adhesion shall be deemed to be an integral part of the
Intercreditor Agreement and of the other Pledge Documents on the date that this
Term of Adhesion is filed with the Registries of Deeds and Documents and with
the Real Estate Registration Offices. In order for the Term of Adhesion to be
effective and be considered as an integral part of the Intercreditor Agreement
and of the Pledge Agreements, the Joining Creditor shall register it at the
competent Registry of Deeds and Documents and Real Estate Registry and shall,
within at most 5 (five) business days of the date of said registration send
certified copies evidencing such registration to the Collateral Agent and Net
Servicos.
5. - This Term shall be signed in the same number of counterparts as each of the
Pledge Documents.
5.1. - Upon execution of this Term, the Parties expressly agree that each of the
Pledge Documents was automatically amended to reflect the adhesion of the
Joining Creditor and the New Debt Instrument. For such purpose, the Parties
agree that the exhibits of each of the Pledge Documents listed below is hereby
supplemented by the documents attached hereto, as indicated below:
(a) "Schedule 2" to the Intercreditor Agreement, "Schedule 2" to the Asset
Pledge Agreement, "Schedule 2" to the Share Pledge Agreement, "Schedule 2" to
the Quota Pledge Agreement and "Schedule 2" to the Receivables Pledge Agreements
are supplemented by "Schedule 2" to this Term;
(b) "Schedule 3" to the Intercreditor Agreement, "Schedule 3" to the Asset
Pledge Agreement, "Schedule 3" to the Share Pledge Agreement, "Schedule 3" to
the Quota Pledge Agreement and "Schedule 3" to the Receivables Pledge Agreements
are supplemented by "Schedule 3" to this Term; and
(c) "Schedule 6" to the Asset Pledge Agreement, "Schedule 6" to the Share
Pledge Agreement, "Schedule 6" to the Quota Pledge Agreement and "Schedule 6" to
the Receivables Pledge Agreements are supplemented by "Schedule 6" to this Term;
6. - As of the respective registrations of this Term, the new schedules listed
in Clause 5.1 above shall be automatically considered as an integral part of
each of the Pledge Documents, and: (i) the New Debt Instrument shall be deemed,
for all purposes, the Debt Instrument, as defined in the Pledge Documents, (ii)
the Joining Creditor shall be considered, for all due purposes, as the Creditor,
as defined in the Pledge Documents, and (iii) the Collateral Agent shall
consider the credit of the Joining Creditor referring to the New Debt Instrument
for all purposes and effects of the Intercreditor Agreement.
7. - This Term of Adhesion shall not be deemed a novation of any of the terms
and conditions of the Pledge Documents.
IN WITNESS WHEREOF, the Parties - binding themselves and their successors - sign
this Term in the presence of 2 (two) undersigned witnesses.
Sao Paulo, [ ]
NET SERVICOS DE COMUNICACAO S.A.
--------------------------------------
Name: Name:
Title: Title:
BANCO ITAU S.A.
--------------------------------------
Name: Name:
Title: Title:
Witnesses:
1. - ________________________
Name:
Identity Card (RG):
2. - ________________________
Name:
Identity Card (RG):
