Exhibit 4.8
SUBSIDIARY GUARANTEE (BELEM)
SUBSIDIARY GUARANTEE, dated as of December 20, 1996 (this
"Guarantee"), made by TV FILME BELEM SERVICOS DE TELECOMUNICACOES, a Brazilian
corporation (the "Guarantor"), in favor of the holder (the "Holder") of the
Intercompany Note (as defined below).
W I T N E S S E T H :
WHEREAS, TV Filme, Inc., a Delaware corporation ("TV Filme") has
agreed to make a $140,000,000 loan to its subsidiary, ITSA-Intercontinental
Telecomunicacoes Ltda., a Brazilian corporation ("ITSA"), which loan is
evidenced by the Note, dated December 20, 1996 (the "Intercompany Note"), made
by ITSA to the order of TV Filme;
WHEREAS, ITSA owns directly or indirectly all of the issued and
outstanding stock of the Guarantor;
WHEREAS, the proceeds of the Intercompany Note will be used in part
to enable ITSA to make loans or advances to, or other investments in, the
Guarantor in connection with the operation of its business; and
WHEREAS, ITSA and the Guarantor are engaged in related businesses,
and the Guarantor will derive substantial direct and indirect benefit from the
making of the loan evidenced by the Intercompany Note;
NOW, THEREFORE, in consideration of the premises the Guarantor
hereby agrees with the Holder, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the
Intercompany Note and used herein shall have the meanings given to them in the
Intercompany Note.
(b) As used herein, the following terms shall have the following
meanings:
"Contractual Obligation" of any Person means any provision of any
material debt security or of any material preferred stock or other equity
interest issued by such Person or of any material indenture, mortgage,
agreement, instrument or undertaking to which such Person is a party or by
which it or any of its material property is bound.
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"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Lien" means any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other
title retention agreement, and any lease in the nature thereof).
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Obligations" means, collectively, the unpaid principal of, premium,
if any, and interest on the Intercompany Note and all other obligations
and liabilities of ITSA to the Holder (including, without limitation,
interest accruing at the then applicable rate provided in the Intercompany
Note after the maturity of the Intercompany Note and interest accruing at
the then applicable rate provided in the Intercompany Note after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to ITSA, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Intercompany Note or any other
document made, delivered or given in connection therewith, whether on
account of principal, premium, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel that are required to be paid by ITSA
or the Guarantor pursuant to the terms of the Intercompany Note or this
Guarantee).
"Requirement of Law" for any Person means the charter and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its material property or to which such Person
or any of its material property or to which such Person or any of its
material property is subject.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and Section and
paragraph references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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2. Guarantee.
(a) Subject to the provisions of paragraph 2(b), the Guarantor
hereby unconditionally and irrevocably guarantees to the Holder and its
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by ITSA when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in the Intercompany Note to the contrary
notwithstanding, the maximum liability of the Guarantor hereunder and under the
Intercompany Note shall in no event exceed the amount which can be guaranteed by
the Guarantor under applicable federal and state laws relating to the insolvency
of debtors.
(c) The Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Holder in enforcing, or obtaining advice of counsel
in respect of, any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
the Guarantor under this Guarantee.
(d) The Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of the Guarantor hereunder
without impairing this Guarantee or affecting the rights and remedies of the
Holder hereunder.
3. Right of Set-off.
Upon the occurrence and continuance of any Event of Default, the
Guarantor hereby irrevocably authorizes the Holder at any time and from time to
time without notice to the Guarantor, any such notice being expressly waived by
the Guarantor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Holder to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Holder may elect, against
and on account of the obligations and liabilities of the Guarantor to the Holder
hereunder and claims of every nature and description of the Holder against the
Guarantor, in any currency, whether arising hereunder or otherwise, as the
Holder may elect, whether or not the Holder has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Holder shall notify the Guarantor promptly of any such set-off
and the application made by the Holder, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Holder under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Holder may
have.
4. No Subrogation.
Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the Holder,
the Guarantor shall not be
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entitled to be subrogated to any of the rights of the Holder against ITSA or any
other guarantor or any collateral security or guarantee or right of offset held
by ITSA for the payment of the Obligations, nor shall the Guarantor seek or be
entitled to seek any contribution or reimbursement from ITSA or any other
guarantor in respect of payments made by the Guarantor hereunder, until all
amounts owing to the Holder by ITSA on account of the Obligations are paid in
full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Guarantor in trust for the
Holder, segregated from other funds of the Guarantor, and shall, forthwith upon
receipt by the Guarantor, be turned over to the Holder in the exact form
received by the Guarantor (duly indorsed by the Guarantor to the Holder, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the Holder may determine.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights.
The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor and without notice to or
further assent by the Guarantor, any demand for payment of any of the
Obligations made by the Holder may be rescinded by such party and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Holder, and the Intercompany Note and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Holder may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Holder for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. The Holder
shall not have any obligation to protect, secure, perfect or insure any Lien at
any time held by it as security for the Obligations or for this Guarantee or any
property subject thereto. When making any demand hereunder against the
Guarantor, the Holder may, but shall be under no obligation to, make a similar
demand on ITSA or any other guarantor, and any failure by the Holder to make any
such demand or to collect any payments from ITSA or any such other guarantor or
any release of ITSA or such other guarantor shall not relieve the Guarantor in
respect of which a demand or collection is not made, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
the Holder against the Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional.
The Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Obligations and notice of or proof of
reliance by the Holder upon this Guarantee or acceptance of this Guarantee, the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee; and all dealings between ITSA and the Guarantor, on the one
hand, and the Holder, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Guarantee. The Guarantor
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waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or ▇▇▇▇ ▇▇▇▇ with respect to the Obligations. The Guarantor
understands and agrees that this Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Intercompany Note, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the Holder,
(b) any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by ITSA
against the Holder, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of ITSA or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of ITSA for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Holder may, but shall be under no obligation to, pursue such
rights and remedies as it may have against ITSA or any other Person or against
any collateral security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Holder to pursue such other rights
or remedies or to collect any payments from ITSA or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of ITSA or any such other Person or any such
collateral security, guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Holder against the Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantor and the successors and assigns thereof, and shall inure to the benefit
of the Holder, and its respective successors, indorsees, transferees and
assigns, until the earlier to occur of (i) all the Obligations and the
obligations of the Guarantor under this Guarantee shall have been satisfied by
payment in full and (ii) the occurrence of "Legal Defeasance" or "Covenant
Defeasance" under the Indenture. Notwithstanding any provision in this
Guarantee, if any of the events described in Section 8.8 of the Indenture
occurs, this Guarantee shall continue to be effective, or be reinstated, as the
case may be, at such time. This Section shall survive the termination of this
Guarantee.
7. Reinstatement.
This Guarantee shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the Holder
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
ITSA or the Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, ITSA or the
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments.
The Guarantor hereby guarantees that payments hereunder will be paid
to the Holder without set-off or counterclaim in U.S. dollars and in immediately
available funds at the office of the Holder notified by the Holder to the
Guarantor from time to time.
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9. Representations and Warranties.
The Guarantor hereby represents and warrants that:
(a) it is a limited liability company duly organized, validly
existing and in good standing under the laws of Brazil and has the corporate
power and authority to own and operate its property, to lease the property it
operates and to conduct the business in which it is currently engaged;
(b) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guarantee, and
has taken all necessary corporate action to authorize its execution, delivery
and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles regardless of whether considered in a
proceeding in equity or at law and an implied covenant of good faith and fair
dealing;
(d) the execution, delivery and performance of this Guarantee will
not violate any provision of any Requirement of Law or Contractual Obligation of
the Guarantor and will not result in or require the creation or imposition of
any Lien on any of the properties or revenues of the Guarantor pursuant to any
Requirement of Law or Contractual Obligation of the Guarantor other than those
violations which would not reasonably be expected to have a material adverse
effect on the ability of the Guarantor to perform its obligations under this
Guarantee;
(e) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of the
Guarantor) (other than those which are in full force and effect) is required in
connection with the execution, delivery, performance, validity or enforceability
of this Guarantee; and
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending against the Guarantor or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or against
any of its properties or revenues (i) with respect to this Guarantee or any of
the transactions contemplated hereby, (ii) which would reasonably be expected to
have a material adverse effect on the ability of the Guarantor to perform its
obligations under this Guarantee.
10. Notices.
All notices, requests and demands to or upon the Holder, or the
Guarantor to be effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (a) when delivered by hand or (b) if given by mail, ten (10) days
after deposited in the mails by first class mail, or (c) if by
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telex, fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
(i) if to the Holder, at its address or transmission number for
notices provided to the Guarantor from time to time; and
(ii) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Holder and the Guarantor may change its address and transmission
numbers for notices by notice in the manner provided in this Section.
11. Severability.
Any provision of this Guarantee which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Integration.
This Guarantee represents the agreement of the Guarantor with
respect to the subject matter hereof and there are no promises or
representations by the Holder relative to the subject matter hereof not
reflected herein.
13. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Guarantor and the Holder, provided that any provision of this
Guarantee may be waived by the Holder in a letter or agreement executed by the
Holder or by facsimile transmission from the Holder.
(b) The Holder shall not by any act (except by a written instrument
pursuant to paragraph 13(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Holder, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Holder of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Holder would otherwise have on any future occasion.
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(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
14. Section Headings.
The Section headings used in this Guarantee are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
15. Successors and Assigns.
This Guarantee shall be binding upon the successors and assigns of
the Guarantor and shall inure to the benefit of the Holder and its successors
and assigns.
16. Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
17. Waiver of Brazilian Law Benefits.
The Guarantor hereby expressly waives all benefits set forth in the
following provisions of Brazilian law: articles 1491, 1494, 1498, 1499, 1500,
1502 and 1503 of the Brazilian Civil Code, articles 261 and 262 of the Brazilian
Commercial Code and articles 595 and 1493 of the Brazilian Civil Procedure Code.
18. Submission to Jurisdiction; Appointment of Agent for Service;
Currency Indemnity.
(a) To the fullest extent permitted by applicable law, the Guarantor
irrevocably submits to the jurisdiction of any Federal or State court in
the City, County and State of New York, United States of America, in any
suit or proceeding based on or arising under this Guarantee (solely in
connection with any such suit or proceeding), and irrevocably agrees that
all claims in respect of such suit or proceeding may be determined in any
such court. The Guarantor irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The
Guarantor hereby irrevocably designates and appoints Corporation Service
Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (the "Process
Agent"), as the authorized agent of the Guarantor upon whom process may be
served in any such suit or proceeding, it being understood that the
designation and appointment of Corporation Service Company as such
authorized agent shall become effective immediately without any further
action on the part of the Guarantor. The Guarantor represents to the
Holders that it has notified the Process Agent of such designation and
appointment and that the Process Agent has accepted the same in writing.
The Guarantor hereby irrevocably authorizes and directs the Process Agent
to
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accept such service. The Guarantor further agrees that service of process
upon the Process Agent and written notice of said service to the Guarantor
mailed by prepaid registered first class mail or delivered to the Process
Agent at its principal office, shall be deemed in every respect effective
service of process upon the Guarantor in any such suit or proceeding.
Nothing herein shall affect the right of the Holder or any person
controlling the Holder to serve process in any other manner permitted by
law. The Guarantor further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as
may be necessary to continue such designation and appointment of the
Process Agent in full force and effect so long as the Guarantor has any
outstanding obligations under this Guarantee. To the extent that the
Guarantor has or hereafter may acquire any immunity from jurisdiction of
any court or from any legal process (whether through service of note,
attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, the Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Guarantee, to the extent permitted by law.
(b) The obligation of the Guarantor to make payments hereunder is in
U.S. dollars (the "Obligation Currency") and such obligation shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation
Currency or any other realization in such other currency, whether as
proceeds of set-off, security, guarantee, distributions, or otherwise,
except to the extent to which such tender, recovery or realization shall
result in the effective receipt by the party which is to receive such
payment of the full amount of the Obligation Currency expressed to be
payable hereunder, and the party liable to make such payment agrees to
indemnify the party which is to receive such payment (as an additional,
separate and independent cause of action) for the amount (if any) by which
such effective receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and such obligation
to indemnify shall not be affected by judgment being obtained for any
other sums due under this Guarantee.
19. No Personal Liability of Directors, Officers, Employees and
Others.
No past, present or future director, officer, employee,
incorporator, partner or stockholder of the Guarantor will have any liability
for any obligations of the Guarantor under this Guarantee or for any claim based
on, in respect of or by reason of such obligations or their creation.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
TV FILME BELEM SERVICOS DE
TELECOMUNICACOES
By /s/ Hermano Studart Lins de Albuquerque
-----------------------------------------
Name: Hermano Studart Lins de Albuquerque
Title: Delegate-Manager
Address for Notices:
c/o ITSA-Intercontinental Telecomunicacoes Ltda.
SCS, Quadra 07-B1.A
Ed. Executive Tower
Sala 601
70.300.911 Brasilia-DF Brazil
Phone No.: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopier No.: 011-55-61-323-5660
Attention: Hermano Studart Lins de Albuquerque
WITNESSES:
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared Hermano Studart Lins de
Albuquerque, to me personally known who being duly sworn, did say that she/he
was the Delegate-Manager of TV FILME BELEM SERVICOS DE TELECOMUNICACOES, one of
the persons described in and which executed the foregoing instrument, and
acknowledges said instrument to be the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL]