EXHIBIT 4.8
FIFTH SUPPLEMENTAL INDENTURE
THIS FIFTH SUPPLEMENTAL INDENTURE (this "Fifth Supplemental Indenture"),
dated as of [______________], 2005, is supplemental to the Indenture, dated as
of October 31, 1997 (as amended through the date hereof, the "Indenture"), among
NET SUL COMUNICACOES LTDA., a sociedade limitada organized under the laws of
Brazil (formerly known as Net Sul Comunicacoes S.A. and Net Sul TV a Cabo e
Participacoes Ltda.) (the "Company"), having its principal office at Rua Verbo
Divino, 1356, Sao Paulo-SP, 04719-002, Brazil and each of the Guarantors party
thereto (each a "Guarantor", and, collectively, the "Guarantors"), WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association organized under the
laws of the United States, as Trustee (as successor by merger to Wells Fargo
Bank Minnesota, National Association, the "Trustee"), JPMORGAN CHASE BANK, N.A.,
a national banking association (successor to The Chase Manhattan Bank), as
Registrar and Paying Agent, JPMORGAN CHASE BANK, N.A., LONDON BRANCH (successor
to Chase Manhattan Bank, London Branch), as Transfer Agent, Calculation Agent
and Paying Agent, J.P. MORGAN BANK LUXEMBOURG S.A. (successor to Chase Manhattan
Bank Luxembourg S.A.), as Paying Agent, and J.P. MORGAN TRUST BANK (successor to
Chase Trust Bank), as Principal Paying Agent, and is entered into by the
Company, the Guarantors and the Trustee. Capitalized terms used and not defined
herein shall have the meanings ascribed thereto in the Indenture (as amended
hereby).
WHEREAS, the Company, Net Servicos de Comunicacao S.A. (formerly Globo
Cabo S.A.) a sociedade anonima organized under the laws of Brazil ("Net
Servicos"), certain Real Lenders (as defined therein) and certain Noteholders
(as set forth on Schedule A hereto) have entered into to that certain Note
Exchange Agreement, dated as of [ ] (the "Exchange Agreement"), pursuant to
which such Noteholders will exchange their Notes for the consideration set forth
in the Exchange Agreement;
WHEREAS, pursuant to the Exchange Agreement, in exchange for the
consideration given thereby, the Company has requested that the Noteholders
party to the Exchange Agreement consent to the modification of certain covenants
and other provisions of the Indenture prior to or simultaneously with the
exchange of their Notes pursuant to the terms of the Exchange Agreement;
WHEREAS, the entering into by the Trustee of this Fifth Supplemental
Indenture requires, among other things, the consent of Noteholders holding not
less than a majority in aggregate principal amount of the Outstanding Notes
pursuant to Section 9.2 of the Indenture;
WHEREAS, pursuant to Section 9.2 of the Indenture, each Noteholder set
forth on Schedule A hereto (such Noteholders holding not less than a majority in
aggregate
principal amount of Outstanding Notes) consents to the amendments set forth
herein and to the entry into and execution of this Fifth Supplemental Indenture
by the Trustee on the date specified in an Officers' Certificate of the Company
delivered to the Trustee following the satisfaction of the conditions set forth
in Article IV of the Exchange Agreement; and
WHEREAS, on August 1, 1999, all of Net Servicos' right, title and
interest in TVC Do Parana Distribuidora de Sinais de Televisao Ltda. ("TVC Do
Parana") was transfered, and, on such date, TVC Do Parana ceased to be (i) a
Subsidiary of Net Servicos, and (ii) a Guarantor;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the following
conditions and limitations, the Company, the Guarantors and the Trustee hereby
agree as follows:
Section 1. Elimination of Definitions. Each definition set forth in
Section 1.1 of the Indenture and any capitalized term that (a) is not used in
any provision of the Indenture other than the provisions listed in Sections 2, 3
and 4 hereof (such definitions, collectively, the "Exclusive Definitions"),
and/or (b) is not used in any provision of the Indenture other than in the
Exclusive Definitions, is hereby deleted in its entirety.
Section 2. Amendments to Events of Default. Subsections (c), (d), (e),
(f), (g), (h), (i), (j) and (k) of Section 5.1 of the Indenture are hereby
deleted in their entirety, and the phrase "[Intentionally Omitted]" is inserted
in substitution therefor, and all references to such subsections are deleted in
their entirety.
Section 3. Amendment to Provisions on Merger, Consolidation, Etc.
(a) Section 8.1 of the Indenture is hereby amended as follows:
(i) clause (a) of the first paragraph of Section 8.1 is deleted in
its entirety and the following is inserted in substitution therefor:
"(a) the Company shall be the continuing Person or the resulting,
surviving or transferee Person (in either case, the "surviving
entity") shall be a company organized and validly existing under the
laws of the Federative Republic of Brazil or any state or political
subdivision thereof or of the United States of America or any state
or political subdivision thereof;"
(ii) clause (c) of the first paragraph of Section 8.1 is hereby
deleted in its entirety, and the phrase "[Intentionally Omitted]" is
inserted in substitution therefor, and all references to such clause are
deleted in their entirety.
(b) Section 8.2 of the Indenture is hereby deleted in its entirety and the
phrase "[Intentionally Omitted]" is inserted in substitution therefor, and all
references to Section 8.2 are deleted in their entirety.
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Section 4. Amendment to Covenants. Sections 10.1, 10.2, 10.3, 10.4, 10.5,
10.6, 10.7, 10.10, 10.14, 10.15, 10.16, 10.17, 10.18, 10.19 and 10.21 of the
Indenture are hereby deleted in their entirety and the phrase "[Intentionally
Omitted]" is inserted in substitution therefor, and all references to such
Sections are deleted in their entirety.
Section 5. Amendment to Guarantee. Section 14.4 of the Indenture is hereby
amended by inserting the following language immediately after the word
"Concurrently" where it appears in the first line thereof:
"with any consolidation or merger of a Guarantor or any sale
or conveyance of the property of a Guarantor as an entirety
or substantially as an entirety, in each case as permitted
pursuant to the terms of this Indenture, such Guarantor shall
be automatically and unconditionally released and discharged
from all obligations under the Guarantee endorsed on the
Notes and under this Article 14 without any further action
required on the part of the Company, any Guarantor, the
Trustee or any Noteholder. In addition, concurrently"
Section 6. Ratification of Indenture; Fifth Supplemental Indenture Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed by the parties hereto and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Fifth
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Noteholder heretofore or hereafter authenticated and delivered shall be
bound hereby.
Section 7. Trustee Makes No Representation. The recitals contained herein
shall be taken as statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Fifth Supplemental Indenture.
Section 8. Separability. In case any provision in this Fifth Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 10. Counterparts. This Fifth Supplemental Indenture may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
Section 11. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 12. Effectiveness of this Fifth Supplemental Indenture. The
provisions of this Fifth Supplemental Indenture shall take effect on the date as
of which (a) Noteholders holding not less than a majority in aggregate principal
amount of Outstanding Notes have consented to the amendments set forth herein
and (b) this Fifth Supplemental Indenture shall have been executed by all of the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed as of the day and year first above written.
NET SUL COMUNICACOES LTDA.
By: __________________________________ Witness:
Name:
Title:
By: __________________________________ Witness:
Name:
Title:
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[GUARANTORS]
By: __________________________________ Witness:
Name:
Title:
By: __________________________________ Witness:
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as successor by merger to Wells Fargo
Bank Minnesota, National Association, as Trustee
By: __________________________________ Witness:
Name:
Title:
Witness:
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Schedule A
Noteholders party to the Exchange Agreement, dated as of [ ], among the
Company, Net Servicos, the Real Lenders party thereto, and the following
Noteholders:
[List Noteholders]