EXHIBIT 10.7
(FREE TRANSLATION)
BANK CREDIT NOTE
NO. <<CONTRATO>>
SECTION I - ISSUER OF BANK CREDIT NOTE
Name/Corporate Name:<<NOMECLI>> <<TIPOCGC>>:<<CGCCLI_EDCGC>>
Address:<<ENDCLI>> ID/Professional Organization No.:
City:<<CIDCLI>> State:<<UFCLI>> ZIP Code:<<CEPCLI>>
SECTION II - SURETIES / CO-OBLIGORS
Name: [NIHIL ]
CPF/CNPJ/MF: [NIHIL]
Name: [NIHIL ]
CPF/CNPJ/MF: [NIHIL
Nihil
SECTION III - GUARANTEES
<<DESCGARANTIAS1>>
SECTION IV - CHARACTERISTICS OF BANK CREDIT NOTE
PRINCIPAL AMOUNT CHARGES ISSUE DATE
Up to R$ 200,000,000.00 (two hundred Remuneratory Interest: <<DTABERT_DDMMAA>>
million Brazilian reais) <<PCTCDI1_NUM6DEC>>%
(<<PCTCDI1_EXTTX>>) of CDI, ____________________________
capitalized daily, plus rate of DEADLINE FOR USE OF CREDIT:
<<TAXAAA_NUM6DEC>>% per annum
(<<TAXAAA_EXTTX>>per year),
equivalent to
<<TAXAAM_NUM6DEC>>% per month
(<<TAXAAM_EXTTX>> per month) (NB
this value cannot be less than R$
280,000.00), calculated exponentially
pro-rata temporis on the basis of a
year of 360 (three hundred and sixty)
days
Tariffs and Expenses: None
__
I.O.C MATURITY DATE
To be determined on the basis of the See Annex I
amount effectively disbursed
SECTION V - CHECKING ACCOUNT OF ISSUER - RELEASE
BANK BRANCH CHECKING ACCOUNT NO.
<<NOMEBANCO>> <<AGENCIACLI>> <<CONTACLI>>
SECTION VI - CHECKING ACCOUNT OF ISSUER - DEBIT
BANK BRANCH CHECKING ACCOUNT NO.
1
CLAUSE 01. PAYMENT COMMITMENT - The ISSUER, as qualified in Section I, above,
hereafter designated as the "ISSUER", shall pay, by means of this BANK CREDIT
NOTE, issued in accordance with Law 10,931/2004 (as amended, altered or modified
at any time), to BANCO ITAU BBA S.A., hereafter simply designated as the
"CREDITOR", a financial institution with headquarters in the City of Sao Paulo,
State of Sao Paulo, at Praca Alfredo Egydio de Souza Aranha, 100 - Torre
Conceicao - 9th floor, inscribed in the National Register of Corporate Entities
(CNPJ./MF), under No. 17.298.092/0001-30, or to its order, on the "MATURITY"
date appearing in Annex I of this document (hereafter simply designated as the
"MATURITY"), the principal value, as well as the charges mentioned in Section IV
above (with the principal and charges hereafter designated as the "AMOUNT"),
observing the terms of the other Clauses distinguished below.
SOLE PARAGRAPH - All correspondence to the CREDITOR should be sent to Avenida
Brigadeiro Faria Lima, 3400, 3rd to 8th floors. CEP 04538-132. Sao Paulo - SP.
CLAUSE 02. PURPOSE OF THE CREDIT GRANTED TO THE ISSUER - By the DEADLINE FOR USE
OF THE CREDIT, through a written request from the ISSUER, the Principal Value,
as mentioned in Section IV, above, after the deduction of taxes and charges due
in advance, shall be credited to the checking account of the ISSUER mentioned in
Section V above, for the exclusive purpose of allowing the ISSUER, as a
supplement to its own resources, to complete the restructuring of its capital
(the "Restructuring") with the payment of part of the debt renegotiation
instruments previously signed with certain creditors (hereafter designated as
the "Creditors of the Issuer"), in accordance with the Material Facts published
by the ISSUER on June 27, 2004.
FIRST PARAGRAPH - The credit granted by the CREDITOR in favor of the ISSUER
shall be disbursed in full in a single installment. No other withdrawal,
redemption or debit order may be carried out by the ISSUER as of the date of
release of the resources in accordance with the terms of the "caput" of this
Clause 02, even after the partial or total amortization of the outstanding
balance.
SECOND PARAGRAPH - The credit shall only be granted by the CREDITOR in favor of
the ISSUER in the event that the "commitment fee" established in the "Commitment
Letter" (a copy of which is attached to and forms an integral part of this Note)
has been paid in full by the ISSUER.
CLAUSE 03. FINANCIAL INCREASES AND OTHER CHARGES - The gross value of the
principal, indicated in Section IV, shall be subject to the increases
established in that Section, including capitalized interest, in accordance with
the terms of item I of Paragraph 1 of article 28 of Law 10,931/2004 referred to
above, as well as the other charges established in the Clauses below.
CLAUSE 04. FORM OF PAYMENT - The obligation hereby assumed by the ISSUER through
this Bank Credit Note with regard to the payment of the AMOUNT shall be
constituted as a liquid and enforceable debt, and shall be paid in current
Brazilian currency upon MATURITY and obligatorily through a debit to the account
mentioned in Section VI, maintained with the CREDITOR.
FIRST PARAGRAPH - For the purposes of the terms of the "caput" of this Clause,
the ISSUER hereby authorizes the CREDITOR, irrevocably and irreversibly, to
debit the checking account in question, whenever the same contains a balance for
the settlement of the ISSUER's debt arising from this instrument, it being
observed that for the first R$ 100,000,000.00 (one hundred million Brazilian
reais) that are deposited in the checking account mentioned in Section VI, 50%
of the credited values, up to the limit mentioned above, shall be automatically
and immediately transferred to the checking account mentioned in Section V, on
the day following the relevant credit, for free use by the ISSUER, unless the
same ISSUER instructs otherwise.
2
The remaining values and other values received by the same checking account
shall be assigned to the payment of the Principal Value and Charges, with the
deposit slip representing a valid payment receipt.
SECOND PARAGRAPH - It is hereby agreed that in the event that any maturity date
for interested established in this Note coincides with a national, municipal or
bank holiday, the ISSUER shall make payment on the first subsequent business
day. In such an event, the interest established in Section IV above, shall apply
until the effective payment date.
THIRD PARAGRAPH - Any receipt of an installment outside the agreed deadline
shall represent mere tolerance and shall not affect in any way, the dates of
their maturity/maturities or the other items and conditions of this Note, nor
shall it represent a novation or modification of the agreed terms, including
those relating to charges arising from late payment.
FOURTH PARAGRAPH - As established in Section IV above, the interest rate of this
instrument shall correspond to <<PCTCDI1_NUM6DEC>>% (<<PCTCDI1_EXTTX>>) of the
Interbank Rate (CDI), capitalized on a daily basis, plus <<TAXAAA_NUM6DEC>>% per
annum (<<TAXAAA_EXTTX>> per year), equivalent to <<TAXAAM_NUM6DEC>>% per month
(<<TAXAAM_EXTTX>> per month), and applicable to the amount effectively owed by
the ISSUER, starting from the date of the relevant loan (NB it being established
that the amount of the remuneration for the period to which the CDI applies
cannot be less than R$ 280,000.00). The daily capitalization referred to above
shall be defined as the result of the compounding of the average daily rates,
with each rate multiplied by the percentage indicated above
(<<PCTCDI1_NUM6DEC>>%), the same average rates relating to operations with
Interbank Certificates of Deposit with a maturity of 1 (one) business day, as
determined by the Camara de Custodia e de Liquidacao (CETIP) [Securities Custody
and Financial Settlement Center], published by the same in its Informativo
Diario (Assessoria Tecnica), Volumes e Taxas de DI, DI Over % a.a. (252) [Media
Daily Bulletin (Technical Consultancy), DI Volumes and Rates, DI Over % per year
(252) Average]. In order to determine the result referred to above, the average
rates in force during the effective period of this instrument shall be used,
including the rate relating to the date of signing of the same, and excluding
the rate relating to the maturity date of the same.
FIFTH PARAGRAPH - In the event of the extinction, non-disclosure or
impossibility, for whatever reason, of using the average daily CDI rates
referred to above, the calculation of the interest rate for the purposes of the
terms of this instrument, during the period in which it is not possible to use
the average daily CDI rates, shall be carried out on the basis of the Selic Rate
of the Brazilian Central Bank (Bacen), published by the Associacao Nacional das
Instituicoes do Mercado Financeiro (ANDIMA) [National Association of Financial
Market Institutions].
CLAUSE 05. For the purposes of determining the exact value of the obligation or
its outstanding balance owing, the CREDITOR shall issue on the maturity, a
calculation statement or spreadsheet, with these documents considered as
integral parts of this Note.
CLAUSE 06. PAYMENT LOCATION - The payment of the credit granted through this
Bank Credit Note, with the increases stipulated above, shall be made at the
CREDITOR's address, or at any of its branches, directly to the same or to the
order of the same, in the event that payment has not been made by debit to the
checking account, notwithstanding the terms of the "caput" of article 16 of Law
9,311/96.
CLAUSE 07. EARLY SETTLEMENT - The early payment of this Note by the ISSUER may
be made at any time, observing the terms of the same note.
..
CLAUSE 08. EARLY MATURITY - The debt contained in this Bank Credit Note may be
considered to have matured in advance and to be immediately enforceable,
regardless of any judicial and/or extrajudicial
3
notification, in the event of any of the following incidents, which the parties
hereby recognize as representing a direct cause of an undue increase in the
default risk of the obligations assumed by the ISSUER, making more onerous the
obligation to concede credit assumed by the CREDITOR in clause 2 above:
A) failure by the ISSUER to comply, within the due deadline and in the due
form, with any obligation, principal or accessory, contracted with the
CREDITOR as a result of this Note;
B) failure by the ISSUER to comply, within the due deadline and in the due
form, with any obligation, whether principal or accessory, agreed with the
CREDITOR as a result of any other Agreement executed by the ISSUER with
the CREDITOR and/or any other direct or indirect associated/subsidiary or
controlling company of the CREDITOR, provided that the monetary obligation
in default exceeds R$ 1,000,000.00 (one million Brazilian reais);
C) occurrence of the events mentioned in articles 333 and 1,425 of the
Brazilian Civil Code (Law N(0). 10,406/02);
D) petition for concordata [composition with creditors] by the ISSUER, a
request for or the decreeing of its bankruptcy, dissolution or protest of
title for which payment the same party is responsible, even if in the
capacity of guarantor, provided that the protested amount exceeds R$
1,000,000.00 (one million Brazilian reais), or that bankruptcy provisions
have not been made;
E) early maturity of any other agreement between the ISSUER and the
CREDITOR, or with any other company belonging to the same corporate group,
provided that the protested amount exceeds R$ 1,000,000.00 (one million
Brazilian reais), excepting agreements that have already matured on this
date;
F) a relevant adverse change in the financial condition of the ISSUER;
G) if there is any alteration or modification in the principal activity
appearing in the business purpose of the ISSUER, without the prior and
express agreement of the CREDITOR;
H) if there is any alteration or modification in the control structure of
the ISSUER, or if any change, transfer or assignment, whether direct or
indirect, occurs in the corporate/shareholding control, or the ISSUER is
subject to incorporation, merger or division, without the prior and
express agreement of the CREDITOR;
I) if the ISSUER assigns or transfers its obligations arising from this
Agreement, whether in full or in part, without the prior and express
agreement of the CREDITOR;
J) if Telmex ceases to hold, whether directly or indirectly, the shares
described in subitems (g) and (h) of Clause 14 below.
CLAUSE 9. PAYMENT DELAYS AND FINE - Failure to comply punctually with any of the
obligations contained within this Note, including the event of early maturity of
the same, shall cause the ISSUER to be regarded as overdue with its payments,
regardless of whether it receives any judicial or extrajudicial notice from the
CREDITOR, in such fashion that the ISSUER undertakes to pay, during the delay
period and on all the amounts due by virtue of this title:
A) a credit maintenance fee, calculated on a daily basis, in accordance
with the change in the Brazilian Central Bank Selic Rate, published by the
Associacao Nacional das Instituicoes do
4
Mercado Financeiro (ANDIMA) [National Association of Financial Market
Institutions], for the period included between the maturity date of the
obligation and its effective payment date, on the full value of the
outstanding balance determined on the maturity date and limited to the
rate in the agreement plus 1% (one per cent) per month.
B) Overdue interest at an effective rate of 1.0% (one per cent) per month,
calculated on a daily basis;
FIRST PARAGRAPH - The charges established herein, indicated in item "a" above,
shall be calculated and capitalized until the final settlement of the debt.
SECOND PARAGRAPH - In the event of the impossibility, for whatever reason, of
using the rate established in item "a", the credit maintenance feeshall be
calculated using the average interest rate practiced by the 5 (five) largest
banks by assets, in their CURRENT LOAN operations in Brazilian reais, during the
period from the maturity date of the obligation until the date of its effective
payment.
CLAUSE 10. LEGAL FEES - In the event that the CREDITOR is obliged to take legal
action to recover any amount arising from this Note, even if as application of
credit or execution against an insolvent debtor, the ISSUER undertakes to pay an
indemnity to the CREDITOR for the legal fees incurred with judicial and
extrajudicial procedures undertaken, these being hereby stipulated by the
parties as 10% (ten per cent) of the value of the case, regardless of the
payment of the principal, interest, commissions, interest for late payment and
any other charges and/or expenses established in this Title or in law, as well
as any fees that may fall due to the CREDITOR's lawyers for attorney's fees.
CLAUSE 11. EXPENSES - The ISSUER shall bear all and any expenses and charges,
whether ordinary or extraordinary, particularly, but not exclusively, reasonable
expenses in collecting the proceeds of this Title, recognition of signatures and
inscriptions and/or filings at public registries, as well as any other expense
that the CREDITOR is obliged to bear with regard to this Bank Credit Note or its
guarantees. These expenses shall be paid by the ISSUER to the CREDITOR within 24
hours of receipt by the ISSUER of the relevant notice of debit, with proof of
expense, under penalty of the early maturity of this Title.
CLAUSE 12. PAYMENT OF TAXES - The ISSUER declares that it is aware that the
CREDITOR may pass on to it and demand payment of any taxes, contributions and/or
other charges that arise or may arise, specifically with regard to this Note,
and that it is in full agreement with the same. To this effect, the ISSUER
hereby recognizes as liquid and enforceable all and any amounts that may be
presented against it by the CREDITOR that pertain to these taxes, contributions
and/or other charges, which must be settled by the ISSUER, at the time of their
presentation, under penalty of early maturity of this Title and the execution of
the guarantees constituted in this Instrument.
CLAUSE 13. TRANSFER OF TITLE - The CREDITOR is authorized by the ISSUER to
negotiate this Bank Credit NOTE, transferring it to third parties by endorsement
of the same on its first sheet (negotiable sheet), or through a Banking Credit
Certificate . The ISSUER hereby recognizes, irrevocably and irreversibly, that
the transfer of the Title does not constitute a violation of the banking secrecy
of the ISSUER.
CLAUSE 14. SUSPENSIVE CONDITIONS - The effectiveness of this legal act, and
consequently, the disbursement of credit hereby granted, is subject, in
accordance with the terms of Article 125 of the Brazilian Civil Code to
compliance with all the following prior conditions (the "PRIOR CONDITIONS"):
5
a) approval by the Issuer's Creditors, or of its legal representatives for
the concession of this loan, as well its repayment, to be demonstrated
through the submission by the ISSUER to the CREDITOR, of a copy of the
respective Restructuring instruments;
b) verification of all the conditions (or waiver that does not have a
relevant adverse impact on this Note) to which the effectiveness of the
Restructuring is subordinated, in the terms of the relevant instruments,
excepting those that relate to payments to the Creditors of Net, part of
which shall be effected with resources arising from the loan forming the
object of this Note;
c) submission by the ISSUER to the CREDITOR of a copy of the subscription
bulletins of Globo Comunicacoes e Participacoes S.A., Distel Holding S.A.
and/or Roma Participacoes Ltda. (together, as well as with their
subsidiaries, "Globopar") and Telefonos de Mexico, S.A. de -------- C.V.
(together with its subsidiaries, "Telmex"), in a proportion not lower than
the respective pre-emptive rights held by Glopobar in the ISSUER's shares
offered in the context of the private offer of shares to be structured by
the ISSUER as part of its ------ capitalization process ("PRIVATE OFFER OF
SHARES");
d) Submission by the ISSUER to the CREDITOR of a copy of the declaration
sent by the ISSUER to Banco Itau S.A., in the latter's capacity as
depository agent of its shares, confirming the receipt of the amounts
relating to the full payment of the shares of the ISSUER, offered in the
context of the Private Offer of Shares and underwritten by Globopar and
Telmex, instructing Banco Itau S.A. to register the shares subscribed and
paid for in full by Globopar and Telmex in the name of the same;
e) delivery by the ISSUER to the CREDITOR of a copy of the document to be
produced by Banco Itau S.A., certifying that GB Empreendimentos e
Participacoes S.A. ("GB") holds 51% of the ISSUER's voting capital;
f) delivery by the ISSUER of a copy of the terms of transfer and other
documents required for the registration with Banco Itau S.A., duly signed
by Globopar and Telmex and filed with Banco Itau S.A., of the transfer of
common shares representing at least 18% (eighteen per cent) of the
ISSUER's voting capital to the ownership of Telmex, acquired in the
context of the sale and purchase agreement for the shares of the ISSUER
signed by Globopar and Telmex;
g) delivery by the ISSUER to the CREDITOR of a copy of the terms of
transfer duly signed by Globopar and Telmex for the transfer of 100% of
the preferred shares and 49% of the common shares of GB to the ownership
of Telmex, acquired in the context of the sale and purchase agreement for
the shares of the ISSUER signed by Globopar and Telmex;
h) delivery by the ISSUER to the CREDITOR of a copy of the correspondence
sent to Banco Itau S.A. with irrevocable and irreversible instructions to
effect the transfer of all the amounts received in the context of the
Private Offer of Shares, and the finalization of the process of its
capitalization, to the account mentioned in Section VI.
SOLE PARAGRAPH: With regard to the prior conditions mentioned in items "e" e "f"
above, in the event that these are the last to be satisfied, it is hereby agreed
that, once the satisfaction of the same prior conditions has been demonstrated
by midday of the same day, the effective disbursement of the loan must occur on
the immediately following day.
CLAUSE 15. SETTLEMENT OF AMOUNTS - Default on any obligation of the ISSUER
arising from this Title shall provide the CREDITOR with an opportunity to
proceed with the immediate execution of this Title and the guarantees
constituted herein, as well as others that may generate rights on the same, for
the purposes of recovering its credit, with the CREDITOR also able, in
accordance with the terms of Article 368 of the Brazilian Civil Code, to settle
any debits that it holds and/or may hold with the ISSUER with any credits of any
kind that the ISSUER holds or may hold with the CREDITOR, with this latter party
being able, to this effect, to retain for itself the titles and/or amounts that
the ISSUER holds and/or may come to hold, with the aim of carrying out the
settlement in question.
CLAUSE 16. INFORMATION TO THE ADMINISTRATIVE AUTHORITIES - The ISSUER declares
that it is aware of and in agreement with the terms of Resolution N(degree).
2,724, of 31/05/2000, of the National Monetary Council,
6
and hereby authorizes the CREDITOR, irrevocably, irreversibly and at any time,
including after the maturity of this Note:
(I) to provide to the Brazilian Central Bank any information on the
amount of debits and responsibilities for guarantees assumed by the
ISSUER, as a result of this Note, with a view to informing the
Central Credit Risk System, as well as
(II) consulting the information regarding the ISSUER in the same System.
CLAUSE 17. Failure by the CREDITOR, to exercise any rights or faculties that are
guaranteed to it, as a consequence of the law or this Agreement, or any consent
to delays in complying with the obligations assumed herein by the ISSUER, shall
not imply a novation, and shall not prevent the CREDITOR from exercising the
same rights and faculties at any time.
CLAUSE 18. OTHER OBLIGATIONS OF THE ISSUER - The ISSUER:
a) undertakes, irrevocably and irreversibly, in the event that all of the
shares offered in the Private Offer of Shares have not been underwritten,
to request that Globopar and Telmex acquire the remaining shares;
b) undertakes to use for the repayment of this Instrument the values
arising from its capitalization process.
c) Assumes responsibility for maintaining its addresses continuously
updated and informing the CREDITOR of the same in writing. For the effects
of communication/knowledge of any act or fact arising from this Note, the
ISSUER shall automatically be considered to have been notified regardless
of any formality, at the respective addresses that it has indicated in
Section I above.
CLAUSE 19. MODIFICATION - This Note may be modified two days before the Maturity
Date, for the same period of 30 days, at the criterion of the ISSUER, provided
that the ISSUER makes available sufficient resources to ensure that the CREDITOR
is able to withhold and collect IOF [Financial Transactions Tax] due for the new
period.
CLAUSE 20. JURISDICTION - The courts of the Jurisdiction of the State of Sao
Paulo are hereby chosen to settle any doubts arising from or based on this title
and its guarantees, with the CREDITOR nevertheless able to choose the
jurisdiction of the headquarters of the ISSUER, excluding any other, regardless
of its merits.
Sao Paulo,<<DTABERT_DIA>><<DTABERT_MESEXT>>,<<DTABERT_ANO>>.
ISSUER: _________________________________________________________
<<NOMECLI>>
AGREED BY: _________________________________________________________
BANCO ITAU BBA S.A.
7
8
ANNEX I
(ADEQUAR ANEXO)
ANNEX I BANK CREDIT NOTE N(0).<<CONTRATO>>SIGNED ON<<DTABERT_DDMMAA>>
INSTALLMENT VALUE MATURITY
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
1.235/1.235 1,234.56 + Change in CDI + 1,234.56 % per year cpd. 10/05/2003
9
Rider A
FIRST PARAGRAPH The Parties agree that the obligations of the Net Group
Companies arising from this Agreement are guaranteed by the Pledge Agreements,
and therefore, the Parties undertake to sign, on the present date, the Terms of
Adhesion attached to this Agreement as "Annex 12", for the purposes of the
adhesion of the Creditor Institution to the Pledge Agreements and Intercreditor
Agreement. The Net Company undertakes to arrange the registration of the Annex
in the registries of titles and documents and property registries where the
Pledge Agreements are registered within at most 10 (ten) business days. In the
event that the Net Group Companies fail to make the registrations mentioned
above, the Guarantee Agent shall be responsible for carrying out the same
registration, with the costs incurred being the responsibility of the Net Group
Companies, and the same Net Group Companies being obliged to pay to the Special
Entering Creditor a non-compensating monetary fine of R$100,000.00 (one hundred
thousand Brazilian reais) per day, from the 11th (eleventh) day following the
present date until the effective registration of this Terms of Adhesion, without
affecting any damages or losses that may be incurred by the Special Entering
Creditor. It is hereby defined that the same fine shall not be applied in cases
expressly defined as exceptions with regard to the fines established in the
terms of the Pledge Agreements.
Rider B
9.3.1.1. For the purposes of Clause 9.3.1. of this Agreement, the
transfer of Control by Net Servicos to: (i) Globo Comunicacoes e Participacoes
S.A. and/or its Affiliates; or (ii) Telefonos de Mexico, S.A. and/or its
Affiliates shall not be considered to be an event of change in Control.
Rider C
CLAUSE 21 CONFIDENTIALITY OBLIGATION
The obligation of confidentiality established in Clause 10.14 of the
Intercreditor Agreement shall apply to the information made available and/or
submitted by the Net Group Companies by virtue of this Agreement, in the exact
terms of the same clause, except in the cases otherwise determined within this
Agreement.
Rider D
NET SUL COMUNICACOES LTDA.
----------------------------------------
Name:
Title:
----------------------------------------
Name:
Title:
AVAL GUARANTEE:
NET SERVICOS DE
COMUNICACAO S.A.
ALNOR ALUMINIO DO NORTE LTDA.
ANTENAS COMUNITARIAS
BRASILEIRAS LTDA.
CABODINAMICA TV CABO
SAO PAULO S.A.
CMA PARTICIPACOES S.A.
DABNY, L.L.C.
DR EMPRESA DE DISTRIBUICAO
E RECEPCAO DE TV LTDA.
HORIZONTE SUL
COMUNICACOES LTDA.
JONQUIL VENTURES LIMITED
MULTICANAL
TELECOMUNICACOES S.A.
NET ANAPOLIS LTDA.
NET ARAPONGAS LTDA.
NET BAURU LTDA.
NET BELO HORIZONTE LTDA.
NET BRASILIA LTDA.
NET CAMPINAS LTDA.
NET CAMPO GRANDE LTDA.
NET CURITIBA LTDA. NET FLORIANOPOLIS LTDA.
NET FRANCA LTDA.
NET GOIANIA LTDA.
NET INDAIATUBA LTDA.
NET JOINVILLE LTDA.
NET LONDRINA LTDA.
2
NET MARINGA LTDA.
NET PARANA COMUNICACOES LTDA.
NET PIRACICABA LTDA.
NET RECIFE LTDA.
NET RIBEIRAO PRETO S.A.
NET RIO S.A.
NET SAO CARLOS S.A.
NET SAO JOSE DO RIO PRETO LTDA.
NET SAO PAULO LTDA.
NET SOROCABA LTDA.
REYC COMERCIO
E PARTICIPACOES LTDA.
TV CABO DE CHAPECO LTDA.
TV VIDEO CABO
DE BELO HORIZONTE S.A.
----------------------------------------
Name:
Title:
----------------------------------------
Name:
Title:
3
Rider E
SCHEDULE 12 TO THE
CONTRATO DE EMPRESTIMO
MODEL OF TERM OF ADHESION
TERM OF ADHESION
This Term of Adhesion, dated [ ] (the "TERM OF ADHESION"), is entered into by
and between the parties below (the "PARTIES"):
(a) NET SERVICOS DE COMUNICACAO S.A., a joint-stock company with its
headquarters in the City and State of Sao Paulo, at Rua Verbo Divino, 1356,
Chacara Santo Antonio, enrolled in the National Register of Legal Entities
(C.N.P.J.) under No. 00.108.786/0001-65 (the "COMPANY"), herein represented
pursuant to its Bylaws by its officers, Messrs. [ ] and [ ];
(b) The Company's subsidiaries listed on "Schedule A" to this Term (the
"SUBSIDIARIES" and collectively with the Company, the "NET GROUP"), herein
represented by the Company;
(c) Banco ITAU S.A., a financial institution with its headquarters in
the City and State of Sao Paulo, at Praca Alfredo Egydio Souza Aranha, 100,
Torre Itausa, enrolled in the National Register of Legal Entities (C.N.P.J.)
under No. 60.701.190/0001-04, in the capacity of collateral agent (the
"COLLATERAL AGENT"), herein represented pursuant to its Bylaws;
4
(d) Each of the financial institutions listed and identified on
"Schedule B" to this Term (the "CREDITORS"), herein represented by the
Collateral Agent; and
(e) Deutsche Bank], a financial institution with its headquarters in
the City of [ ], State of [ ], at [ ], enrolled in the National Register of
Legal Entities (C.N.P.J.) under No. [ ] (the "New JOINING CREDITOR"),
WHEREAS:
(a) The Company, the Subsidiaries mentioned in each of the agreements listed
below, the Collateral Agent, on its own behalf and on behalf of the creditors
mentioned in the agreements below, and the Creditors, as applicable, have
executed the following agreements:
(i) The Intercreditor Agreement, dated [ ];
(ii) The Receivables Pledge Agreement with an Enforcement Clause, dated
[ ], referring to the receivables and credit rights of Net Sao Paulo
Ltda. and the Receivables Pledge Agreement with an Enforcement Clause
dated [ ], referring to the receivables and credit rights of Net Rio
S.A. ("RECEIVABLES PLEDGE AGREEMENTS");
(iii) The Share Pledge Agreement with an Amicable Sale Clause
and Other Covenants, dated [ ] ("SHARE PLEDGE AGREEMENT");
5
(iv) The Quota Pledge Agreement with an Amicable Sale Clause
and Other Covenants, dated [ ] ("QUOTA PLEDGE AGREEMENT"); and
(v) The Asset Pledge Agreement with an Amicable Sale Clause
and Other Covenants, dated [ ] ("ASSET PLEDGE AGREEMENT", and
collectively with the Receivables Pledge Agreements, the Share Pledge
Agreement, the Quota Pledge Agreement and the Intercreditor Agreement,
the "PLEDGE DOCUMENTS");
(b) Upon the date of the execution of this Term of Adhesion, the New Joining
Creditor and the Net Group enter into the loan agreement (the "Loan Agreement")
and the Loan Agreement provides, on its Clause 8, the adhesion of the New
Joining Creditor on the Pledge Documents.
NOW THEREFORE, the Parties resolve to enter into this Term, which shall be
governed by the following terms and conditions:
1. - Upon execution of this Term of Adhesion, the New Joining Creditor declares
to be totally aware of each of the Pledge Documents, to which it hereby adheres
without any restrictions, and irrevocably and irreversibly undertakes to comply
with all the terms, conditions and obligations established therein, including
the constitution of a Collateral Agent as its attorney according with the terms
of the Intercreditors Agreement. Accordingly, the Pledge Documents will also
secure the obligations assumed by the NET Group resulting from the Loan
Agreement.
2. - For all purposes and effects of the Pledge Documents, the New Joining
Creditor shall have the same rights and obligations as the other Creditors under
the Pledge Documents.
6
3. - Upon the date of execution of the present document, this Term of Adhesion
shall be deemed to be an integral part of each of the Pledge Documents and the
Net Group undertakes to register this Term of Adherence at the competent
Registries of Deeds and Documents and with the Real Estate Registration Offices
within 10 (ten) business days as from this date and to send notarized copies
evidencing such registration to the Collateral Agent and the New Joining
Creditor.
3.1. In case of non compliance with item 3 above, the Collateral Agent will be
deemed to provide the register. Nevertheless, the costs from the register will
be for the Net's Group responsibility.
3.2. - Notwithstanding the in item 3.1 above, the Net Group is deemed to pay to
the New Joining Creditors the amount of R$ 100.000,00 (a hundred thousand reais)
per day, as non compensatory penalty, as from this date up to the formal
register of this Term of Adhesion, without any potential prejudice of loss and
damages which could affect the New Joining Creditor. It is agreed forthwith that
the non compensatory penalty will be inapplicable according with the exemptions
provided in the Pledge Agreement in relation with the penalties.
4. - This Term of Adhesion shall be signed in the same number of counterparts as
each of the Pledge Documents.
4.1. - Upon the date of the execution of this Term of Adhesion, the Parties
expressly agree that each of the Pledge Documents was automatically amended to
reflect the adhesion of the New Joining Creditor. For such purpose, the Parties
agree that the exhibits of each of the Pledge Documents listed below is hereby
supplemented by the documents attached hereto, as indicated below:
7
(a) "Schedule 2" to the Intercreditor Agreement, "Schedule 2" to the
Asset Pledge Agreement, "Schedule 2" to the Share Pledge Agreement, "Schedule 2"
to the Quota Pledge Agreement and "Schedule 2" to the Receivables Pledge
Agreements are supplemented by "Schedule 2" to this Term;
(b) "Schedule 3" to the Intercreditor Agreement, "Schedule 3" to the
Asset Pledge Agreement, "Schedule 3" to the Share Pledge Agreement, "Schedule 3"
to the Quota Pledge Agreement and "Schedule 3" to the Receivables Pledge
Agreements are supplemented by "Schedule 3" to this Term; and
(c) "Schedule 6" to the Asset Pledge Agreement, "Schedule 6" to the
Share Pledge Agreement, "Schedule 6" to the Quota Pledge Agreement and "Schedule
6" to the Receivables Pledge Agreements are supplemented by "Schedule 6" to this
Term;
5. - This Term of Adhesion shall not be deemed a novation of any of the terms
and conditions of the Pledge Documents.
IN WITNESS WHEREOF, the Parties - binding themselves and their successors - sign
this Term of Adhesion in the presence of 2 (two) undersigned witnesses.
Sao Paulo, [ ]
NET SERVICOS DE COMUNICACAO S.A.
-------------------------------------
Name: Name:
Title: Title:
8
BANCO ITAU S.A.
-------------------------------------
Name: Name:
Title: Title:
NEW JOINING CREDITOR
-------------------------------------
Name: Name:
Title: Title:
Witnesses:
1. - ____________________________
Name:
Identity Card (RG):
2. - ____________________________
Name:
Identity Card (RG):
9