Exhibit 4.24
(Free Translation)
RECEIVABLES PLEDGE AGREEMENT WITH AN ENFORCEMENT CLAUSE
This Receivables Pledge Agreement with an Enforcement Clause ("AGREEMENT"),
signed on [ ] 2005, is entered into by and between the following Parties
("PARTIES"):
(a) NET SAO PAULO LTDA., a sociedade limitada with headquarters in the
City of Sao Paulo, State of Sao Paulo, at Rua Verbo Divino, n(degrees) 1.356,
enrolled in CNPJ under N(degrees) 65.697.161/0001-21, herein represented
pursuant to its Bylaws ("NET COMPANY", namely, the company that constitutes the
Pledge, as defined and specified below);
(b) each institution listed and identified in "Schedule 2" hereof
(individually, "CREDITOR" and collectively, "CREDITORS"), herein represented by
the Collateral Agent mentioned below;
(c) BANCO ITAU S.A., a Brazilian financial institution with headquarters
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 collateral agent (the "COLLATERAL
AGENT");
(d) BANCO ITAU S.A., as identified above, herein represented pursuant to
its Bylaws, as the centralizing bank ("CENTRALIZING BANK"); and
(e) as intervening party, NET SERVICOS DE COMUNICACAO S.A., a sociedade
anonima company with headquarters in the City of Sao Paulo, State of Sao Paulo,
at Rua Verbo Divino, No. 1.356, enrolled in CNPJ under No. 00.108.786/0001-65,
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herein represented pursuant to its Bylaws, being bound for itself and its
controlled companies ("NET SERVICOS").
WHEREAS:
(1) Net Servicos and/or some of its controlled companies were originally
debtors in a number of loans contracted in Brazil and abroad ("DEBT"), which
were not paid according to their respective instruments; all of the loans
integrating the Debt were listed in the Term Sheet mentioned in whereas clause
(2) below;
(2) Net Servicos, for itself and on behalf of some of its controlled
companies, and Creditors negotiated in good faith a restructuring plan of the
Debt, according to the Term Sheet, which is an integral part of the Commitment
Letters executed by Net Servicos and certain companies controlled by Net
Servicos with several Creditors, and is the subject matter of the relevant fact
disclosed by Net Servicos on June 28, 2004 ("RESTRUCTURING PLAN");
(3) as part of the actual implementation of the Restructuring Plan, Net
Servicos and certain of its controlled companies, on the one part, and
Creditors, on the other part, changed and/or formalized, or undertook to
formalize and/or amend, the replacement of the original credit instruments
relating to the Debt in order to reflect the terms of the Restructuring Plan,
through the debt instruments that are listed and identified in "Schedule 3"
("DEBT INSTRUMENTS");
(4) in addition to the Debt Instruments and this Agreement, as part of the
formalization of the Restructuring Plan, Net Servicos executed, among other
instruments, the following:
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(a) on this date, together with certain duly identified controlled
companies, the Creditors and the Collateral Agent, Net Servicos executed the
Intercreditor Agreement, a copy of which is an integral part hereof as "Schedule
4" ("INTERCREDITOR AGREEMENT");
(b) on this date, together with Net Rio S.A., the Creditors
represented by the Collateral Agent and the Centralizing Bank, Net Servicos
executed the Receivables Pledge Agreement with an Enforcement Clause;
(c) on this date, together with certain duly identified controlled
companies and the Creditors represented by the Collateral Agent, Net Servicos
executed the Share Pledge Agreement with an Amicable Sale Clause and other
Covenants and the Quota Pledge Agreement with an Amicable Sale Clause and Other
Covenants; and
(d) on this date, together with certain duly identified controlled
companies and the Creditors, the latter represented by the Collateral Agent, Net
Servicos executed the Asset Pledge Agreement with an Amicable Sale Clause and
Other Covenants (the pledge agreements referred to in whereas clauses 4(b), (c)
and (d) are hereinafter referred to jointly as "ADDITIONAL PLEDGE AGREEMENTS");
(5) subject to the terms agreed in the Debt Instruments, in the
Intercreditor Agreement and in this Agreement, the NET Company, as security for
full compliance with all the pecuniary obligations mentioned in the Debt
Instruments, agrees, pursuant to the terms and conditions of this Agreement, to
create a pledge in favor of the Creditors on (a) its total receivables, present
and future, net and gross, before the qualified NET Company subscribers in the
Cities of Sao Paulo and Santos - SP, as a result of services of any nature
provided or which may be provided to said subscribers, including with respect to
cable television, pay-per-view, and broadband, and the receivables existing
until [ ] 2005
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are listed and duly identified in "Schedule 5", which will be amended on a
quarterly basis, pursuant to Clause 11.2 below, in order to include and/or
exclude occasional increases or reductions in such receivables pursuant to the
provisions set out herein ("NET COMPANY'S RECEIVABLES"); and on (b) the total
receivables of the NET Company against the Centralizing Bank with respect to the
NET Company's Receivables (together with the NET Company's Receivables, the
"RECEIVABLES"), which, for the purposes hereof, shall be collected through the
banking network, as provided for herein (the "COLLECTION NETWORK"); and
(6) subject to the terms and conditions established in the Debt
Instruments, in the Intercreditor Agreement and in this Agreement, of which
content NET Company, Net Servicos, both directly and by their controlled
companies, the Creditors, the Centralizing Bank and the Collateral Agent declare
to be fully aware and which they irrevocably and irreversibly undertake to
observe, the Collateral Agent was appointed as representative of the Creditors,
with the duties, rights and obligations set forth in the Intercreditor Agreement
and herein, especially with respect to the possible enforcement of the
guarantees mentioned in whereas clause (5) above and to the allocation of the
proceeds of the enforcement among the Creditors.
NOW THEREFORE, the Parties decide 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 this Agreement and of the Intercreditor
Agreement, and to ensure full compliance with all the pecuniary obligations
assumed in the Debt Instruments, including full payment of the amount of
principal, interest and any and all other charges owed by Net Servicos, and/or
by Net Servicos' controlled companies, and/or by NET Company, under the Debt
Instruments, including with respect to reimbursement of
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any and all amounts that the Collateral Agent justifiably, provably and
reasonably disburses by virtue of the creation, maintenance and/or enforcement
of the pledge contracted herein (collectively, the "SECURED OBLIGATIONS"), based
on the general provisions of Articles 1419 et seq. of the Brazilian Civil Code
in effect ("CIVIL CODE"), NET Company, by this instrument and in the best form
of law, irrevocably and irreversibly pledges the Receivables in favor of
Creditors (the "PLEDGE"), as a result of which it undertakes to transfer,
pursuant hereto, 100% (one hundred percent) of the Receivables to the
Centralizing Bank, to escrow current account No. [ ], held by NET Company at
branch [ ] of the Centralizing Bank, located in the City of [ ], State of
[ ], at [ ] (the "CENTRALIZING ACCOUNT"). NET Company undertakes to
determine that all payments of Receivables be made through the Collection
Network.
1.1.1. - The Pledge does not affect or limit, in any way, the NET Company's
right to freely and unrestrictedly perform its discount, collection, promotions
and invoicing policies, provided that the new policies are not contrary to the
purpose hereof.
1.1.2. - The Pledge will not be affected or impaired in any way by any default
on the part of the subscribers with respect to the Receivables. Likewise, the
Pledge will not be affected or impaired in any way by the withholding of bank
fees, by the Collection Network and/or the Centralizing Bank, on the amounts
deposited with such institutions by way of payment and transfer of Receivables,
so that the amounts thus withheld will not be considered as pledged amounts for
purposes of calculation of the Daily Withholding Amount referred to in Clause
2.3.
1.2. - Subject to the provisions of the Debt Instruments, the Intercreditor
Agreement and this Agreement, the NET Company hereby undertakes, for the
duration hereof, to maintain under pledge in favor of the Creditors, herein
represented by the Collateral Agent, as guarantee for compliance with the
Secured Obligations hereunder and as the subject matter of the Pledge now
created, 100% (one hundred percent) of the Receivables.
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1.2.1. - For such purpose, NET Company shall amend this Agreement to update its
"Schedule 5" on a quarterly basis, in order to reflect any additions to and
reductions in Receivables that may become necessary, pledging any and all
Receivables arising from such updating, in compliance with the provisions of
Clause 11.2 below. The Centralizing Bank and the other Parties to this Agreement
hereby agree that the signature by the Centralizing Bank, either as a party or
intervening party, on the amendment to this Agreement, for purposes of updating
of "Schedule 5", shall not be required. If there are no additions to or
reductions in Receivables over the period, NET Company shall only inform this
fact to the Collateral Agent up to the fifteenth (15th) day of the month
immediately after the calendar quarter just ended, if it is a business day, or
on the business day immediately following.
1.2.2.- If Net Servicos and/or any of its controlled companies hold credits and
receivables, whether present or future, net or gross, before subscribers and/or
users resident or domiciled in the Cities of Sao Paulo and Santos - SP, with
respect to services of any nature, including cable television, pay-per-view, and
broadband services that are provided or may be provided to said subscribers
and/or users resident or domiciledin the Cities of Sao Paulo and Santos - SP,
and that may be invoiced and/or received by a company or companies other than
the NET Company, Net Servicos hereby irrevocably and irreversibly undertakes,
for itself and its controlled companies, to ensure that such credits and
receivables are contemplated by this Pledge, becoming automatically subject to
this Agreement.
1.3. - For purposes of monitoring and verification of compliance with the
obligations set out in Clauses 1.2, 1.2.1 and 1.2.2 above, NET Company
undertakes to supply to Collateral Agent, the following documents:
(a) a monthly written report by the 10th day of the month immediately
after the month contemplated in the report, which may be made available
electronically, informing,
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with respect to the previous month, (i) the total amount invoiced against all
qualified subscribers in the Cities of Sao Paulo and Santos - SP; (ii) the total
amount effectively received from such subscribers; and (iii) the total amount
transferred by the Collection Network to the Centralizing Bank;
(b) on a monthly basis, by the 10th day of the month subsequent to the
month contemplated in the report, detailed statements of NET Company's current
accounts to the Collection Network, in which the payments for the Receivables
have been deposited, issued by the respective institutions that are part of the
Collection Network and the Centralizing Account, issued by the Centralizing
Bank;
(c) a monthly written report, on the last day of the period covered by the
report dealt with in item "a" above, which may be made available electronically,
informing the total Receivables and indicating the Receivables to be actually
pledged to the Creditors pursuant to Clause 1.2; and
(d) on a quarterly basis, on the proper dates for submission of the ITR
(Rural Territorial Tax) to the Securities Commission, a letter to be prepared by
outside auditors in favor of the Collateral Agent, describing the exceptions
found with regard to compliance with Clauses 1.2 and 1.2.2 and the declarations
provided by the companies in accordance with items (a), (b) and (c) of Clause
1.3 of this Agreement.
1.4. - In the event that any document mentioned in Clause 1.3 above is not
supplied within the specified period, or shows noncompliance with the
obligations stipulated in Clauses 1.1, 1.2, 1.2.2, 11.2 and 11.2.1, the NET
Company, after duly notified by the Collateral Agent, will have 5 (five)
business days to regularize compliance with the obligations contemplated in such
Clauses.
1.4.1. The responsible party, upon notice, will have 10 (ten) business days to
regularize any
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obligations contemplated herein that have not been properly performed and for
which there is no specific regularization term.
1.5. - For purposes of Article 1424 of the Civil Code, the Parties expressly
covenant that the principal conditions and characteristics of the Secured
Obligations are those established in each of the Debt Instruments. The estimated
principal amount of the Secured Obligations, the final due date and the maximum
interest rate contemplated for such Secured Obligations, in each case, on the
present date are those set forth in "Schedule 6" hereof, which schedule,
regardless of any formality and according to the payments made pursuant to the
Debt Instruments, will automatically reflect the amortizations of the Secured
Obligations, as well as any additions arising from the inclusion of new credits
from Joining Creditors and any contractual and legal charges assessed on the
Secured Obligations.
1.6. - The Pledge hereby created will become in full force and effect as of this
date and will remain fully effective until the date on which all the Secured
Obligations related to the Debt Instrument have been fully and definitively paid
("PLEDGE TERMINATION DATE").
1.7. - During the period comprised between this date and the Pledge Termination
Date, the Pledge will benefit solely and exclusively the Creditors.
1.8. - NET Company hereby irrevocably and irreversibly undertakes to ensure
that, as security for full compliance with its Secured Obligation related to the
Debt Instruments, between this Date and the Pledge Termination Date, the
Receivables are duly pledged in favor of Creditors.
1.9. - NET Company hereby and in the best form of law irrevocably and
irreversibly appoints and constitutes Net Servicos as its attorney-in-fact,
granting it full and special ad negotia powers specifically to represent NET
Company with respect to all purposes hereof,
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before the Creditors and/or Collateral Agent and/or Centralizing Bank; Net
Servicos, subject to the terms and conditions of this Agreement and of the
Intercreditor Agreement, is hereby authorized to take all the actions necessary
to comply with the obligations hereunder as well as to defend and protect the
NET Company's interests, and to that end and without any limitation, it may sign
any and all documents, send and receive any and all notices or communication,
sign any amendments to this Agreement, receive and give release, represent NET
Company at the registries of deeds and documents, real estate registries and any
other registries, and, finally, perform all the acts necessary for the validity
and effectiveness hereof. If, due to the nature of the act, a public or private
instrument of power of attorney must be issued to Net Servicos or Net Servicos
must be granted special powers or powers in addition to those granted by its
controlled companies, Net Servicos, at its own account and risk, will be
responsible for obtaining and regulating the granting of the powers, being
obliged, upon request by the Collateral Agent, to supply evidence of compliance
with the provisions hereof.
II. - ENFORCEMENT OF THE PLEDGE
2.1. - As long as the Secured Obligations are being performed, NET Company may,
at any time, freely dispose of the funds deposited in the Centralizing Account.
2.2. - NET Company hereby instructs and authorizes (a) the Collateral Agent, in
compliance with the terms and conditions of the Debt Instruments, of this
Agreement and of the Intercreditor Agreement (notably the deliberation by the
Creditors to enforce the Pledge), to submit to the Centralizing Bank, if the
Secured Obligations are not complied with, a notice making express reference to
this Clause 2.2 and instructing the Centralizing Bank to immediately withhold
the sums contemplated by this Clause II, and (b) the Centralizing Bank to accept
the irrevocable instructions contemplated in item (a) above.
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2.2.1. - In compliance with the provisions of Clause 2.2 above, in the event of
default on the Secured Obligations, it is hereby expressly stipulated that any
act or measure aimed at enforcement of the Pledge, may only be implemented
exclusively by the Collateral Agent, subject to the terms and conditions of the
Intercreditor Agreement, so that no Creditor may take advantage of judicial,
extrajudicial or any other constrictions on the rights contemplated herein,
under penalty of application of the provisions in Clause 2.9.
2.3. - Once informed by the Collateral Agent about the withholding obligation
mentioned above, the Centralizing Bank will be required hereunder, pursuant to
the terms of Article 1455, sole paragraph of the Civil Code, subject to the
provisions of this instrument, of the Debt Instruments and of the Intercreditor
Agreement, irrevocably and irreversibly, promptly and automatically, to arrange
for the cumulative and daily withholding of the amount equivalent to no more
than 30% (thirty percent) of the funds then available in the Centralizing
Account, as well as 30% (thirty percent) of the deposits made thereafter on a
daily basis in the Centralizing Account, causing the retained amount to become
unavailable to NET Company (the "DAILY WITHHOLDING AMOUNT"), and automatically
releasing the remaining balance available at the Centralizing Account for free
use by NET Company.
2.4. - Upon written request by the Collateral Agent mentioned in Clause 2.2
above, and regardless of any additional formality, the Centralizing Bank will be
irrevocably and irreversibly required to transfer the Daily Withholding Amount
to such current account(s) as may be indicated by the Collateral Agent in favor
of the Creditors, the outstanding balance being automatically released in favor
of NET Company.
2.4.1. - For purposes of the provisions of Clause 2.4 above, it is hereby
established that the amount to be daily withheld in the Centralizing Account and
transferred to the Collateral Agent may be lower or higher than the percentage
defined above for purposes of calculation of the Daily Withholding Amount,
except for the events contemplated in Clause 2.11.1 hereof.
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2.4.2. - Any funds transferred by the Centralizing Bank to the Collateral Agent
in the manner and for the purposes established herein, shall be used by the
Collateral Agent for prompt payment of the past due Secured Obligations, with
due regard to the allocation rules contemplated in the Intercreditor Agreement.
2.4.3. - In the event of default on the Secured Obligations at any time, and
provided that the applicable provisions hereof are observed, especially those
contained in Clauses 2.1, 2.2, 2.2.1 and 2.3 above, of the Intercreditor
Agreement and of the Debt Instruments, until full compliance with the Secured
Obligations, the Collateral Agent may ask the Centralizing Bank to make daily
transfers of the Daily Withholding Amount to the Collateral Agent, as provided
for herein, for payment of the Secured Obligations up to the amount of the past
due Secured Obligations.
2.4.4. - In the event of any withholding and transfer as mentioned in this
Clause II, the corresponding Secured Obligations will be automatically
acquitted, on a daily basis and strictly to the extent of such daily withholding
and transfer, and regardless of any other formality, to which the Collateral
Agent hereby agrees on behalf of Creditors and on its own behalf, irrevocably
and irreversibly, and Collateral Agent and Creditors waive any claims against
NET Company with respect to the amounts that have been the subject matter of
said withholding and transfer.
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2.5. - The withholding and corresponding transfer to be made as set forth in
this Clause II shall be carried out for the time necessary to obtain sufficient
funds to fully settle the past due Secured Obligations (including any default
charges, which will only cease to apply upon full and complete payment of the
past due Secured Obligations, as well as of the costs and expenses for which
Creditors and/or Collateral Agent are not liable, but which, by force of the
provisions herein, have been borne and evidenced by them). Thus, the Collateral
Agent shall promptly inform the Centralizing Bank on the same day on which this
payment occurs, by means of written notice, that the latter will interrupt the
withholding under penalty of the applicable legal sanctions and the obligation
to refund any unduly retained amounts, properly accreted according to the
DI-CETIP Over Rate (Extra-Group) remuneration published by CETIP in the period
equivalent to that of the inappropriate withholding.
2.6. - Given the procedures and conditions established herein, it is hereby
certain and defined that there is no responsibility or guarantee on the part of
the Centralizing Bank or the Collateral Agent for payment of the Secured
Obligations, except for the responsibility to perform the acts and procedures
contemplated herein.
2.6.1. - The NET Company hereby authorizes the Centralizing Bank, on an
irrevocable and irreversible basis, and as an essential condition for the
business, pursuant to Article 684 of the Civil Code, to accept all the
Collateral Agent's orders, provided that such orders have been given strictly in
accordance with this Agreement and with the Intercreditor Agreement. A copy of
the orders sent by the Collateral Agent and evidence of compliance with such
order by the Centralizing Bank shall be sent by the Collateral Agent and the
Centralizing Bank, respectively, to Net Servicos and/or NET Company up to the
immediately succeeding business day.
2.7. - It is hereby established among the Parties that the Collateral Agent may
only contact or notify NET Company's subscribers qualified in the Cities of Sao
Paulo and
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Santos - SP in the sole and exclusive events of (a) default with respect to the
Secured Obligations, or (b) NET Company not giving the notice mentioned in
Clause 4.1 (h) hereof within the stipulated period. The Collateral Agent must
act exclusively to ensure compliance with the provisions of this Clause II,
including to guarantee the obligation of the funds received from these
subscribers to be handled through the Collection Network, always in compliance
with the terms and conditions hereof, of the Debt Instruments and of the
Intercreditor' Agreement.
2.8. - Although the Creditors have lawful preference rights with respect to the
Receivables mentioned herein, the Creditors, through the Collateral Agent that
represents them herein, hereby expressly agree and declare on an irrevocable and
irreversible basis, under the penalties of the law, that during the
effectiveness of this Agreement, and while they are parties to this Agreement,
they may only (a) perform any acts that imply or may imply the attachment,
judicial seizure or any other type of restriction of the Receivables; and/or (b)
perform any acts that imply or may imply the attachment, judicial seizure or any
other type of restriction of the sums contained in the Centralizing Account,
solely and exclusively through the Collateral Agent, with due regard for the
provisions in the Intercreditor Agreement and in this Agreement.
2.9. - If any of the Creditors and/or the Collateral Agent fail to observe the
provisions of Clause 2.8, Net Servicos and/or NET Company shall notify
Collateral Agent and such Creditor(s) to the effect that they undo the act,
which they are forced to abstain from as a result of Clause 2.8 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 applicable. If the default is not
remedied within such term, (i) in case the default is imputable to one or more
Creditors, the Creditor(s), who has(ve) caused such default will cease
immediately from being a party hereto, and the rights thereof arising from their
respective Debt Instrument(s) will no longer be part of the Secured Obligations,
and they will then cease to be able to benefit
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from this Pledge. In the events above, said default will in no any way affect
the legal and contractual rights and prerogatives now conferred to the other
Creditors and/or the Collateral Agent.
2.10. - As soon as they become aware of the existence of any third party act,
which may lead to a threatened and/or actual lien on the Receivables ("THIRD
PARTY ACT"), Net Servicos and/or NET Company shall inform such Third Party Act
to the Collateral Agent, providing the latter with the information and documents
held thereby, and, regardless of any act by Net Servicos and/or NET Company, the
Creditors shall, acting exclusively through the Collateral Agent as established
in the Intercreditor Agreement, and using their preference rights, take all
applicable judicial and/or extra judicial measures in order to preserve and
maintain the integrity and full effect of the Pledge and/or to fully recompose
it, for all purposes of law and of this Agreement, so that the Pledge remains
always complete and in full force, and continuing, in all events of default with
respect to the Secured Obligations, thus enabling the Creditors to enforce the
Pledge as contemplated herein, exclusively through the Collateral Agent. Without
prejudice to the aforementioned, NET Company undertakes to promptly take all
judicial and extra judicial measures necessary to preserve the Pledge and for
full exercise of the contractual and legal rights now granted to Creditors.
2.11. If the Receivables are the subject matter of a restriction established in
judicial actions brought by third parties against NET Company and there is no
default with respect to the Secured Obligations, Creditors shall, acting
exclusively through the Collateral Agent, as contemplated in the Intercreditor
Agreement, use their preference rights in relation to any amounts limited by
third parties to raise the sums of such court deposits, which, except as
otherwise agreed in writing between Net Servicos and/or NET Company and the
Collateral Agent, shall be immediately deposited in the Centralizing Account so
that, according to Clause 2.1 above, the Centralizing Bank allows NET Company to
freely enjoy and dispose of the amounts deposited in the Centralizing Account,
with due regard for the restrictions
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set out in the Debt Instruments.
2.11.1. - On the other hand, if the Receivables are the subject matter of a
restriction established in judicial actions brought by third parties against NET
Company and the Secured Obligations are in default, Creditors will be
responsible, acting exclusively through the Collateral Agent, as provided for in
the Intercreditor Agreement, to use the instrument of preference in relation to
any sums restricted by third parties to raise the amount of such court deposits,
which, except as otherwise expressly agreed in writing by NET Company and the
Collateral Agent, shall be immediately deposited in the Centralizing Account so
that the Centralizing Bank, pursuant to Clause 2.3 above, and in compliance with
the provisions of the Intercreditor Agreement and of this Agreement, can take
steps to retain the Daily Withholding Amount, releasing, on a daily basis, in
favor of NET Company an amount never lower than 70% (seventy percent) of the
funds existing in the Centralizing Account. If the Secured Obligations are in
default, and the Daily Withholding Amount to be earmarked to the Collateral
Agent as provided for in Clause 2.3 is in any way being affected by a Third
Party Act, it is hereby established, since the Parties agree that NET Company
cannot have more than the equivalent of 30% (thirty percent) of its committed
Receivables, that:
(a) if the equivalent of 30% (thirty percent) or more of the Receivables
is committed by the Third Party Act, the Daily Withholding Amount shall not be
transferred by the Centralizing Bank to the Collateral Agent, and the full
amount existing in the Centralizing Account that is not committed by the Third
Party Act shall be immediately released in favor of NET Company; and
(b) if the amount committed by the Third Party Act is lower than 30%
(thirty percent) of the Receivables, there shall be a restated transfer of the
Daily Withholding Amount by the Centralizing Bank to the Collateral Agent, so
that the difference between 30% (thirty percent) of the amount deposited in the
Centralizing Account and the amount
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committed by the Third Party Act is passed on to the Collateral Agent, releasing
the balance in favor of NET Company.
2.11.2. - The attachment of any assets, properties or rights of NET Company
other than the Receivables, will not authorize the reduction of any of the
amounts that the Centralizing Bank will deliver to Creditors in the cases
contemplated herein.
2.11.3. - If the Collateral Agent and/or the Centralizing Bank fails to strictly
observe the provisions of Clauses 2.11, 2.11.1 and/or the other Clauses
contained in this Clause II, the noncompliance with which could result in the
undue withholding of amounts contained in the Centralizing Account or of amounts
that should have been remitted to the Centralizing Account, the Collateral Agent
will be subject to application of the applicable legal sanctions, in addition to
the obligation of reimbursing the amounts unduly withheld, properly added by the
CDI remuneration published by CETIP extra-group in the period equivalent to that
of the undue withholding.
2.12. - Without prejudice to other events of early maturity of the Secured
Obligations as established in the Debt Instruments or in the Intercreditor
Agreement, the Collateral Agent and any of the Creditors are expressly
prohibited to consider the early maturity of the Secured Obligations based on
Articles 333, II and III, 1425, I, IV and V of the Civil Code. Without prejudice
to the duty of the Centralizing Bank and the Collateral Agent, on its own behalf
and on behalf of Creditors, never to make any restrictions higher than the
equivalent of 30% (thirty percent) of the Receivables, the Collateral Agent may,
with due regard for the provisions of the Debt Instruments, the Intercreditor
Agreement and this Agreement, notably Clauses 1.4 and 1.4.1 above and Clause
11.5 below, consider the early maturity of the Secured Obligations if any of the
following events should occur: (i) if the obligations provided in Clauses 1.2 or
1.3 above are not complied with; (ii) if the obligations contemplated in
sections "a", "b", "c" or "d" of Clause 2.14 below are not complied with; (iii)
if the provisions of section "h" of Clause 4.1 below are not complied with; or
(iv) if
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the obligations provided in Clause 11.2 below are not complied with.
2.13. - Any court costs, expenses and attorneys' fees arising from exercise of
the Creditors' preemptive right will be reimbursed upon submission of the
respective slips, whereas the attorneys' fees will only be reimbursed if (a)
they are within the market value charged by first class offices in the cities of
Sao Paulo and Rio de Janeiro and are compatible with the amount of the claim;
and (b) are duly evidenced and justified by appropriate documents, such as the
corresponding invoices or debit notes for services provided.
2.14. - In the judicial enforcement actions filed against the NET Company by
third parties, the NET Company shall make its best endeavors to enforce this
Pledge, undertaking: (a) not to indicate the Receivables for attachment; (b) to
refute in a timely manner, in all instances of jurisdiction, with all applicable
appeals, the possible attachment of the Receivables; (c) to submit, in a timely
manner, all appropriate defenses in the enforcement action; (d) not to hinder
the exercise of the preemptive right by the Creditors, but rather, to cooperate
with the Creditors for the actual exercise of such right; (e) to inform the
Collateral Agent of the existence of any enforcement or collection action filed
against NET Company, involving an amount equal to or greater than R$1,000,000.00
(one million reais), even if there is no attachment of Receivables, immediately
after becoming aware of the existence of the action in any way; (f) to send
reports, whenever requested, to the Collateral Agent for the benefit of
Creditors with more updated information on the status of the enforcement or
collection actions filed against NET Company involving an amount equal to or
greater than R$1,000,000.00 (one million reais); (g) to inform the Centralizing
Bank within 2 (two) business days, about any court deposit made by NET Company
in compliance with the judicial attachment of the Receivables, with
discrimination: (i) of the deposit amount; (ii) of the period to which the
deposit refers; and (iii) of the amount of the NET Company's total billing
during the deposit period, as well as the amount actually pledged pursuant
hereto in the same period. For application of this clause, "collection action"
means any procedural, administrative, judicial or arbitral means requesting that
the
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NET Company be sentenced to settle any debt for an amount equal to or greater
than said amount.
2.15. - The Parties acknowledge that the Creditors are authorized, always acting
exclusively through the Collateral Agent, to require compliance with the Pledge
created hereunder together with any other guarantee granted to the Creditors,
including Additional Pledge Agreements, at the Creditors' sole discretion,
pursuant to the terms of this Agreement and the Intercreditor Agreement.
III.- RESTRICTIONS WITH RESPECT TO DISPOSAL OR ENCUMBRANCE OF THE SUBJECT
MATTER OF THE PLEDGE
3.1. - Except for the events expressly permitted under the Debt Instruments, NET
Company and Net Servicos may not, during the effectiveness of the Pledge, either
directly or indirectly, transfer, assign, dispose of or in any other way create
any lien or encumbrance in relation to the Receivables, wholly or in part.
-19-
IV. - OBLIGATIONS OF NET SERVICOS AND NET COMPANY
4.1. - In addition to the other obligations contemplated in the Debt
Instruments, in the Intercreditor Agreement, in this Agreement or in prevailing
law, Net Servicos and/or NET Company, up to the Pledge Termination Date,
undertake:
(a) to perform all acts necessary or advisable to effectuate, perfect and
maintain the Pledge created hereunder, and to keep all the authorizations
necessary for the execution and implementation of this Agreement always valid,
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, and, in
the cases stipulated in Clause II, to maintain the Receivables free and clear of
any liens or encumbrances, whether of a judicial or extrajudicial nature, in
compliance with the provisions hereof;
(c) to fully comply with all the obligations contemplated herein;
(d) to defend themselves timely and efficiently against any act, action,
procedure or proceeding that could in any way affect this Agreement or the
Pledge;
(e) to maintain the Centralizing Bank as the agent in charge of
centralizing collection of payments made by the NET Company's subscribers and
not to modify or alter the Centralizing Account, in compliance with the
provisions of Clause V below;
(f) according to the model set forth in "Schedule 1", to irrevocably and
irreversibly authorize, unless otherwise agreed in writing by the Collateral
Agent, on behalf of the Creditors, each institution that is part of the
Collection Network to direct all the payments related to Receivables to the
Centralizing Account;
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(g) to provide the Collateral Agent with a copy of the authorizations
mentioned in item (f) above, together with a declaration signed by 2 (two)
statutory Directors of NET Company attesting that said institutions represent
the entire Collection Network;
(h) for purposes of Article 1453 of the Civil Code, within 30 (thirty)
consecutive days from this date, to notify each of the subscribers thereof from
the City ies of Sao Paulo and Xxxxxx about this Pledge, as well as to notify,
within 30 (thirty) consecutive days after the execution of the respective term
of adhesion, each new subscriber which after this date becomes one of the NET
Company's qualified subscribers. Such notice shall be given as follows:
"According to the instrument registered in [ ] Registry of Deeds and
Documents of the City of [ ], under No. [ ], the amounts payable to NET
under this invoice are pledged in favor of certain creditors of Company.";
and
(i) to observe the Creditors' representation by the Collateral Agent, as
established in the Intercreditor Agreement and in this Agreement, since this is
a condition precedent for the legal business agreed herein, with the validity
and effectiveness of such representation being ratified for all purposes of this
Agreement.
V. - OBLIGATIONS OF THE CENTRALIZING BANK
5.1. - The Centralizing Bank hereby undertakes to comply with its obligations as
centralizing agent, pursuant hereto, until the Pledge Termination Date.
5.1.1. - Without prejudice to the provisions of Clause 5.1 above, as set forth
herein, the Collateral Agent, on its own behalf and on behalf of Creditors,
hereby agrees that Net Servicos may change the Centralizing Bank by giving a
prior simple notice to the
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Collateral Agent, provided the Secured Obligations are not breached, and may
choose any bank organized according to the laws of Brazil (i) with an adjusted
shareholders' equity at least equivalent, in applicable Brazilian currency, to
R$ 100,000,000.00 (one hundred million Reais); (ii) that maintains, in relation
to its deposit certificates, an investment risk rating of at least "BBB-", when
appraised by Standard & Poor's, or "Baaa3", when appraised by Xxxxx'x or by
another rating agency renowned nationwide; or (iii) that is a branch or a
controlled company of a foreign bank with an investment risk rating of at least
"BBB-", when appraised by Standard & Poor's or "Baaa3", when appraised by
Xxxxx'x, in connection with its short-term obligations.
5.1.2. - Having chosen to substitute the Centralizing Bank, NET Company
undertakes, in relation to the new Centralizing Bank, to observe the provisions
hereof, especially with respect to the provisions of Clauses II and IV above, so
as to ensure that the Collection Network may transfer the payments relative to
the Receivables to the new Centralizing Bank to which the new Centralizing
Account will be bound. As a condition precedent for the replacement of the
Centralizing Bank, the new Centralizing Bank must also adhere unconditionally,
irrevocably and irreversibly to all the provisions hereof, assuming all the
obligations stipulated herein.
5.2. - Furthermore, if this Centralizing Bank has to be substituted, whether by
force of law or by any fact that prevents it from continuing to comply with its
obligations as provided for herein, the Collateral Agent shall substitute it,
subject to the applicable requirements set out in Clauses 5.1.1 and 5.1.2 above.
The majority of Creditors shall approve such substitution.
5.2.1. - To substitute the Centralizing Bank to which Clauses 5.1 and 5.2 above
refer, the following measures shall be taken:
(a) the Collateral Agent shall be notified in details by Centralizing Bank
and
-22-
NET Company of the reasons that led to the need for the substitution, and the
Collateral Agent shall obtain Creditors' agreement pursuant to Clause 5.2 above.
In the event that the Centralizing Bank is to be substituted pursuant to Clause
5.1 above, the Creditors' approval will not be required;
(b) an amendment to this Agreement shall be entered into, by which the new
Centralizing Bank will formally adhere to all terms and conditions hereof, and
will undertake to abide by all its provisions applying to the Centralizing Bank,
in an unconditional, irrevocable and irreversible manner; and
(c) whenever it is necessary to substitute the Centralizing Bank
exclusively due to a reason arising from the NET Company's default on its
obligations established herein, NET Company shall bear all the costs related to
this substitution, including, without limitation, the necessary registration and
filing costs.
5.3. - In addition to the other obligations contemplated herein, the
Centralizing Bank undertakes:
(a) to accept and comply with all the instructions it has received from
the Collateral Agent according to the provisions hereof and of the Intercreditor
Agreement, with respect to withholding, blocking and the form of investment of
the funds available in the Centralizing Account for payment of the Secured
Obligations;
(b) not to waive or transfer to third parties the duty it now performs as
centralizing agent for actual receipt of the Receivables, without the prior
written authorization by the Collateral Agent and Net Servicos, in compliance
with the provisions of Clauses 5.1.1 and 5.2 above;
-23-
(c) to comply with orders to change or alter the Centralizing Account only
upon the prior written authorization of the Collateral Agent and Net Servicos,
jointly;
(d) to provide Net Servicos and Collateral Agent, up to the 10th (tenth)
day of the subsequent month, with a copy of the complete statement for the
Centralizing Account, relative to the operations made in the previous month;
(e) to provide monthly to NET Company and to Collateral Agent a written
report informing the current value of the total daily receipts arising from the
Receivables, up to the 10th (tenth) day of the month subsequent to the month
due;
(f) to provide to the Collateral Agent, in the periodicity requested by
it, the amount of the funds that may be requested for enforcement of the Pledge;
and
(g) to arrange for the NET Company and/or Net Servicos not to face any
difficulty in obtaining the signature of the Centralizing Bank's legal
representatives on the amendments hereto, whenever necessary.
5.4. - In the event the Centralizing Bank fails to comply with any of the
obligations assumed hereunder, and if such noncompliance is not remedied within
48 (forty-eight) hours from the event, the Centralizing Bank shall be required
to indemnify the Creditors and/or the Collateral Agent and/or Net Servicos
and/or NET Company, as the case may be, for any losses and damages arising from
this default.
VI. - OBLIGATIONS OF THE COLLATERAL AGENT
6.1. - In addition to the other obligations set out herein and in the
Intercreditor Agreement, the Collateral Agent undertakes:
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(a) to take all the steps necessary or advisable so that the guarantee
created hereunder is always fully valid and enforceable;
(b) to manage the funds arising from the possible enforcement of the
guarantee now provided in favor of Creditors, pursuant to the Intercreditor
Agreement and this Agreement;
(c) to promptly notify Net Servicos and Creditors with respect to any
action by them relative to the transfer of funds from the Centralizing Account
for payment of the Secured Obligations;
(d) to respect and ensure that any and all measures to be taken, for all
effects and purposes hereof, especially for enforcement of the Pledge, may only
be irreplaceably effected by Collateral Agent, provided that the terms and
conditions of the Intercreditor Agreement and of this Agreement have been
complied with;
(e) to provide the corresponding Creditor with copies of any additional
documents prepared pursuant to the terms hereof, which may be reasonably
requested by Creditor, including any updating of the schedules hereof and any
evidence of its registration as established herein, except for the documents
mentioned in Clauses 1.3 and 5.3 (d) above, as well as excluding any other
document which may imply financial and/or privileged and/or confidential
information on NET Company and/or Net Servicos and/or any of the other
Creditors, subject to the provisions of the Intercreditor Agreement;
(f) to verify with Net Servicos if the filings and registrations
contemplated herein have been duly effected, within the timeframes determined
herein;
(g) to take, on behalf of the Creditors, the steps necessary to protect
the
-25-
preemptive right over Receivables, as soon as it becomes aware of the existence
of any third party act that may result in a threatened or actual lien on the
Receivables, pursuant to this Agreement; and
(h) to arrange for NET Company and/or Net Servicos not to encounter any
difficulty in obtaining the signature of the Collateral Agent's legal
representatives on the amendments hereto, whenever necessary.
6.2. - In the event of failure by the Collateral Agent to comply with any of the
obligations assumed hereunder, and if this noncompliance is not remedied within
48 (forty-eight) hours from the event, the Collateral Agent will be obliged to
indemnify the Creditors and/or Net Servicos and/or NET Company, as the case may
be, for any losses and damages arising from this default.
VII. - REPRESENTATIONS AND WARRANTIES OF NET SERVICOS AND NET COMPANY
7.1. - Net Servicos, on its own behalf and on behalf of NET Company, and Net
Company represent and warrant, on this date, under penalty of the law, that:
(a) NET Company and Net Servicos are companies duly organized and existing
pursuant to the laws of Brazil, and are free to manage their assets;
(b) the necessary authorizations for NET Company and Net Servicos to enter
into this Agreement and to assume and comply with all the obligations provided
herein have been obtained, and are valid, effective and in full force;
-26-
(c) NET Company and Net Servicos are authorized, according to the terms of
their respective Bylaws and of the applicable legislation, as well as by the
respective public administration bodies to grant the guarantee contemplated in
this Agreement as well as to comply with the obligations contained in this
Agreement;
(d) the persons that represent NET Company and Net Servicos in this
Agreement are duly authorized for such purpose;
(e) there is no administrative, arbitral or fiscal judicial or
extrajudicial action or procedure, in an amount equal to or exceeding R$
1,000,000.00 (one million Reais), which may, in any way, prejudice or invalidate
this Pledge or the obligations assumed herein, except for the actions or
procedures, liens, encumbrances and restrictions mentioned in "Schedule 8"
hereto;
(f) to the best of their knowledge, no judicial action, or extrajudicial,
administrative or arbitral procedure, irrespective of the plaintiff, seeking to
cancel, alter, invalidate, question or otherwise affect the Pledge and/or the
obligations assumed herein, is threatened to be filed or commenced, except for
any actions or procedures that may be filed by holders of a Debt Not Included,
as defined in the Intercreditor Agreement;
(g) the Receivables are free and clear of any judicial or extrajudicial
liens, and are not subject to any restriction with respect to their disposal or
transfer, except the liens, encumbrances and restrictions described in "Schedule
8".
(h) the terms and conditions hereof and the assumption and compliance with
all obligations set out herein (i) do not imply the default by NET Company
and/or Net Servicos on any agreement, document or instrument to which NET
Company and/or Net Servicos are parties or to 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 NET
-27-
Company, in an amount exceeding R$ 30,000,000.00 (thirty million Reais), except
for the contractual instruments of the holders of the Debt Not Included, as
defined in the Intercreditor Agreement; (ii) do not violate any law, decree or
regulation to which NET Company and/or Net Servicos are subject; (iii) do not
violate any pending order, decision, administrative, arbitral or court sentence
against NET Company and/or Net Servicos (except for the Unibanco Action, as
defined in the Intercreditors Agreement), which individually entails or may
reasonably entail a payment obligation on the part of Net Servicos or NET
Company in an amount exceeding R$ 30,000,000.00 (thirty million Reais); and (iv)
do not violate the bylaws and articles of association of NET Company and/or Net
Servicos;
(i) the obligations assumed herein are valid and enforceable obligations
pursuant to their terms and conditions;
(j) the Receivables listed in "Schedule 5" hereof represent, as of [ ]
2005, 100% (one hundred percent) of the Receivables;
(k) the Collection Network is duly instructed by NET Company and by Net
Servicos to automatically transfer the funds deriving from the Receivables to
the Centralizing Account; and
(l) all the powers of attorney granted by the NET Companies pursuant
hereto are granted irrevocably and irreversibly pursuant to the terms of Article
684 of the Civil Code.
7.2. - NET Company and Net Servicos are jointly and severally responsible for
any losses and damages arising from the untruthfulness or inaccuracy of these
representations, within the timeframes established by the prevailing
legislation.
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VIII. - REPRESENTATIONS OF THE CENTRALIZING BANK AND THE COLLATERAL AGENT
8.1. - The Centralizing Bank and the Collateral Agent individually represent and
warrant, under the penalties of the law, that each:
(a) is a company duly organized and validly existing pursuant to the laws
of Brazil, and are free to manage its assets;
(b) all authorizations necessary for the execution hereof and for the
assumption and performance of all its obligations contemplated herein have been
obtained, are currently valid, effective and in full force, and have not been
changed in any way;
(c) is authorized, pursuant to its Bylaws and the applicable legislation,
as well as by the respective public administration agencies to comply with the
obligations contained herein;
(d) the persons that represent it in the execution hereof are duly
authorized for such purpose;
(e) the terms and conditions hereof and the assumption and compliance with
all the obligations contemplated herein (i) do not imply default with respect to
its share in any agreement, document or instrument to which it is party or to
which its assets and properties are bound; (ii) do not violate any law, decree
or regulation to which it is subject; (iii) do not violate any order, decision,
administrative or judicial sentence pending against it; and (iv) do not violate
its Bylaws;
(f) the obligations assumed in this Agreement are valid and enforceable
-29-
obligations pursuant to its terms;
(g) it is aware of all the terms and conditions of the Intercreditor
Agreement and instruments that substantiate the Secured Obligations; and
(h) it is aware that any and all measures to be taken, for all effects and
purposes hereof, especially for enforcement of the Pledge, may only be effected
irreplaceably by the Collateral Agent, in compliance with the terms and
conditions of the Intercreditor Agreement and of this Agreement.
8.2. - Centralizing Bank and Collateral Agent are responsible for any losses and
damages arising from the untruthfulness or imprecision of their declarations,
within the terms established by the pertinent legislation.
IX. - NOTICES
9.1. - Any and all notices to be exchanged by the Parties with respect to any
matter related hereto shall be made in writing and sent to the addresses
indicated below:
(a) if to NET Company 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, x(xxxxxxx)0000, Xxxxxxx Xxxxx Xxxxxxx,
Xxx Xxxxx - SP Brasil, CEP 04719-002
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(b) if to Creditors, at the addresses, telephone and fax numbers mentioned in
each of the Debt Instruments, or preferably at the addresses, telephone and fax
number of the Collateral Agent, as mentioned in item (c) below;
(c) if to the Collateral Agent:
BANCO ITAU S.A.
Diretoria de Servicos para x Xxxxxxx de Capitais
Endereco: Av. Engenheiro Xxxxxxx xx Xxxxxx Xxxxxxx, 707 - 9(a)andar -
Jabaquara
CEP: 00000-000 - Xxx Xxxxx - X.X.
Xx.: Sr. Antonio Xxxxxx Xxxxxxxxx
Tel: (00 00) 0000-0000
Fax: (00 00) 0000-0000
e-mail: xxxxxxx-xxxxxx.xxxxxxxxx@xxxx.xxx.xx
(d) if to the Centralizing Bank:
BANCO ITAU S.A.
Diretoria de Servicos para x Xxxxxxx de Capitais
Endereco: Av. Engenheiro Xxxxxxx xx Xxxxxx Xxxxxxx, 707 - 9(a)andar -
Jabaquara
CEP: 00000-000 - Xxx Xxxxx - X.X.
Xx.: Sr. Antonio Xxxxxx Xxxxxxxxx
Tel: (00 00) 0000-0000
Fax: (00 00) 0000-0000
e-mail: xxxxxxx-xxxxxx.xxxxxxxxx@xxxx.xxx.xx
9.2. - The notices will be deemed delivered on the date they are received, when
sent by registered letter or "return receipt requested", issued by the Brazilian
mail service (Empresa Brasileira de Correios e Telegrafos), and when delivered
at the addresses above.
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The notices, however, will be deemed delivered on the immediately succeeding
business day, when sent by fax or email, provided that the originals of the
documents thus transmitted are forwarded to the addresses above by the means
indicated above, up to the second business day immediately following their
transmission.
9.3. - Any change of address and other data to be observed for purposes of the
notices above will only be effective 10 (ten) business days after communication
thereof to Net Servicos and to Collateral Agent.
X - INCLUSION OF OTHER CREDITORS
10.1. - Other creditors that may adhere to this Agreement pursuant to the Debt
Instruments and the Intercreditor Agreement (the "JOINING CREDITORS") will be
admitted as part hereof, and will enjoy the same rights and obligations, and be
able thus to share in the Pledge with the other Creditors listed in "Schedule 2"
hereof. The Joining Creditors will accept the terms hereof by adhering to the
Intercreditor Agreement, according to the terms and conditions contemplated in
it and by means of the execution of the competent Term of Adhesion, according to
"Schedule 9" ("TERM OF ADHESION"). The Term of Adhesion duly signed by the
Joining Creditor will become an integral part hereof.
10.2. - The Term of Adhesion shall substantiate a binding document signed by the
Joining Creditor's legal representatives, where (i) its request for such credit
to be inserted as Pledge beneficiary shall be set forth, and (ii) its
unconditional acceptance of all the terms and conditions of this Agreement and
of the Intercreditor Agreement shall be evidenced, especially with respect to
its representation by means of the Collateral Agent.
10.2.1.- The Joining Creditors, upon signing of the Term of Adhesion, will start
to enjoy the same rights and have the same obligations set out herein and in the
Intercreditor Agreement, pari passu with respect to the other Creditors, without
any exception and/or
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limitation.
10.3. - For the Term of Adhesion to be effective, the Joining Creditor shall
register it at the Registry of Deeds and Documents of the City of Rio de Janeiro
and, within at most 5 (five) business days after the date of said registration,
it shall send certified copies evidencing such registration to Collateral Agent
and NET Company.
10.4. - Any vice which may be imputed to the Term of Adhesion will not affect or
impair any of the provisions contemplated herein, which will always remain valid
and effective for all effects and purposes.
XI. - REGISTRATIONS AND PENALTIES
11.1.- NET Company shall, within at most 7 (seven) business days of receipt of
the original counterparts hereof duly signed by the Parties, file this Agreement
for registration at the Registry of Deeds and Documents of the City of Rio de
Janeiro, and, within a maximum period of 20 (twenty) consecutive days of the
date of such filing, it shall send certified copies evidencing such registration
to the Collateral Agent and the Centralizing Bank, with due regard always for
the provisions in Clause 11.4 below.
11.2. - With respect to the amendments to this Agreement referred to in Clause
1.2.1, NET Company shall, every 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, deliver to the Collateral Agent, in compliance with the
provisions of Clauses 6.1 "h" and 9.2 above, all the counterparts of the
respective amendment, duly signed by the legal representatives of NET Company
and Net Servicos, with the respective signature certification, so that the
Collateral Agent, on its own behalf and on behalf of Creditors, signs the
counterparts of such amendment, certifies the competent signatures and returns
such counterparts to NET Company, at the address mentioned in Clause 9.1 "a"
above, keeping only one of the
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counterparts. Within 7 (seven) business days of receipt of the original
counterparts of the amendment to the Agreement, duly signed by the Collateral
Agent, NET Company shall file the respective amendment at the Registry of Deeds
and Documents, where this Agreement is registered, and within 20 (twenty)
consecutive days after the date of said filing, it shall send certified copies
evidencing such registration to Collateral Agent, except in the case of the
provisions of Clause 11.4 below.
11.2.1. In any other event of amendment to this Agreement, with due regard for
the provisions of Clause 10.3, the NET companies shall, within 7 (seven)
business days of receipt of the original counterparts to the amendment hereto
duly signed by the Parties, file the respective amendment for registration at
the Registry of Deeds and Documents where this Agreement is registered, and
within 20 (twenty) consecutive days of the date of such filing, it shall send
certified copies evidencing such registration to Collateral Agent, with due
regard for the provisions of Clause 11.4 below.
11.3.- Notwithstanding any other penalty imposed by the applicable legislation,
by this Agreement, by Clause 11.5 below, by the Debt Instruments and/or by the
Intercreditor Agreement, noncompliance by NET Company with any of the timeframes
established under Clause 11.2 above, for any reason whatsoever, will result in a
fine in favor of the Creditors, to be distributed pro rata, in proportion to
their respective Secured Obligations, for R$ 100,000.00 (one hundred thousand
reais) per day or fraction of a day of delay.
11.3.1.- The amount of the fine contemplated above will be adjusted yearly or at
a shorter period, if this is not prohibited or is permitted by the applicable
legislation, as from this date, including according to the variation in the
General Market Price Index (IGP-M), or in the absence thereof for any reason, by
the General Price Index - Internal Availability, both published by Fundacao
Xxxxxxx Xxxxxx.
11.4.- Delay in complying with the terms established herein , whether arising
from an act
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of God or force majeure, as for example, strikes, delays, failures and omissions
by the Registry of Deeds and Documents, not imputable to the NET Company, Net
Servicos and/or their controlled companies, will not characterize contractual
noncompliance nor will lead to the application of the fine mentioned in Clause
11.3. In this case, the agreed timeframes will be suspended at the date of
beginning of the act of God or force majeure until the date of its cessation,
and NET Company must, as from the first business day immediately succeeding the
cessation of the event of act of God or force majeure, take all the steps
necessary for the registration thus impaired to be made, calculating the period
for compliance with the obligations as from such date of cessation of the act of
God or force majeure.
11.5. - Upon expiration of the terms established in Clauses 1.4, 1.4.1, 11.2 and
11.4, and in compliance with the provisions in Clauses 2.12 and 12.9, in the
Intercreditor Agreement and in the Debt Instruments, Creditors may declare the
early maturity of the Secured Obligations. After declaration of the early
maturity of the Secured Obligations, the penalties contemplated in Clause 11.3
above will cease to be applicable, without prejudice to the penalties imposed by
the applicable legislation and the Debt Instruments.
11.6. - Without prejudice to the obligations hereby assumed by NET Company with
respect to such measures, as well as the penalties arising from noncompliance
therewith, the Collateral Agent may, at its sole discretion, upon notice to NET
Servicos, carry out the public registrations referred to in Clauses 11.1, 11.2
and 11.2.1.
11.6.1. Without prejudice to the other powers granted by Net Servicos and/or NET
Company to the Collateral Agent and/or Creditors, Net Servicos and NET Company,
through a power of attorney according to the model set forth in "Schedule 7",
grant to the Collateral Agent, in the capacity of representative of the
Creditors, on an irrevocable and irreversible basis, and as condition for the
business, according to Article 684 of the Civil Code, certain powers for the
Collateral Agent to represent NET Companies before any and
-35-
all Registries of Deeds and Documents, being able to sign any and all documents,
perform any and all acts necessary, specifically and exclusively for execution
of the registrations contemplated in Clauses 11.1, 11.2 and 11.2.1.
11.7. - It is hereby certain and agreed that, on the Pledge Termination Date,
NET Company shall, on its own account and risk, take the steps necessary to
cancel the Pledge's registration, Collateral Agent undertaking to promptly
provide the necessary cooperation to that end, as well as to supply the term of
release with respect to the Secured Obligations, and any relevant information
and documents reasonably requested by Net Servicos and/or NET Company. It is
certain, however, that said cancellation will depend, in any case, on the full
satisfaction of the Secured Obligations and, in this event, according to
Articles 319 and 1436 of the Civil Code, as well as according to Article 250 of
the Law of Public Registrations (Lei de Registros Publicos), whereupon NET
Company, Net Servicos and/or their controlled companies will be authorized to
use all the existing administrative and/or judicial mechanisms, without any
limitation, to release the Pledge and cancel its registration.
XII. - MISCELLANEOUS
12.1. - The Parties, bound for themselves, their successors and assignees of any
kind, agree that all the terms, conditions, covenants, powers of attorney and
commitments assumed herein are made on an irrevocable and irreversible basis.
12.2. - Any change to the terms and conditions hereof will only be considered
valid if formalized in a proper written instrument, signed by all the Parties,
except in the specific cases determined in this Agreement and its schedules,
always in compliance with the provisions of the Intercreditor Agreement, it
being certain, however, that the Collateral Agent shall represent Creditors
exclusively and with ample powers for such, in the
-36-
performance of any amendment hereto, pursuant to the terms and conditions of the
Intercreditor Agreement.
12.3. - The Creditors, in compliance with the provisions of the Intercreditor
Agreement, and acting exclusively through the Collateral Agent for purpose of
taking the applicable measures, may, at their sole discretion, require the
specific execution of the obligations assumed herein by the Parties, pursuant to
the terms of Articles 461, 621 and 632 to 645 of the Brazilian Civil Procedural
Code, as well as the enforcement of the guarantee granted herein.
12.3.1.- Without prejudice to the other rights granted to the Collateral Agent
in the capacity of collateral agent of Creditors, Collateral Agent is hereby
irrevocably and irreversibly authorized to effect all withholdings and transfers
contemplated herein for purposes of Article 1455, sole paragraph of the Civil
Code.
12.4. - NET Company and Net Servicos hereby agree, as a condition hereof, to
take any and all complementary steps and to produce any and all documents
necessary for the formalization of the Pledge, and for the validity and
effectiveness of this Agreement.
12.5. - Any and all costs or expenses that are provenly incurred by the
Collateral Agent in the performance of the obligations or exercise of the rights
contemplated herein or in the applicable legislation, including court costs and
expenses incurred with registrations, annotations or enforcement of the
guarantee contracted herein, as well as resulting from the proceedings,
procedures and/or other judicial or extrajudicial measures necessary for the
safekeeping of the rights and prerogatives contemplated herein, including costs,
fees, court costs, expenses, emoluments, attorneys' and experts' fees or any
other charges related to such procedures, proceedings or measures, provided they
have been evidenced, and are reasonable and justifiable for the purposes hereof,
shall be the responsibility of Net Servicos and/or NET Company, and must be
reimbursed within 10 (ten) business days
-37-
counted from the date of receipt of a notice to this effect to be sent to Net
Servicos and/or NET Company, at the discretion of the Collateral Agent.
Reimbursement of the court costs and attorneys' fees dealt with by the clauses
hereof will be made pursuant to the provisions of Clause 2.13.
12.6. - The invalidation or cancellation, wholly or in part, of any of the
clauses hereof will not affect the other clauses, which shall remain always
valid and effective until compliance by the Parties with all their obligations
provided herein. If any clause hereof is declared null and void, the Parties
hereby undertake to negotiate, within the shortest period possible, in
substitution of the clause declared null and void, the inclusion herein of valid
terms and conditions that reflect the terms and conditions of the clause
rendered null and void, according to the intention and purpose of the Parties at
the time of negotiation of the clause null and void and its context.
12.7. - Subject to Clause II hereof, for purposes of Article 1460 of the Civil
Code, the Creditors hereby irrevocably and irreversibly authorize Net Servicos,
its controlled companies and NET Company, in compliance with the terms hereof,
to receive payment for the Receivables and release them.
12.8. - Waiver by any of the Parties, with respect to the exercise of any of the
rights attributed pursuant to the terms hereof or of the applicable legislation
will be effective only if manifested in writing. No tolerance, delay or
indulgence by any of the Parties in ensuring compliance with any provision
hereof shall prejudice or restrict the rights of such party, nor shall it
prevent such party from exercising such rights or other rights when it deems
appropriate, regardless of any previous communications or notices.
12.9. - For all legal purposes, it is hereby established that the only events of
early maturity, in addition to those expressly contemplated in this Agreement,
the Debt Instruments and the Intercreditor Agreement are those set forth in
items II and III of Article
-38-
1425 of the Civil Code.
12.10. - The confidentiality commitment set out in Clause 10.14 of the
Intercreditor Agreement shall apply to this Agreement.
12.11. - Without prejudice to the joint and several liability between NET
Companies and Net Servicos established in the Intercreditor Agreement, the Debt
Instruments and the Additional Pledge Agreements, NET Company and Net Servicos
hereby and in the best form of law irrevocably and irreversibly, and for the
purposes contemplated in Article 265 of the Civil Code, declare hereunder to be
joint and several debtors and principal payers exclusively with respect to the
obligations contemplated in Clauses 2.13, 7.2, 11.1 to 11.7 and 12.5 hereof.
12.12. - 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 4 (four) counterparts of equal tenor and form, to one sole
effect, in the presence of 2 (two) undersigned witnesses.
Sao Paulo, [ ] 2005
FOR CREDITORS
By ____________________________________________
BANCO ITAU S.A.
Name:
Title:
-39-
COLLATERAL AGENT AND CENTRALIZING BANK
____________________________________________
BANCO ITAU S.A.
Name:
Title:
NET COMPANY
____________________________________________
NET SAO PAULO LTDA.
Name:
Title:
NET SERVICOS
____________________________________________
NET SERVICOS DE COMUNICACAO S.A.
Name:
Title:
Witnesses:
1. - ____________________________
Name:
-00-
Xxxxxxxx Xxxx - XX:
2. - ____________________________
Name:
Identity Card - RG:
SCHEDULE 1 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
MODEL OF THE INSTRUCTION TO THE COLLECTION NETWORK'S INSTITUTIONS
"Sao Paulo, , 2005
To
Bank [Collector]
[ ]
Re.: Instruction for daily transfer of sums - Current Account No. [ ], Branch
No. [ ]
Dear Sirs,
We take this opportunity to ask you that, as of this date, you arrange for the
daily and automatic transfer of 100% (one hundred percent) of the cash available
at the referenced current account, held by [ ], to Current Account No. [ ],
Branch No. [ ], of Banco Itau S.A., also held thereby, regardless of any other
formality, until subsequent written request otherwise by the holder.
Very truly yours,
-42-
Net"
-43-
SCHEDULE 2 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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 n(0). 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 heaquarters 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 heaquarters 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 n(0)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
heaquarters 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 heaquarters 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
n(0)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 heaquarters 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 n(0)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 heaquarters in
[ ], represented by Banco Itau S.A., as Collateral Agent;
(10) MARATHON FUND, L.P., a financial institution duly organized and existing
according to the laws of [ ], with its heaquarters 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 heaquarters 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 n(0)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 heaquarters in
[ ], represented by Banco Itau S.A., as Collateral Agent;
-44-
SCHEDULE 3 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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;
SCHEDULE 4 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
COPY OF THE INTERCREDITOR AGREEMENT
SCHEDULE 5 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
LIST OF RECEIVABLES PLEDGED
SCHEDULE 6 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
COPY OF POWER OF ATTORNEY
[MODEL - NET SHALL INCLUDE THE ORIGINAL 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 "Receivables Pledge Agreement with an Enforcement Clause",
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 Registries of
Deeds and Documents, 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 public 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
-2-
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 replacement
of the Collateral Agent, the latter is hereby authorized to delegate such powers
to the institution that shall become the new collateral agent. After read by all
parties, Principals sign this irrevocable public power of attorney.]
- 2 -
SCHEDULE 8 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
LIST OF ACTIONS, PROCEDURES, LIENS, ENCUMBRANCES AND RESTRICTIONS
I. JUDICIAL PROCEEDINGS
OPERATOR PLAINTIFF IN ENFORCEMENT ACTION NO. SUBJECT MATTER OBSERVATIONS
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 different assets
705.673-7/97-8 that make up the network.
1st Lower Court of Municipal Tax
Enforcements - SP
FEDERAL GOVERNMENT Tax
NET SAO PAULO (XXXXXX XXXXXX) 2004.61.04.008510-2
0xx Xxxxx Xxxxxxx Xxxxx in Xxxxxx
NET SAO XXXX RIO PRETO STATE OF SAO PAULO Tax Cable network attachment.
20.497/01
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 Agreement
000.02.222752-0,
16th Lower Civil Court of the
Central Courts - SP
NET RIO STATE OF RIO DE JANEIRO Tax
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 JANEIRO Tax Attachment of 5% of Net Xxxx'x
2001/100-004.230-4 monthly revenues.
11th Rio de Janeiro Internal
Revenue Service.
NET RIO STATE OF RIO DE JANEIRO Tax
2001/100-004.231-6 Attachment of Net
11th Rio de Janeiro Internal Rio's revenues.
Revenue Service.
NET RIO STATE OF RIO DE JANEIRO Tax
2003/100.000.355-8 11th Rio de Janeiro
Internal Revenue Service.
II. ADMINISTRATIVE PROCEEDINGS:
Operator Tax Authority Subject Matter Observations
Proceeding No.
NET SAO PAULO Federal Revenue Office Tax
AI 52385
NET SAO PAULO Federal Revenue Office Tax
AI 00503
NET SAO PAULO Federal Revenue Office Tax
AI 1998.00902-7
NET SAO PAULO 08.1.81912-35
Federal Revenue Office TAX
Cabodinamica Federal Revenue Office Tax
08.109000/03695/03
CABODINAMICA Federal Revenue Office Tax
08.109000/03695/03
NET RIO Rio de Janeiro Internal Revenue Tax
Service
E-04/603.358/94
AI n. 791.691
NET RIO Rio de Janeiro Internal Revenue
Service TAX
E-04/146.770/97
AI 01.041552-9
NET RIO Rio de Janeiro Internal Revenue
Service. TAX
AI 01.049922-6
E-04.177.374/98
NET RIO Rio de Janeiro Internal Revenue Tax
Service
AI 01.053492-3
E-04.147.573/97
NET RIO RIO DE JANEIRO INTERNAL REVENUE Tax
SERVICE.
E - 04/085.241/2002
Infraction Notice No. 03.007333-2
NET RIO Federal Revenue Office Tax
15374.001438/99-84
NET RIO Federal Revenue Office Tax
04203/02-A
NET RIO Federal Revenue Office Tax
04203/02-B
NET RIO Federal Revenue Office Tax
04203/02-C
MULTICANAL Federal Revenue Office Tax
AI n. 15374.004005/2001-20
DR (Porto Alegre) Federal Revenue Office Tax
11080.013354/
2002-68
DR (Porto Alegre) Federal Revenue Office Tax
11080-013.353/2002-13
NET SUL Municipality of Porto Alegre Tax
0085/98
NET BELO HORIZONTE Federal Revenue Office Tax
0610100/01055/03
III. AGREEMENTS:
Operator Encumbered Properties Type of Lien Contract benefiting from the Lien
NET CAMPINAS 3,073 Feet of RG/ Coaxial MT Conditional Sale Financing Agreement with Transfer of Loan in
cables, year of manufacture Foreign Currency - BONY signed with UNIBANCO -
1998, Manufacturer Uniao de Bancos Brasileiros S/A., filed with the
CommScope, Inc. 1st Registry of Deeds and Documents of Xxxxxxxx -
XX, xxxxxxxxx Xx. 000000, value: US$ 364,116.59
NET CAMPINAS Attenuators, Equalizers, Conditional Sale Financing Agreement with Transfer of Loan in
Amplifiers and Carcass for Foreign Currency - BONY signed with UNIBANCO -
Amplifiers, year of Uniao de Bancos Brasileiros S/A., filed with the
manufacture 1998, 1st Registry of Deeds and Documents of Campinas -
Manufacturer: Scientific SP, microfilm No. 283302, value: US$ 635,800.07
Atlanta, Inc.
Attenuators, Equalizers, Conditional Sale Financing Agreement with Transfer of Loan in
NET CAMPINAS Amplifiers and Carcass for Foreign Currency - BONY signed with UNIBANCO -
Amplifiers, year of Uniao de Bancos Brasileiros S/A., filed with the
manufacture 1998, 1st Registry of Deeds and Documents of Campinas -
Manufacturer: Scientific SP, microfilm No. 283303, value: US$ 342,868.14
Atlanta, Inc.
IV. NONPARTICIPATING DEBT, AS DEFINED IN THE INTERCREDITOR AGREEMENT:
SCHEDULE 9 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
MODEL OF THE 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 directors, Messrs. [ ] 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 Sao Paulo Ltda.
("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) INCLUDE NAME OF THE NET COMPANIES THAT ARE PARTIES TO THE NEW CREDIT
INSTRUMENT .
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 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):
(Free Translation)
RECEIVABLES PLEDGE AGREEMENT WITH AN ENFORCEMENT CLAUSE
This Receivables Pledge Agreement with an Enforcement Clause ("AGREEMENT"),
signed on [ ] 2005, is entered into by and between the following Parties
("PARTIES"):
(a) NET RIO S.A., a sociedade anonima with headquarters in the City of Rio
de Janeiro, State of Rio de Janeiro, at Xxx Xxxxxxx xx Xxxxxx, 000, B. 02 room
201 and 3rd floor, enrolled in CNPJ under No. 28.029.775/0001-09, herein
represented pursuant to its Bylaws ("NET COMPANY", namely, the company that
constitutes the Pledge, as defined and specified below);
(b) each institution listed and identified in "Schedule 2" hereof
(individually, "CREDITOR" and collectively, "CREDITORS"), herein represented by
the Collateral Agent mentioned below;
(c) BANCO ITAU S.A., a Brazilian financial institution with headquarters
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 collateral agent (the "COLLATERAL
AGENT");
(d) BANCO ITAU S.A., as identified above, herein represented pursuant to
its Bylaws, as the centralizing bank ("CENTRALIZING BANK"); and
(e) as intervening party, NET SERVICOS DE COMUNICACAO S.A., a sociedade
anonima company with headquarters in the City of Sao Paulo, State of Sao Paulo,
at Rua Verbo Divino, No. 1.356, enrolled in CNPJ under No. 00.108.786/0001-65,
- 2 -
herein represented pursuant to its Bylaws, being bound for itself and its
controlled companies ("NET SERVICOS").
WHEREAS:
(1) Net Servicos and/or some of its controlled companies were originally
debtors in a number of loans contracted in Brazil and abroad ("DEBT"), which
were not paid according to their respective instruments; all of the loans
integrating the Debt were listed in the Term Sheet mentioned in whereas clause
(2) below;
(2) Net Servicos, for itself and on behalf of some of its controlled
companies, and Creditors negotiated in good faith a restructuring plan of the
Debt, according to the Term Sheet, which is an integral part of the Commitment
Letters executed by Net Servicos and certain companies controlled by Net
Servicos with several Creditors, and is the subject matter of the relevant fact
disclosed by Net Servicos on June 28, 2004 ("RESTRUCTURING PLAN");
(3) as part of the actual implementation of the Restructuring Plan, Net
Servicos and certain of its controlled companies, on the one part, and
Creditors, on the other part, changed and/or formalized, or undertook to
formalize and/or amend, the replacement of the original credit instruments
relating to the Debt in order to reflect the terms of the Restructuring Plan,
through the debt instruments that are listed and identified in "Schedule 3"
("DEBT INSTRUMENTS");
(4) in addition to the Debt Instruments and this Agreement, as part of the
formalization of the Restructuring Plan, Net Servicos executed, among other
instruments, the following:
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(a) on this date, together with certain duly identified controlled
companies, the Creditors and the Collateral Agent, Net Servicos executed the
Intercreditor Agreement, a copy of which is an integral part hereof as "Schedule
4" ("INTERCREDITOR AGREEMENT");
(b) on this date, together with Net Sao Paulo Ltda., the Creditors
represented by the Collateral Agent, and the Centralizing Bank, Net Servicos
executed the Receivables Pledge Agreement with an Enforcement Clause;
(c) on this date, together with certain duly identified controlled
companies and the Creditors represented by the Collateral Agent, Net Servicos
executed the Share Pledge Agreement with an Amicable Sale Clause and other
Covenants and the Quota Pledge Agreement with an Amicable Sale Clause and Other
Covenants; and
(d) on this date, together with certain duly identified controlled
companies and the Creditors, the latter represented by the Collateral Agent, Net
Servicos executed the Asset Pledge Agreement with an Amicable Sale Clause and
Other Covenants (the pledge agreements referred to in whereas clauses 4(b), (c)
and (d) are hereinafter referred to jointly as "ADDITIONAL PLEDGE AGREEMENTS");
(5) subject to the terms agreed in the Debt Instruments, in the
Intercreditor Agreement and in this Agreement, the NET Company, as security for
full compliance with all the pecuniary obligations mentioned in the Debt
Instruments, agrees, pursuant to the terms and conditions of this Agreement, to
create a pledge in favor of the Creditors on (a) its total receivables, present
and future, net and gross, before the qualified NET Company subscribers in the
City of Rio Janeiro, as a result of services of any nature provided or which may
be provided to said subscribers, including with respect to cable television,
pay-per-view, and broadband, and the receivables existing until [ ] 2005 are
listed and
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duly identified in "Schedule 5", which will be amended on a quarterly basis,
pursuant to Clause 11.2 below, in order to include and/or exclude occasional
increases or reductions in such receivables pursuant to the provisions set out
herein ("NET COMPANY'S RECEIVABLES"); and on (b) the total receivables of the
NET Company against the Centralizing Bank with respect to the NET Company's
Receivables (together with the NET Company's Receivables, the "RECEIVABLES"),
which, for the purposes hereof, shall be collected through the banking network,
as provided for herein (the "COLLECTION NETWORK"); and
(6) subject to the terms and conditions established in the Debt
Instruments, in the Intercreditor Agreement and in this Agreement, of which
content NET Company, Net Servicos, both directly and by their controlled
companies, the Creditors, the Centralizing Bank and the Collateral Agent declare
to be fully aware and which they irrevocably and irreversibly undertake to
observe, the Collateral Agent was appointed as representative of the Creditors,
with the duties, rights and obligations set forth in the Intercreditor Agreement
and herein, especially with respect to the possible enforcement of the
guarantees mentioned in whereas clause (5) above and to the allocation of the
proceeds of the enforcement among the Creditors.
NOW THEREFORE, the Parties decide 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 this Agreement and of the Intercreditor
Agreement, and to ensure full compliance with all the pecuniary obligations
assumed in the Debt Instruments, including full payment of the amount of
principal, interest and any and all other charges owed by Net Servicos, and/or
by Net Servicos' controlled companies, and/or by NET Company, under the Debt
Instruments, including with respect to reimbursement of
- 5 -
any and all amounts that the Collateral Agent justifiably, provably and
reasonably disburses by virtue of the creation, maintenance and/or enforcement
of the pledge contracted herein (collectively, the "SECURED OBLIGATIONS"), based
on the general provisions of Articles 1419 et seq. of the Brazilian Civil Code
in effect ("CIVIL CODE"), NET Company, by this instrument and in the best form
of law, irrevocably and irreversibly pledges the Receivables in favor of
Creditors (the "PLEDGE"), as a result of which it undertakes to transfer,
pursuant hereto, 100% (one hundred percent) of the Receivables to the
Centralizing Bank, to escrow current account No. [ ], held by NET Company at
branch [ ] of the Centralizing Bank, located in the City of [ ], State of
[ ], at [ ] (the "CENTRALIZING ACCOUNT"). NET Company undertakes to determine
that all payments of Receivables be made through the Collection Network.
1.1.1. - The Pledge does not affect or limit, in any way, the NET Company's
right to freely and unrestrictedly perform its discount, collection, promotions
and invoicing policies, provided that the new policies are not contrary to the
purpose hereof.
1.1.2. - The Pledge will not be affected or impaired in any way by any default
on the part of the subscribers with respect to the Receivables. Likewise, the
Pledge will not be affected or impaired in any way by the withholding of bank
fees, by the Collection Network and/or the Centralizing Bank, on the amounts
deposited with such institutions by way of payment and transfer of Receivables,
so that the amounts thus withheld will not be considered as pledged amounts for
purposes of calculation of the Daily Withholding Amount referred to in Clause
2.3.
1.2. - Subject to the provisions of the Debt Instruments, the Intercreditor
Agreement and this Agreement, the NET Company hereby undertakes, for the
duration hereof, to maintain under pledge in favor of the Creditors, herein
represented by the Collateral Agent, as guarantee for compliance with the
Secured Obligations hereunder and as the subject matter of the Pledge now
created, 100% (one hundred percent) of the Receivables.
- 6 -
1.2.1. - For such purpose, NET Company shall amend this Agreement to update its
"Schedule 5" on a quarterly basis, in order to reflect any additions to and
reductions in Receivables that may become necessary, pledging any and all
Receivables arising from such updating, in compliance with the provisions of
Clause 11.2 below. The Centralizing Bank and the other Parties to this Agreement
hereby agree that the signature by the Centralizing Bank, either as a party or
intervening party, on the amendment to this Agreement, for purposes of updating
of "Schedule 5", shall not be required. If there are no additions to or
reductions in Receivables over the period, NET Company shall only inform this
fact to the Collateral Agent up to the fifteenth (15th) day of the month
immediately after the calendar quarter just ended, if it is a business day, or
on the business day immediately following.
1.2.2.- If Net Servicos and/or any of its controlled companies hold credits and
receivables, whether present or future, net or gross, before subscribers and/or
users resident or domiciled in the City of Rio de Janeiro, with respect to
services of any nature, including cable television, pay-per-view, and broadband
services that are provided or may be provided to said subscribers and/or users
resident or domiciled in the City of Rio de Janeiro, and that may be invoiced
and/or received by a company or companies other than the NET Company, Net
Servicos hereby irrevocably and irreversibly undertakes, for itself and its
controlled companies, to ensure that such credits and receivables are
contemplated by this Pledge, becoming automatically subject to this Agreement.
1.3. - For purposes of monitoring and verification of compliance with the
obligations set out in Clauses 1.2, 1.2.1 and 1.2.2 above, NET Company
undertakes to supply to Collateral Agent, the following documents:
(a) a monthly written report by the 10th day of the month immediately
after the month contemplated in the report, which may be made available
electronically, informing,
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with respect to the previous month, (i) the total amount invoiced against all
qualified subscribers in the City of Rio de Janeiro; (ii) the total amount
effectively received from such subscribers; and (iii) the total amount
transferred by the Collection Network to the Centralizing Bank;
(b) on a monthly basis, by the 10th day of the month subsequent to the
month contemplated in the report, detailed statements of NET Company's current
accounts to the Collection Network, in which the payments for the Receivables
have been deposited, issued by the respective institutions that are part of the
Collection Network and the Centralizing Account, issued by the Centralizing
Bank;
(c) a monthly written report, on the last day of the period covered by the
report dealt with in item "a" above, which may be made available electronically,
informing the total Receivables and indicating the Receivables to be actually
pledged to the Creditors pursuant to Clause 1.2; and
(d) on a quarterly basis, on the proper dates for submission of the ITR
(Rural Territorial Tax) to the Securities Commission, a letter to be prepared by
outside auditors in favor of the Collateral Agent, describing the exceptions
found with regard to compliance with Clauses 1.2 and 1.2.2 and the declarations
provided by the companies in accordance with items (a), (b) and (c) of Clause
1.3 of this Agreement.
1.4. - In the event that any document mentioned in Clause 1.3 above is not
supplied within the specified period, or shows noncompliance with the
obligations stipulated in Clauses 1.1, 1.2, 1.2.2, 11.2 and 11.2.1, the NET
Company, after duly notified by the Collateral Agent, will have 5 (five)
business days to regularize compliance with the obligations contemplated in such
Clauses.
1.4.1. The responsible party, upon notice, will have 10 (ten) business days to
regularize any
- 8 -
obligations contemplated herein that have not been properly performed and for
which there is no specific regularization term.
1.5. - For purposes of Article 1424 of the Civil Code, the Parties expressly
covenant that the principal conditions and characteristics of the Secured
Obligations are those established in each of the Debt Instruments. The estimated
principal amount of the Secured Obligations, the final due date and the maximum
interest rate contemplated for such Secured Obligations, in each case, on the
present date are those set forth in "Schedule 6" hereof, which schedule,
regardless of any formality and according to the payments made pursuant to the
Debt Instruments, will automatically reflect the amortizations of the Secured
Obligations, as well as any additions arising from the inclusion of new credits
from Joining Creditors and any contractual and legal charges assessed on the
Secured Obligations.
1.6. - The Pledge hereby created will become in full force and effect as of
this date and will remain fully effective until the date on which all the
Secured Obligations related to the Debt Instrument have been fully and
definitively paid ("PLEDGE TERMINATION DATE").
1.7. - During the period comprised between this date and the Pledge Termination
Date, the Pledge will benefit solely and exclusively the Creditors.
1.8. - NET Company hereby irrevocably and irreversibly undertakes to ensure
that, as security for full compliance with its Secured Obligation related to the
Debt Instruments, between this Date and the Pledge Termination Date, the
Receivables are duly pledged in favor of Creditors.
1.9. - NET Company hereby and in the best form of law irrevocably and
irreversibly appoints and constitutes Net Servicos as its attorney-in-fact,
granting it full and special ad negotia powers specifically to represent NET
Company with respect to all purposes hereof,
- 9 -
before the Creditors and/or Collateral Agent and/or Centralizing Bank; Net
Servicos, subject to the terms and conditions of this Agreement and of the
Intercreditor Agreement, is hereby authorized to take all the actions necessary
to comply with the obligations hereunder as well as to defend and protect the
NET Company's interests, and to that end and without any limitation, it may sign
any and all documents, send and receive any and all notices or communication,
sign any amendments to this Agreement, receive and give release, represent NET
Company at the registries of deeds and documents, real estate registries and any
other registries, and, finally, perform all the acts necessary for the validity
and effectiveness hereof. If, due to the nature of the act, a public or private
instrument of power of attorney must be issued to Net Servicos or Net Servicos
must be granted special powers or powers in addition to those granted by its
controlled companies, Net Servicos, at its own account and risk, will be
responsible for obtaining and regulating the granting of the powers, being
obliged, upon request by the Collateral Agent, to supply evidence of compliance
with the provisions hereof.
II.- ENFORCEMENT OF THE PLEDGE
2.1. - As long as the Secured Obligations are being performed, NET Company may,
at any time, freely dispose of the funds deposited in the Centralizing Account.
2.2. - NET Company hereby instructs and authorizes (a) the Collateral Agent, in
compliance with the terms and conditions of the Debt Instruments, of this
Agreement and of the Intercreditor Agreement (notably the deliberation by the
Creditors to enforce the Pledge), to submit to the Centralizing Bank, if the
Secured Obligations are not complied with, a notice making express reference to
this Clause 2.2 and instructing the Centralizing Bank to immediately withhold
the sums contemplated by this Clause II, and (b) the Centralizing Bank to accept
the irrevocable instructions contemplated in item (a) above.
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2.2.1. - In compliance with the provisions of Clause 2.2 above, in the event of
default on the Secured Obligations, it is hereby expressly stipulated that any
act or measure aimed at enforcement of the Pledge, may only be implemented
exclusively by the Collateral Agent, subject to the terms and conditions of the
Intercreditor Agreement, so that no Creditor may take advantage of judicial,
extrajudicial or any other constrictions on the rights contemplated herein,
under penalty of application of the provisions in Clause 2.9.
2.3. - Once informed by the Collateral Agent about the withholding obligation
mentioned above, the Centralizing Bank will be required hereunder, pursuant to
the terms of Article 1455, sole paragraph of the Civil Code, subject to the
provisions of this instrument, of the Debt Instruments and of the Intercreditor
Agreement, irrevocably and irreversibly, promptly and automatically, to arrange
for the cumulative and daily withholding of the amount equivalent to no more
than 30% (thirty percent) of the funds then available in the Centralizing
Account, as well as 30% (thirty percent) of the deposits made thereafter on a
daily basis in the Centralizing Account, causing the retained amount to become
unavailable to NET Company (the "DAILY WITHHOLDING AMOUNT"), and automatically
releasing the remaining balance available at the Centralizing Account for free
use by NET Company.
2.4. - Upon written request by the Collateral Agent mentioned in Clause 2.2
above, and regardless of any additional formality, the Centralizing Bank will be
irrevocably and irreversibly required to transfer the Daily Withholding Amount
to such current account(s) as may be indicated by the Collateral Agent in favor
of the Creditors, the outstanding balance being automatically released in favor
of NET Company.
2.4.1. - For purposes of the provisions of Clause 2.4 above, it is hereby
established that the amount to be daily withheld in the Centralizing Account and
transferred to the Collateral Agent may be lower or higher than the percentage
defined above for purposes of calculation of the Daily Withholding Amount,
except for the events contemplated in Clause 2.11.1 hereof.
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2.4.2. - Any funds transferred by the Centralizing Bank to the Collateral Agent
in the manner and for the purposes established herein, shall be used by the
Collateral Agent for prompt payment of the past due Secured Obligations, with
due regard to the allocation rules contemplated in the Intercreditor Agreement.
2.4.3. - In the event of default on the Secured Obligations at any time, and
provided that the applicable provisions hereof are observed, especially those
contained in Clauses 2.1, 2.2, 2.2.1 and 2.3 above, of the Intercreditor
Agreement and of the Debt Instruments, until full compliance with the Secured
Obligations, the Collateral Agent may ask the Centralizing Bank to make daily
transfers of the Daily Withholding Amount to the Collateral Agent, as provided
for herein, for payment of the Secured Obligations up to the amount of the past
due Secured Obligations.
2.4.4. - In the event of any withholding and transfer as mentioned in this
Clause II, the corresponding Secured Obligations will be automatically
acquitted, on a daily basis and strictly to the extent of such daily withholding
and transfer, and regardless of any other formality, to which the Collateral
Agent hereby agrees on behalf of Creditors and on its own behalf, irrevocably
and irreversibly, and Collateral Agent and Creditors waive any claims against
NET Company with respect to the amounts that have been the subject matter of
said withholding and transfer.
- 12 -
2.5. - The withholding and corresponding transfer to be made as set forth in
this Clause II shall be carried out for the time necessary to obtain sufficient
funds to fully settle the past due Secured Obligations (including any default
charges, which will only cease to apply upon full and complete payment of the
past due Secured Obligations, as well as of the costs and expenses for which
Creditors and/or Collateral Agent are not liable, but which, by force of the
provisions herein, have been borne and evidenced by them). Thus, the Collateral
Agent shall promptly inform the Centralizing Bank on the same day on which this
payment occurs, by means of written notice, that the latter will interrupt the
withholding under penalty of the applicable legal sanctions and the obligation
to refund any unduly retained amounts, properly accreted according to the
DI-CETIP Over Rate (Extra-Group) remuneration published by CETIP in the period
equivalent to that of the inappropriate withholding.
2.6. - Given the procedures and conditions established herein, it is hereby
certain and defined that there is no responsibility or guarantee on the part of
the Centralizing Bank or the Collateral Agent for payment of the Secured
Obligations, except for the responsibility to perform the acts and procedures
contemplated herein.
2.6.1. - The NET Company hereby authorizes the Centralizing Bank, on an
irrevocable and irreversible basis, and as an essential condition for the
business, pursuant to Article 684 of the Civil Code, to accept all the
Collateral Agent's orders, provided that such orders have been given strictly in
accordance with this Agreement and with the Intercreditor Agreement. A copy of
the orders sent by the Collateral Agent and evidence of compliance with such
order by the Centralizing Bank shall be sent by the Collateral Agent and the
Centralizing Bank, respectively, to Net Servicos and/or NET Company up to the
immediately succeeding business day.
2.7. - It is hereby established among the Parties that the Collateral Agent may
only contact or notify NET Company's subscribers qualified in the City of Rio de
Janeiro in the
- 13 -
sole and exclusive events of (a) default with respect to the Secured
Obligations, or (b) NET Company not giving the notice mentioned in Clause 4.1
(h) hereof within the stipulated period. The Collateral Agent must act
exclusively to ensure compliance with the provisions of this Clause II,
including to guarantee the obligation of the funds received from these
subscribers to be handled through the Collection Network, always in compliance
with the terms and conditions hereof, of the Debt Instruments and of the
Intercreditor' Agreement.
2.8. - Although the Creditors have lawful preference rights with respect to the
Receivables mentioned herein, the Creditors, through the Collateral Agent that
represents them herein, hereby expressly agree and declare on an irrevocable and
irreversible basis, under the penalties of the law, that during the
effectiveness of this Agreement, and while they are parties to this Agreement,
they may only (a) perform any acts that imply or may imply the attachment,
judicial seizure or any other type of restriction of the Receivables; and/or (b)
perform any acts that imply or may imply the attachment, judicial seizure or any
other type of restriction of the sums contained in the Centralizing Account,
solely and exclusively through the Collateral Agent, with due regard for the
provisions in the Intercreditor Agreement and in this Agreement.
2.9. - If any of the Creditors and/or the Collateral Agent fail to observe the
provisions of Clause 2.8, Net Servicos and/or NET Company shall notify
Collateral Agent and such Creditor(s) to the effect that they undo the act,
which they are forced to abstain from as a result of Clause 2.8 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 applicable. If the default is not
remedied within such term, (i) in case the default is imputable to one or more
Creditors, the Creditor(s), who has(ve) caused such default will cease
immediately from being a party hereto, and the rights thereof arising from their
respective Debt Instrument(s) will no longer be part of the Secured Obligations,
and they will then cease to be able to benefit from this Pledge. In the events
above, said default will in no any way affect the legal and
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contractual rights and prerogatives now conferred to the other Creditors and/or
the Collateral Agent.
2.10. - As soon as they become aware of the existence of any third party act,
which may lead to a threatened and/or actual lien on the Receivables ("THIRD
PARTY ACT"), Net Servicos and/or NET Company shall inform such Third Party Act
to the Collateral Agent, providing the latter with the information and documents
held thereby, and, regardless of any act by Net Servicos and/or NET Company, the
Creditors shall, acting exclusively through the Collateral Agent as established
in the Intercreditor Agreement, and using their preference rights, take all
applicable judicial and/or extra judicial measures in order to preserve and
maintain the integrity and full effect of the Pledge and/or to fully recompose
it, for all purposes of law and of this Agreement, so that the Pledge remains
always complete and in full force, and continuing, in all events of default with
respect to the Secured Obligations, thus enabling the Creditors to enforce the
Pledge as contemplated herein, exclusively through the Collateral Agent. Without
prejudice to the aforementioned, NET Company undertakes to promptly take all
judicial and extra judicial measures necessary to preserve the Pledge and for
full exercise of the contractual and legal rights now granted to Creditors.
2.11. If the Receivables are the subject matter of a restriction established in
judicial actions brought by third parties against NET Company and there is no
default with respect to the Secured Obligations, Creditors shall, acting
exclusively through the Collateral Agent, as contemplated in the Intercreditor
Agreement, use their preference rights in relation to any amounts limited by
third parties to raise the sums of such court deposits, which, except as
otherwise agreed in writing between Net Servicos and/or NET Company and the
Collateral Agent, shall be immediately deposited in the Centralizing Account so
that, according to Clause 2.1 above, the Centralizing Bank allows NET Company to
freely enjoy and dispose of the amounts deposited in the Centralizing Account,
with due regard for the restrictions set out in the Debt Instruments.
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2.11.1. - On the other hand, if the Receivables are the subject matter of a
restriction established in judicial actions brought by third parties against NET
Company and the Secured Obligations are in default, Creditors will be
responsible, acting exclusively through the Collateral Agent, as provided for in
the Intercreditor Agreement, to use the instrument of preference in relation to
any sums restricted by third parties to raise the amount of such court deposits,
which, except as otherwise expressly agreed in writing by NET Company and the
Collateral Agent, shall be immediately deposited in the Centralizing Account so
that the Centralizing Bank, pursuant to Clause 2.3 above, and in compliance with
the provisions of the Intercreditor Agreement and of this Agreement, can take
steps to retain the Daily Withholding Amount, releasing, on a daily basis, in
favor of NET Company an amount never lower than 70% (seventy percent) of the
funds existing in the Centralizing Account. If the Secured Obligations are in
default, and the Daily Withholding Amount to be earmarked to the Collateral
Agent as provided for in Clause 2.3 is in any way being affected by a Third
Party Act, it is hereby established, since the Parties agree that NET Company
cannot have more than the equivalent of 30% (thirty percent) of its committed
Receivables, that:
(a) if the equivalent of 30% (thirty percent) or more of the Receivables
is committed by the Third Party Act, the Daily Withholding Amount shall not be
transferred by the Centralizing Bank to the Collateral Agent, and the full
amount existing in the Centralizing Account that is not committed by the Third
Party Act shall be immediately released in favor of NET Company; and
(b) if the amount committed by the Third Party Act is lower than 30%
(thirty percent) of the Receivables, there shall be a restated transfer of the
Daily Withholding Amount by the Centralizing Bank to the Collateral Agent, so
that the difference between 30% (thirty percent) of the amount deposited in the
Centralizing Account and the amount committed by the Third Party Act is passed
on to the Collateral Agent, releasing the
- 16 -
balance in favor of NET Company.
2.11.2. - The attachment of any assets, properties or rights of NET Company
other than the Receivables, will not authorize the reduction of any of the
amounts that the Centralizing Bank will deliver to Creditors in the cases
contemplated herein.
2.11.3. - If the Collateral Agent and/or the Centralizing Bank fails to
strictly observe the provisions of Clauses 2.11, 2.11.1 and/or the other Clauses
contained in this Clause II, the noncompliance with which could result in the
undue withholding of amounts contained in the Centralizing Account or of amounts
that should have been remitted to the Centralizing Account, the Collateral Agent
will be subject to application of the applicable legal sanctions, in addition to
the obligation of reimbursing the amounts unduly withheld, properly added by the
CDI remuneration published by CETIP extra-group in the period equivalent to that
of the undue withholding.
2.12. - Without prejudice to other events of early maturity of the Secured
Obligations as established in the Debt Instruments or in the Intercreditor
Agreement, the Collateral Agent and any of the Creditors are expressly
prohibited to consider the early maturity of the Secured Obligations based on
Articles 333, II and III, 1425, I, IV and V of the Civil Code. Without prejudice
to the duty of the Centralizing Bank and the Collateral Agent, on its own behalf
and on behalf of Creditors, never to make any restrictions higher than the
equivalent of 30% (thirty percent) of the Receivables, the Collateral Agent may,
with due regard for the provisions of the Debt Instruments, the Intercreditor
Agreement and this Agreement, notably Clauses 1.4 and 1.4.1 above and Clause
11.5 below, consider the early maturity of the Secured Obligations if any of the
following events should occur: (i) if the obligations provided in Clauses 1.2 or
1.3 above are not complied with; (ii) if the obligations contemplated in
sections "a", "b", "c" or "d" of Clause 2.14 below are not complied with; (iii)
if the provisions of section "h" of Clause 4.1 below are not complied with; or
(iv) if the obligations provided in Clause 11.2 below are not complied with.
- 17 -
2.13. - Any court costs, expenses and attorneys' fees arising from exercise of
the Creditors' preemptive right will be reimbursed upon submission of the
respective slips, whereas the attorneys' fees will only be reimbursed if (a)
they are within the market value charged by first class offices in the cities of
Sao Paulo and Rio de Janeiro and are compatible with the amount of the claim;
and (b) are duly evidenced and justified by appropriate documents, such as the
corresponding invoices or debit notes for services provided.
2.14. - In the judicial enforcement actions filed against the NET Company by
third parties, the NET Company shall make its best endeavors to enforce this
Pledge, undertaking: (a) not to indicate the Receivables for attachment; (b) to
refute in a timely manner, in all instances of jurisdiction, with all applicable
appeals, the possible attachment of the Receivables; (c) to submit, in a timely
manner, all appropriate defenses in the enforcement action; (d) not to hinder
the exercise of the preemptive right by the Creditors, but rather, to cooperate
with the Creditors for the actual exercise of such right; (e) to inform the
Collateral Agent of the existence of any enforcement or collection action filed
against NET Company, involving an amount equal to or greater than R$1,000,000.00
(one million reais), even if there is no attachment of Receivables, immediately
after becoming aware of the existence of the action in any way; (f) to send
reports, whenever requested, to the Collateral Agent for the benefit of
Creditors with more updated information on the status of the enforcement or
collection actions filed against NET Company involving an amount equal to or
greater than R$1,000,000.00 (one million reais); (g) to inform the Centralizing
Bank within 2 (two) business days, about any court deposit made by NET Company
in compliance with the judicial attachment of the Receivables, with
discrimination: (i) of the deposit amount; (ii) of the period to which the
deposit refers; and (iii) of the amount of the NET Company's total billing
during the deposit period, as well as the amount actually pledged pursuant
hereto in the same period. For application of this clause, "collection action"
means any procedural, administrative, judicial or arbitral means requesting that
the NET Company be sentenced to settle any debt for an amount equal to or
greater than said
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amount.
2.15. - The Parties acknowledge that the Creditors are authorized, always acting
exclusively through the Collateral Agent, to require compliance with the Pledge
created hereunder together with any other guarantee granted to the Creditors,
including Additional Pledge Agreements, at the Creditors' sole discretion,
pursuant to the terms of this Agreement and the Intercreditor Agreement.
III. - RESTRICTIONS WITH RESPECT TO DISPOSAL OR ENCUMBRANCE OF THE SUBJECT
MATTER OF THE PLEDGE
3.1. - Except for the events expressly permitted under the Debt Instruments,
NET Company and Net Servicos may not, during the effectiveness of the Pledge,
either directly or indirectly, transfer, assign, dispose of or in any other way
create any lien or encumbrance in relation to the Receivables, wholly or in
part.
- 19 -
IV. - OBLIGATIONS OF NET SERVICOS AND NET COMPANY
4.1. - In addition to the other obligations contemplated in the Debt
Instruments, in the Intercreditor Agreement, in this Agreement or in prevailing
law, Net Servicos and/or NET Company, up to the Pledge Termination Date,
undertake:
(a) to perform all acts necessary or advisable to effectuate, perfect and
maintain the Pledge created hereunder, and to keep all the authorizations
necessary for the execution and implementation of this Agreement always valid,
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, and, in
the cases stipulated in Clause II, to maintain the Receivables free and clear of
any liens or encumbrances, whether of a judicial or extrajudicial nature, in
compliance with the provisions hereof;
(c) to fully comply with all the obligations contemplated herein;
(d) to defend themselves timely and efficiently against any act, action,
procedure or proceeding that could in any way affect this Agreement or the
Pledge;
(e) to maintain the Centralizing Bank as the agent in charge of
centralizing collection of payments made by the NET Company's subscribers and
not to modify or alter the Centralizing Account, in compliance with the
provisions of Clause V below;
(f) according to the model set forth in "Schedule 1", to irrevocably and
irreversibly authorize, unless otherwise agreed in writing by the Collateral
Agent, on behalf of the Creditors, each institution that is part of the
Collection Network to direct all the payments related to Receivables to the
Centralizing Account;
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(g) to provide the Collateral Agent with a copy of the authorizations
mentioned in item (f) above, together with a declaration signed by 2 (two)
statutory Directors of NET Company attesting that said institutions represent
the entire Collection Network;
(h) for purposes of Article 1453 of the Civil Code, within 30 (thirty)
consecutive days from this date, to notify each of the subscribers thereof from
the City of Rio de Janeiro about this Pledge, as well as to notify, within 30
(thirty) consecutive days after the execution of the respective term of
adhesion, each new subscriber which after this date becomes one of the NET
Company's qualified subscribers. Such notice shall be given as follows:
"According to the instrument registered in [ } Registry of Deeds and
Documents of the City of [ ], under No. [ ], the amounts payable to NET
under this invoice are pledged in favor of certain creditors of Company.";
and
(i) to observe the Creditors' representation by the Collateral Agent, as
established in the Intercreditor Agreement and in this Agreement, since this is
a condition precedent for the legal business agreed herein, with the validity
and effectiveness of such representation being ratified for all purposes of this
Agreement.
V. - OBLIGATIONS OF THE CENTRALIZING BANK
5.1. - The Centralizing Bank hereby undertakes to comply with its obligations as
centralizing agent, pursuant hereto, until the Pledge Termination Date.
5.1.1. - Without prejudice to the provisions of Clause 5.1 above, as set forth
herein, the Collateral Agent, on its own behalf and on behalf of Creditors,
hereby agrees that Net Servicos may change the Centralizing Bank by giving a
prior simple notice to the
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Collateral Agent, provided the Secured Obligations are not breached, and may
choose any bank organized according to the laws of Brazil (i) with an adjusted
shareholders' equity at least equivalent, in applicable Brazilian currency, to
R$ 100,000,000.00 (one hundred million Reais); (ii) that maintains, in relation
to its deposit certificates, an investment risk rating of at least "BBB-", when
appraised by Standard & Poor's, or "Baaa3", when appraised by Xxxxx'x or by
another rating agency renowned nationwide; or (iii) that is a branch or a
controlled company of a foreign bank with an investment risk rating of at least
"BBB-", when appraised by Standard & Poor's or "Baaa3", when appraised by
Xxxxx'x, in connection with its short-term obligations.
5.1.2. - Having chosen to substitute the Centralizing Bank, NET Company
undertakes, in relation to the new Centralizing Bank, to observe the provisions
hereof, especially with respect to the provisions of Clauses II and IV above, so
as to ensure that the Collection Network may transfer the payments relative to
the Receivables to the new Centralizing Bank to which the new Centralizing
Account will be bound. As a condition precedent for the replacement of the
Centralizing Bank, the new Centralizing Bank must also adhere unconditionally,
irrevocably and irreversibly to all the provisions hereof, assuming all the
obligations stipulated herein.
5.2. - Furthermore, if this Centralizing Bank has to be substituted, whether by
force of law or by any fact that prevents it from continuing to comply with its
obligations as provided for herein, the Collateral Agent shall substitute it,
subject to the applicable requirements set out in Clauses 5.1.1 and 5.1.2 above.
The majority of Creditors shall approve such substitution.
5.2.1. - To substitute the Centralizing Bank to which Clauses 5.1 and 5.2 above
refer, the following measures shall be taken:
(a) the Collateral Agent shall be notified in details by Centralizing Bank
and
-22-
NET Company of the reasons that led to the need for the substitution, and the
Collateral Agent shall obtain Creditors' agreement pursuant to Clause 5.2 above.
In the event that the Centralizing Bank is to be substituted pursuant to Clause
5.1 above, the Creditors' approval will not be required;
(b) an amendment to this Agreement shall be entered into, by which the new
Centralizing Bank will formally adhere to all terms and conditions hereof, and
will undertake to abide by all its provisions applying to the Centralizing Bank,
in an unconditional, irrevocable and irreversible manner; and
(c) whenever it is necessary to substitute the Centralizing Bank
exclusively due to a reason arising from the NET Company's default on its
obligations established herein, NET Company shall bear all the costs related to
this substitution, including, without limitation, the necessary registration and
filing costs.
5.3. - In addition to the other obligations contemplated herein, the
Centralizing Bank undertakes:
(a) to accept and comply with all the instructions it has received from
the Collateral Agent according to the provisions hereof and of the Intercreditor
Agreement, with respect to withholding, blocking and the form of investment of
the funds available in the Centralizing Account for payment of the Secured
Obligations;
(b) not to waive or transfer to third parties the duty it now performs as
centralizing agent for actual receipt of the Receivables, without the prior
written authorization by the Collateral Agent and Net Servicos, in compliance
with the provisions of Clauses 5.1.1 and 5.2 above;
-23-
(c) to comply with orders to change or alter the Centralizing Account only
upon the prior written authorization of the Collateral Agent and Net Servicos,
jointly;
(d) to provide Net Servicos and Collateral Agent, up to the 10th (tenth)
day of the subsequent month, with a copy of the complete statement for the
Centralizing Account, relative to the operations made in the previous month;
(e) to provide monthly to NET Company and to Collateral Agent a written
report informing the current value of the total daily receipts arising from the
Receivables, up to the 10th (tenth) day of the month subsequent to the month
due;
(f) to provide to the Collateral Agent, in the periodicity requested by
it, the amount of the funds that may be requested for enforcement of the Pledge;
and
(g) to arrange for the NET Company and/or Net Servicos not to face any
difficulty in obtaining the signature of the Centralizing Bank's legal
representatives on the amendments hereto, whenever necessary.
5.4. - In the event the Centralizing Bank fails to comply with any of the
obligations assumed hereunder, and if such noncompliance is not remedied within
48 (forty-eight) hours from the event, the Centralizing Bank shall be required
to indemnify the Creditors and/or the Collateral Agent and/or Net Servicos
and/or NET Company, as the case may be, for any losses and damages arising from
this default.
VI. - OBLIGATIONS OF THE COLLATERAL AGENT
6.1. - In addition to the other obligations set out herein and in the
Intercreditor Agreement, the Collateral Agent undertakes:
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(a) to take all the steps necessary or advisable so that the guarantee
created hereunder is always fully valid and enforceable;
(b) to manage the funds arising from the possible enforcement of the
guarantee now provided in favor of Creditors, pursuant to the Intercreditor
Agreement and this Agreement;
(c) to promptly notify Net Servicos and Creditors with respect to any
action by them relative to the transfer of funds from the Centralizing Account
for payment of the Secured Obligations;
(d) to respect and ensure that any and all measures to be taken, for all
effects and purposes hereof, especially for enforcement of the Pledge, may only
be irreplaceably effected by Collateral Agent, provided that the terms and
conditions of the Intercreditor Agreement and of this Agreement have been
complied with;
(e) to provide the corresponding Creditor with copies of any additional
documents prepared pursuant to the terms hereof, which may be reasonably
requested by Creditor, including any updating of the schedules hereof and any
evidence of its registration as established herein, except for the documents
mentioned in Clauses 1.3 and 5.3 (d) above, as well as excluding any other
document which may imply financial and/or privileged and/or confidential
information on NET Company and/or Net Servicos and/or any of the other
Creditors, subject to the provisions of the Intercreditor Agreement;
(f) to verify with Net Servicos if the filings and registrations
contemplated herein have been duly effected, within the timeframes determined
herein;
(g) to take, on behalf of the Creditors, the steps necessary to protect
the
-25-
preemptive right over Receivables, as soon as it becomes aware of the existence
of any third party act that may result in a threatened or actual lien on the
Receivables, pursuant to this Agreement; and
(h) to arrange for NET Company and/or Net Servicos not to encounter any
difficulty in obtaining the signature of the Collateral Agent's legal
representatives on the amendments hereto, whenever necessary.
6.2. - In the event of failure by the Collateral Agent to comply with any of the
obligations assumed hereunder, and if this noncompliance is not remedied within
48 (forty-eight) hours from the event, the Collateral Agent will be obliged to
indemnify the Creditors and/or Net Servicos and/or NET Company, as the case may
be, for any losses and damages arising from this default.
VII. - REPRESENTATIONS AND WARRANTIES OF NET SERVICOS AND NET COMPANY
7.1. - Net Servicos, on its own behalf and on behalf of NET Company, and Net
Company represent and warrant, on this date, under penalty of the law, that:
(a) NET Company and Net Servicos are companies duly organized and existing
pursuant to the laws of Brazil, and are free to manage their assets;
(b) the necessary authorizations for NET Company and Net Servicos to enter
into this Agreement and to assume and comply with all the obligations provided
herein have been obtained, and are valid, effective and in full force;
-26-
(c) NET Company and Net Servicos are authorized, according to the terms of
their respective Bylaws and of the applicable legislation, as well as by the
respective public administration bodies to grant the guarantee contemplated in
this Agreement as well as to comply with the obligations contained in this
Agreement;
(d) the persons that represent NET Company and Net Servicos in this
Agreement are duly authorized for such purpose;
(e) there is no administrative, arbitral or fiscal judicial or
extrajudicial action or procedure, in an amount equal to or exceeding R$
1,000,000.00 (one million Reais), which may, in any way, prejudice or invalidate
this Pledge or the obligations assumed herein, except for the actions or
procedures, liens, encumbrances and restrictions mentioned in "Schedule 8"
hereto;
(f) to the best of their knowledge, no judicial action, or extrajudicial,
administrative or arbitral procedure, irrespective of the plaintiff, seeking to
cancel, alter, invalidate, question or otherwise affect the Pledge and/or the
obligations assumed herein, is threatened to be filed or commenced, except for
any actions or procedures that may be filed by holders of a Debt Not Included,
as defined in the Intercreditor Agreement;
(g) the Receivables are free and clear of any judicial or extrajudicial
liens, and are not subject to any restriction with respect to their disposal or
transfer, except the liens, encumbrances and restrictions described in "Schedule
8".
(h) the terms and conditions hereof and the assumption and compliance with
all obligations set out herein (i) do not imply the default by NET Company
and/or Net Servicos on any agreement, document or instrument to which NET
Company and/or Net Servicos are parties or to 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 NET
-27-
Company, in an amount exceeding R$ 30,000,000.00 (thirty million Reais), except
for the contractual instruments of the holders of the Debt Not Included, as
defined in the Intercreditor Agreement; (ii) do not violate any law, decree or
regulation to which NET Company and/or Net Servicos are subject; (iii) do not
violate any pending order, decision, administrative, arbitral or court sentence
against NET Company and/or Net Servicos (except for the Unibanco Action, as
defined in the Intercreditors Agreement), which individually entails or may
reasonably entail a payment obligation on the part of Net Servicos or NET
Company in an amount exceeding R$ 30,000,000.00 (thirty million Reais); and (iv)
do not violate the bylaws and articles of association of NET Company and/or Net
Servicos;
(i) the obligations assumed herein are valid and enforceable obligations
pursuant to their terms and conditions;
(j) the Receivables listed in "Schedule 5" hereof represent, as of [ ]
2005, 100% (one hundred percent) of the Receivables;
(k) the Collection Network is duly instructed by NET Company and by Net
Servicos to automatically transfer the funds deriving from the Receivables to
the Centralizing Account; and
(l) all the powers of attorney granted by the NET Companies pursuant
hereto are granted irrevocably and irreversibly pursuant to the terms of Article
684 of the Civil Code.
7.2. - NET Company and Net Servicos are jointly and severally responsible for
any losses and damages arising from the untruthfulness or inaccuracy of these
representations, within the timeframes established by the prevailing
legislation.
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VIII. - REPRESENTATIONS OF THE CENTRALIZING BANK AND THE COLLATERAL AGENT
8.1. - The Centralizing Bank and the Collateral Agent individually represent and
warrant, under the penalties of the law, that each:
(a) is a company duly organized and validly existing pursuant to the laws
of Brazil, and are free to manage its assets;
(b) all authorizations necessary for the execution hereof and for the
assumption and performance of all its obligations contemplated herein have been
obtained, are currently valid, effective and in full force, and have not been
changed in any way;
(c) is authorized, pursuant to its Bylaws and the applicable legislation,
as well as by the respective public administration agencies to comply with the
obligations contained herein;
(d) the persons that represent it in the execution hereof are duly
authorized for such purpose;
(e) the terms and conditions hereof and the assumption and compliance with
all the obligations contemplated herein (i) do not imply default with respect to
its share in any agreement, document or instrument to which it is party or to
which its assets and properties are bound; (ii) do not violate any law, decree
or regulation to which it is subject; (iii) do not violate any order, decision,
administrative or judicial sentence pending against it; and (iv) do not violate
its Bylaws;
(f) the obligations assumed in this Agreement are valid and enforceable
-29-
obligations pursuant to its terms;
(g) it is aware of all the terms and conditions of the Intercreditor
Agreement and instruments that substantiate the Secured Obligations; and
(h) it is aware that any and all measures to be taken, for all effects and
purposes hereof, especially for enforcement of the Pledge, may only be effected
irreplaceably by the Collateral Agent, in compliance with the terms and
conditions of the Intercreditor Agreement and of this Agreement.
8.2. - Centralizing Bank and Collateral Agent are responsible for any losses and
damages arising from the untruthfulness or imprecision of their declarations,
within the terms established by the pertinent legislation.
IX. - NOTICES
9.1. - Any and all notices to be exchanged by the Parties with respect to any
matter related hereto shall be made in writing and sent to the addresses
indicated below:
(a) if to NET Company 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, x xxxxxxx 0000, Xxxxxxx Xxxxx Xxxxxxx,
Xxx Xxxxx - SP
Brasil, CEP 04719-002
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(b) if to Creditors, at the addresses, telephone and fax numbers mentioned in
each of the Debt Instruments, or preferably at the addresses, telephone and fax
number of the Collateral Agent, as mentioned in item (c) below;
(c) if to the Collateral Agent:
BANCO ITAU S.A.
Diretoria de Servicos para x Xxxxxxx de Capitais
Endereco: Xx. Xxxxxxxxxx Xxxxxxx xx Xxxxxx Xxxxxxx, 000 - 9(a) andar -
Jabaquara
CEP: 00000-000 - Xxx Xxxxx - X.X.
Xx.: Sr. Antonio Xxxxxx Xxxxxxxxx
Tel: (00 00) 0000-0000
Fax: (00 00) 0000-0000
e-mail: xxxxxxx-xxxxxx.xxxxxxxxx@xxxx.xxx.xx
(d) if to the Centralizing Bank:
BANCO ITAU S.A.
Diretoria de Servicos para x Xxxxxxx de Capitais
Endereco: Xx. Xxxxxxxxxx Xxxxxxx xx Xxxxxx Xxxxxxx, 000 - 9(a) andar -
Jabaquara
CEP: 00000-000 - Xxx Xxxxx - X.X.
Xx.: Sr. Antonio Xxxxxx Xxxxxxxxx
Tel: (00 00) 0000-0000
Fax: (00 00) 0000-0000
e-mail: xxxxxxx-xxxxxx.xxxxxxxxx@xxxx.xxx.xx
9.2. - The notices will be deemed delivered on the date they are received, when
sent by registered letter or "return receipt requested", issued by the Brazilian
mail service (Empresa Brasileira de Correios e Telegrafos), and when delivered
at the addresses above.
-31-
The notices, however, will be deemed delivered on the immediately succeeding
business day, when sent by fax or email, provided that the originals of the
documents thus transmitted are forwarded to the addresses above by the means
indicated above, up to the second business day immediately following their
transmission.
9.3. - Any change of address and other data to be observed for purposes of the
notices above will only be effective 10 (ten) business days after communication
thereof to Net Servicos and to Collateral Agent.
X - INCLUSION OF OTHER CREDITORS
10.1. - Other creditors that may adhere to this Agreement pursuant to the Debt
Instruments and the Intercreditor Agreement (the "JOINING CREDITORS") will be
admitted as part hereof, and will enjoy the same rights and obligations, and be
able thus to share in the Pledge with the other Creditors listed in "Schedule 2"
hereof. The Joining Creditors will accept the terms hereof by adhering to the
Intercreditor Agreement, according to the terms and conditions contemplated in
it and by means of the execution of the competent Term of Adhesion, according to
"Schedule 9" ("TERM OF ADHESION"). The Term of Adhesion duly signed by the
Joining Creditor will become an integral part hereof.
10.2. - The Term of Adhesion shall substantiate a binding document signed by the
Joining Creditor's legal representatives, where (i) its request for such credit
to be inserted as Pledge beneficiary shall be set forth, and (ii) its
unconditional acceptance of all the terms and conditions of this Agreement and
of the Intercreditor Agreement shall be evidenced, especially with respect to
its representation by means of the Collateral Agent.
10.2.1.- The Joining Creditors, upon signing of the Term of Adhesion, will start
to enjoy the same rights and have the same obligations set out herein and in the
Intercreditor Agreement, pari passu with respect to the other Creditors, without
any exception and/or
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limitation.
10.3. - For the Term of Adhesion to be effective, the Joining Creditor shall
register it at the Registry of Deeds and Documents of the City of Rio de Janeiro
and, within at most 5 (five) business days after the date of said registration,
it shall send certified copies evidencing such registration to Collateral Agent
and NET Company.
10.4. - Any vice which may be imputed to the Term of Adhesion will not affect or
impair any of the provisions contemplated herein, which will always remain valid
and effective for all effects and purposes.
XI. - REGISTRATIONS AND PENALTIES
11.1.- NET Company shall, within at most 7 (seven) business days of receipt of
the original counterparts hereof duly signed by the Parties, file this Agreement
for registration at the Registry of Deeds and Documents of the City of Rio de
Janeiro, and, within a maximum period of 20 (twenty) consecutive days of the
date of such filing, it shall send certified copies evidencing such registration
to the Collateral Agent and the Centralizing Bank, with due regard always for
the provisions in Clause 11.4 below.
11.2. - With respect to the amendments to this Agreement referred to in Clause
1.2.1, NET Company shall, every 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, deliver to the Collateral Agent, in compliance with the
provisions of Clauses 6.1 "h" and 9.2 above, all the counterparts of the
respective amendment, duly signed by the legal representatives of NET Company
and Net Servicos, with the respective signature certification, so that the
Collateral Agent, on its own behalf and on behalf of Creditors, signs the
counterparts of such amendment, certifies the competent signatures and returns
such counterparts to NET Company, at the address mentioned in Clause 9.1 "a"
above, keeping only one of the
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counterparts. Within 7 (seven) business days of receipt of the original
counterparts of the amendment to the Agreement, duly signed by the Collateral
Agent, NET Company shall file the respective amendment at the Registry of Deeds
and Documents, where this Agreement is registered, and within 20 (twenty)
consecutive days after the date of said filing, it shall send certified copies
evidencing such registration to Collateral Agent, except in the case of the
provisions of Clause 11.4 below.
11.2.1. In any other event of amendment to this Agreement, with due regard for
the provisions of Clause 10.3, the NET companies shall, within 7 (seven)
business days of receipt of the original counterparts to the amendment hereto
duly signed by the Parties, file the respective amendment for registration at
the Registry of Deeds and Documents where this Agreement is registered, and
within 20 (twenty) consecutive days of the date of such filing, it shall send
certified copies evidencing such registration to Collateral Agent, with due
regard for the provisions of Clause 11.4 below.
11.3.- Notwithstanding any other penalty imposed by the applicable legislation,
by this Agreement, by Clause 11.5 below, by the Debt Instruments and/or by the
Intercreditor Agreement, noncompliance by NET Company with any of the timeframes
established under Clause 11.2 above, for any reason whatsoever, will result in a
fine in favor of the Creditors, to be distributed pro rata, in proportion to
their respective Secured Obligations, for R$ 100,000.00 (one hundred thousand
reais) per day or fraction of a day of delay.
11.3.1.- The amount of the fine contemplated above will be adjusted yearly or at
a shorter period, if this is not prohibited or is permitted by the applicable
legislation, as from this date, including according to the variation in the
General Market Price Index (IGP-M), or in the absence thereof for any reason, by
the General Price Index - Internal Availability, both published by Fundacao
Xxxxxxx Xxxxxx.
11.4.- Delay in complying with the terms established herein , whether arising
from an act
-34-
of God or force majeure, as for example, strikes, delays, failures and omissions
by the Registry of Deeds and Documents, not imputable to the NET Company, Net
Servicos and/or their controlled companies, will not characterize contractual
noncompliance nor will lead to the application of the fine mentioned in Clause
11.3. In this case, the agreed timeframes will be suspended at the date of
beginning of the act of God or force majeure until the date of its cessation,
and NET Company must, as from the first business day immediately succeeding the
cessation of the event of act of God or force majeure, take all the steps
necessary for the registration thus impaired to be made, calculating the period
for compliance with the obligations as from such date of cessation of the act of
God or force majeure.
11.5. - Upon expiration of the terms established in Clauses 1.4, 1.4.1, 11.2 and
11.4, and in compliance with the provisions in Clauses 2.12 and 12.9, in the
Intercreditor Agreement and in the Debt Instruments, Creditors may declare the
early maturity of the Secured Obligations. After declaration of the early
maturity of the Secured Obligations, the penalties contemplated in Clause 11.3
above will cease to be applicable, without prejudice to the penalties imposed by
the applicable legislation and the Debt Instruments.
11.6. - Without prejudice to the obligations hereby assumed by NET Company with
respect to such measures, as well as the penalties arising from noncompliance
therewith, the Collateral Agent may, at its sole discretion, upon notice to NET
Servicos, carry out the public registrations referred to in Clauses 11.1, 11.2
and 11.2.1.
11.6.1. Without prejudice to the other powers granted by Net Servicos and/or NET
Company to the Collateral Agent and/or Creditors, Net Servicos and NET Company,
through a power of attorney according to the model set forth in "Schedule 7",
grant to the Collateral Agent, in the capacity of representative of the
Creditors, on an irrevocable and irreversible basis, and as condition for the
business, according to Article 684 of the Civil Code, certain powers for the
Collateral Agent to represent NET Companies before any and
-35-
all Registries of Deeds and Documents, being able to sign any and all documents,
perform any and all acts necessary, specifically and exclusively for execution
of the registrations contemplated in Clauses 11.1, 11.2 and 11.2.1.
11.7. - It is hereby certain and agreed that, on the Pledge Termination Date,
NET Company shall, on its own account and risk, take the steps necessary to
cancel the Pledge's registration, Collateral Agent undertaking to promptly
provide the necessary cooperation to that end, as well as to supply the term of
release with respect to the Secured Obligations, and any relevant information
and documents reasonably requested by Net Servicos and/or NET Company. It is
certain, however, that said cancellation will depend, in any case, on the full
satisfaction of the Secured Obligations and, in this event, according to
Articles 319 and 1436 of the Civil Code, as well as according to Article 250 of
the Law of Public Registrations (Lei de Registros Publicos), whereupon NET
Company, Net Servicos and/or their controlled companies will be authorized to
use all the existing administrative and/or judicial mechanisms, without any
limitation, to release the Pledge and cancel its registration.
XII. - MISCELLANEOUS
12.1. - The Parties, bound for themselves, their successors and assignees of any
kind, agree that all the terms, conditions, covenants, powers of attorney and
commitments assumed herein are made on an irrevocable and irreversible basis.
12.2. - Any change to the terms and conditions hereof will only be considered
valid if formalized in a proper written instrument, signed by all the Parties,
except in the specific cases determined in this Agreement and its schedules,
always in compliance with the provisions of the Intercreditor Agreement, it
being certain, however, that the Collateral Agent shall represent Creditors
exclusively and with ample powers for such, in the
-36-
performance of any amendment hereto, pursuant to the terms and conditions of the
Intercreditor Agreement.
12.3. - The Creditors, in compliance with the provisions of the Intercreditor
Agreement, and acting exclusively through the Collateral Agent for purpose of
taking the applicable measures, may, at their sole discretion, require the
specific execution of the obligations assumed herein by the Parties, pursuant to
the terms of Articles 461, 621 and 632 to 645 of the Brazilian Civil Procedural
Code, as well as the enforcement of the guarantee granted herein.
12.3.1.- Without prejudice to the other rights granted to the Collateral Agent
in the capacity of collateral agent of Creditors, Collateral Agent is hereby
irrevocably and irreversibly authorized to effect all withholdings and transfers
contemplated herein for purposes of Article 1455, sole paragraph of the Civil
Code.
12.4. - NET Company and Net Servicos hereby agree, as a condition hereof, to
take any and all complementary steps and to produce any and all documents
necessary for the formalization of the Pledge, and for the validity and
effectiveness of this Agreement.
12.5. - Any and all costs or expenses that are provenly incurred by the
Collateral Agent in the performance of the obligations or exercise of the rights
contemplated herein or in the applicable legislation, including court costs and
expenses incurred with registrations, annotations or enforcement of the
guarantee contracted herein, as well as resulting from the proceedings,
procedures and/or other judicial or extrajudicial measures necessary for the
safekeeping of the rights and prerogatives contemplated herein, including costs,
fees, court costs, expenses, emoluments, attorneys' and experts' fees or any
other charges related to such procedures, proceedings or measures, provided they
have been evidenced, and are reasonable and justifiable for the purposes hereof,
shall be the responsibility of Net Servicos and/or NET Company, and must be
reimbursed within 10 (ten) business days
-37-
counted from the date of receipt of a notice to this effect to be sent to Net
Servicos and/or NET Company, at the discretion of the Collateral Agent.
Reimbursement of the court costs and attorneys' fees dealt with by the clauses
hereof will be made pursuant to the provisions of Clause 2.13.
12.6. - The invalidation or cancellation, wholly or in part, of any of the
clauses hereof will not affect the other clauses, which shall remain always
valid and effective until compliance by the Parties with all their obligations
provided herein. If any clause hereof is declared null and void, the Parties
hereby undertake to negotiate, within the shortest period possible, in
substitution of the clause declared null and void, the inclusion herein of valid
terms and conditions that reflect the terms and conditions of the clause
rendered null and void, according to the intention and purpose of the Parties at
the time of negotiation of the clause null and void and its context.
12.7. - Subject to Clause II hereof, for purposes of Article 1460 of the Civil
Code, the Creditors hereby irrevocably and irreversibly authorize Net Servicos,
its controlled companies and NET Company, in compliance with the terms hereof,
to receive payment for the Receivables and release them.
12.8. - Waiver by any of the Parties, with respect to the exercise of any of the
rights attributed pursuant to the terms hereof or of the applicable legislation
will be effective only if manifested in writing. No tolerance, delay or
indulgence by any of the Parties in ensuring compliance with any provision
hereof shall prejudice or restrict the rights of such party, nor shall it
prevent such party from exercising such rights or other rights when it deems
appropriate, regardless of any previous communications or notices.
12.9. - For all legal purposes, it is hereby established that the only events of
early maturity, in addition to those expressly contemplated in this Agreement,
the Debt Instruments and the Intercreditor Agreement are those set forth in
items II and III of Article
-38-
1425 of the Civil Code.
12.10. - The confidentiality commitment set out in Clause 10.14 of the
Intercreditor Agreement shall apply to this Agreement.
12.11. - Without prejudice to the joint and several liability between NET
Companies and Net Servicos established in the Intercreditor Agreement, the Debt
Instruments and the Additional Pledge Agreements, NET Company and Net Servicos
hereby and in the best form of law irrevocably and irreversibly, and for the
purposes contemplated in Article 265 of the Civil Code, declare hereunder to be
joint and several debtors and principal payers exclusively with respect to the
obligations contemplated in Clauses 2.13, 7.2, 11.1 to 11.7 and 12.5 hereof.
12.12. - 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 4 (four) counterparts of equal tenor and form, to one sole
effect, in the presence of 2 (two) undersigned witnesses.
Sao Paulo, [ ] 2005
FOR CREDITORS
By ---------------------
BANCO ITAU S.A.
Name:
Title:
-39-
COLLATERAL AGENT AND CENTRALIZING BANK
--------------------------------------
BANCO ITAU S.A.
Name:
Title:
NET COMPANY
--------------------------------------
NET RIO S.A.
Name:
Title:
NET SERVICOS
--------------------------------------
NET SERVICOS DE COMUNICACAO S.A.
Name:
Title:
Witnesses:
1. -
----------------------------
Name:
-40-
Identity Card - RG:
2. -
----------------------------
Name:
Identity Card - RG:
SCHEDULE 1 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
MODEL OF THE INSTRUCTION TO THE COLLECTION NETWORK'S INSTITUTIONS
"Sao Paulo, , 2005
To
Bank [Collector]
[ ]
Re.: Instruction for daily transfer of sums - Current Account No. [ ], Branch
No. [ ]
Dear Sirs,
We take this opportunity to ask you that, as of this date, you arrange for the
daily and automatic transfer of 100% (one hundred percent) of the cash available
at the referenced current account, held by [ ], to Current Account No. [ ],
Branch No. [ ], of Banco Itau S.A., also held thereby, regardless of any other
formality, until subsequent written request otherwise by the holder.
Very truly yours,
-42-
Net"
-43-
SCHEDULE 2 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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 n(0). 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 heaquarters 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 heaquarters 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 n(0)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
heaquarters 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 heaquarters 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
n(0)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 heaquarters 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 n(0)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 heaquarters in
[ ], represented by Banco Itau S.A., as Collateral Agent;
(10) MARATHON FUND, L.P., a financial institution duly organized and existing
according to the laws of [ ], with its heaquarters 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 heaquarters 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 n(0)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 heaquarters in [ ],
represented by Banco Itau S.A., as Collateral Agent;
-44-
SCHEDULE 3 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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;
SCHEDULE 4 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
COPY OF THE INTERCREDITOR AGREEMENT
SCHEDULE 5 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
LIST OF RECEIVABLES PLEDGED
SCHEDULE 6 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
COPY OF POWER OF ATTORNEY
[MODEL - NET SHALL INCLUDE THE ORIGINAL 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 "Receivables Pledge Agreement with an Enforcement
Clause", 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 Registries of
Deeds and Documents, 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 public 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
- 2 -
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 replacement
of the Collateral Agent, the latter is hereby authorized to delegate such powers
to the institution that shall become the new collateral agent. After read by all
parties, Principals sign this irrevocable public power of attorney.]
SCHEDULE 8 TO THE
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
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
FEDERAL GOVERNMENT Tax
NET SAO PAULO 2004.61.04.008510-2
(XXXXXX XXXXXX) 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
Tax
NET RIO RIO DE JANEIRO
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 ConditionalFinancing 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, ConditionalFinancing 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, ConditionalFinancing 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
RECEIVABLES PLEDGE
AGREEMENT WITH AN
ENFORCEMENT CLAUSE
MODEL OF THE 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 directors, Messrs. [ ] 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) INCLUDE NAME OF THE NET COMPANIES THAT ARE PARTIES TO THE NEW CREDIT
INSTRUMENT.
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 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):
