Exhibit4.8
THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
FOURTH ADDENDUM TO THE SERVICE AGREEMENT AND OTHER COVENANTS
By this private instrument and in accordance with the law, the parties below:
EMPRESA BRASILEIRA DE TELECOMUNICAÇÕES S.A. - EMBRATEL, headquartered at Av.Presidente Vargas nº 1012, Centro, City of Rio de Janeiro, State of Rio de Janeiro, registered in the roll of corporate taxpayers (CNPJ/MF) under number 33.530.486/0001-29, herein represented by its Bylaws, hereinafter referred to as “EMBRATEL”; and
NET SERVIÇOS DE COMUNICAÇÃO S.A, headquartered at Rua Verbo Divino, 1.356, in the City and State of São Paulo, registered in the roll of corporate taxpayers (CNPJ) under number 00.108.786/0001-65, and its subsidiaries, duly detailed in Exhibit I of the Agreement hereby amended (“NET Operations”), represented by their Articles of Incorporation, hereinafter referred to as “NET”,
Referred to, separately as Party, and jointly as Parties,
WHEREAS:
A. On December 7, 2006, the parties entered into the Service Agreement and Other Covenants (“AGREEMENT”), subsequently amended on July 31, 2007 (“First Addendum”), April 10, 2008 (herein renumbered and re-entitled “Second Addendum”) and by its Third Addendum, through whichNET provides Telecommunication and Other Services toEMBRATEL, enabling the latter to provide telecommunications services to its end customers (NETFONE).
B. On December 29, 2009, the Parties entered into a Capacity Acquisition Agreement, through whichEMBRATEL irrevocably acquired fromNET[***]in local accesses to be used byEMBRATEL for the provision of telecommunication services to its end customers (hereinafter “theCapacity Acquisition Agreement”).
C. The parties agree to adjust the calculation of the Fees set forth in theAGREEMENT in view of item B above.
ThePARTIES hereto agree to formalize this addendum to theAGREEMENT, herein referred to as the “Fourth Addendum”, under the following terms and conditions:
CLAUSE 1 - PURPOSE
THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
CLAUSE TWO – AMENDMENTS
2.1. Clause6. Fees of theAGREEMENT shall now read as follows:
“6. Fees
6.1 The prices of Telecommunication Services and Other Services shall be determined according to the rules below and shall be jointly limited to the fees calculated according to item 6.1.2 below:
(i) The gross monthly price of Telecommunication Services, excluding the activation fee by the end customer provided for in item 6.3, shall be the amount determined by taking into account: (i) the number of new Voice Service customers; and (ii) market prices; and
(ii) The gross monthly price of Other Services shall be the amount corresponding to costs effectively incurred byNET for the execution of its obligations hereto, plus a 5% (five per cent) fee margin.
6.1.1 The criteria for calculating the Income to be used as the basis for the monthly fees related to the provision of Telecommunications and Other Services as per item 6.1.2 below are:
6.1.1.1 Of the full amount collected from users as payment for the Voice Services (including, but not limited to, subscription revenues; local calls, fixed-fixed and fixed-mobile; domestic and international long-distance calls using CSP 21, fixed-fixed and fixed-mobile; from PUC ofEMBRATEL, etc.),EMBRATEL shall deduct: (i) the interconnection costs (understood as the balance between interconnection re venues and expenses effectively incurred byEMBRATEL in its relationship with other operators, as a result of Voice Service calls, considering item 6.1.1.3 below, as well as those interconnection revenues and expenses that are the purpose of item 6.1.1.2 below), (ii) taxes and contributions that, directly or indirectly, are due (or to fall due) as a result of providing Voice Services and (iii) costs incurred from the filing of end users who default on payment of the Voice Services with credit protection bodies (blacklisting), arriving, therefore, at the Income.
6.1.1.2 For the purposes of calculating the balance between interconnection revenues and expenses pursuant to the previous item, the equivalent of one TU-RL shall be recorded as interconnection revenue, determined according to the prevailing network number rules, associated with: (i) domestic calls made via CSP
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THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
21 or to non-geographic numbers sold byEMBRATEL, involving numbers managed byNET and charged outside the partnership for the exploitation of Voice Services; and (ii) international long-distance calls, forwarded byEMBRATEL ending in Voice Service numbers managed byNET and charged abroad. Similarly, the equivalent of one TU-RL shall be recorded as interconnection expenses, determined according to the prevailing regulation, associated with calls charged to Voice Service numbers managed byNET and ending in other numbers ofEMBRATEL, except for those calls directed toNET “2004”, all of which shall be excluded from the accounting.
6.1.1.3 For the calculation of fixed local interconnection,EMBRATEL shall record as interconnection revenues or expenses, the net amount effectively paid or received as a result of the traffic of Voice Service numbers, managed byNET, in the scope ofEMBRATEL’s relations with other operators, considering the total traffic of its local services. This net amount shall be the difference between: (i) the amount to be received from or paid byEMBRATEL to the other operators not taking into account the traffic corresponding to the Voice Service calls; and (ii) the amount to be received or paid considering this traffic.
6.1.2 The Income shall be divided between the Parties, and the portion to be paid byEMBRATEL toNET shall include all the taxes and contributions owed by it due to the provision of the services listed in clause 6.1 pursuant to the laws prevailing at that time, so that both Parties receive the same net amount. In this regard,EMBRATEL shall pay toNET the portion of Income determined according to the following formula:
MN = Income/(2 – I/200)
Where:
MN is the amount to be paid byEMBRATEL toNET; and
I is the sum of taxes levied on the portion received byNET.
6.2 The monthly amount of[***], as agreed upon by the parties, shall be deducted from the Income to be paid byEMBRATEL toNET, due to the capacity already contracted, pursuant to theCapacity Acquisition Agreement.
6.2.1 The deduction provided for in thecaput of this item shall become effective as of the date of the execution of theCapacity Acquisition Agreement and shall remain effective for 5 (five) years.
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THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
6.3 In addition to the Telecommunication Services fees provided for in the previous item,EMBRATEL shall payNET a fee for each end customer whose Voice Services are activated, calculated as per the rule set forth in Exhibit VIII to thisAGREEMENT.
6.3.1 EMBRATEL shall be exempt from paying the activation fee whenever and while the number of activated end customers is lower than the amount of activation fees then already paid byEMBRATEL toNET. Notwithstanding such exemption,NET shall not provide any refund of these payments.
6.4 Each Party shall bear the costs, expenses, charges and taxes corresponding to the execution of respective activities and obligations according to the terms and conditions of thisAGREEMENT.
6.5 Eventual costs corresponding to CPMF (financial transaction tax) or a tax of an identical or similar nature levied on the amounts of (i) the Voice Services collected byNET at the time of their transfer toEMBRATEL and (ii) transfers of the portion of Income byEMBRATEL toNET for the remuneration of Telecommunication and Other Services, shall be shared through the deduction set forth in item 6.1.1.1 (ii) of this Agreement.
6.6 Notwithstanding the rules for determining the Income to be used as the basis for calculating the fees for Telecommunication and Other Services provided byNET toEMBRATEL, described in previous items, the Parties shall recognize same by the accrual method, estimating the revenues and expenses detailed in item 6.1.1 and sub-items, in the same way asEMBRATEL normally books its own income during each Calculation Period (&# 147;Accrued Income”).
6.5.1EMBRATEL shall sendNET, until the last business day of the corresponding accrual month, the accounting spreadsheets, stating the portion of the Accrued Income to be used as the basis for issuing the invoices for the provision of Telecommunication and Other Services and other documents required for the registration ofNET‘s revenues arising from this Agreement.”
CLAUSE THREE – GENERAL PROVISIONS
3.1. The terms used in this instrument, when highlighted in boldface and/or by the use of uppercase, shall be interpreted pursuant to the definitions contained in theAGREEMENT.
3.2. This Addendum revokes and supersedes any possible verbal or written understanding between the Parties that violates the terms and conditions dealt with herein to date.
3.3. The other clauses and conditions of theAGREEMENT and the First, Second and Third Addenda that have not been expressly amended by this instrument shall remain unchanged.
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THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
3.4. ThePARTIES hereby elect the judicial district of the city of Rio de Janeiro as the only competent body to resolve any doubts or controversies arising from this instrument.
In witness whereof, thePARTIES execute this addendum in 2 (two) counterparts in the presence of the 2 (two) undersigned witnesses.
Rio de Janeiro, December 29, 2009
BY EMBRATEL:
/s/José Formoso Martinez |
| /s/Isaac Berensztejn |
José Formoso Martinez Individual Taxpayer’s ID (CPF): 059.557.727-07 |
| Isaac Berensztejn Individual Taxpayer’s ID (CPF): 332.872.367-68 |
BY NET:
/s/José Antônio Guaraldi Félix |
| /s/João Adalberto Elek Júnior |
José Antônio Guaraldi Félix Individual Taxpayer’s ID (CPF):140.448.620-87 |
| João Adalberto Elek Júnior Individual Taxpayer’s ID (CPF):550.003.047-72 |
Witnesses:
/s/Nelson Laureano Filho |
| /s/Rodrigo Marques de Oliveira |
Nelson Laureano Filho Individual Taxpayer’s ID (CPF):267.687.987-15
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| Rodrigo Marques de Oliveira Individual Taxpayer’s ID (CPF): 033.663.777-20 |
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