Exhibit 99.7
DEALER MANAGER AND CONSENT SOLICITATION AGREEMENT
February __, 2005
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
1. The Exchange Offer. Net Servicos de Comunicacao S.A., a sociedade por acoes
organized under the laws of the Federative Republic of Brazil (the "Company"),
proposes to exchange (hereinafter referred to, together with any amendments,
supplements or extensions thereof, as the "Exchange Offer") up to US$76,593,068
aggregate principal amount of its 7.0% Senior Secured Notes due 2009 (the "New
Notes", and together with the Guarantees (as hereinafter defined) the "New
Securities") and cash, for all of its issued and outstanding US$97,692,000
aggregate principal amount of 12 5/8% Senior Guaranteed Notes due 2004 (the
"Existing Securities"), and is soliciting (the "Solicitation") consents (the
"Consents") of the holders of the Existing Securities to certain amendments to
the Indenture relating to the Existing Securities (the "Existing Indenture").
The Exchange Offer and the Solicitation will be on the terms and subject to the
conditions set forth in the Exchange Offer and Consent Solicitation Material (as
hereinafter defined). The New Securities will be guaranteed (the "Guarantees")
by the guarantors (the "Guarantors") that are party to the New Indenture (as
hereinafter defined) pursuant to and as set forth in the New Indenture.
2. Appointment as Dealer Manager and Solicitation Agent. The Company hereby
appoints you as Dealer Manager and Solicitation Agent (the "Dealer Manager and
Solicitation Agent") and authorizes you to act as such in connection with the
Exchange Offer and the Solicitation. On the basis of the representations,
warranties and covenants of the Company and the Guarantors contained herein, you
agree, in accordance with your customary practice, to perform those services in
connection with the Exchange Offer and the Solicitation as are customarily
performed by investment banks in connection with exchange offers and consent
solicitations of a like nature, including, but not limited to, using reasonable
efforts to solicit tenders of Existing Securities and delivery of Consents
pursuant to the Exchange Offer and the Solicitation and communicating generally
regarding the Exchange Offer and the Solicitation with brokers, dealers,
commercial banks and trust companies and other holders of Existing Securities.
In such capacity, you shall act as an independent contractor, and each of your
duties arising out of your engagement pursuant to this Agreement shall be owed
solely to the Company.
You acknowledge that Eurovest Global Securities Inc. will act as
solicitation agent solely in connection with Existing Securities held outside
the United States by non-U.S. persons.
The Company further authorizes you to communicate with The Bank of New
York, in its capacity as exchange agent (the "Exchange Agent"), and with X. X.
Xxxx & Co., Inc., in its capacity as information agent (the "Information
Agent"), with respect to matters relating to the Exchange Offer and the
Solicitation. The Company has instructed the Exchange Agent to advise you at
least daily as to the number of Existing Securities that have been tendered
pursuant to the Exchange Offer, the number of Consents that have been delivered
pursuant to the Solicitation and as to such other matters in connection with the
Exchange Offer and the Solicitation as you may reasonably request.
3. No Liability for Acts of Brokers, Dealers, Banks and Trust Companies. Neither
you nor any of your affiliates shall have any liability to the Company, the
Guarantors or any other person for any losses, claims, damages, liabilities and
expenses (each, a "Loss" and collectively, the "Losses") arising from any
act or omission on the part of any broker or dealer in securities (a "Dealer"),
bank or trust company, or any other person, and neither you nor any of your
affiliates shall be liable for any Losses arising from your own acts or
omissions in performing your obligations as Dealer Manager and Solicitation
Agent or as a Dealer hereunder or otherwise in connection with the Exchange
Offer or the Solicitation, except for any such Losses which are finally
judicially determined to have resulted primarily from your bad faith, gross
negligence or willful misconduct. In soliciting or obtaining tenders or delivery
of Consents, no Dealer, bank or trust company is to be deemed to be acting as
your agent or the agent of the Company or any of its affiliates, and you, as
Dealer Manager and Solicitation Agent, are not to be deemed the agent of any
Dealer, bank or trust company or the agent or fiduciary of the Company, or any
of its affiliates, security holders, creditors or of any other person. In
soliciting or obtaining tenders of Existing Securities or delivery of Consents,
you shall not be and shall not be deemed for any purpose to act as a partner or
joint venturer of or a member of a syndicate or group with the Company, or any
of its affiliates in connection with the Exchange Offer or the Solicitation, any
acceptance of the Existing Securities, any payment for Existing Securities or
otherwise, and neither the Company nor any of its affiliates shall be deemed to
act as your agent. The Company shall have sole authority for the acceptance or
rejection of any and all tenders of Existing Securities or delivery of Consents.
4. The Exchange Offer and Consent Solicitation Material and Withdrawal Rights.
The Company agrees to furnish you, at its expense, with as many copies as you
may reasonably request of (i) each of the documents that is filed with the
United States Securities and Exchange Commission (the "Commission") or any other
federal, state, local or foreign governmental or regulatory authorities or any
court (each an "Other Agency" and collectively, the "Other Agencies"), including
each registration statement, preliminary and final prospectus filed with the
Commission in connection with the Exchange Offer or the Solicitation, (ii) the
related letter of transmittal and consent (the "Letter of Transmittal"), (iii)
the notice of guaranteed delivery, (iv) the letter to clients and (v) the letter
to broker dealers, commercial banks, trust companies and other nominees (the
foregoing items (i) to (v) collectively, including each appendix, attachment,
modification, amendment or supplement to any of the foregoing, the "Exchange
Offer and Consent Solicitation Material"), and any other document relating to
the Exchange Offer and the Solicitation that is required to be filed with the
Commission pursuant to the provisions of the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder
(collectively, the "Securities Act"), and the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated by the Commission
thereunder (collectively, the "Exchange Act"). Other than the information
identified by you in Section 10(c) hereof, the Exchange Offer and Consent
Solicitation Material has been or will be prepared and approved by, and is the
sole responsibility of, the Company and the Guarantors. At the commencement of
the Exchange Offer and the Solicitation, the Company shall cause to be timely
delivered, to each registered holder of any Existing Securities, the Exchange
Offer and Consent Solicitation Material, together with a return envelope.
Thereafter, to the extent practicable, until the expiration of the Exchange
Offer, the Company shall use its reasonable best efforts to cause copies of such
materials and a return envelope to be mailed to each person who becomes a holder
of any applicable Existing Securities.
The Company acknowledges and agrees that you may use the Exchange Offer
and Consent Solicitation Material as specified herein without assuming any
responsibility for independent investigation or verification on your part, to
the extent permitted by law, and the Company and the Guarantors represent and
warrant to you that you may rely on the accuracy and adequacy of any information
delivered to you by or on behalf of the Company and the Guarantors without
assuming any responsibility for independent verification of such information or
without performing or receiving any appraisal or evaluation of the Company's or
the Guarantors' assets or liabilities, to the extent permitted by law.
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You hereby agree, as Dealer Manager and Solicitation Agent, that you
will not disseminate any written material for or in connection with the
solicitation of tenders of Existing Securities and delivery of Consents pursuant
to the Exchange Offer and the Solicitation other than the Exchange Offer and
Consent Solicitation Material and you agree that you will not make any
statements in connection with the Exchange Offer and the Solicitation, other
than the statements that are set forth in the Exchange Offer and Consent
Solicitation Material or as otherwise authorized by the Company.
The Company agrees that no Exchange Offer and Consent Solicitation
Material will be used in connection with the Exchange Offer, the Solicitation or
the transactions contemplated thereby or filed with the Commission or any Other
Agency with respect to the Exchange Offer, the Solicitation or the transactions
contemplated thereby without first obtaining your prior approval (which approval
shall not be unreasonably withheld). In the event that the Company (a) uses or
permits the use of any Exchange Offer and Consent Solicitation Material in
connection with the Exchange Offer, the Solicitation or the transactions
contemplated thereby or files any such material with the Commission or any Other
Agency without your prior approval or (b) shall have breached any of its
representations, warranties, agreements or covenants herein, then you shall be
entitled to withdraw as Dealer Manager and Solicitation Agent in connection with
the Exchange Offer or the Solicitation without any liability or penalty to you
or any Indemnified Person (as hereinafter defined) for such withdrawal, and
without loss of any right to the indemnification provided in Section 12 hereof,
the payment of all expenses payable under this Agreement which have accrued to
the date of such withdrawal or would otherwise be due to you on such date, or
the benefit of any other provisions surviving such withdrawal pursuant to
Section 15 hereof. If you withdraw as Dealer Manager and Solicitation Agent
pursuant to this Section 4, reimbursement for your expenses through the date of
such withdrawal shall be paid to you on or promptly after such date.
5. Compensation. As compensation for the services to be provided by you as
Dealer Manager and Solicitation Agent in connection with the Exchange Offer and
the Solicitation, the Company agrees to pay you a success fee, payable on the
date of the closing of the Exchange Offer and the Solicitation:
a) equal to US$400,000 (four hundred thousand U.S. dollars); less
b) the following fees incurred by the Company, solely with
respect to the appointment of The Bank of New York to act as
Exchange Agent in the Exchange Offer and the Solicitation, and
subject to the delivery by the Company to you of an itemized
expense report describing such fees: (i) Exchange Agent fee,
up to an amount of US$10,000 (ten thousand U.S. dollars); (ii)
transaction fees per tender, as applicable and as described in
The Bank of New York's fee proposal dated October 19, 2004;
and (iii) extension fees, if applicable and as described in
The Bank of New York's fee proposal dated October 19, 2004.
6. Expenses of Dealer Manager and Solicitation Agent and Others. In addition to
your compensation for your services hereunder pursuant to Section 5 hereof, the
Company agrees to pay directly, or reimburse you, as the case may be, for (a)
all fees and expenses incurred by you relating to the preparation, printing,
filing, mailing and publishing of all Exchange Offer and Consent Solicitation
Material, (b) all fees and expenses of the Information Agent or other persons
rendering services in connection with the Exchange Offer or the Solicitation,
(c) all advertising charges in connection with the Exchange Offer, the
Solicitation or the transactions contemplated thereby, including the reasonable
charges of any public relations firm or other person or entity rendering
services in connection therewith, (d) all fees, if any, payable to Dealers
(including you), and banks and trust companies as reimbursement for their
customary mailing and handling expenses incurred in forwarding the Exchange
Offer and Consent Solicitation Material to their customers, (e) all fees and
expenses payable in connection with the registration or qualification of the New
Securities under state securities or "blue sky" laws, and (f) all other
reasonable fees and expenses incurred by you in connection with the Exchange
Offer, the Solicitation or the transactions contemplated thereby or otherwise in
connection with the performance of
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your services hereunder (including reasonable fees and disbursements of your
legal counsel). All payments to be made by the Company pursuant to this Section
6 shall be made promptly against delivery to the Company of statements therefor.
The Company shall be liable for the foregoing payments whether or not the
Exchange Offer, the Solicitation or the transactions contemplated thereby are
commenced, withdrawn, terminated or cancelled prior to the acceptance of any
Existing Securities or whether the Company or any of its subsidiaries or
affiliates acquires any Existing Securities or receives any Consents pursuant to
the Exchange Offer and the Solicitation or whether you withdraw pursuant to
Section 4 hereof.
7. Securityholder Lists. The Company will cause you to be provided with cards or
lists or other records in such form as you may reasonably request showing the
names and addresses of, and the number of Existing Securities held by, the
holders of Existing Securities as of a recent date and will cause you to be
advised from day to day during the period of the Exchange Offer and the
Solicitation as to any transfers of record of Existing Securities.
8. Sufficient Funds. The Company represents and warrants to you that it has or,
at the time the Company becomes obligated to pay the cash consideration for
Existing Securities tendered in connection with the Exchange Offer, will have,
sufficient funds to enable the Company to pay, and the Company hereby agrees
with you that it will pay promptly, in accordance with the terms and conditions
of the Exchange Offer and Sections 5 or 6 hereof, the cash consideration (and
related costs) for Existing Securities that the Company has offered, and which
the Company may be required, to pay under the Exchange Offer, and the fees and
expenses payable hereunder.
9. Additional Obligations of the Company. a) The Company will furnish to you,
without charge, one signed copy of the registration statement relating to the
Exchange Offer and the Solicitation (the "Registration Statement") and any
post-effective amendments thereto.
b) The Company will furnish to you copies of each amendment or
supplement to any of the Exchange Offer and Consent Solicitation
Material within a reasonable period of time prior to the filing thereof
(if applicable).
c) The Company shall advise you promptly of (i) the time when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (ii) the occurrence of any event
which could cause the Company to withdraw, rescind, terminate or modify
the Exchange Offer or the Solicitation or would permit the Company to
exercise any right not to accept Existing Securities tendered or
Consents delivered pursuant to the Exchange Offer or the Solicitation
or otherwise not consummate the Exchange Offer or the Solicitation,
(iii) the occurrence of any event, or the discovery of any fact, the
occurrence or existence of which it believes would require the making
of any change in any of the Exchange Offer and Consent Solicitation
Material then being used or would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect, (iv) any proposal or requirement to make, amend or supplement
any filing required by the Securities Act, the Exchange Act or "blue
sky" or other state securities laws in connection with the Exchange
Offer or the Solicitation or to make any filing in connection with the
Exchange Offer or the Solicitation pursuant to any other applicable
law, rule or regulation, (v) the issuance by the Commission or any
Other Agency of any comment or order or the taking of any other action
concerning the Exchange Offer or the Solicitation (and, if in writing,
will furnish you with a copy thereof), (vi) any material developments
in connection with the Exchange Offer or the Solicitation, including,
without limitation, the commencement of any lawsuit concerning the
Exchange Offer or the Solicitation and (vii) any other information
relating to the Exchange Offer, the Solicitation, the Exchange Offer
and Consent Solicitation Material or this Agreement which you may from
time to time reasonably request. If at any time the Commission shall
issue any order suspending the
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effectiveness of the Registration Statement or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification of the New Securities under state
securities or "blue sky" laws, the Company shall make every reasonable
effort to obtain the withdrawal of such order at the earliest
practicable time.
d) Prior to the issuance of the New Securities, the Company shall
obtain the registration or qualification thereof under the securities
or "blue sky" laws of such jurisdictions as may be required for the
consummation of the Exchange Offer or the Solicitation; provided that
the Company will not be required to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer.
e) So long as any of the New Securities are outstanding, the Company
will, upon your request, deliver to you, promptly upon their becoming
available, copies of all financial statements, reports, notices and
proxy statements sent by the Company to its security holders, and of
all current, regular and periodic reports filed by the Company or any
of its subsidiaries with any securities exchange or with the Commission
or any governmental authority succeeding to any of the Commission's
functions.
f) Prior to the consummation of the Exchange Offer and the
Solicitation, the Company shall furnish to you, as soon as practicable
after they have been prepared by the Company, a copy of any
consolidated financial statements of the Company and its consolidated
subsidiaries for any period subsequent to the period covered by the
financial statements appearing in the Registration Statement and the
prospectus included in the Registration Statement at the time it became
effective (the "Prospectus," which term shall also be defined to
include any prospectus filed with the Commission pursuant to Rule 424
under the Securities Act).
g) The Company will comply in a timely manner with the applicable
provisions of Rule 424 under the Securities Act.
h) The Company agrees to make generally available to its security
holders as soon as practicable an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act covering a twelve
month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date of the Registration
Statement.
10. Additional Representations, Warranties and Covenants of the Company. The
Company and the Guarantors represent and warrant to you that:
a) The Company and each Guarantor is a sociedade por acoes, sociedade
anonima, sociedade limitada or limited liability company, as
applicable, duly organized and validly existing under the laws of its
jurisdiction of organization, with corporate power and authority to
own, lease and operate its properties and to conduct its business as
presently conducted and as described in the Exchange Offer and Consent
Solicitation Material; and the Company and each Guarantor is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing,
considering all such cases in the aggregate, would not have a material
adverse effect on the business, properties, financial position or
results of operations of the Company and all of its subsidiaries and
affiliates taken as a whole (a "Material Adverse Effect").
b) (i) The Company and each Guarantor has full corporate (or
equivalent) power and authority to take and has duly taken all
necessary corporate action to authorize (A) the Exchange Offer and the
Solicitation, (B) with respect to the Company, the issuance of the New
Notes, (C)
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with respect to each Guarantor, the issuance of its Guarantee, (D) the
exchange by the Company of New Notes for Existing Securities pursuant
to the Exchange Offer and the payment by the Company for Existing
Securities pursuant to the Exchange Offer, (E) the consummation of the
other transactions contemplated by the Exchange Offer and Consent
Solicitation Material and (F) the execution, delivery and performance
of this Agreement, and (ii) this Agreement has been duly authorized,
executed and delivered on behalf of the Company and the Guarantors and
is a legal, valid and binding obligation of the Company and the
Guarantors enforceable against the Company and the Guarantors in
accordance with its terms, except that (x) the enforceability hereof
may be limited by bankruptcy, insolvency, reorganization, concordata,
intervencao judicial, recuperacao judicial, moratorium and other laws
now or hereafter in effect relating to creditors' rights generally and
general principles of equity, and (y) the indemnification provisions
contained in Section 12 of this Agreement may not be enforceable as a
matter of public policy or similar principles.
c) None of the Exchange Offer and Consent Solicitation Material
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in the light
of the circumstances under which they are made, not misleading;
provided, however, that no representation is made with respect to any
statements contained in, or any matter omitted from, the Exchange Offer
and Consent Solicitation Material in reliance upon and in conformity
with information furnished or confirmed in writing by you to the
Company expressly for use therein. The Company acknowledges that the
only information furnished by or on behalf of the Dealer Manager and
Solicitation Agent is the address of the Dealer Manager and
Solicitation Agent on the back cover of the Prospectus and Letter of
Transmittal.
d) The Exchange Offer, the Solicitation, the payment by the Company for
Existing Securities pursuant to the Exchange Offer, the issuance of the
New Securities, the exchange of New Securities for Existing Securities
pursuant to the Exchange Offer, the consummation of the other
transactions contemplated by this Agreement, the Exchange Offer, the
Solicitation or the Exchange Offer and Consent Solicitation Material,
and the execution, delivery and performance of this Agreement and all
related documents by the Company and the Guarantors comply and will
comply in all material respects with all applicable requirements of
federal, state, local and foreign law, including, without limitation,
the Securities Act, the Exchange Act, the Trust Indenture Act of 1939
(the "TIA"), any applicable regulations of the Commission and Other
Agencies, and all applicable judgments, orders or decrees; and no
consent, authorization, approval, order, exemption, registration,
qualification or other action of, or filing with or notice to, the
Commission or any Other Agency is required in connection with the
execution, delivery and performance of this Agreement by the Company
and the Guarantors, the making or consummation by the Company and the
Guarantors of the Exchange Offer, the Solicitation, the payment by the
Company for Existing Securities pursuant to the Exchange Offer, the
issuance of the New Securities, the exchange of New Securities for
Existing Securities pursuant to the Exchange Offer or the consummation
of the other transactions contemplated by this Agreement, the Exchange
Offer, the Solicitation or the Exchange Offer and Consent Solicitation
Material, except (i) those that have been obtained and as may be
required under the Securities Act, "blue sky" or other state securities
laws, (ii) necessary authorizations of (x) the Brazilian Central Bank,
including those required to enable the Company to make remittances from
Brazil in U.S. dollars to make payments under the New Securities and
(y) the Agencia Nacional de Telecomunicacoes - ANATEL and the Brazilian
antitrust authorities in the event of a foreclosure on collateral
(other than receivables) securing the New Securities under the asset
pledge agreement, share pledge agreement and quota pledge agreement to
be entered into in connection with the Restructuring (as defined in the
New Indenture), among the Company, the Guarantors and the creditors
that are to be
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parties thereto and (iii) where the failure to obtain or make such
consent, authorization, approval, order, exemption, registration,
qualification or other action or filing or notification would not
materially adversely affect the ability of the Company and the
Guarantors to execute, deliver and perform this Agreement or to
commence and consummate the Exchange Offer and the Solicitation in
accordance with its terms. All required consents, authorizations,
approvals, orders, exemptions, registrations, qualifications and other
actions of and filings with and notices to the Commission and the Other
Agencies will have been obtained, taken or made, as the case may be,
and all statutory or regulatory waiting periods will have elapsed,
including those pursuant to Rule 14e-1 of the Exchange Act, prior to
the acceptance of the Existing Securities pursuant to the Exchange
Offer and the Solicitation.
e) As of the date hereof, the Company and the Guarantors are not in
breach of any of the terms or provisions of or in default (with or
without due notice and/or lapse of time) under, any loan or credit
agreement, indenture, mortgage, note or other agreement or instrument
to which the Company, any Guarantor or any of the Company's
subsidiaries is a party or by which any of them or any of their
respective properties or assets is or may be bound (after giving effect
to consents, waivers and amendments that will have been made or
obtained as of the consummation of the Exchange Offer and the
Solicitation) except for (i) those listed in Annex A hereto (which
relate solely to indebtedness of the Company and the Guarantors that is
entitled to participate in the Restructuring (as defined in the New
Indenture)) or (ii) such breaches or defaults that would not cause a
Material Adverse Effect.
f) The Exchange Offer, the Solicitation, the payment by the Company for
Existing Securities pursuant to the Exchange Offer, the issuance of the
New Securities, the exchange of New Securities for Existing Securities
pursuant to the Exchange Offer, the consummation of the other
transactions contemplated by this Agreement, the Exchange Offer, the
Solicitation or the Exchange Offer and Consent Solicitation Material,
and the execution, delivery and performance of this Agreement by the
Company and the Guarantors, do not and will not (i) conflict with or
result in a violation of any of the provisions of the certificate of
incorporation or by-laws (or similar organizational documents) of the
Company or any of the Guarantors, (ii) other than as disclosed in the
Prospectus, conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to the Company, any Guarantor or any of
the Company's subsidiaries or by which any property or asset of the
Company, any Guarantors or any of the Company's subsidiaries is or may
be bound, or (iii) other than as disclosed in the Prospectus, result in
a breach of any of the material terms or provisions of, or constitute a
default (with or without due notice and/or lapse of time) under, any
loan or credit agreement, indenture, mortgage, note or other agreement
or instrument to which the Company, any Guarantor or any of the
Company's subsidiaries is a party or by which any of them or any of
their respective properties or assets is or may be bound (after giving
effect to consents, waivers and amendments that will have been made or
obtained as of the consummation of the Exchange Offer and the
Solicitation).
g) No stop order, restraining order or denial of an application for
approval has been issued and no investigation, proceeding or litigation
has been commenced or, to the best of the Company's knowledge, after
due inquiry, threatened before the Commission or any Other Agency with
respect to the making or consummation of the Exchange Offer and the
Solicitation, the payment by the Company for Existing Securities
pursuant to the Exchange Offer, the offer, issuance, delivery or
exchange of the New Securities pursuant to the Exchange Offer or the
consummation of the other transactions contemplated by this Agreement,
the Exchange Offer, the Solicitation or the Exchange Offer and Consent
Solicitation Material.
h) Since September 30, 2004, and except as otherwise stated in or
contemplated by the Exchange Offer and Consent Solicitation Material,
(i) there has been no material adverse change
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and no development involving a prospective material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, the Guarantors and the
Company's subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, (ii) there have been no transactions
entered into by the Company, any Guarantor or any of the Company's
subsidiaries which are material to the Company, the Guarantors and the
Company's subsidiaries, taken as a whole, other than those entered into
in the ordinary course of business; (iii) there has been no material
change in the capital stock of the Company, any Guarantor or any of the
Company's subsidiaries; and (iv) there has been no dividend or
distribution of any kind declared, paid or made by the Company, the
Guarantors or any of the Company's subsidiaries on any class of their
capital stock.
i) There is no action, suit or proceeding before or by the Commission
or any Other Agency, which has been served upon the Company, the
Guarantors or any of the Company's subsidiaries that is now pending or,
to the best knowledge of the Company or the Guarantors, threatened,
against or affecting the Company, any Guarantor or any of the Company's
subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which is reasonably
likely to result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, the Guarantors and the Company's
subsidiaries, taken as a whole, or which is reasonably likely to
materially and adversely affect the consummation of any of the
transactions contemplated by this Agreement; all pending legal and
governmental proceedings to which the Company, any Guarantor or any of
the Company's subsidiaries is a party or of which any of their property
or assets is the subject which are not described in the Exchange Offer
and Consent Solicitation Material including ordinary routine litigation
incidental to the business of the Company, any Guarantor or any of the
Company's subsidiaries are, considered in the aggregate, not material
to the Company and its subsidiaries, taken as a whole; and there are no
contracts or other documents of the Company, any Guarantor or any of
the Company's subsidiaries which are required to be filed as exhibits
to the Exchange Offer and Consent Solicitation Material by the
Securities Act or the Exchange Act which have not been so filed.
j) Except as otherwise stated in or contemplated by the Prospectus, the
authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus under "Capitalization," and all of the
issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar right for which a waiver
has not been obtained.
k) The New Securities and the indenture pertaining thereto (the "New
Indenture") will be duly authorized and executed by, and will be the
legal, valid and binding obligations of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with
their terms (except as enforcement thereof may be limited by (x)
bankruptcy, insolvency, reorganization, concordata, intervencao
judicial, recuperacao judicial, moratorium and other laws now or
hereafter in effect relating to creditors' rights generally and (y)
general principles of equity), and will conform to the descriptions
thereof in the Exchange Offer and Consent Solicitation Material.
l) The accountants who have certified the financial statements and
supporting schedules included in the Exchange Offer and Consent
Solicitation Material are independent public accountants with respect
to the Company and its subsidiaries as required by the Securities Act.
m) The New Indenture will comply in all material respects with the TIA.
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n) The consolidated financial statements of the Company included in the
Exchange Offer and Consent Solicitation Material present fairly the
financial position of the Company and its subsidiaries as of the dates
indicated and the results of their operations for the periods
specified; except as otherwise stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the supporting
schedules included in the Exchange Offer and Consent Solicitation
Material present fairly the information required to be included
therein.
o) Each of this Agreement, the Exchange Offer and the Solicitation, the
New Securities and the Existing Securities conforms in all material
respects to the descriptions thereof contained in the Exchange Offer
and Consent Solicitation Material.
p) The Company is not, and will not be upon consummation of the
Exchange Offer, an "investment company" under the Investment Company
Act of 1940, as amended, and the rules and regulations promulgated by
the Commission thereunder.
q) Each of the representations and warranties contained in this
Agreement will continue to be true and correct at the commencement of,
at all times during the continuance of the Exchange Offer and the
Solicitation, and on and as of the date on which any Existing
Securities are acquired or Consents are given pursuant to the Exchange
Offer and the Solicitation.
11. Conditions to Obligations of the Dealer Manager and Solicitation Agent. Your
obligation to render services pursuant to this Agreement shall at all times be
subject, in your discretion, to the following conditions:
a) The Company at all times shall have performed in all material
respects all of its obligations hereunder theretofore to be performed.
b) The Registration Statement shall have been declared effective by the
Commission.
c) All representations, warranties, covenants and other statements of
the Company and the Guarantors contained in this Agreement are now, at
the commencement of, at all times during the continuance of the
Exchange Offer and the Solicitation, and on and as of the date on which
any Existing Securities are acquired or Consents are given pursuant to
the Exchange Offer and the Solicitation, shall be, true and correct in
all material respects.
d) You shall have received opinions addressed to you and dated the date
hereof of Debevoise & Xxxxxxxx LLP, U.S. counsel to the Company,
Xxxxxxx Mussnich & Aragao Advogados, Brazilian counsel to the Company,
Walkers, British Virgin Islands counsel to Jonquil Ventures Limited and
Xxxxxxxx, Xxxxxx & Finger P.A., Delaware counsel to Dabny L.L.C., in
each case in form and substance satisfactory to you.
e) You shall have received opinions addressed to you and dated the date
of the first issuance of the New Securities pursuant to the Exchange
Offer of Debevoise & Xxxxxxxx LLP, U.S. counsel to the Company, Xxxxxxx
Mussnich & Aragao Advogados, Brazilian counsel to the Company, Walkers,
British Virgin Islands counsel to Jonquil Ventures Limited and
Xxxxxxxx, Xxxxxx & Finger P.A., Delaware counsel to Dabny L.L.C., in
each case in form and substance satisfactory to you.
f) You shall have received a letter, satisfactory in form to you and
your counsel, dated the commencement date of the Exchange Offer and the
Solicitation (and reaffirmed and updated upon the consummation thereof)
and addressed to you, of Ernst & Young Auditores
9
Independentes S.S., independent registered public accountants for the
Company, containing statements and information of the type ordinarily
included in accountants' comfort letters with respect to the financial
statements and certain financial information contained in the Exchange
Offer and Consent Solicitation Material.
g) It shall not have become unlawful under any law or regulation,
foreign or U.S. Federal, state or local, for you to render services
pursuant to this Agreement, or to continue so to act, as the case may
be.
12. Indemnification. a) The Company and the Guarantors agree to hold harmless
and indemnify you (including any affiliated companies) and any officer,
director, partner, employee or agent of you or any of such affiliated companies
and any entity or person controlling (within the meaning of Section 20(a) of the
Exchange Act) you, including any affiliated companies (collectively, the
"Indemnified Persons"), from and against any and all Losses whatsoever
(including, but not limited to, any and all expenses incurred in investigating,
preparing or defending against any litigation or proceeding, commenced or
threatened, or any claims whatsoever whether or not resulting in any liability)
(i) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Exchange Offer and Consent
Solicitation Material or in any other material used by the Company and the
Guarantors, or authorized by the Company and/or the Guarantors for use in
connection with the Exchange Offer and the Solicitation, or arising out of or
based upon the omission or alleged omission to state in any such document a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (ii) arising out of or based upon the commencement of, or any
withdrawal or termination by the Company and/or the Guarantors of, or failure by
the Company and/or the Guarantors to make or consummate, the Exchange Offer or
the Solicitation or any other failure to comply with the terms and conditions
specified in the Exchange Offer and Consent Solicitation Material, (iii) arising
out of the breach or alleged breach by the Company or the Guarantors of any
representation, warranty or covenant set forth in this Agreement or (iv) arising
out of, relating to or in connection with any other action taken or omitted to
be taken by an Indemnified Person or (v) otherwise arising out of, relating to
or in connection with the Exchange Offer, the Solicitation, the other
transactions described in the Exchange Offer and Consent Solicitation Material
or your services as Dealer Manager and Solicitation Agent hereunder; provided,
however, that the Company and the Guarantors shall not be responsible for any
Loss pursuant to clauses (iv) or (v) of the preceding sentence of this Section
12 which has been finally judicially determined to have resulted primarily from
the bad faith, gross negligence or willful misconduct on the part of any
Indemnified Person, other than any Loss arising out of or resulting from actions
performed or omitted to be performed at the request of, with the consent of, or
in conformity with actions taken or omitted to be taken by, the Company or the
Guarantors; provided further that the Company and the Guarantors shall not be
liable in any case to the extent that any Loss arises out of or is based upon
any untrue statement or omission or alleged omission made in the Exchange Offer
and Consent Solicitation Material in reliance on or in conformity with written
information relating to you furnished to the Company by or on behalf of you
specifically for inclusion therein.
b) The Company and the Guarantors and you agree that if any
indemnification sought by any Indemnified Person pursuant to this
Section 12 is unavailable for any reason or insufficient to hold you
harmless, then the Company and the Guarantors and you shall contribute
to the Losses for which such indemnification is held unavailable or
insufficient in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by the
Company and the Guarantors, on the one hand, and actually received by
you, on the other hand, in connection with the transactions
contemplated by this Agreement or, if such allocation is not permitted
by applicable law, not only such relative benefits but also the
relative faults of the Company and the Guarantors, on the one hand, and
you, on the other hand, as well as any other equitable considerations,
subject to the limitation that in any event the aggregate contribution
by
10
you to all Losses with respect to which contribution is available
hereunder shall not exceed the fees actually received by you in
connection with your engagement hereunder (excluding any amounts paid
as reimbursement of expenses). It is hereby agreed that the relative
benefits to the Company and the Guarantors, on the one hand, and you,
on the other hand, with respect to the Exchange Offer, the Solicitation
and the transactions contemplated thereby shall be deemed to be in the
same proportion as (i) the total value paid or proposed to be paid to
holders of Existing Securities pursuant to the Exchange Offer, the
Solicitation and the transactions contemplated thereby (whether or not
the Exchange Offer, the Solicitation or such transactions are
consummated) bears to (ii) the fees actually received by you from the
Company in connection with your engagement hereunder (excluding any
amounts paid as reimbursement of expenses). The relative fault of the
Company and the Guarantors, on the one hand, and of you and other
Indemnified Persons, on the other hand, (x) in the case of an untrue or
alleged untrue statement of a material fact, shall be determined by
reference to, among other things, whether such action or omission
relates to information supplied by the Company or the Guarantors or by
you or the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission and
(y) in the case of any other action or omission, shall be determined by
reference to, among other things, whether such action or omission was
taken or omitted by the Company or the Guarantors or by you and the
parties' relative intent, knowledge, access to information and
opportunity to prevent such action or omission.
c) The Company and the Guarantors also agree to reimburse each
Indemnified Person for all expenses (including fees and disbursements
of counsel) as they are incurred by such Indemnified Person in
connection with investigating, preparing for, defending or providing
evidence (including appearing as a witness) with respect to any action,
claim, investigation, inquiry, arbitration or other proceeding referred
to in this Section 12 or enforcing this Agreement, whether or not in
connection with pending or threatened litigation in which any
Indemnified Person is a party.
d) The Company and the Guarantors agree that they will not, without
your prior written consent, settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action or
proceeding in respect of which indemnification may be sought hereunder
(whether or not you, any other Indemnified Person or the Company is an
actual or potential party), unless such settlement, compromise or
consent (i) includes an unconditional release of each Indemnified
Person from all liability arising out of such claim, action or
proceeding and (ii) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of an
Indemnified Person.
e) The foregoing rights to indemnity and contribution shall apply
whether or not the Indemnified Person is a formal party to such
litigation or proceeding and shall be in addition to any other right
which you and the other Indemnified Persons may have against the
Company or the Guarantors at common law or otherwise.
13. Reference to Dealer Manager and Solicitation Agent. The Company agrees that
any reference to you or your affiliates in any Exchange Offer and Consent
Solicitation Material, or any other release, publication or communication to any
party outside the Company, is subject to your prior approval (which shall not be
unreasonably withheld). If you resign or are terminated prior to the
dissemination of any Exchange Offer and Consent Solicitation Material or any
other release or communication, no reference shall be made therein to you
without your prior written permission.
14. Access to Information. In connection with your activities hereunder, the
Company agrees to furnish you and your counsel with all information concerning
the Company and the Guarantors that you reasonably deem appropriate and agrees
to provide you with reasonable access to the Company's and the
11
Guarantors' officers, directors, accountants, counsel, consultants and other
appropriate agents and representatives, it being understood that you will be
entitled to rely upon such information supplied by the Company and the
Guarantors and such persons without assuming any responsibility for independent
investigation or verification thereof.
15. Termination. This Agreement shall terminate upon (a) the expiration,
termination or withdrawal of the Exchange Offer or the Solicitation or (b)
withdrawal by you as Dealer Manager and Solicitation Agent pursuant to Section 4
hereof, it being understood that Sections 3, 5, 6, 12, 14, 16, 19, 20, 23, 25
and 26 hereof shall survive any termination of this Agreement; provided that
upon termination under (a), no payment shall be made to you under Section 5
hereof and you will only be entitled to reimbursement of expenses under Section
6 hereof. In addition, you shall have the right to terminate this Agreement if
the opinions of counsel specified in Section 11 hereof are not received by you
upon request.
16. Notices. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be given (and shall be
deemed to have been given upon receipt) by delivery in person, by cable, by
telecopy, by telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the applicable party at the addresses
indicated below:
a) if to you:
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx or Xxxxxxx Xxxxx
with a copy to:
Shearman & Sterling LLP
Xx. Xxxx. Xxxxx Xxxx, 0000
00000-000 Xxx Xxxxx, Xxxxxx
Telecopy No.: 55 11 3702 2224
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
(b) if to Company and the Guarantors:
Net Servicos de Comunicacao X.X.
Xxx Xxxxx Xxxxxx, 0000
00000-000 Xxx Xxxxx, Xxxxxx
Telecopy No.: 55 11 5186 2555
Attention: General Counsel
with a copy to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
12
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
17. Consent to Jurisdiction; Service of Process. The Company and the Guarantors
hereby (a) submit to the jurisdiction of any New York State or Federal court
sitting in the City of New York with respect to any actions and proceedings
arising out of or relating to this Agreement, (b) agree that all claims with
respect to such actions or proceedings may be heard and determined in such New
York State or Federal court, (c) waive the defense of an inconvenient forum, (d)
agree not to commence any action or proceeding relating to this Agreement other
than in a New York State or Federal court sitting in the City of New York and
(e) agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. In addition, the Company and the Guarantors
hereby consent to the service of process upon it in the State of New York and
irrevocably designate Corporation Service Company, 1133 Avenue of the Americas,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as their agent upon whom process against
them may be served.
18. Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof.
19. Amendment. This Agreement may not be amended except in writing signed by
each party to be bound thereby.
20. Governing Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN.
21. Waiver of Immunity. This Agreement and any other documents delivered
pursuant hereto and any actions taken hereunder constitute commercial acts by
the Company and the Guarantors. The Company and the Guarantors irrevocably and
unconditionally and to the fullest extent permitted by law, waive, and agree not
to plead or claim, any immunity from jurisdiction of any court or from any legal
process (whether though service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) for itself or for any
other matter under or arising out of or in connection with this Agreement or any
document delivered pursuant hereto or thereunder, it being intended that the
foregoing waiver and agreement will be effective, irrevocable and not subject to
withdrawal in any and all jurisdictions, and, without limiting the generality of
the foregoing, agree that the waivers set forth in this Section 21 shall have
the fullest scope permitted under the United States Foreign Sovereign Immunities
Act of 1976 and are intended to be irrevocable for the purposes of such act.
22. Currency. Each reference in this Agreement to U.S. dollars is of the
essence. To the fullest extent permitted by law, the obligation of the Company
and the Guarantors in respect of any amount due under this Agreement will,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in U.S.
dollars that the party entitled to receive such payment may, in accordance with
its normal procedures, purchase with the sum paid in such other currency (after
any premium and costs of exchange) on the business day immediately following the
day on which such party receives such payment. If the amount in U.S. dollars
that may be so purchased for any reason falls short of the amount originally
due, the Company and the Guarantors will pay such additional amounts, in U.S.
dollars, as may be necessary to compensate for the shortfall. Any obligation of
the Company and the Guarantors not discharged by such payment will, to the
fullest extent
13
permitted by applicable law, be due as a separate and independent obligation
and, until discharged as provided herein, will continue in full force and
effect.
23. Waiver of Jury Trial. THE COMPANY AND THE GUARANTORS HEREBY AGREE ON THEIR
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF THEIR
SECURITY HOLDERS, TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY
CLAIM, COUNTER-CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT
LIMITATION, THE EXCHANGE OFFER AND THE SOLICITATION).
24. Counterparts; Severability. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Any term or
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
25. Parties in Interest. This Agreement, including rights to indemnity and
contribution hereunder, shall be binding upon and inure solely to the benefit of
each party hereto, the Indemnified Persons and their respective successors,
heirs and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
26. Tombstone. The Company acknowledges that you may at your expense place an
announcement in such newspapers and periodicals as you may choose, stating that
you have acted or are acting as Dealer Manager and Solicitation Agent in
connection with the Exchange Offer, the Solicitation and the transactions
contemplated thereby, subject to the Company's prior approval (not to be
unreasonably withheld).
14
Please indicate your willingness to act as Dealer Manager and Solicitation Agent
and your acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to us a copy of this Agreement so signed,
whereupon this Agreement and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
NET SERVICOS DE COMUNICACAO S.A
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
ALNOR ALUMINIO DO NORTE LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
ANTENAS COMUNITARIAS BRASILEIRAS LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
CABODINAMICA TV CABO SAO PAULO S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
15
CMA PARTICIPACOES S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
DABNY, L.L.C.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
JONQUIL VENTURES LIMITED
By: ______________________________________________
Name:
Title:
MULTICANAL TELECOMUNICACOES S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET BELO HORIZONTE LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
16
NET BRASILIA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET LONDRINA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET RIO S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
TV CABO DE CHAPECO LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
TV VIDEO CABO DE BELO HORIZONTE S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
17
NET RECIFE LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET SAO PAULO LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET CAMPINAS LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET INDAIATUBA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET FRANCA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
18
NET SUL COMUNICACOES LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
DR-EMPRESA DE DISTRIBUICAO E RECEPCAO DE TV LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET JOINVILLE LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET FLORIANOPOLIS LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET MARINGA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
19
NET SAO XXXX DO RIO PRETO LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET PIRACICABA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET GOIANIA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET CAMPO GRANDE LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET SOROCABA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
20
NET SAO XXXXXX S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
HORIZONTE SUL COMUNICACOES LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET PARANA COMUNICACOES LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET CURITIBA LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET ARAPONGAS LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
21
NET RIBEIRAO PRETO S.A.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET BAURU LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
NET ANAPOLIS LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
REYC COMERCIO E PARTICIPACOES LTDA.
By: ______________________________________________
Name:
Title:
By: ______________________________________________
Name:
Title:
22
Accepted as of the date first above written:
CREDIT SUISSE FIRST BOSTON LLC
By: ____________________________________________
Name:
Title:
23
ANNEX A
List of Net Group Companies' Commercial Loans
DEBT OUTSTANDING POSITION - 06/30/04
BORROWER CREDIT FACILITY CREDITOR/TRUSTEE INITAL DATE MATURITY ORIGINAL BORROWED AMOUNT OUTSTANDING PRINCIPAL
AMOUNT AS OF JUNE 30,
2004*
------------ -------------------------- ---------------- ----------- ---------- ------------------------ ---------------------
Net Servicos IFC Investment(1) IFC 30/03/1995 15/10/2004 USD 17.100.000,00 19.087.394,61
Net Servicos Senior Guaranteed Notes(2) Xxxxx Fargo 18/06/1996 18/06/2004 USD 185.000.000,00 382.679.958,00
Net Servicos Working Capital Banrisul 11/04/2001 12/04/2003 R$ 25.000.000,00 35.039.026,56
Net Servicos Working Capital BBA 18/11/2002 18/12/2002 R$ 4.647.987,16 7.561.534,35
Net Servicos Working Capital (3) Unibanco 30/09/2002 30/10/2002 R$ 72.167.572,05 103.988.715,10
Net Servicos Res. 63(4) BBA 18/11/2002 18/12/2002 USD 1.949.690,89 11.486.243,27
Net Servicos Res. 63(4) BBA 18/11/2002 18/12/2002 USD 1.951.434,13 11.496.513,25
Net Servicos Res. 63(4) BBA 18/11/2002 18/12/2002 USD 1.811.880,67 10.674.359,85
Net Servicos Res. 63(4) BBA 18/11/2002 18/12/2002 USD 1.642.183,21 9.674.618,65
Net Servicos Res. 63(4) BBA 18/11/2002 18/12/2002 USD 2.674.356,44 15.755.476,33
Net Servicos US$-CDI Swap(5) BBA 18/11/2002 18/12/2002 1.250.049,10
Net Servicos Res. 63 BNL 12/06/2002 10/12/2002 USD 7.000.000,00 23.803.595,57
Net Servicos 2nd Public Issuance Xxxxxxxx Trust 01/12/1999 01/12/2006 R$ 350.000.000,00 62.349.245,33
Net Servicos 3rd Public Issuance SLW 01/12/2000 01/12/2003 R$ 195.140.000,00 293.503.015,00
Net Campinas Eximbank(6) BCN 17/06/2002 16/12/2002 USD 508.209,50 218.846,18
Net Campinas Eximbank(6) Unibanco 13/04/1998 19/05/2003 USD 364.116,59 116.217,90
Net Campinas Eximbank(6) Unibanco 13/04/1998 02/06/2003 USD 635.800,07 200.346,02
Net Campinas Eximbank(6) Unibanco 27/04/1998 02/06/2003 USD 342.868,14 108.041,12
Net Rio IFC Investment(1) IFC 30/03/1995 15/10/2004 USD 7.700.000,00 8.593.187,74
Net Rio Working Capital (3) Boston 30/09/2002 30/10/2002 R$ 6.733.964,16 9.703.198,56
Reyc Working Capital BBA 18/11/2002 18/12/2002 R$ 1.963.917,11 3.194.980,15
Reyc Working Capital BBA 18/11/2002 18/12/2002 R$ 1.100.686,22 1.790.641,06
Reyc Working Capital (3) Boston 30/09/2002 30/10/2002 R$ 3.951.962,06 5.694.516,88
Reyc Working Capital(7) Brascan 29/11/2002 30/12/2002 R$ 12.885.300,00 17.492.032,21
Reyc Fixed Rate-CDI Swap(8) Brascan 29/11/2002 30/12/2002 72.182,47
Reyc Finimp Banco do Brasil 16/07/2002 13/12/2002 USD 8.027.243,32 27.178.780,43
Reyc Finimp Banco do Brasil 12/11/2002 06/01/2003 USD 5.268.860,92 18.244.171,42
Reyc Finimp Banco do Brasil 28/11/2002 06/01/2003 USD 2.024.459,30 6.902.734,97
Reyc Res. 63 Santander 21/03/2003 22/04/2003 USD 2.647.571,50 11.975.032,97
DR Working Capital BBA 18/11/2002 18/12/2002 R$ 2.745.332,90 4.466.219,10
DR IFC Investment(1) IFC 30/03/1995 15/10/2004 USD 8.000.000,00 8.927.987,09
Net Parana Finimp Banco do Brasil 13/11/2002 06/01/2003 USD 136.606,00 473.140,15
Net Parana IFC Investment(1) IFC 30/03/1995 15/10/2004 USD 2.200.000,00 2.455.196,53
Net Sul Floating Rate Notes Xxxxx Fargo 31/10/1997 15/10/2005 USD 48.000.000,00 161.249.666,60
Net Sul Floating Rate Notes Xxxxx Fargo 31/10/1997 15/10/2005 USD 32.000.000,00 80.835.569,97
Vicom Eximbank(6) Boston 20/10/1997 15/07/2003 USD 2.125.000,00 874.960,16
Vicom Eximbank(6) Boston 22/06/1998 04/08/2004 USD 3.954.285,00 3.125.632,29
Vicom Eximbank(6) Boston 19/08/1999 08/08/2005 USD 2.400.000,00 3.229.618,54
Total 1.365.472.645,50
(1) IFC Loan currently held by Globopar by virtue of Subrogation; "Original
Borrowed Amount" includes only A loan facility
(2) Multicanal Senior Guaranteed Notes matures with a 5% premium, not included
in principal amount
(3) Interest rates due over contractual period settled at original maturity
(4) Res. 63 facilities hedged by a US$ x CDI Swap; Effective interest rates of
facility of CDI + 5.0%
(5) US$-CDI Swap agreement hedged Res. 63 facility, producing an effective rate
of CDI + 5.0% p.y.; Initial notional amount of US$ 10.029.545,34
(6) Principal amount reflect outstanding balance after taking into consideration
performed amortizations; "Original Borrowed Amount" includes the maximum amount
of borrowing allowed by the facility
(7) Working Capital facility hedged by a Fixed Rate x CDI swap;
(8) Fixed Rate-CDI Swap agreement hedged Working Capital facility; Initial
notional amount of R$ 12.885.300,00
* Includes outstanding principal and interest accrued and unpaid through March
31, 2004, excluding commissions or penalties, based upon the information
contained in the books of the Company but without prejudice to the rights of the
holders of the respect
Ptax 30/06/04 3,1075
A-2-2
