Exhibit 99.8
SOLICITATION AGENCY AGREEMENT
__________ __, 2005
Eurovest Global Securities, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ - 6(degree)andar
Sao Paulo - SP - ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇
Dear Sirs:
1. The Exchange Offer. Net Servicos de Comunicacao S.A., a company
organized under the laws of the Federative Republic of Brazil (the "Issuer" or
"Net"), intends to make an exchange offer (together with any amendments,
supplements or extensions thereof, the "Exchange Offer") to exchange an
aggregate principal amount of up to U.S.$76,593,068 Senior Secured Notes due
2009 and cash for its issued and outstanding U.S.$97,692,000 Senior Guaranteed
Notes due 2004 (the "Existing Notes"). In addition, the Issuer intends to
solicit consents (the "Consent Solicitation") to amend certain provisions of the
indenture governing the Existing Notes. The Exchange Offer and Consent
Solicitation will be on the terms and subject to the conditions set forth in the
Registration Statement on Form F-4 (File No. 333-120286) (as amended, the
"Registration Statement").
2. Appointment as Solicitation Agent. The Issuer hereby appoints you as
Solicitation Agent (the "Solicitation Agent") solely in connection with Existing
Notes held outside the United States by non-U.S. Persons (as such term is used
in Regulation S under the U.S. Securities Act of 1933, as amended (the
"Securities Act")) (the "Eligible Existing Notes") and authorizes you to act as
such in connection with the Exchange Offer and Consent Solicitation in
accordance with this Agreement and the terms of the Registration Statement. As
Solicitation Agent, you agree, in accordance with your customary practice, to
perform those services in connection with the Exchange Offer and Consent
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 all reasonable efforts to solicit tenders of the Eligible
Existing Notes pursuant to the Exchange Offer, consents in respect of the
Eligible Existing Notes under the Consent Solicitation and communicating
generally regarding the Exchange Offer and Consent Solicitation with brokers,
dealers, commercial banks and trust companies and other holders of the Eligible
Existing Notes. In such capacity, you shall act as an independent contractor,
and your duties arising out of your engagement pursuant to this Agreement shall
be owed to the Issuer. The Exchange Offer and Consent Solicitation are to be
made upon the terms and subject to the conditions set forth in the Registration
Statement. It is
understood that you are not acting hereunder as, and will not be required to
perform any activities that would require you to become, a registered U.S.
broker dealer.
3. No Liability for Acts of Dealers, Banks and Trust Companies. The
Solicitation Agent shall have no liability to the Issuer 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") or any bank or trust company, or any
other person, and neither the Solicitation Agent nor any of its affiliates shall
be liable for any Losses arising from its own acts or omissions in performing
its obligations as Solicitation Agent or as a Dealer hereunder or otherwise in
connection with the Exchange Offer, except for any such Losses which are finally
judicially determined to have resulted primarily from the Solicitation Agent's
bad faith, willful misconduct or gross negligence. In soliciting or obtaining
tenders of Existing Notes under the Exchange Offer and consents under the
Consent Solicitation, no Dealer, bank or trust company is to be deemed to be
acting as your agent or the agent of the Issuer or any of its affiliates, and
the Solicitation Agent shall not be deemed the agent of any Dealer, bank or
trust company or the agent or fiduciary of the Issuer or any of its affiliates,
equity holders, creditors or of any other person. In soliciting or obtaining
tenders of Eligible Existing Notes under the Exchange Offer and consents under
the Consent Solicitation, you shall not be nor shall you be deemed for any
purpose to act as a partner or joint venturer of or a member of a syndicate or
group with the Issuer or any of its affiliates in connection with the Exchange
Offer or the Consent Solicitation and neither the Issuer nor any of its
affiliates shall be deemed to act as your respective agents. The Issuer shall
have sole authority for the acceptance or rejection of any and all tenders of
Eligible Existing Notes under the Exchange Offer and consents under the Consent
Solicitation.
4. The Transaction Material. (a) The Issuer agrees to furnish you, at
its expense, with as many copies as you may reasonably request of the
Registration Statement, all statements and other documents, materials or filings
relating to the Exchange Offer and the Consent Solicitation to be used by the
Issuer in connection therewith and any amendments or supplements to any such
statements and documents (the definitive forms of all of the foregoing
materials, including the Registration Statement, are hereinafter collectively
referred to as the "Transaction Material"), and you are authorized to use copies
of the Transaction Material, in connection with your duties hereunder. You and
the Issuer agree to furnish no other written material to any record or
beneficial holder of the Existing Notes in connection with the Exchange Offer
unless you and the Issuer otherwise agree, and you agree that you will not make
any statements in connection with the Exchange Offer and Consent Solicitation
other than the statements that are set forth in the Transaction Material or as
otherwise authorized by the Issuer. The Transaction Material has been or will be
prepared and approved by, and is the sole responsibility of, the Issuer.
(b) Prior to and during the period of the Exchange Offer and the Consent
Solicitation, the Issuer will inform you as soon as practicable after it
receives notice or becomes aware of the happening of any event, or the discovery
of any fact, which it believes would require the making of any change in any
Transaction Material then being used or would affect
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the truth and correctness of any representation or warranty contained in this
Agreement if such representation or warranty were being made immediately after
the happening of such event or the discovery of suxch fact.
(c) The Issuer agrees that no Transaction Material will be used in
connection with the Exchange Offer or the Consent Solicitation without first
obtaining your prior approval, which approval shall not be unreasonably
withheld. In the event that the Issuer uses or permits the use of any
Transaction Material in connection with the Exchange Offer or the Consent
Solicitation without your prior approval, then you shall be entitled to withdraw
as Solicitation Agent in connection with the Exchange Offer and the Consent
Solicitation without any liability or penalty to you or any Indemnified Person
(as hereinafter defined), and you shall remain entitled to the indemnification
provided in Section 10 hereof and to receive the payment of all fees and
expenses payable under this Agreement which have accrued to the date of such
withdrawal or would otherwise be due to you on such date. If you withdraw as
Solicitation Agent, any fees accrued and reimbursement for your expenses payable
to you through the date of such withdrawal shall be paid promptly after such
date.
5. Compensation. The Issuer agrees to pay you, as compensation for your
services as Solicitation Agent in connection with the Exchange Offer and the
Consent Solicitation, the fees as shall have been agreed between the parties in
an engagement letter, dated October 17, 2003 (the "Engagement Letter"), as
amended as of the date hereof and as amended, restated or supplemented from time
to time hereafter.
6. Expenses of Solicitation Agent and Others. In addition to the
compensation payable to you as Solicitation Agent for your services hereunder
pursuant to Section 5 hereof, the Issuer agrees to pay directly, or reimburse
you, as the case may be, for the expenses incurred by you and third parties
hired by you under the terms and conditions of the Engagement Letter.
7. Payment of Additional Amounts. The Issuer will indemnify and hold
harmless the Solicitation Agent against any documentary, stamp, registration or
other tax, charge, levy or other amounts imposed by Brazil on or in connection
with the Exchange Offer or the Exchange Offer Material. All payments to be made
to the Solicitation Agent, the holders of the Eligible Existing Notes and
soliciting dealers by the Issuer hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever imposed or levied by or on behalf of Brazil or
any political subdivisions thereof (or any taxing authorities therein) unless
the Issuer is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made; provided however, no such additional
amounts shall be payable (i) in respect of any tax, duty or governmental charge
that would not have been imposed but for the existence of any present or former
connection between the Solicitation Agent, the relevant holder or soliciting
dealer, as the case may be, and the relevant taxing jurisdiction, other than by
entering into or
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performing this Agreement, and (ii) in respect of any tax, duty or governmental
charge that would not have been imposed but for the failure of the Solicitation
Agent, the relevant holder or the soliciting dealer, as the case may be, to
comply with any reasonable certification, identification, documentation or
information or other reporting requirement if such compliance is required by
law, regulation, administrative practice or applicable treaty as a precondition
to or exemption from or reduction in the rate of deduction or withholding of
such taxes; and provided, further, that the Issuer shall deliver to the
Solicitation Agent, within 10 days following the payment of such tax, duty or
charge, evidence of the payment of such tax, duty or charge.
8. Additional Representations and Warranties. The Issuer represents and
warrants to you that:
(a) The Issuer is a sociedade anonima duly organized and validly
existing under the laws of the Federative Republic of Brazil and is duly
qualified to transact business except to the extent that the failure to be
so qualified would not have a material adverse effect on the business,
properties, financial position or results of operations of the Issuer.
(b) The Issuer has full power and authority to take and has duly taken
all necessary corporate action to authorize (i) the Exchange Offer, (ii) the
exchange of the Existing Notes pursuant to the Exchange Offer, (iii) the
Consent Solicitation and (iv) the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered on
behalf of the Issuer and is a legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with its terms, except
that the enforceability hereof may be limited by (x) bankruptcy, insolvency,
reorganization, moratorium and other laws now or hereafter in effect
relating to creditors' rights generally and (y) general principles of
equity.
(c) The Issuer will forthwith prepare the Transaction Material, copies
of which will promptly be furnished to you. The Transaction Material
complies and will comply in all material respects with the applicable
requirements of the Securities Act and the Securities Exchange Act of 1934
(as amended, the "Exchange Act"), to the extent applicable. The Registration
Statement (including any information incorporated by reference therein) does
not contain and will not contain any untrue information or untrue statement
of a material fact, and does not omit and will not omit to state any untrue
information or a material fact required to be stated therein or necessary to
make the statements made therein, in 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 Registration Statement in reliance upon and in conformity with
information furnished or confirmed by the Solicitation Agent to the Issuer
in writing expressly for use therein.
(d) In connection with the Exchange Offer, the Issuer has complied, and
will continue to comply, in all material respects with the applicable
sections of the Exchange Act, including without limitation, Rules 10b-5,
14e-1 and 14e-3 thereunder.
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(e) The Exchange Offer, the exchange by the Issuer of the Existing Notes
pursuant to the Exchange Offer, the Consent Solicitation and the execution,
delivery and performance of this Agreement by the Issuer, comply and will
comply in all material respects with all applicable requirements of federal,
state, local and foreign law, including 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,
any governmental agency is required in connection with the execution,
delivery and performance of this Agreement by the Issuer or the making or
consummation by the Issuer or the consummation of the other transactions
contemplated by this Agreement, apart from those that have been obtained and
as may be required under the Securities Act, the Exchange Act, the Trust
Indenture Act of 1939, state securities/blue sky laws and Brazilian law.
(f) The Exchange Offer, the exchange of Existing Notes by the Issuer
pursuant to the Exchange Offer and the execution, delivery and performance
of this Agreement by the Issuer, do not and will not, after giving effect to
consents, waivers and amendments that will have been obtained or made as of
the closing date of the Exchange Offer and Consent Solicitation, (i)
conflict with or result in a violation of any of the provisions of the
articles of incorporation or the estatuto social of the Issuer, or (ii)
except with respect to those agreements listed on Annex A attached hereto,
result in a breach of any of the terms or provisions of, or constitute a
default (with or without due notice and/or lapse of time) under, any loan,
credit agreement, indenture, mortgage, note or other agreement or instrument
to which the Issuer or any of its subsidiaries is a party or by which any of
them or any of their respective properties or assets is or may be bound,
except to the extent such breach or default would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on
the business, properties, financial position or results of operations of the
Issuer and all of its subsidiaries taken as a whole.
(g) The Issuer will make, as required by applicable law or regulation,
any and all necessary amendments or supplements to the Transaction Material,
and the Issuer will file, as required by applicable law or regulation, any
and all necessary amendments or supplements to any documents filed with any
agency relating to the Exchange Offer and Consent Solicitation, in each case
subject to the provisions of Section 4, and will promptly furnish to you as
many true and complete copies as you may reasonably request of each such
amendment and supplement upon the filing thereof.
(h) 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 Issuer's knowledge, threatened, before
any governmental agency with respect to the making or consummation of the
Exchange Offer or Consent Solicitation or the execution, delivery and
performance of this Agreement or the consummation of the other transactions
contemplated by this Agreement or the Exchange Offer or Consent
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Solicitation or with respect to the ownership of the Existing Notes by
the Issuer or any of its subsidiaries or affiliates.
(i) The Issuer is not an "investment company" under the Investment
Company Act of 1940 required to be registered, as amended, and the rules and
regulations promulgated by any governmental agency thereunder.
Each of the representations and warranties set forth in this Agreement will
be true and correct (i) on and as of the date on which the Exchange Offer and
Consent Solicitation is commenced, (ii) on and as of the date on which any
Transaction Material 8is first distributed to holders of Eligible Existing
Notes, (iii) on and as of the settlement date of the Eligible Existing Notes
and (iv) on and as of the date of the consummation of the Consent Solicitation.
9. Notification of Certain Events. The Issuer shall advise you promptly
of (i) the occurrence of any event which could cause the Issuer to withdraw,
rescind or terminate the Exchange Offer or Consent Solicitation or would permit
the Issuer to exercise any right not to exchange the Existing Notes tendered
under the Exchange Offer or not to consummate the Consent Solicitation, (ii) 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 the
Transaction Material then being used or would cause any representation or
warranty contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) any proposal or requirement to make, amend or supplement any
Transaction Material or any filing in connection with the Exchange Offer or
Consent Solicitation pursuant to the Securities Act or the Exchange Act or any
applicable law, rule or regulation, (iv) the issuance by any governmental agency
of any comment or order or the taking of any other action concerning the
Exchange Offer or Consent Solicitation (and, if in writing, will furnish each of
you with a copy thereof), and (v) any other information relating to the Exchange
Offer, the Consent Solicitation, the Transaction Material or this Agreement
which you may from time to time request.
10. Indemnification. (a) The Issuer agrees to hold harmless and
indemnify the Solicitation Agent and any affiliated company and each officer,
director, partner, employee or agent of the Solicitation Agent (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 Transaction Materials (including
any information incorporated by reference therein) used by the Issuer or
authorized by the Issuer for use in connection with the Exchange Offer or the
Consent 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 statement therein, in light of the
circumstances under which they were made, not misleading, (ii) arising out of or
based upon any withdrawal by the Issuer of, or failure by the Issuer to make or
consummate, the Exchange Offer or the Consent Solicitation or any other failure
to comply with the terms and conditions specified in the Transaction Material,
(iii) arising out of the breach or alleged breach
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by the Issuer of any representation, warranty or covenant set forth in this
Agreement or (iv) otherwise arising out of, relating to or in connection with
the Exchange Offer, the Consent Solicitation or your services as the
Solicitation Agent hereunder. The Issuer shall not, however, be responsible for
any Loss pursuant to clause (iv) of the preceding sentence of this Section 10
which has been finally judicially determined to have resulted primarily from the
bad faith, willful misconduct or gross negligence on the part of any Indemnified
Person, other than any Loss arising out of or resulting from actions performed
at the request of or with the consent of the Issuer.
(b) The Issuer and the Solicitation Agent agree that if any
indemnification sought by any Indemnified Person pursuant to this Section 10 is
unavailable for any reason or insufficient to hold the Solicitation Agent
harmless, then the Issuer and the Solicitation Agent 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 Issuer on the one hand, and by the
Solicitation Agent on the other hand, in connection with the transactions
contemplated by this Agreement. The Issuer and the Solicitation Agent agree that
relative benefit to the parties hereunder shall be measured, in the case of the
Issuer, by the aggregate principal amount of Eligible Existing Notes validly
tendered pursuant to the offer, and in the case of the Solicitation Agent, by
the total fees actually received by the Solicitation Agent in connection with
its engagement hereunder. If such allocation is not permitted by applicable law,
not only such relative benefits but also the relative faults of the Issuer, on
the one hand, and the Solicitation Agent, on the other hand, as well as any
other equitable considerations, shall be considered, subject to the limitation
that in any event the aggregate contribution by the Solicitation Agent to all
Losses with respect to which contribution is available hereunder shall not
exceed the fees actually received by the Solicitation Agent in connection with
its engagement hereunder.
(c) The foregoing rights to indemnity and contribution shall be in
addition to any other right which the Solicitation Agent and the other
Indemnified Persons may have against the Issuer at common law or otherwise. If
any litigation or proceeding is brought against any Indemnified Person in
respect of which indemnification may be sought against the Issuer pursuant to
this Section 10, such Indemnified Person shall promptly notify the Issuer in
writing of the commencement of such litigation or proceeding, but the failure so
to notify the Issuer shall relieve the Issuer from any liability which they may
have hereunder only if, and to the extent that, such failure results in the
forfeiture by or material prejudice to the Issuer of substantial rights and
defenses, and will not in any event relieve the Issuer from any other obligation
or liability that it may have to any Indemnified Person other than under this
Agreement. In case any such litigation or proceeding shall be brought against
any Indemnified Person and such Indemnified Person shall notify the Issuer in
writing of the commencement of such litigation or proceeding, the Issuer shall
be entitled to participate in such litigation or proceeding, and, after written
notice from the Issuer to such Indemnified Person, to assume the defense of such
litigation or proceeding with counsel of their choice at their expense,
provided, however, that such counsel shall be satisfactory to the Indemnified
Person in the exercise of its reasonable judgment. Notwithstanding the election
of the Issuer to assume the defense of such litigation or
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proceeding, such Indemnified Person shall have the right to employ separate
counsel and to participate in the defense of such litigation or proceeding, and
the Issuer shall bear the reasonable fees, costs and expenses of such separate
counsel and shall pay such fees, costs and expenses at least quarterly (provided
that with respect to any single litigation or proceeding or with respect to
several litigations or proceedings involving substantially similar legal claims,
the Issuer shall not be required to bear the fees, costs and expenses of more
than one such counsel to all Indemnified Persons except where such Indemnified
Persons require local counsel, in which case the Issuer shall also be required
to bear reasonable the fees, costs and expenses of such local counsel) if (i) in
the reasonable judgment of such Indemnified Persons the use of counsel chosen by
the Issuer to represent such Indemnified Persons would present such counsel with
a conflict of interest, (ii) the defendants in, or targets of, any such
litigation or proceeding include an Indemnified Person and the Issuer and such
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it or to other Indemnified Persons which are different
from or additional to those available to the Issuer (in which case the Issuer
shall not have the right to direct the defense of such action on behalf of the
Indemnified Person), (iii) the Issuer shall not have employed counsel
satisfactory to such Indemnified Person, in the exercise of the Indemnified
Person's reasonable judgment, to represent such Indemnified Person within a
reasonable time after notice of the institution of such litigation or proceeding
or (iv) the Issuer shall authorize in writing such Indemnified Person to employ
separate counsel at the expense of the Issuer. In any action or proceeding the
defense of which the Issuer assumes, the Indemnified Person shall have the right
to participate in such litigation and retain its own counsel at such Indemnified
Person's own expense. Each of the Issuer and you agree to notify each other
promptly of the assertion of any claim against it, any of its officers or
directors or any entity or person who controls it within the meaning of Section
20(a) of the Exchange Act in connection with the Exchange Offer. The foregoing
indemnification commitments shall apply whether or not the Indemnified Person is
a formal party to such litigation or proceeding.
(d) The Issuer also agrees to reimburse each Indemnified Person for all
reasonable 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 10 or enforcing this Agreement, whether
or not in connection with pending or threatened litigation in which any
Indemnified Person is a party.
(e) The Issuer agrees that it will not, without the Solicitation Agent's
prior written consent (which consent shall not be unreasonably withheld),
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 the Solicitation Agent, any other
Indemnified Person, the Issuer is an actual or potential party), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnified Person from all liability arising out of such claim, action or
proceeding. No Indemnified Person seeking indemnification under this Agreement
shall, without the prior written consent of the Issuer (which consent shall not
be unreasonably withheld), settle, compromise or consent to the entry of
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any judgment in any pending or threatened claim, action, or proceeding in
respect of which indemnification may be sought hereunder.
11. Indemnification, Representations and Warranties To Remain Operative.
The indemnity and contribution agreements contained in Section 10 hereof and the
representations and warranties of the Issuer set forth in Section 8 of this
Agreement shall remain operative and in full force and effect and shall survive
any termination of this Agreement for a six-year period commencing on the date
of such termination regardless of (i) any failure by the Issuer to commence, or
the withdrawal, termination or consummation of, the Exchange Offer, (ii) any
investigation made by or on behalf of any party hereto or any person controlling
any party hereto within the meaning of Section 20(a) of the Exchange Act and
(iii) any termination of this Agreement (including, without limitation, any
withdrawal by you pursuant to Section 4 or otherwise).
12. Conditions to Obligations of the Solicitation Agent. The
Solicitation Agent's obligations hereunder shall at all times be subject (in
addition to the terms and conditions of the Engagement Letter) to the conditions
that (a) all representations, warranties and other statements of the Issuer
contained herein are now, and at all times during the period of the Exchange
Offer shall be, true and correct in all material respects and (b) the Issuer at
all times shall have performed in all material respects all of its obligations
hereunder theretofore to be performed.
13. Termination. This Agreement shall terminate upon the earliest to
occur of (a) the consummation, expiration, termination or withdrawal of the
Exchange Offer, (b) withdrawal by you as Solicitation Agent pursuant to Section
4(c) hereof and (c) the date one year from the date hereof, and may be
terminated by the Issuer or the Solicitation Agent at any time, with cause,
effective upon receipt by the other party of written notice to that effect in
accordance with the terms of the Engagement Letter, it being understood that
Sections 3, 5, 6, 7, 10, 11, 13, 16, 17, 19 and 21 hereof shall survive any
termination of this Agreement for a six-year period commencing on the date of
such termination.
14. 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
facsimile or by registered or certified mail (postage prepaid, return receipt
requested) to the applicable party at the addresses indicated below:
(a) if to you:
Eurovest Global Securities, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ - 6th floor
CEP 04571-090 - Sao Paulo - S.P., Brazil
Facsimile No.: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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With a copy (which shall not constitute notice) to:
Mayer, Brown, ▇▇▇▇ & Maw LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(b) if to the Issuer:
Net Servicos de Comunicacao ▇.▇.
▇▇▇ Verbo Divino, 1356
04719-002 Sao Paulo, SP, Brazil
Facsimile No.: (▇▇ ▇▇) ▇▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy (which shall not constitute notice) to:
Debevoise & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
15. Amendment. This Agreement may not be amended except in writing
signed by each party to be bound thereby.
16. 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, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.
17. Waiver of Jury Trial. THE ISSUER HEREBY AGREES TO WAIVE ANY RIGHT TO
A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. 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.
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19. 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.
20. Information. The Issuer recognizes and confirms that in performing
the services contemplated in its Agreement you will be relying on the
information furnished by the Issuer, its subsidiaries or their respective
officers, attorneys or other agents and information available from generally
recognized public sources without independent verification.
21. Submission to Jurisdiction. The Issuer irrevocably submits, for the
benefit of you and the other Indemnified Persons, to the nonexclusive
jurisdiction of any New York State or United States Federal court sitting in the
City of New York, the Borough of Manhattan, over any suit, action or proceeding
arising out of or relating to this agreement or the Exchange Offer. The Issuer
irrevocably waives, to the fullest extent permitted by law, any objection that
it may have to the laying of the venue of any such suit, action or proceeding
brought in such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum.
11
Please indicate your willingness to act as Solicitation Agent and your
acceptances 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:
Accepted as of the
date first above written:
EUROVEST GLOBAL SECURITIES, INC.
By:
--------------------
Name:
Title:
Annex A
List of Contracts
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Borrower Credit Facility Creditor/Trustee Inital Date Maturity Original Borrowed Outstanding Principal
Amount Amount as of June 30,
2004*
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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 ▇▇▇▇▇ Fargo 18/06/1996 18/06/2004 USD 185.000.000,00 382.679.958,00
Notes(2)
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
1.250.049,10
Net Servicos US$-CDI Swap(5) BBA 18/11/2002 18/12/2002
Net Servicos Res. 63 BNL 12/06/2002 10/12/2002 USD 7.000.000,00 23.803.595,57
Net Servicos 2nd Public Issuance ▇▇▇▇▇▇▇▇ Trust 01/12/1999 01/12/2006 R$ 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
72.182,47
Reyc Fixed Rate-CDI Swap(8) Brascan 29/11/2002 30/12/2002
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 ▇▇▇▇▇ Fargo 31/10/1997 15/10/2005 USD 48.000.000,00 161.249.666,60
Net Sul Floating Rate Notes ▇▇▇▇▇ 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
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(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