EXHIBIT 99.5
February __, 2005
EXCHANGE AGENT AGREEMENT
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Division - Global Finance Services, Americas
Ladies and Gentlemen:
Net Servicos de Comunicacao S.A., a Brazilian corporation (the
"Company") is (i) offering to exchange (the "Exchange Offer") up to
US$76,593,068 aggregate principal amount of its 7.0% Senior Secured Notes due
2009 (the "New Notes"), which have been registered under the Securities Act of
1933, as amended, and cash (the "Cash Payment"), for up to US$97,692,000
aggregate principal amount of its 12?% Senior Guaranteed Notes due 2004 (the
"Existing Notes"), and (ii) soliciting (the "Consent Solicitation" and together
with the Exchange Offer, the "Exchange Offer and Consent Solicitation") consents
(the "Consents") from holders of the Existing Notes to amendments to certain
provisions of the indenture governing the Existing Notes, dated as of June 18,
1996, pursuant to which the Existing Notes were issued. The terms and conditions
of the Exchange Offer and Consent Solicitation as currently contemplated are set
forth in the Company's prospectus, dated February __, 2005 (as the same may be
amended, supplemented or modified from time to time, the "Prospectus") and in
the accompanying letter of transmittal and consent (the "Letter and Consent"),
which are both proposed to be distributed to all record holders of the Existing
Notes and which collectively constitute the Exchange Offer and Consent
Solicitation. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Prospectus.
Registered holders (each a "holder") of Existing Notes who desire to
tender their Existing Notes pursuant to the Exchange Offer and Consent
Solicitation must consent to the Proposed Amendments pursuant to the terms and
conditions contained in the Prospectus and Letter and Consent. The execution and
delivery of a Letter and Consent by a holder of Existing Notes in connection
with the tender of Existing Notes pursuant to the Exchange Offer and Consent
Solicitation will be deemed to constitute the consent of such tendering holder
to the Proposed Amendments. No Consent may be delivered by the holder without
such holder also tendering the related Existing Notes for exchange pursuant to
the Exchange Offer. No separate payments will be made for Consents.
The Company hereby appoints The Bank of New York to act as Exchange
Agent (the "Exchange Agent") in connection with the Exchange Offer and Consent
Solicitation. References hereinafter to "you" and "your" shall refer to The Bank
of New York.
The Exchange Offer and Consent Solicitation is expected to be commenced
by the Company on or about February __, 2005. The Letter and Consent
accompanying the
Prospectus (or in the case of book-entry securities, the Automated Tender Offer
Program ("ATOP") of The Depository Trust Company (the "Book-Entry Transfer
Facility")) is to be used by the holders of the Existing Notes to accept the
Exchange Offer and give Consent and contains instructions with respect to the
delivery of certificates for Existing Notes tendered in connection therewith.
Anything contained herein or in the Prospectus or Letter and Consent to the
contrary nothwithstanding, the Exchange Agent's obligations with respect to
receipt and inspection of the Letter and Consent in connection with the Exchange
Offer and Consent Solicitation shall be satisfied for all purposes hereof by
inspection of the electronic message (the "Agent's Message," as defined in the
Prospectus) transmitted to the Exchange Agent by the Book-Entry Transfer
Facility, in accordance with ATOP and by otherwise observing and complying with
all procedures established by the Book-Entry Transfer Facility in connection
with ATOP, to the extent that ATOP is utilized by the Exchange Offer and Consent
Solicitation participants.
The Exchange Offer and Consent Solicitation will expire at 5:00 P.M.,
New York City time, on ________ __, 2005, or such later time or date to which
the offer is extended (such time or date, as may be extended, the "Expiration
Date"). Subject to the terms and conditions set forth in the Prospectus, the
Company reserves the right to (i) terminate the Exchange Offer and Consent
Solicitation and return the tendered Existing Notes to the tendering holders;
(ii) waive all unsatisfied conditions of the Exchange Offer and Consent
Solicitation, other than the condition requiring at least a majority of the
aggregate outstanding principal amount of the Existing Notes to be validly
tendered by the Expiration Date for the Exchange Offer and Consent Solicitation
to be consummated, and accept for exchange and exchange all Existing Notes that
are validly tendered by the Expiration Date; (iii) extend the Exchange Offer and
Consent Solicitation and retain the Existing Notes that have been tendered
during the period for which the Exchange Offer and Consent Solicitation is
extended; or (iv) amend the Exchange Offer and Consent Solicitation. The Company
will give oral notice (confirmed in writing) or written notice to you of any
extension, amendment or termination before 9:00 A.M., New York City time, on the
business day following the previously scheduled Expiration Date.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "THE EXCHANGE
OFFER AND CONSENT SOLICITATION," and the Letter and Consent or as specifically
set forth herein; provided, however, that in no way will your general duty to
act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the
Existing Notes at the Book-Entry Transfer Facility for purposes of the Exchange
Offer and Consent Solicitation within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Existing Notes by causing the Book-Entry Transfer Facility to transfer such
Existing Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer. Such account shall be maintained until
all Existing Notes tendered pursuant to the Exchange Offer and Consent
Solicitation will have been either accepted for exchange or returned.
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3. You are to examine each Letter and Consent and certificate for
Existing Notes, or Agent's Message and confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility, as applicable, and any other
documents delivered or mailed to you by or for holders of the Existing Notes, to
ascertain whether: (i) the Letter and Consent and any such other documents are
duly executed and properly completed in accordance with instructions set forth
therein; and (ii) the Existing Notes have otherwise been properly tendered. In
each case where the Letter and Consent or any other document has been improperly
completed or executed or any of the certificates for Existing Notes are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer and Consent Solicitation exists, you will
endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of any officer of the Company referred to in
Section 5 below, or of Debevoise & Plimpton LLP, counsel to the Company (such
approval, if given orally, to be promptly confirmed in writing), or any other
party designated in writing by any such officer, you are authorized to waive any
defects, irregularities or conditions of tender in connection with any tender of
Existing Notes or delivery of Consents pursuant to the Exchange Offer and
Consent Solicitation.
5. Tenders of Existing Notes and deliveries of Consents may be
made only as set forth in the Letter and Consent and in the section of the
Prospectus captioned "THE EXCHANGE OFFER AND CONSENT SOLICITATION," and Existing
Notes shall be considered properly tendered (and related Consents shall be
considered properly delivered) to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Existing Notes which
the Chief Executive Officer, the Chief Financial Officer, the Chief Legal
Counsel or the Treasurer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Existing
Notes received subsequent to the Expiration Date and accept any instructions of
the Company with respect to disposition of such Existing Notes.
7. You shall accept tenders:
(a) in cases where the Existing Notes are registered in
two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on
the Letter and Consent) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of
Existing Notes, provided that customary transfer requirements,
including payment of any applicable transfer taxes, are fulfilled.
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You shall accept partial tenders of Existing Notes where so indicated
and as permitted in the Letter and Consent and deliver certificates for Existing
Notes to the registrar for split-up and return any untendered Existing Notes to
the holder (or such other person as may be designated in the Letter and Consent)
as promptly as practicable after expiration or termination of the Exchange Offer
and Consent Solicitation.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer and Consent Solicitation, the Company will notify you (such
notice, if given orally, to be promptly confirmed in writing) of the Company'
acceptance, promptly after the Expiration Date, of all Existing Notes properly
tendered and you, on behalf of the Company, will exchange such Existing Notes
for New Notes and cash and cause such accepted Existing Notes to be canceled.
As set forth in the Letter and Consent, delivery of New Notes and cash will be
made on behalf of the Company by you in accordance with the following:
For each $1,000 principal amount of the Existing Notes (including all
accrued and unpaid interest and premium thereon) validly tendered and accepted
by the Company as set forth above, holders participating in the Exchange Offer
and Consent Solicitation will receive:
(a) US$784.026 principal amount of New Notes;
(b) US$522.68 of cash; and
(c) an additional amount of cash equal to simple interest
accruing on US$1,306.71 from July 1, 2004 through the day immediately
prior to the date of the closing of the Exchange Offer and Consent
Solicitation, at an interest rate of three-month LIBOR plus 3.0% per
annum, as advised by the Company in writing.
In all cases, Existing Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Existing
Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof or an Agent's Message) with
any required signature guarantees and any other required documents. New Notes
will be issued only in denominations of $1.00 and integral multiples thereof.
The Company will not issue fractional New Notes upon exchange of Existing
Notes. Instead, the total principal amount of New Notes which each holder will
receive in connection with the Exchange Offer and Consent Solicitation will be
rounded up to the next highest $1.00 in principal amount that such holder would
otherwise have received. Promptly following notice (such notice, if given
orally, to be promptly confirmed in writing) of acceptance of said Existing
Notes by the Company with respect to the payment of the Cash Payment, the
Company shall deliver to you an amount in immediately available funds (the
"Funds"), sufficient to fund the Cash Payment, together with written
instructions from any officer of the Company referred to in Section 5 above.
Payment of the Cash Payment will be made by you, on behalf of the Company,
promptly after such notice of acceptance of said Existing Notes by the Company
in such amount for each $1,000 principal amount of Existing Notes as any such
officer shall specify.
9. Tenders pursuant to the Exchange Offer and Consent
Solicitation are irrevocable, subject to the terms and upon the conditions set
forth in the Prospectus and the Letter and Consent. Existing Notes tendered
pursuant to the Exchange Offer and related Consents may only be withdrawn under
the limited circumstances set forth in the Prospectus.
10. The Company shall not be required to accept any Existing Notes
tendered if any of the conditions set forth in the Prospectus or the Letter and
Consent are not met. Notice of any decision by the Company not to accept any
Existing Notes tendered shall be given (if given orally, to be promptly
confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer and Consent Solicitation,
the Company does not accept for exchange all or part of the Existing Notes or
Consents tendered because of an invalid tender, the occurrence of certain other
events set forth in the Prospectus under the caption "THE EXCHANGE OFFER AND
CONSENT SOLICITATION--Conditions to the Exchange
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Offer and Consent Solicitation" or otherwise, you shall as soon as practicable
after the expiration or termination of the Exchange Offer and Consent
Solicitation return those certificates representing unaccepted Existing Notes
(or effect appropriate book-entry transfer), together with any related required
documents and the Letter and Consents relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates representing unaccepted Existing Notes,
reissued Existing Notes or New Notes, and all checks representing Cash Payments,
shall be returned to, or as directed by the holder thereof, by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any act, omission to act or
sufferance to exist, unless the same constitutes your own gross
negligence, bad faith or willful misconduct, and in no event shall you
be liable to a security holder, the Company or any third party for any
special, punitive, indirect or consequential loss or damages of any
kind whatsoever, or lost profits, arising in connection with this
Agreement even if you have been advised of the likelihood of such loss
or damage and regardless of the form of action;
(b) shall have no duties or obligations other than those
expressly set forth herein or as may be subsequently agreed to in
writing between you and the Company and no implied duties or
obligations shall be read into this Agreement against you. No provision
in this Agreement shall require you to expend or risk your own funds or
otherwise incur financial liability in the performance of any of your
duties, or in the exercise of your rights and powers hereunder;
(c) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Existing Notes
represented thereby deposited with you pursuant to the Exchange Offer
and Consent Solicitation, or any Consent, and will not be required to
and will be regarded as making no representation as to the validity,
value or genuineness of the Exchange Offer or Consent Solicitation;
(d) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or
liability, unless you shall have been furnished with indemnity
reasonably satisfactory to you;
(e) may conclusively rely on and shall be fully protected
in acting in reliance upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered to you
and reasonably believed by you to be genuine and to have been signed or
presented by the proper person or persons;
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(f) may act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not
only as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information
contained therein, which you shall in good faith reasonably believe to
be genuine or to have been signed or presented by the proper person or
persons;
(g) may conclusively rely on and shall be fully protected
in acting upon written or oral instructions from any officer of the
Company referred to in Section 5 above;
(h) may consult with counsel of your selection with
respect to any questions relating to your duties and responsibilities
as Exchange Agent and the advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such counsel;
(i) shall not advise any person tendering Existing Notes
pursuant to the Exchange Offer and Consent Solicitation as to the
wisdom of making such tender or delivering such Consent or as to the
market value or decline or appreciation in market value of any Existing
Notes; and
(j) you shall not be responsible or liable for any
failure or delay in the performance of your obligations under this
Agreement arising out of or caused, directly or indirectly, by
circumstances beyond your reasonable control, including without
limitation, acts of God, earthquakes, fires, floods, wars civil or
military disturbances, terrorist acts, sabotage, epidemics, riots,
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service, accidents, labor disputes, and
acts of civil or military authority or governmental actions, it being
understood that you shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
15. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter and
Consent and the Notice of Guaranteed Delivery (as defined in the Prospectus), or
such other forms as may be approved from time to time by the Company, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer and Consent
Solicitation, provided that such information shall relate only to the procedures
for accepting (or withdrawing from) the Exchange Offer and Consent Solicitation
and not the merits of the Exchange Offer and Consent Solicitation. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offer and Consent Solicitation
shall be directed by you to the Company, Attention: Andre Muller Borges, Chief
Legal Counsel.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing, Flavio J. Vargas of the Company (at the
facsimile number 5511-5186-2780), and such other person or persons as the
Company may request, daily (and more frequently during
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the week immediately preceding the Expiration Date, if requested) up to and
including the Expiration Date, as to the number of Existing Notes which have
been tendered and the number of Consents that have been delivered pursuant to
the Exchange Offer and Consent Solicitation and the items received by you
pursuant to this Agreement, separately reporting and giving cumulative totals as
to items properly received, items improperly received and items covered by
Notices of Guaranteed Delivery. In addition, you will also inform, and cooperate
in making available to, the Company or any such other authorized person or
persons upon oral or written request made from time to time prior to the
Expiration Date of such other information as they may reasonably request. Such
cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer and Consent Solicitation. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Existing
Notes tendered, the aggregate principal amount of Existing Notes accepted and
deliver said list to the Company.
17. Letter and Consents and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the Expiration Date, the time, of
receipt thereof and shall be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters and Consents and
other surplus materials in accordance with your normal practices.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation and reimbursement of any reasonable
out-of-pocket expenses (including the reasonable fees and expenses of your
counsel) as has been separately agreed upon in writing by you and the Company.
The provisions of this Section shall survive the termination of this Agreement
and your resignation and removal for any reason.
20. You hereby acknowledge receipt of the Prospectus and the
Letter and Consent and further acknowledge that you have examined each to the
extent necessary to perform your duties hereunder. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the Letter and Consent
(as they may be amended from time to time), on the other hand, shall be resolved
in favor of the latter two documents, except with respect to your duties,
liabilities and indemnification as Exchange Agent (all of which shall be
governed and controlled by the provisions of this Agreement).
21. The Company covenants and agrees to indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, incurred without gross negligence, bad faith or
willful misconduct on your part, arising out of or in connection with any act,
omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or
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document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Existing Notes believed by
you in good faith to be authorized, and in delaying or refusing in good faith to
accept any tenders or effect any transfer of Existing Notes or in otherwise
accepting or performing your duties hereunder or in being or acting as Exchange
Agent. You shall notify the Company by letter, or by facsimile confirmed by
letter, of the written assertion of a claim against you or of any other action
commenced against you in your capacity as Exchange Agent, promptly after you
shall have received any such written assertion or written notice of the
commencement of any such action, provided that the failure to make such
notification shall not affect the your rights to receive indemnity hereunder.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or other action, and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you unless (i) the Company agreed in writing to pay such
fees and expenses or (ii) the Company shall retain counsel reasonably
satisfactory to you to defend such suit and so long as you have not determined,
in your reasonable judgment based on the opinion of outside counsel, that a
conflict of interest exists between you and the Company or you shall determine
in your sole discretion that the suit affects your policies or procedures or
would affect your reputation. You agree that you will not settle any action,
proceeding or suit with respect to which you may seek indemnification from the
Company without the prior written consent of the Company, which consent shall
not be unreasonably withheld or delayed. The provisions of this Section shall
survive the termination of this Agreement and your resignation or removal for
any reason.
22. You shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service (eg., Form 1099s, etc.). The Company understands that you are
required to deduct 28% on payments to certain holders who have not supplied
their correct Taxpayer Identification Number or required certification. Such
funds so deducted will be turned over to the Internal Revenue Service.
23. The Company shall be responsible for payment, in a timely
manner, to each governmental authority to which any transfer taxes are payable
in respect of the exchange of the Existing Notes.
24. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (including without limitation
Section 5-1401 of the New York General Obligations Law or any successor to such
statute).
25. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
26. In case any provision of this Agreement 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.
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27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
Andre Muller Borges
Net Servicos de Comunicacao S.A.
Rua Verbo Divino, 1356
Sao Paulo - SP - 04719-022, Brazil
Telephone: +55-11-5186-2650
Facsimile: +55-11-5186-2655
with a copy to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Telephone: 212-909-6000
Facsimile: 212-909-6836
Attention: Gregory V. Gooding
If to the Exchange Agent:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Corporate Trust Division - Global Finance Services,
Americas
Telephone: (212) 815-5206
Facsimile: (212) 815-5802
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 11, 18, 19, 21 and 23 shall survive the termination of
this Agreement. Except as otherwise set forth herein, upon any termination of
this Agreement, you shall promptly deliver to the Company any certificates for
Existing Notes, funds or property then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall inure to the benefit of and the
obligations created hereby shall be binding upon the parties hereto and their
successors and assigns. Neither party may assign this Agreement without the
prior written consent of the other party. Any entity into which the Exchange
Agent may be merged or converted or with which it may be consolidated, or any
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entity resulting from any merger, conversion or consolidation to which the
Exchange Agent shall be a party, or any entity succeeding to all or
substantially all the corporate trust business of the Exchange Agent, shall be
the successor, of the Exchange Agent hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. This
Agreement shall become effective as of the date hereof.
31. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
[Signature Page Follows]
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NET SERVICOS DE COMUNICACAO S.A.
EXCHANGE AGENT AGREEMENT
NET SERVICOS DE COMUNICACAO S.A.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
Accepted as of the date first
above written:
THE BANK OF NEW YORK,
as Exchange Agent
By: _________________________________
Name:
Title:
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