Exhibit 4.4
NOTE
No. 1 December 20, 1996
$140,000,000 New York, New York
FOR VALUE RECEIVED, the undersigned, ITSA - INTERCONTINENTAL
TELECOMUNICACOES LTDA., a limited liability company incorporated in the
Federative Republic of Brazil and domiciled in the City of Brasilia (the
"Company"), hereby unconditionally promises to pay to the order of TV FILME,
INC., a Delaware corporation ("TV Filme") and the parent of the Company, on the
Maturity Date (as defined below), the principal amount of ONE HUNDRED FORTY
MILLION DOLLARS ($140,000,000).
The Company further promises to pay interest on the unpaid principal
amount hereof from time to time outstanding as provided in Section 2.3 hereof.
Except as permitted pursuant to subsection 5.2(b) hereof, all
payments to be made by the Company hereunder shall be made in lawful money of
the United States of America and in immediately available funds at the office of
Japan Bankers Trust Company, Ltd. (the "Paying Agent", which term shall include
any successor to Japan Bankers Trust Company, Ltd. which acts in the capacity of
Paying Agent hereunder) located at Ogawamachi-Mitsui Bldg., 10th Floor, 0
Xxxxx-Xxxxxxxxxx, X-Xxxxx, Xxxxxxx-Ku, Tokyo, Japan, or at such other office of
the Paying Agent as the Paying Agent may specify in a written notice to the
Company, for the account of the holders of this Note. All such payments shall be
free and clear of any Lien (as defined below), encumbrance, set-off or
counterclaim whatsoever.
All payments to be made hereunder shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imports, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any country (or any political subdivision or taxing authority
thereof or therein), excluding, however, all such taxes, levies, imports,
duties, charges, fees, deductions or withholdings, (i) at any time imposed,
levied, collected, withheld or assessed by the United States of America or (ii)
that would not be imposed but for a connection between the holder of this Note
and the jurisdiction imposing such tax, levy, import, duty, charge, fee,
deduction or withholding other than a connection arising solely by virtue of the
activities of such holder pursuant to or in respect of this Note, the Indenture
(as defined below) or the Note Pledge Agreement (as defined in the Indenture)
(such non-excluded taxes are herein referred to as "Foreign Taxes"). If any
Foreign Taxes are imposed or required to be withheld from any payment, the
Company shall (a) increase the amount of such payment so that the holder of this
Note will receive a net amount (after deduction of all Foreign Taxes) equal to
the amount due hereunder, (b) pay such Foreign Taxes to the appropriate taxing
authority for the account of the holder of this Note and (c) as promptly as
possible thereafter, send the holder of this Note an
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original receipt showing payment thereof, together with such additional
documentary evidence available to the Company as the holder of this Note may
from time to time reasonably require. If the Company fails to perform its
obligations under clause (b) or (c) of the preceding sentence, the Company shall
indemnify the holder of this Note for any incremental taxes, interest or
penalties that may become payable by the holder of this Note as a consequence of
such failure. This covenant shall survive payment of this Note and all other
amounts payable hereunder.
The Company agrees to indemnify the holder of this Note for, and
hold the holder of this Note harmless from, any present or future claim or
liability for any registration charge or any stamp, excise or other similar
taxes, including any interest equalization tax, and any penalties or interest
with respect thereto, which may be imposed by any jurisdiction in connection
with this Note or enforcement hereof.
Any holder of this Note invoking or seeking to invoke any provisions
set forth in the two immediately preceding paragraphs hereof shall use
reasonable efforts (consistent with legal and regulatory restrictions) to file
any certificate or document, if such filing would avoid or reduce the amount of
any liability the Company might incur pursuant to such paragraphs, so long as,
in the reasonable judgment of such holder, such filing would not be
disadvantageous to such holder in any material respect. To the extent such
holder may obtain a refund of any such tax, levy, import, duty, charge, fee,
deduction or withholding for which the Company has incurred or will incur
liability pursuant to the two immediately preceding paragraphs, such holder will
take reasonable steps to obtain such refund. Should any refund be obtained, the
holder will promptly remit the same to the Company.
SECTION 1. DEFINED TERMS.
As referred to in this Note, all terms defined in this Note shall
have the meanings ascribed thereto and the following terms shall have the
meanings specified with respect thereto:
"Bankruptcy Law" means Title 11, United States Code, or Decree Law
No. 7661 of June 21, 1945, as each may be amended from time to time, or
any similar federal, state of foreign law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization,
"concordata" or relief of debtors.
"Business Day" means any day other than a Saturday, Sunday, public
holiday or day on which banking institutions in New York City are
authorized or obligated by law to close.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Event of Default" shall mean any "Event of Default" as such term is
defined in the Indenture.
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"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"indemnified liabilities" shall have the meaning assigned to such
term in Section 5.6 hereof.
"Indenture" shall mean the Indenture, dated as of December 20, 1996,
between TV Filme and IBJ Xxxxxxxx Bank & Trust Company, as trustee.
"Interest Payment Date" shall have the meaning assigned to such term
in Section 2.1 hereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, and any lease in the nature thereof).
"Liquidated Damages" shall have the meaning assigned to such term in
the Indenture.
"Maturity Date" shall mean December 15, 2004.
"Maximum Rate" shall have the meaning assigned to such term in
Section 5.8 hereof.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Requirement of Law" as to any Person, shall mean the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"TV Filme Notes" shall have the meaning assigned to the term "Notes"
in the Indenture.
SECTION 2. INTEREST AND PAYMENT.
2.1. Interest. The Company hereby promises to pay interest on the
principal amount of this Note from December 20, 1996 until maturity of this
Note. The Company will pay interest semi-annually on June 15 and December 15 of
each year, commencing June 15, 1997, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "Interest
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Payment Date"). Interest on this Note will accrue at the rate of 12 7/8% per
annum from the most recent date to which interest has been paid or, if no
interest has been paid, from December 20, 1996. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law to
the extent that such interest is an allowed claim enforceable against the debtor
under such Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at the rate equal to 1% per annum in excess of the then
applicable interest rate on this Note to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law to
the extent that such interest is an allowed claim against the debtor under such
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The Company will pay as additional interest
the amount equal to the aggregate amount of Liquidated Damages owing to the
holders of TV Filme Notes; the amount owing by the Company pursuant to this
sentence shall be payable on the date such Liquidated Damages are owing under
the Indenture.
2.2. Optional Prepayments. The Company will have the option to
prepay the principal amount of this Note on any day in which the TV Filme
redeems the TV Filme Notes pursuant to Section 3.7 of the Indenture; provided
that the principal amount of this Note so prepaid shall not exceed the aggregate
principal amount of the TV Film Notes redeemed on such date (without giving
effect to any premium provided in Section 3.7 of the Indenture). Any accrued and
unpaid interest on any principal amount prepaid pursuant to this Section 2.2
shall be paid at time of such prepayment. In addition, the Company shall pay an
amount equal to the aggregate premium payable by TV Filme under Section 3.7 of
the Indenture; the amount owing by the Company pursuant to this sentence shall
be payable on the date that such premium is owing under the Indenture.
2.3. Mandatory Prepayments. The Company will be required to prepay
the principal amount of this Note on any day in which TV Filme redeems the TV
Filme Notes pursuant to Sections 4.10 or 4.14 of the Indenture; provided that
the principal amount of this Note so prepaid shall not exceed the aggregate
principal amount of the TV Filme Notes redeemed on such date (without giving
effect to any premium provided in Sections 4.10 and 4.14 of the Indenture). Any
accrued and unpaid interest on any principal amount prepaid pursuant to this
Section 2.3 shall be paid at time of such prepayment. In addition, the Company
shall pay an amount equal to the aggregate premium payable by TV Filme under
Sections 4.10 and 4.14 of the Indenture; the amount owing by the Company
pursuant to this sentence shall be payable on the date that such premium is
owing under the Indenture.
2.4. Requirements of Law. (a) In the event that any existing
applicable law, regulation or directive or future applicable law, regulation or
directive, or any change therein or in the interpretation thereof, or compliance
by the holder of this Note with any request (whether or not having the force of
law) of any relevant central bank or other comparable agency: (i) shall subject
the holder of this Note to any tax of any kind whatsoever with respect to this
Note, or acquisition of debt of obligors outside the United States of America or
change the basis of taxation of payment to the holder of this Note of principal,
interest or any other amount payable hereunder (except for changes in the rate
of tax on the overall net income of the holder of this Note imposed in the
United States of America or any jurisdiction in which the holder of this Note
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books the credit evidenced hereby), (ii) shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of the holder of this Note or (iii) shall impose on the
holder of this Note any other condition with respect to this Note or the loan
evidenced by this Note, and the result of any of the foregoing is to increase
the cost of the holder of this Note of maintaining the loan evidenced by this
Note or to reduce any amount receivable hereunder in respect thereof, then the
Company agrees to pay to the holder of this Note, within 10 days following the
later to occur of (A) demand, or (B) the Company being furnished with the
certificate described below, additional amounts which will compensate the holder
of this Note for such increased cost or reduced amount receivable, as reasonably
determined by the holder of this Note with respect thereto. The certificate of
the holder of this Note shall demonstrate in reasonable detail any additional
amounts payable pursuant to the preceding sentence and, in the absence of
manifest error, shall be conclusive as to the amounts due.
(b) Notwithstanding any provision of Section 2.4(a) hereof to the
contrary, the Company shall not be liable for any such increased cost or reduced
amount resulting from a tax or reserve, special deposit, compulsory loan or
similar requirement or any other condition (all such taxes, reserves, loans,
requirements and conditions are collectively referred to herein as "Conditions")
that would not be imposed or otherwise apply but for a connection between the
holder of this Note and the jurisdiction imposing such Condition, other than a
connection arising solely by virtue of the activities of such holder pursuant to
or in respect of this Note, the Indenture or the Note Pledge Agreement (as
defined in the Indenture). Any holder of this Note invoking or seeking to invoke
the provisions set forth in Section 2.4(a) hereof shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document or change the office where payments under this Note are to be made or
where the loan evidenced by this Note is booked or take other action, if such
filing or change or other action would avoid or reduce the amount of any
liability the Company might incur pursuant to Section 2.4(a) hereof, so long as,
in the reasonable judgment of such holder, such filings, change or other action
would not be disadvantageous to such holder in any material respect. To the
extent such holder may obtain a refund with respect to any liability resulting
from a Condition, such holder will take reasonable steps to obtain such refund.
Should any such refund be obtained, the holder will promptly remit the same to
the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the holder of this Note to accept this Note, the Company
hereby represents and warrants to such holder that:
(a) The Company (i) is a limited liability company organized and
existing under the laws of the Federative Republic of Brazil; and (ii) is
duly qualified to carry on its present business and to own or lease its
properties.
(b) The Company has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Note and has taken
all necessary corporate
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action to authorize its execution, delivery and performance. The Company
has duly executed and delivered this Note, and this Note constitutes a
legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as such enforceability may be subject to
(i) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally and (ii)
general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(c) This Note is in proper legal form under the laws of the Republic
of Brazil for the enforcement thereof in accordance with its terms against
the Company under such laws. Neither the filing nor the recording of this
Note or any other document with any court or any other Brazilian authority
nor the payment of any stamp or similar tax in respect of this Note is
necessary to ensure the legality, validity, enforceability or
admissibility in evidence in the Federative Republic of Brazil of this
Note.
(d) Except for the certificate of registration to be issued by the
Central Bank of Brazil which will enable it to make the payments of
principal and interest under this Note, no order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with (except as have been obtained or made), or exemption by,
any governmental or public body or authority, or any subdivision thereof,
is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Note or (ii) the legality,
validity, binding effect or enforceability of this Note.
(e) The execution, delivery and performance of this Note and the
consummation of the transactions contemplated hereby will not result in
the breach of any terms or provisions of, or constitute a default under
any judgment, decree or other agreement or instrument to which the Company
is a party or by which it is bound, nor will it conflict with the
Company's organizational documents (contrato social).
(f) The Company has complied with all laws, regulations or orders
applicable to its business, except for such failures to comply which would
not reasonably be expected to have a material adverse effect on the
Company's ability to perform its obligations under this Note.
SECTION 4. EVENTS OF DEFAULT
If any Event of Default specified in clauses (a), (b), (c), (d),
(e), (f) or (g) of Section 6.1 of the Indenture occurs and is continuing, then
the holder of this Note may, by written notice to the Company, declare the
unpaid principal of, and any accrued interest on, this Note to be due and
payable immediately. If any Event of Default with respect to TV Filme specified
in clauses (h) or (i) of Section 6.1 of the Indenture occurs with respect to TV
Filme, any Significant Subsidiary (as defined in the Indenture) of TV Filme or
any group of Restricted Subsidiaries (as defined in the Indenture) of TV Filme
that, taken together, would constitute a Significant Subsidiary of TV Filme, all
outstanding principal and interest on this Note will be
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immediately due and payable without any declaration or other act on the part of
the holder of this Note.
Subject to the preceding paragraph, if an Event of Default occurs
and is continuing, the holder of this Note may pursue any available remedy by
proceeding at law or in equity to collect any payment due on this Note or to
enforce the performance of any provision of this Note.
SECTION 5. MISCELLANEOUS
Section 5.1. Agent for Service; Submission to Jurisdiction; Waiver
of Immunities. By the execution and delivery of this Note or any amendment or
supplement hereto, the Company (i) acknowledges that it has, by separate written
instrument, designated and appointed Corporation Service Company, currently
located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
upon which process may be served in any suit, action or proceeding with respect
to, arising out of, or relating to, this Note (other than an insolvency,
liquidation or bankruptcy proceeding or any other proceeding in the nature of an
in rem or quasi in rem proceeding), that may be instituted in any Federal or
state court in the State of New York, The City of New York, the Borough of
Manhattan, or brought under Federal or state securities laws or brought by the
holder of this Note, and acknowledges that Corporation Service Company has
accepted such designation, (ii) submits to the jurisdiction of any such court in
any such suit, action or proceeding, and (iii) agrees that service of process
upon Corporation Service Company shall be deemed in every respect effective
service of process upon the Company in any such suit, action or proceeding. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments as may be necessary to
continue such designation and appointment of Corporation Service Company in full
force and effect so long as this Note shall be in full force and effect;
provided that the Company may and shall (to the extent Corporation Service
Company ceases to be able to be served on the basis contemplated herein), by
written notice to the holder of this Note, designate such additional or
alternative agents for service of process under this Section 5.1 that (i)
maintains an office located in the Borough of Manhattan, The City of New York in
the State of New York, (ii) are either (a) counsel for the Company or (b) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business and for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 5.1. Such notice shall identify the name
of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Notwithstanding
the foregoing, there shall, at all times, be at least one agent for service of
process for the Company appointed and acting in accordance with this Section
5.1.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Note, to the extent permitted by law.
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Section 5.2. Currency of Account; Conversion of Currency; Foreign
Exchange Restrictions. (a) U.S. dollars are the sole currency of account and
payment for all sums payable by the Company under or in connection with this
Note, including damages. Any amount received or recovered in a currency other
than U.S. dollars (whether as a result of, or of the enforcement of, a judgment
or order of a court of any jurisdiction, in the winding-up or dissolution of the
Company or otherwise) by the Paying Agent or the holder of this Note in respect
of any sum expressed to be due to it from the Company will only constitute a
discharge to the Company to the extent of the dollar amount which the recipient
is able to purchase with the amount so received or recovered in that other
currency on the date of that receipt or recovery (or, if it is not practicable
to make that purchase on that date, on the first date on which it is practicable
to do so). If that U.S. dollar amount is less than the U.S. dollar amount
expressed to be due to the recipient under this Note, the Company will indemnify
it against any resulting loss as set forth in Section 5.2(b). In any event, the
Company will indemnify the recipient against the cost of making any such
purchase. For the purposes of this Section 5.2, it will be sufficient for the
Paying Agent or the holder of this Note to certify in a satisfactory manner
(indicating sources of information used) that it would have suffered a loss had
an actual purchase of U.S. dollars been made with the amount so received in that
other currency on the date of receipt or recovery (or, if a purchase of U.S.
dollars on such date had not been practicable, on the first date on which it
would have been practicable, it being required that the need for a change of
date be certified in the manner mentioned above). The indemnities set forth in
this Section 5.2 constitute separate and independent cause of action, shall
apply irrespective of any indulgence granted by the holder of this Note and
shall continue in full force and effect despite any other judgment, order, claim
or proof for a liquidated amount in respect of any sum due under this Note.
(b) The Company covenants and agrees that the following provisions
shall apply to conversion of currency:
(i) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert
into a currency (the "judgment currency") an amount due in any other
currency (the "Base Currency"), then the conversion shall be made at the
rate of exchange prevailing on the Business Day before the day on which
the judgment is given or the order of enforcement is made, as the case may
be (unless a court shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company
will pay such additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the judgment currency
when converted at the rate of exchange prevailing on the date of receipt
will produce the amount in the Base Currency originally due.
(iii) The obligations contained in subsections (a), (b)(i)(B),
(b)(ii) and (b)(iv) of this Section 5.2 shall constitute separate and
independent obligations from the other obligations of the Company under
this Note, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or extension
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granted by the holder of this Note from time to time and shall continue in
full force and effect notwithstanding any judgment or order or the filing
of any proof of claim in the winding-up of the Company for a liquidated
sum in respect of amounts due hereunder (other than under subsection
(b)(ii) above) or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the holder of
this Note and no proof or evidence of any actual loss shall be required by
the Company or the liquidator or otherwise or any of them. In the case of
subsection (b)(ii) above, the amount of such deficiency shall not be
deemed to be reduced by any variation in rates of exchange occurring
between the said final date and the date of any liquidating distribution.
(iv) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (New York City time) for spot purchases of
the Base Currency with the judgment currency other than the Base Currency
referred to in subsections (b)(i) and (b)(ii) above and includes any
premiums and costs of exchange payable.
(c) In the event that on any payment date in respect of this Note,
any restrictions or prohibition of access to the Brazilian foreign exchange
market exists, the Company agrees to pay all amounts payable under this Note in
the currency of this Note by all reasonable means (which shall not include
commencement of legal proceedings against the Central Bank of Brazil or any
other governmental agency or authority or central bank), on any due date for
payment under this Note, for the purchase of the currency of this Note. All
costs and taxes payable in connection with the procedures referred to in this
Section 5.2 shall be borne by the Company.
5.3. Notices. All notices, requests and demands to or upon the
Company and the holder of this Note to be effective shall be in writing or by
telex or telecopy and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or in the case of
telex with appropriate answerback received, or in the case of telecopy notice,
with written confirmation of receipt, which confirmation may be by telex or
telecopy notice. All such notices, requests and demands shall be addressed, in
the case of the holder of this Note, to such address and transmission number for
notices provided to the Company from time to time by such holder, and in the
case of the Company, as follows or to such other address as may be hereafter
notified by the Company:
The Company: ITSA - Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-B1-A
Ed. Executive Tower
Sala 601
70.300.911 Brasilia - DF
Brazil
Phone No.: 000-00-00-000-0000
Telecopier No.: 011-55-61-323-5660
Attention: Xxxxxxx Xxxxxxx Xxxx de Albuquerque
5.4. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising on the part of the holder of this Note, any right, remedy,
power or privilege hereunder
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shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
5.5. Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Note.
5.6. Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the holder of this Note for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this Note
and any such other documents, including, without limitation, fees and
disbursements of counsel to the holder of this Note, (b) to pay, indemnify, and
hold the holder of this Note harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying any tax (including, without limitation, any registration, stamp,
documentary, court, excise or other tax, fee or charge and any penalty or
interest with respect thereto which may be assessed, levied or collected by the
Federative Republic of Brazil or any Governmental Authority thereof) which may
be payable or determined to be payable in connection with the execution,
delivery, filing registration or enforcement of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Note and any such other
documents and (c) to pay, indemnify, and hold the holder of this Note harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable costs, reasonable expenses or
disbursements of any kind or nature whatsoever (other than those resulting from
the gross negligence or wilful misconduct of such holder) with respect to the
execution, delivery, enforcement, performance and administration of this Note
and any such other documents (all the foregoing, collectively, the "indemnified
liabilities"). The agreements in this subsection shall survive payment of this
Note and all other amounts payable hereunder.
5.7. Set-off. In addition to any rights and remedies of the holder
of this Note provided by law, the holder of this Note shall have the right,
without prior notice to the Company, any such notice being expressly waived by
the Company to the extent permitted by applicable law, upon any amount becoming
due and payable by the Company hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the holder of this Note to or
for the credit or the account of the Company. The holder of this Note agrees
promptly to notify the Company after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
5.8. Usury Law. (a) Usury Limitation. It is the intention of the
Company and the holder of this Note to conform strictly to applicable usury laws
as presently in effect. If the transactions contemplated hereby would be
usurious under applicable law (including the laws of
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the United States of America, the State of New York, the Federative Republic of
Brazil or any other jurisdiction whose laws may be mandatorily applicable),
then, in that event, notwithstanding anything to the contrary hereunder, it is
agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, charged, or received under
this Note or otherwise in connection with this Note shall under no circumstances
exceed the maximum amount of interest allowed by applicable law (the "Maximum
Rate"), and any excess shall be applied to the outstanding principal amount
hereof (or, if this Note shall have been repaid in full, refunded to the
Company) and (ii) in the event that the maturity of this Note is accelerated,
then such consideration that constitutes interest may never include more than
the maximum amount allowed by applicable law, and excess interest, if any,
provided for hereunder shall be canceled automatically as of the date of such
acceleration.
(b) Recapture. If at any time the rate of interest on this Note
would exceed the Maximum Rate but for the foregoing limitation, the interest
rate on this Note shall remain at the Maximum Rate, notwithstanding subsequent
reduction of the rate of interest on this Note, until the total amount of
interest accrued hereon equals the amount of interest which would have accrued
if the rate of interest on this Note had not been limited to the Maximum Rate,
but nothing in this paragraph shall affect or extend the maturity of this Note.
If at maturity or final payment of this Note the total amount of
interest accrued hereon is less than the total amount of interest which would
have accrued had the rate of interest on this Note not been limited to the
Maximum Rate, the Company agrees, to the full extent permitted by law, to pay to
the holder of this Note an amount equal to the positive difference, if any,
derived by subtracting (i) the amount of interest which accrued hereon pursuant
to the provisions of paragraphs (a) and (b) of this subsection from (ii) the
lesser of (A) the amount of interest which would have accrued hereon if the
Maximum Rate had at all times been in effect and (B) the amount of interest
which would have accrued if the rate of interest hereon, not limited to the
Maximum Rate, had at all times been in effect.
5.9. Severability. Any provision of this Note which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5.10. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.11. Use of the English Language. This Note has been negotiated and
executed in the English language. If this Note is translated into the Portuguese
language, the English language version of this Note and comments delivered
hereunder shall control and be conclusive as to the meaning of any terms and
provisions hereof or thereof. All certificates, reports, notices and other
documents and communications given or delivered pursuant to this Note shall be
in the English language, or accompanied by a certified English translation
thereof.
12
5.12. No Personal Liability of Directors, Officers, Employees and
Others. No past, present or future director, officer, employee, incorporator,
partner or stockholder of the Company will have any liability for any
obligations of the Company under this Note or for any claim based on, in respect
of or by reason of such obligations or its creation. The holder of this Note by
accepting this Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of this Note.
5.13. WAIVERS OF JURY TRIAL. THE COMPANY AND TV FILME (BY
ITS ACCEPTANCE OF THIS NOTE) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE AND FOR ANY
COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
ITSA - INTERCONTINENTAL
TELECOMUNICACOES LTDA.
By: /s/ Xxxxxxx Xxxxxxx Xxxx de Albuquerque
----------------------------------------
Name: Xxxxxxx Xxxxxxx Lins de Albuquerque
Title: Delegate-Manager
WITNESSES:
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
ENDORSEMENT
Pay to the order of Bearer
TV FILME, INC.
By: /s/ Xxxxxxx Xxxxxxx Xxxx de Albuquerque
-----------------------------------------
Name: Xxxxxxx Xxxxxxx Xxxx de Albuquerque
Title: Chief Executive Officer
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public within and for
said county, personally appeared Xxxxxxx Xxxxxxx Xxxx de Albuquerque to me
personally known who being duly sworn, did say that he is Delegate-Manager of
ITSA-Intercontinental Telecomunicacoes Ltda., one of the persons described in
and which executed the foregoing instrument, and acknowledges said instrument
to be the free act and deed of said corporation.
/s/ Xxxxxx Xxxxxx
-------------------------
Notary Public
[NOTARIAL SEAL]
