Annual Report of a Foreign Private Issuer — Form 20-F
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 20-F Annual Report of a Foreign Private Issuer 65 303K
2: EX-1 Memorandum and Articles of Association 27 104K
3: EX-2 Indenture 124 500K
4: EX-3 Registration Rights Agreement 16 63K
5: EX-4 Standby Purchase Agreement 52 222K
6: EX-5 Notes Purchase Agreement 34 133K
7: EX-6 Master Export Contract 39 148K
8: EX-7 Depositary Agreement 15 58K
9: EX-8 Administration Service Agreement 13 48K
10: EX-9 Amended and Restated Trust Deed 181 594K
11: EX-10 Receivables Purchase Agreement 74 340K
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
by and among
PETROBRAS FINANCE LTD.
and
PETROLEO BRASILEIRO S.A. - PETROBRAS
and
U.S. BANK, NATIONAL ASSOCIATION, CAYMAN ISLANDS BRANCH,
solely in its capacity as trustee of the
PF EXPORT RECEIVABLES MASTER TRUST
dated December 21, 2001
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS, CONSTRUCTION....................................................1
1.01 Definitions...................................................................1
1.02 Construction.................................................................15
ARTICLE II PURCHASE AND SALE..........................................................16
2.01 Sale and Purchase of Rights to Receivables...................................16
2.02 Designation of Receivables for Sale..........................................16
2.03 Future Purchases of Rights to Qualified Receivables..........................18
2.04 Sale of Purchased Receivables................................................18
2.05 Certain Understandings Regarding the Purchased Receivables...................19
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS................................19
3.01 Representations and Warranties Relating to Receivables.......................19
3.02 Representations and Warranties Relating to Specified Buyers and Notice
and Consents.................................................................21
3.03 General Representations and Warranties.......................................22
3.04 Representations and Warranties of Petrobras..................................25
ARTICLE IV COVENANTS..................................................................25
4.01 Covenants and Agreements of Petrobras Finance................................25
4.02 Covenants and Agreements of Petrobras........................................33
ARTICLE V REPURCHASE OF RECEIVABLES, TERMINATION EVENTS,
ACCUMULATION EVENTS AND ACCELERATION EVENTS..................................33
5.01 Optional Repurchase of Receivables...........................................33
5.02 Accumulation Events; Reserve Account.........................................35
5.03 Acceleration Events..........................................................36
5.04 Petrobras Finance Defaults...................................................36
5.05 Effect of a Petrobras Finance Default or Other Termination Event.............37
5.06 Disputed Receivables.........................................................38
5.07 Adjustments..................................................................39
ARTICLE VI ADDITION OF SPECIFIED BUYERS...............................................39
6.01 Addition and Other Modification..............................................39
6.02 Effect of Addition or Other Modification.....................................39
ARTICLE VII PETROBRAS PERFORMANCE GUARANTY............................................39
7.01 Guaranty.....................................................................39
ARTICLE VIII MISCELLANEOUS............................................................40
8.01 Reimbursement................................................................40
8.02 Rights Confined to Parties...................................................40
8.03 Amendment or Waiver: Remedies Cumulative.....................................40
8.04 Binding Upon Assigns.........................................................41
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8.05 Waiver of Immunity; Submission to Jurisdiction; Agent...................41
8.06 Notices.................................................................42
8.07 Severability............................................................43
8.08 Governing Law...........................................................44
8.09 Use of English Language.................................................44
8.10 Judgment Currency.......................................................44
8.11 Counterparts............................................................44
8.12 Survival of Representations and Warranties..............................44
8.13 Certain Indemnities.....................................................44
8.14 Payments................................................................45
8.15 Liability of Trustee....................................................45
8.16 No Petition.............................................................46
8.17 Limited Recourse........................................................46
ANNEXES
ANNEX A Scheduled Offtaker Receivables
ANNEX B Scheduled Additional Purchased Receivables
ANNEX C Scheduled Junior Certificate Payments
ANNEX D Definitions of Bunker Fuel and Fuel Oil
EXHIBITS
EXHIBIT A-1 FORM OF NOTICE AND CONSENT FOR SPECIFIED BUYERS OF
PETROBRAS FINANCE AND AFFILIATES IN THE U.S.
EXHIBIT A-2 FORM OF NOTICE AND CONSENT FOR SPECIFIED BUYERS OF
PETROBRAS FINANCE AND AFFILIATES OUTSIDE THE U.S.
EXHIBIT A-3 FORM OF NOTICE AND CONSENT FOR SPECIFIED BUYERS
OF U.S. SELLER
EXHIBIT B FORM OF BUYER MODIFICATION NOTICE
EXHIBIT C INITIAL SPECIFIED BUYERS
EXHIBIT D FORM OF BUYER INSTRUCTION
EXHIBIT E FORM OF GUARANTEE
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RECEIVABLES PURCHASE AGREEMENT dated December 21, 2001 (this
"Agreement") among Petrobras Finance Ltd., an exempted company incorporated with
limited liability organized and existing under the laws of the Cayman Islands
(together with its successors and assigns, "Petrobras Finance"), Petroleo
Brasileiro S.A. - PETROBRAS, a mixed capital company organized and existing
under the laws of Brazil ("Petrobras"), and U.S. Bank, National Association,
Cayman Islands Branch, acting solely as trustee on behalf of PF Export
Receivables Master Trust, a trust established and existing under the laws of the
Cayman Islands (together with its successors and assigns in such capacity, the
"Trustee"). Unless the context otherwise requires, all defined terms used herein
shall have the meaning given thereto in Article I.
W I T N E S S E T H:
WHEREAS, Petrobras Finance and Petrobras have entered into the
Prepayment Agreement and the Master Export Contract pursuant to which Petrobras
has agreed to Sell, and Petrobras Finance has agreed to purchase, from time to
time specified amounts of Eligible Products.
WHEREAS, Petrobras Finance may from time to time purchase Eligible
Products from Petrobras or Affiliates of Petrobras.
WHEREAS, Petrobras Finance shall, from time to time, Sell Eligible
Products to Buyers, Generating Receivables from such Buyers.
WHEREAS, pursuant to the terms hereof, Petrobras Finance wishes to
Sell, convey and transfer without recourse (except as expressly provided herein)
to the Trustee on the Closing Date all of its present and future right, title
and interest in, to and under certain Receivables, as specified herein, and may
from time to time Sell to the Trustee its present and future right, title and
interest in, to an under other Receivables.
WHEREAS, pursuant to the Amended and Restated Trust Deed dated December
21, 2001 (the "Trust Deed") by and among the Trustee, PIFCo (as defined herein),
as Servicer and Citibank, N.A., as Registrar, Paying Agent, Transfer Agent and
Depositary Bank, the Trustee has issued the Senior Trust Certificates and the
Junior Trust Certificates.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and promises herein contained and other consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS, CONSTRUCTION
1.01 Definitions. The following terms (except as otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Agreement shall have the respective meanings hereinafter specified; provided,
that capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Trust Deed.
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"Acceleration Event" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Acceptable Letter of Credit" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
"Accumulation Event" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Additional Amounts" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Additional Purchased Receivables" shall have the meaning set forth in
Section 2.01(a).
"Adjustment Amount" shall mean, with respect to any Receivable, any
reductions or other adjustments to the amount of such Receivable as shown on the
face of the Initial Invoice relating thereto made by Petrobras Finance upon, or
prior to, the Generation of such Receivable.
"Administrative Services Agreement" shall mean the agreement dated
December 21, 2001 between Petrobras Finance and Petrobras pursuant to which
Petrobras shall agree, among other things, to act as delivery and sales agent on
behalf of Petrobras Finance and its successors in interest for the delivery and
sale of Eligible Products to the Buyers.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For the purposes of this definition,
"control" shall mean the power to direct management and policies, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Agreement, as the same may be amended,
modified or supplemented from time to time pursuant to Section 8.03.
"Ambac" shall have the meaning assigned to such term in Annex A of the
Trust Deed.
"Authorized Officer" shall mean (a) as to Petrobras, the Person or
Persons authorized to act on behalf of Petrobras by its chief executive officer,
president, chief operating officer, chief financial officer or any vice
president or its board of directors or any other governing body of Petrobras,
(b) as to Petrobras Finance, any director, the president, any vice president or
the secretary, and (c) as to the Trustee, any director, the president, any vice
president or the secretary, any officer assigned to the Corporate Trust Division
(or any successor thereto), including any Vice President, Assistant Vice
President, any Assistant Secretary, any trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers, in each case having direct responsibility for
the administration of the transactions described herein and in the other
Transaction Documents or, in each case, any other officer designated by any such
party from time to time in an officer's certificate.
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"Bankruptcy Event" shall mean with respect to:
(a) the Trustee in its capacity as Trustee of the Trust, the
occurrence of any of the following events:
(i) (A) the Trustee applies for or consents to the
appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or administrator of itself or of
all or a substantial part of the Trust Property, (B) the Trustee
in relation to the Trust Property is generally unable to pay its
debts as such debts become due, (C) the Trustee makes a general
assignment for the benefit of its creditors, (D) the Trustee
commences a voluntary case under the U.S. Bankruptcy Code (as now
or hereafter in effect) or any similar provisions of the laws of
the Cayman Islands in relation to the Trust Property, (E) the
Trustee files a petition seeking to take advantage of any other
law providing for the relief of debtors in relation to the Trust
Property, (F) the Trustee commences or takes any action to
facilitate a winding-up or liquidation of the Trust Property, (G)
the Trustee fails to controvert in a timely or appropriate
manner, or acquiesces in writing to, any petition filed against
the Trust in an involuntary case under the U.S. Bankruptcy Code
or any similar provisions of the laws of the Cayman Islands, (H)
the Trustee takes any action under the laws of its jurisdiction
of incorporation (or any other jurisdiction) in relation to the
Trust Property analogous to any of the foregoing, or (I) the
Trustee takes any corporate action for the purpose of effecting
any of the foregoing; or
(ii) a proceeding or case shall be commenced, without the
application or consent of the Trustee in any court of competent
jurisdiction, seeking (A) the liquidation, reorganization,
dissolution, winding-up, or composition or readjustment of the
Trust's debts or the Trust's assets (including the Trust
Property), (B) the appointment of a trustee, receiver, custodian,
liquidator, administrator or the like of the Trust or of all or
any substantial part of the Trust Property, or (C) similar relief
in respect of the Trust, under any law providing for the relief
of debtors and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of 45 days;
or an order for relief shall be entered in an involuntary case
under the U.S. Bankruptcy Code against the Trustee; or action
under the laws of the jurisdiction of incorporation of the Trust
(or any other jurisdiction) analogous to any of the foregoing
shall be taken with respect to the Trustee and shall continue
unstayed and in effect for any period of 45 consecutive days; and
(b) Petrobras Finance, Petrobras and any Specified Buyer, the
occurrence of any of the following events:
(i) any Person or entity (including any receiver, manager,
administrator, statutory manager, fiduciary or other similar
official) is appointed, or any Person commences any action to
appoint any of the same, which action is not acquiesced in or to
or is not discharged or stayed within 30 days of its
commencement, with respect to any of the whole or any material
part of the
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undertaking, property, assets or revenues of such party (and, in
the case of Petrobras, also any Material Subsidiary thereof);
(ii) any Person who holds a Lien on any material part of
the undertaking, property, assets or revenues of such party (and,
in the case of Petrobras, also any Material Subsidiary thereof)
shall take any action to enforce such interest, except the
Trustee;
(iii) such party (and, in the case of Petrobras, also any
Material Subsidiary thereof) stops payment of, or is generally
unable to pay, its debts as and when they become due or such
party (and, in the case of Petrobras, also any Material
Subsidiary thereof) ceases or threatens to cease to carry on its
business except (A) a winding-up, dissolution or liquidation for
the purpose of and followed by a consolidation, merger,
conveyance or transfer (or in the case of Petrobras, a Material
Subsidiary thereof, whereby the undertaking, business and assets
of such Material Subsidiary are transferred to or otherwise
vested in Petrobras) or the terms of which shall have been
approved by a unanimous vote of the Controlling Party of each
Series of the Senior Trust Certificates; or (B) in respect of
Petrobras, a voluntary winding-up, dissolution or liquidation of
a Material Subsidiary where there are surplus assets in such
Material Subsidiary, and such surplus assets are paid to such
party and/or any such Material Subsidiary thereof;
(iv) proceedings are initiated against such party (and, in
the case of Petrobras, also any Material Subsidiary thereof)
under any applicable bankruptcy, reorganization, insolvency,
moratorium or intervention law or law with similar effect
(including a "falencia" or "concordata" under Brazilian Law), or
under any other law for the relief of, or relating to, debtors,
and any such proceeding is not dismissed or stayed within 90 days
after the initiation of such proceeding, or an administrator,
receiver, trustee, intervener or assignee for the benefit of
creditors (or other similar official) is appointed to take
possession or control of part or all of the undertaking,
property, revenues or assets of such party (and, in the case of
Petrobras, also any Material Subsidiary thereof);
(v) such party (and, in the case of Petrobras, also any
Material Subsidiary thereof) initiates or consents to proceedings
relating to it under any applicable bankruptcy, reorganization,
insolvency, moratorium or intervention law or law with similar
effect, or under any other law for the relief of, or relating to,
debtors, or makes or enters into a conveyance, assignment,
arrangement or composition with or for the benefit of its
creditors, or appoints or applies for the appointment of an
administrator, receiver, trustee, intervener or assignee for the
benefit of creditors (or other similar official) to take
possession or control of the whole or any material part of its
undertaking, property, revenues or assets, or takes any
proceeding under any law for a readjustment or deferment of its
indebtedness or any part of it; or
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(vi) either (A) an order is made or an effective resolution
passed for the winding-up, dissolution or liquidation of such
party (and, in the case of Petrobras, also any Material
Subsidiary thereof), including a judicial order declaring or
granting a "falencia" or "concordata" under Brazilian Law, or (B)
such party (and, in the case of Petrobras, also any Material
Subsidiary thereof) ceases or threatens to cease to carry on all
or a material part of its businesses or operations (other than,
in the case of both (A) and (B) in the circumstances referred to
as exceptions in paragraph (iii) above).
"Brazil" shall mean the Federative Republic of Brazil.
"Bunker Fuel" has the meaning assigned to such term in Annex D.
"Business Day" shall mean a day that is not a day on which banking
institutions in New York, New York, London, England or the Cayman Islands, as
applicable, are authorized or required by law or regulation to remain closed.
"Buyer Modification Date" shall have the meaning provided in Section
6.01.
"Buyer Modification Notice" shall have the meaning provided in Section
6.01.
"Buyers" shall mean Specified Buyers and other buyers of Eligible
Products from Petrobras Finance or the U.S. Seller.
"Cayman Islands" shall mean the British Dependent Territory of the
Cayman Islands.
"Certificate Holders" shall mean, collectively, the holders of Senior
Trust Certificates and Junior Trust Certificates.
"Certified English Translation" shall mean, with respect to any
certificate, report, notice or other document furnished by Petrobras Finance or
Petrobras in a language other than English, an English translation of such
certificate, report, notice or other document certified by an Authorized Officer
of Petrobras Finance as being a translation that is accurate and complete in all
material respects.
"Closing Date" shall have the meaning assigned to such term in Annex A
of the Trust Deed.
"Collection Account" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Collections" shall mean amounts paid in respect of Receivables by any
obligor together with all amounts received in respect of the Related Property,
in the form of cash, checks, wire transfers and any other form of cash payment.
"Commercial Contracts" shall mean collectively, this Agreement, the
Master Export Contract, the Prepayment Agreement, the Offtake Contract, the
Product Sale Agreement, the
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Administrative Services Agreement, the Servicing Agreement and the Notice and
Consents (including any Trustee notices delivered to the Specified Buyers).
"Controlling Party" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Current Adjustment" shall mean, with respect to any Initial Invoice
giving rise to a Receivable in respect of a Sale by Petrobras Finance of
Eligible Products to any Buyer, any credit memorandum or any other setoff,
counterclaim, dispute, defense, right of rescission, reduction or other form of
negative adjustment (other than (a) any Adjustment Amount resulting from a
credit granted to the Buyer at or prior to the time such Receivable is Generated
or (b) any such adjustment which may not be deducted or set off from the amount
payable by such Buyer with respect to such Receivable but either (i) entitles
such Buyer to an Adjustment Amount with respect to a future Sale by Petrobras of
Eligible Products to such Buyer or (ii) is to be paid directly to such Buyer by
the Servicer or an Affiliate of Petrobras Finance without any right of
reimbursement or contribution by Petrobras Finance or against such Receivable).
"Default Interest" shall mean any late payment or default interest or
finance charges assessed against or payable by any Buyer for failure to pay the
full Net Invoice Amount of any Receivable on or prior to the due date thereof.
"Defaulted Receivable" shall mean a Purchased Receivable the Net
Invoice Amount of which (as adjusted as permitted under this Agreement) or any
part thereof that has not been paid on or before the date which is 180 days
after the last day on which such Receivable or part thereof is payable in
accordance with its original stated term or, if earlier, the date such
Receivable or part thereof is otherwise written off by the Servicer as
uncollectable in accordance with its customary practices.
"Delinquent Receivable" shall mean a Receivable the Net Invoice Amount
of which (as adjusted as permitted hereunder) has not been paid on or before the
date which is 30 days after the last day on which such Receivable is payable in
accordance with its original stated term. Notwithstanding anything herein or in
any other Transaction Document to the contrary, a Receivable evidenced by an
invoice payable "at sight" shall, solely for the purpose of this definition of
Delinquent Receivable, be deemed payable on the date which is 30 days after the
date of such invoice.
"Depositary Agreement" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Dollars" or "$" or "U.S.$" or "U.S. Dollars" shall mean the lawful
currency of the United States of America.
"Eligible Investments" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Eligible Products" shall mean Heavy Fuel Oil and, in certain
circumstances and subject to certain terms and conditions set forth in Section
2.06 of the Master Export Contract, other oil products, including gasoline and
crude oil. No Sale of such other oil products shall be deemed to
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be made to Specified Buyers until the Notice and Consent to which the relevant
Specified Buyer is a party has been executed or amended to include such other
oil products as Eligible Products thereunder.
"Enhancers" shall mean, collectively, XLCA, MBIA, and Ambac as issuers
of the Financial Guaranty Insurance Policies covering Series A-1 and A-2 Senior
Trust Certificates, Series B Senior Trust Certificates and Series C Senior Trust
Certificates, respectively, and any other issuers of Financial Guaranty
Insurance Policies issued in respect of any additional Series of Senior Trust
Certificates.
"Final Scheduled Principal Payment Date" shall have the meaning
assigned to such term in Annex A of the Trust Deed.
"Financial Guaranty Insurance Policy" shall mean an insurance policy
providing a full financial guarantee of one or more Series of the Senior Trust
Certificates.
"Fuel Oil" shall have the meaning assigned to such term in Annex D.
"Generation" shall mean, with respect to any Receivable of a Buyer, the
act and moment on which such Receivable first becomes an obligation of such
Buyer to pay Petrobras Finance, which act and moment occurs on the date of the
invoicing of the corresponding Eligible Product. "Generate" and "Generated"
shall have a correlative meaning. "Ungenerated" or "to be Generated" shall mean
a Receivable that, as of any date, has not yet been Generated.
"Guaranteed Obligations" shall have the meaning set forth in Section
7.01(a).
"Guaranty Premiums" shall mean all premiums payable under the Financial
Guaranty Insurance Policies.
"Heavy Fuel Oil" shall mean, collectively, Bunker Fuel and Fuel Oil.
"Incipient Offtaker Payment Default" shall have the meaning assigned to
such term in Annex A of the Trust Deed.
"Indemnified Cost" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Indemnified Taxes" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Initial Invoice" shall mean with respect to any Sale of Eligible
Products to a Buyer by Petrobras Finance, the initial invoice rendered to such
Buyer by or on behalf of Petrobras Finance with respect to such Sale, regardless
of whether such invoice is characterized as "provisional" or "final".
"Investment Grade Rating" shall have the meaning assigned to such term
in Annex A of the Trust Deed.
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"Junior Certificate Interest" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
"Junior Trust Certificates" shall mean the Junior Trust Certificates
representing the junior subordinated beneficial interests in the property of the
Trust issued from time to time pursuant to the Trust Deed.
"Lien" shall mean any mortgage, pledge, security interest, assignment,
encumbrance, lien or charge or any similar agreement of any kind (including any
agreement to give any of the foregoing, or any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Master Export Contract" shall mean the contract dated December 21,
2001 entered into between Petrobras and Petrobras Finance pursuant to which
Petrobras agrees, among other things, to Sell Eligible Products to Petrobras
Finance over a term equal to that of the Senior Trust Certificates.
"Material Adverse Effect" shall mean any event, circumstance,
occurrence or condition which has caused, as of any date of determination, a
material and adverse effect on (a) the business, assets or financial condition
of the Trustee, Petrobras Finance, the U.S. Seller, the Servicer or Petrobras,
as the case may be, (b) the ability of the Trustee, Petrobras Finance, the U.S.
Seller, the Servicer or Petrobras, as the case may be, to perform its material
obligations under the Transaction Documents to which such Person is a party, (c)
the validity or enforceability of any of the Transaction Documents or the
ability of the Senior Certificate Holders, the Enhancers, the Trustee or
Petrobras Finance to enforce any of their rights or remedies thereunder or (d)
the validity, priority or enforceability of the interests created or purportedly
created pursuant to the Senior Trust Certificate Documents or (e) the Generation
or collectibility of Purchased Receivables, taken as a whole.
"Material Subsidiary" shall mean a subsidiary of Petrobras with total
assets of more than U.S.$100,000,000 (or its equivalent in another currency), as
reflected in the most recent consolidated financial statements of Petrobras.
"Maximum Scheduled Senior Payment Amount" shall have the meaning
assigned to such term in Annex A of the Trust Deed.
"MBIA" shall have the meaning assigned to such term in Annex A of the
Trust Deed.
"Monthly Delivery Period" means the first twenty-one (21) days of each
Monthly Period; provided that in each Monthly Period ending on a day before a
Payment Date, the Monthly Delivery Period shall be the first eighteen (18) days
of such Monthly Period.
"Monthly Payment Date" means the twenty-fifth (25/th/) day of each
Monthly Period (or, in the case of the first Monthly Period, January 25, 2002)
and if such day is not a Business Day in New York, New York, the next succeeding
Business Day in that city.
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"Monthly Period" means the period beginning on the Closing Date and
ending on February 1, 2002 and thereafter each period beginning on the first day
of each calendar month and ending on the last day of such calendar month.
"Net Invoice Amount" shall mean, with respect to any Receivable of a
Buyer, the amount set forth on the face of the Initial Invoice with respect to
the Eligible Product Sold to such Buyer that Generated such Receivable as the
amount payable by such Buyer with respect to such Sale (after giving effect to
any Adjustment Amount shown on the face of such invoice).
"Notice and Consent" shall mean, with respect to each Specified Buyer,
the Notice and Consent among such Specified Buyer and Petrobras, Petrobras
Finance and the U.S. Seller, as applicable, and the Trustee in substantially the
form of Exhibit A-1, A-2 or A-3 hereto, as applicable.
"Offtake Contract" shall mean the agreement dated December 21, 2001
between Petrobras Finance and the Offtaker and in respect of any additional
issuances of Series of Senior Trust Certificates, any other offtake agreement,
pursuant to which, in each case, Petrobras Finance will agree to Sell, and the
Offtaker will agree to buy, Eligible Products and, if applicable, any hedging
arrangements entered into in connection with such other offtake agreement;
provided, however, that if a hedging arrangement is in a form other than an
offtake agreement, it must be in form and substance satisfactory to the
Enhancers.
"Offtaker" shall mean, collectively, Citibank N.A. and any other
offtaker that enters into an Offtake Contract, which offtaker (including any
counterparty entering into hedging arrangements with respect to an Offtake
Contract) is rated at least A2 by Moody's and is rated at least A by S&P.
"Offtaker Receivables" shall have the meaning set forth in Section
2.01(a).
"Optional Prepayment Price" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
"PAI" shall mean Petrobras America, Inc., a subsidiary of Petrobras
that is 99.99% indirectly owned by Petrobras and is formed under the laws of the
State of Delaware.
"Paying Agent" shall have the meaning assigned to such term in Annex A
of the Trust Deed.
"Payment Date" shall mean, with respect to the Senior Trust
Certificates, each of March 1, June 1, September 1 and December 1, and with
respect to the payment of principal of, and the payment of interest on, the
Senior Trust Certificates, beginning on the respective dates set forth on each
Senior Trust Certificate of such Series.
"Person" shall mean an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
"Petrobras" shall have the meaning set forth in the recitals hereto.
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"Petrobras Finance" shall have the meaning set forth in the recitals
hereto.
"Petrobras Finance Account" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
"Petrobras Finance Default" shall have the meaning set forth in Section
5.04.
"PIFCo" means Petrobras International Finance Company, a wholly-owned
subsidiary of Petrobras incorporated and existing under the law of the Cayman
Islands.
"Prepaid Oil Products" shall have the meaning assigned to such term in
the Prepayment Agreement.
"Prepayment Agreement" shall mean the agreement dated as of December
21, 2001 between Petrobras Finance and Petrobras pursuant to which Petrobras
Finance agrees to pay to Petrobras the Prepayment Amount as consideration for
the sale by Petrobras to Petrobras Finance of the Prepaid Oil Products under the
Master Export Contract.
"Prepayment Amount" shall mean the amount that Petrobras Finance will
pay to Petrobras as a purchase price under the Prepayment Agreement. The
Prepayment Amount is U.S.$750,000,000.
"Prepayment Fraction" shall have the meaning set forth in Section
5.01(a).
"Process Agent" shall have the meaning set forth in Section 8.05(c).
"Product Sale Agreement" shall mean the Product Sale Agreement dated
December 21, 2001 between Petrobras Finance and the U.S. Seller, under which,
among other things, the U.S. Seller may from time to time purchase from
Petrobras Finance Eligible Products intended for resale to Buyers primarily in
the United States.
"Purchased Receivables" shall have the meaning set forth in Section
2.01(a).
"Qualified Receivable" shall mean any Receivable that (a) upon delivery
of the Initial Invoice to the Buyer, which shall occur by no later than two days
prior to the date on which such Receivable shall be due and payable, (i) shall
be denominated in U.S. Dollars, (ii) shall be the legal, valid and binding
obligation of such Buyer and in full force and effect, enforceable against such
Buyer in accordance with its terms, free and clear of any Lien other than Liens
created pursuant to the Transaction Documents, (iii) shall be an obligation to
pay a sum certain and not subject to a Current Adjustment, (iv) is created in
compliance in all material respects with, and which, at the time of the
Generation of such Receivable, does not contravene in any material respect, any
applicable Requirements of Law, (v) is the obligation of a Buyer who has
received a written instruction from Petrobras Finance or the U.S. Seller
substantially in the form of Exhibit D hereto, (vi) is not, at the time it is
created, subject to any proceedings or investigations pending or threatened that
adversely affect its payment or enforceability and (vii) is not the obligation
of a Buyer that at such time is the obligor in respect of a Delinquent
Receivable (which, solely for purposes of this definition, means a Receivable,
the Net Invoice Amount of which has not been paid on or before the date which is
fifteen days after the last day on which
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such Receivable is payable in accordance with its original stated term) or a
Defaulted Receivable or is otherwise subject to an event of the type described
in the definition of "Bankruptcy Event" herein and (b) is required to be paid in
full no later than thirty (30) days, or in the case of the U.S. Seller as
provided in Section 2.1(e) of the Product Sale Agreement (or any longer period
of up to 90 days that becomes the prevailing practice in the international oil
business, as indicated by a notice from the Servicer to Petrobras Finance and
the Trustee) after the date of the bill of lading or the bunker delivery receipt
with respect to the shipment to which such Receivable relates, whether or not
such Receivable is actually paid during such period; provided that, Controlling
Parties representing 100% of the aggregate principal amount of all outstanding
Senior Trust Certificates may waive any or all of the above conditions without
further action, notice or other requirement of any kind.
"Quarterly Delivery Period" shall mean (a) the period commencing on the
Closing Date and ending on the date immediately preceding the first Payment Date
and (b) thereafter, each period commencing on a Payment Date and ending on the
day immediately preceding the next following Payment Date.
"Quarterly Senior Payment Amount" shall have the meaning assigned to
such term in Annex A of the Trust Deed.
"Rating Affirmation" shall mean, with respect to any outstanding Series
of Senior Trust Certificates, a confirmation in writing from each of the Rating
Agencies of its rating at a level at least equal to the then current rating of
the Senior Trust Certificates of such Series (or in the case of any Series
insured by a Financial Guaranty Insurance Policy, its rating without giving
effect to such Policy) and in any event, at a level at least equal to an
Investment Grade Rating.
"Rating Agencies" shall have the meaning assigned to such term in Annex
A of the Trust Deed.
"Receivables" shall mean, with respect to any Buyer, the indebtedness,
payment obligations and accounts receivable owed or to be owed by such Buyer to
Petrobras Finance arising from the Sale from time to time of Eligible Products
to such Buyer by Petrobras Finance in the ordinary course of business, together
with (i) all of the rights and benefits, remedies and damages (including,
without limitation, Default Interest and all rights of rescission, replevin or
reclamation) which may arise from any of the foregoing, all accounts (as defined
under the UCC), general intangibles (as defined under the UCC) and contract
rights associated with such Receivables and contract rights associated with any
of the foregoing, (ii) any Related Property, and (iii) all Collections arising
out of any of the foregoing.
"Registrar" shall have the meaning assigned to such term in Annex A of
the Trust Deed.
"Related Property" shall mean, with respect to each Receivable, (i) any
interest of Petrobras Finance in the Eligible Products the Sale of which gave
rise to such Receivable, (ii) any Liens and property subject thereto from time
to time securing payment of such Receivable, whether pursuant to any contract or
instrument relating to such Receivable or otherwise, and (iii) any guarantees,
insurance, letters of credit and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such
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Receivable pursuant to any contract or instrument relating to such Receivable or
otherwise, and any rights or remedies arising under any such contract relating
to such Receivables, including in the case of clauses (ii) and (iii), without
limitation, pursuant to any obligations evidenced by an account, contract,
security agreement, chattel paper, general intangible or other evidence of
indebtedness or security.
"Required Offtake Quantity" shall mean, for any Monthly Delivery Period
under the Offtake Contract, such quantity of Eligible Products as is required to
generate proceeds equal to 1.1 times the scheduled amount for such Monthly
Period set forth on Annex A to the Offtake Contract (such amounts representing
one-third of the aggregate amount of the principal and interest on the Senior
Trust Certificates, Guaranty Premiums and administrative fees and expenses of
the Trustee scheduled to be paid in respect of the Senior Certificates during
the then current Quarterly Delivery Period).
"Requirements of Law" shall mean, as to any Person, the certificate of
incorporation and bylaws 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 property or to which such Person or
any of its property is subject.
"Reserve Account" shall have the meaning assigned to such term in Annex
A of the Trust Deed.
"Reserve Account Cap" shall mean, on any Payment Date, an amount equal
to the Quarterly Senior Payment Amount scheduled or otherwise known to be
payable on the next following Payment Date. For this purpose, unscheduled
amounts shall be deemed to be known to be payable to the extent that the Trustee
has received a certificate from the Servicer to that effect.
"Retention Account" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"RPA Termination Price" shall have the meaning set forth in Section
5.05.
"Sale" shall mean the absolute and unconditional sale, assignment,
transfer or disposition (and not by way of charge or security), and with respect
to Receivables which have been Generated, the absolute and unconditional sale,
transfer and disposition (and not by way of charge or security) of such
Receivables, and, with respect to Receivables to be Generated, the absolute and
unconditional sale, transfer and disposition (other than by way of charge or
security) of the right to such amount of Receivables. "Sell" and "Sold" shall
have correlative meanings.
"Senior Certificate Holders" shall mean the holders of the Senior Trust
Certificates.
"Senior Certificate Interest" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
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"Senior Trust Certificate Documents" shall mean, collectively, the
Senior Trust Certificates, the Trust Deed, the Trust Administration Agreement,
the Purchase Agreement, the Financial Guaranty Insurance Policies, the Insurance
and Reimbursement Agreements, the Indemnification Agreements, the Depositary
Agreement, the U.S. Seller Account Agreement, the Notice and Consents and other
related documents.
"Senior Trust Certificates" shall mean the senior trust certificates
representing senior beneficial interests in the property of the Trust that are
issued from time to time pursuant to the Trust Deed.
"Series" shall mean any issue of Trust Certificates made in accordance
with the Trust Deed and any supplemental Trust Deed on or after the Closing
Date.
"Servicer" shall mean PIFCo, in such capacity under the Servicing
Agreement.
"Servicing Agreement" shall mean the agreement dated December 21, 2001
among Petrobras, the Servicer, the Trustee and Petrobras Finance pursuant to
which the Servicer will agree, among other things, to service, manage,
administer and collect the Receivables for the benefit of the Trustee and
Petrobras Finance.
"Specified Buyers" shall mean, at any time, the Offtaker, the U.S.
Seller and other Buyers of Eligible Products that have entered, or will, from
time to time enter into Notice and Consents. No Buyer shall be considered a
Specified Buyer for the purposes of the Transaction Documents unless the Notice
and Consent to which it is a party (a) is valid, binding and enforceable against
it in the jurisdiction in which its principal place of business is located and
(b) does not contravene or violate in any material respect any law, rule or
regulation of such jurisdiction applicable to it.
"Specified Event" shall have the meaning set forth in Annex A of the
Trust Deed.
"Supplemental Purchased Receivables" shall have the meaning set forth
in Section 2.01(a) of this Agreement.
"Tax" or "Taxes" shall mean any tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and other liabilities
related thereto) of any nature imposed by the United States, the Cayman Islands
or Brazil or any jurisdiction from or through which payment is made, or any
political subdivision of such jurisdiction.
"Tax Indemnification Fee" shall mean an amount equal to $200,000.
"Tax Prepayment Price" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Termination Event" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
"Transaction Documents" shall mean collectively, the Commercial
Contracts and the Senior Trust Certificate Documents.
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"Transfer Agent" shall have the meaning assigned to such term in Annex
A of the Trust Deed.
"Trust" shall mean the PF Export Receivables Master Trust that is
governed and constituted in accordance with the laws of the Cayman Islands and
the Trust Deed.
"Trust Accounts" shall have the meaning assigned to such term in Annex
A of the Trust Deed.
"Trust Administration Agreement" shall have the meaning assigned to
such term in Annex A of the Trust Deed.
"Trust Certificates" shall mean the Senior Trust Certificates and
Junior Trust Certificates issued from time to time pursuant to the Trust Deed.
"Trust Deed" shall have the meaning set forth in the recitals hereto.
"Trustee" shall have the meaning set forth in the recitals hereto, and
wherever used in this Agreement, "Trustee" shall be construed to mean in each
case, the Trustee acting solely in its capacity as Trustee of the Trust.
"Trust Property" shall have the meaning assigned to such term in Annex
A of the Trust Deed.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time.
"U.S. Bankruptcy Code" shall mean Title 11 of the United States Code or
any similar federal or state law for the relief of debtors.
"U.S. GAAP" shall mean generally accepted accounting principles of the
United States.
"U.S. Seller" shall mean initially PAI, and thereafter any trading
entity that assumes all of PAI's rights and obligations under (or enters into an
agreement with Petrobras Finance on substantially the same terms and conditions
as) the Product Sale Agreement in accordance with, and subject to the conditions
set forth in, the Trust Deed and which entity is (A) a direct or indirect
subsidiary of Petrobras that is at least 99% owned by Petrobras, (B) organized
and based in the United States, (C) solvent (meaning that it has reasonably
sufficient capital to operate its business, or expected business, for the
reasonably foreseeable future) and (D) engaged exclusively in the business of
marketing and selling petroleum-based products produced primarily in Brazil and
duly qualified and licensed to do business in any jurisdiction in which the
nature of its business so requires, unless each of the Rating Agencies issues a
Rating Affirmation and each Enhancer with an outstanding Series of Senior Trust
Certificates consents (such consent not to be unreasonably withheld).
"U.S. Seller Account" shall have the meaning assigned to such term in
Annex A of the Trust Deed.
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"U.S. Seller Account Agreement" shall have the meaning ascribed to such
term in Annex A of the Trust Deed.
"United States of America," "United States" and "U.S." shall mean the
United States of America and the territories and possessions thereof.
"XLCA" shall have the meaning assigned to such term in Annex A of the
Trust Deed.
1.02 Construction.
(a) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms used herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) References in this Agreement to any statute, law, decree,
regulation or other applicable law shall be construed as a reference to such
statute, law, decree, regulation or other applicable law as re-enacted,
redesignated, amended or extended from time to time, except as otherwise
provided in this Agreement.
(d) References in this Agreement to any Transaction Document or any
other document or agreement shall be deemed to include references to such
Transaction Document or such other document or agreement as amended, varied,
supplemented or replaced from time to time in accordance with the terms of such
Transaction Document, document or agreement and this Agreement and to include
any appendices, schedules, exhibits, supplements, clarification letters, side
letters and disclosure letters executed in connection therewith.
(e) References to any Person or Persons shall be construed as a
reference to any successors or assigns of such Person or Persons to the extent
permitted under this Agreement and, in the case of any governmental authority,
any Person succeeding to its functions and capacities.
(f) The Table of Contents hereto and the Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
(g) Any report, document, officer's certificate or any other
instrument delivered hereunder which does not conform to the requirements hereof
shall be deemed nonconforming and shall not relieve the Person delivering such
non-conforming report, document, officer's certificate or instrument from its
obligations to deliver a conforming report, document, officer's certificate or
instrument.
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ARTICLE II
PURCHASE AND SALE
2.01 Sale and Purchase of Rights to Receivables.
(a) Subject to the terms and conditions of this Agreement, Petrobras
Finance hereby Sells, conveys and transfers without recourse (except as
expressly provided herein), and the Trustee shall purchase, all of the present
and future right, title and interest of Petrobras Finance in, to and under a
designated value of Qualified Receivables (the "Purchased Receivables") to be
Generated in each Quarterly Delivery Period. The Purchased Receivables in the
aggregate shall be comprised of (i) Qualified Receivables to be Generated by the
Sale of Eligible Products to the Offtaker in each Quarterly Period under the
Offtake Contract ("Offtaker Receivables"), in the respective amounts for the
respective Quarterly Delivery Periods designated in Annex A attached hereto,
(ii) Qualified Receivables, other than the Offtaker Receivables, to be Generated
by the Sale of Eligible Products to Buyers other than the Offtaker in each
Quarterly Delivery Periods in the respective amounts for the respective
Quarterly Delivery Periods designated in Annex B attached hereto (such Qualified
Receivables, together with the Qualified Receivables purchased by the Trustee
pursuant to Section 2.03(a), are collectively the "Additional Purchased
Receivables") and (iii) Qualified Receivables to be Generated by the Sale of
Eligible Products to Buyers other than the Offtaker that are designated for Sale
to the Trustee from time to time as provided herein in an amount equal to any
Additional Amounts, Indemnified Taxes and Indemnified Costs incurred by the
Trustee ("Supplemental Purchased Receivables").
(b) On the Closing Date, the Trustee shall as consideration for the
transfer by Petrobras Finance of the right to the Offtaker Receivables and
Additional Purchased Receivables, issue to Petrobras Finance U.S.$750,000,000
principal amount of Senior Trust Certificates and U.S.$150,000,000 principal
amount of Junior Trust Certificates.
(c) As consideration for the Sale by Petrobras Finance of the right to
the Supplemental Purchased Receivables, Petrobras Finance and the Trustee have
agreed that the amount of the Additional Purchased Receivables that would have
otherwise have been set forth on Annex B hereto shall be reduced by an amount
equal to the Tax Indemnification Fee.
2.02 Designation of Receivables for Sale.
(a) (i) In each Monthly Period, Offtaker Receivables Generated by the
Sale of Eligible Products by Petrobras Finance shall be automatically designated
for Sale to the Trustee, beginning with the first Offtaker Receivable Generated
in such Monthly Period and continuing with each Offtaker Receivable subsequently
Generated, until the aggregate amount of Offtaker Receivables so Generated shall
equal the amount specified in Annex A hereto for such Monthly Period.
(ii) In the event that the Offtaker assigns to any other
Person, in accordance with the terms of the Offtake Contract, its right
to receive all (but not less than all) of the Required Offtake Quantity
to be delivered by Petrobras Finance under the Offtake Contract in any
Monthly Period, then, immediately upon payment by such Person into the
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Collection Account of an amount at least equal to the total purchase
price that, but for such assignment, would have been payable by the
Offtaker to Petrobras Finance under the Offtake Contract for such
Required Offtake Quantity, Offtaker Receivables in an amount equal to
such Required Offtake Quantity shall be deemed to have been designated
for Sale, and Sold, to the Trustee hereunder and the amount so paid
into the Collection Account shall be deemed to be Collections in
respect of such Offtaker Receivables.
(b) In each Quarterly Delivery Period, Qualified Receivables Generated
by Petrobras Finance (other than Offtaker Receivables) shall be automatically
designated for Sale to the Trustee as Additional Purchased Receivables or
Supplemental Purchased Receivables, as the case may be, beginning with the first
such Qualified Receivable Generated in such Quarterly Delivery Period or, in the
case of Supplemental Purchased Receivables, on the day following the date that
the Servicer has notified Petrobras Finance and the Trustee of any Additional
Amounts, Indemnified Taxes or Indemnified Costs that have been incurred (or are
anticipated to be due and payable by the Trustee on or prior to the next
following Payment Date), and continuing with each Qualified Receivable
subsequently Generated, until the aggregate amount of such Qualified Receivables
so Generated shall at least equal the sum of:
(i) the amount specified in Annex B attached hereto for such
Quarterly Delivery Period;
(ii) the amount of Additional Amounts and all costs, expenses
and Taxes constituting Indemnified Costs or Indemnified Taxes notified
by the Servicer to Petrobras Finance and the Trustee which are
anticipated to be due and payable by the Trustee on or prior to the
next following Payment Date;
(iii) the amount of Qualified Receivables that were required
to be designated for Sale to the Trustee in prior Quarterly Delivery
Periods pursuant to the foregoing clauses (i) and (ii), but were not
Generated in such prior periods; and
(iv) the amount, if any, of Additional Amounts and any costs,
expenses and Taxes constituting Indemnified Costs or Indemnified Taxes
notified by the Servicer to Petrobras Finance and the Trustee which are
due and payable by the Trustee from prior Quarterly Delivery Periods in
respect of which Qualified Receivables have not theretofore been
designated for Sale to the Trustee.
(c) In the Quarterly Delivery Period ending on the Final Payment Date
for each Series of Junior Trust Certificates, once all Qualified Receivables
required to be designated for Sale to the Trustee pursuant to Section 2.02(b)
for such Quarterly Delivery Period have been so designated, Petrobras Finance
shall designate for Sale to the Trustee Qualified Receivables (other than
Offtaker Receivables) having an aggregate face amount equal to the aggregate
amount of all Additional Purchased Receivables theretofore purchased by the
Trustee pursuant to Section 2.03(a), beginning with the first Qualified
Receivable Generated after having complied with Section 2.02(b) hereof in such
Quarterly Delivery Period, and continuing with each Qualified Receivable
subsequently Generated, until the aggregate amount of such Additional
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Purchased Receivables so Generated shall at least equal the aggregate amount
purchased pursuant to Section 2.03(a).
2.03 Future Purchases of Rights to Qualified Receivables.
(a) On each Payment Date, in exchange for the payment received from
the Trustee on such Payment Date pursuant to Clause Second of Section 5.06(b) of
the Trust Deed, Petrobras Finance shall Sell to the Trustee, without recourse,
all of its present and future right, title and interest in, to and under
Qualified Receivables to be Generated in the future having a face amount equal
to the amount of such payment paid to Petrobras Finance on such Payment Date,
provided, however, that the aggregate face amount of all Qualified Receivables
purchased by the Trustee pursuant to this Section 2.03(a) shall not exceed, on
any Payment Date, the aggregate amount of such purchases scheduled to be made on
or prior to such Payment Date set forth on Annex C hereto.
(b) Upon the release of any amount from the Retention Account in
accordance with Section 9.10(d) of the Trust Deed, the Trustee shall pay to
Petrobras Finance such amount, as consideration for the Sale to the Trustee,
without recourse, of all of the present and future right, title and interest in,
to and under Offtaker Receivables and Additional Purchased Receivables to be
Generated having a face amount equal to the amount so paid to Petrobras Finance.
Any rights to Offtaker Receivables and Additional Purchased Receivables
purchased pursuant to this clause (b) shall be automatically designated for Sale
to the Trustee in accordance with Section 2.02(c) and the schedule set forth in
Annex A and Annex B hereto, to the extent that delivery of the rights to
Additional Purchased Receivables sold pursuant to Section 2.03(a) or such
scheduled Offtaker Receivables and Additional Purchased Receivables were reduced
as provided in Section 5.02 hereof, and in each case ratably in accordance with
the amount thereof so reduced in each Quarterly Delivery Period.
2.04 Sale of Purchased Receivables.
(a) Qualified Receivables that have been designated for Sale to the
Trustee as provided in Sections 2.02 and 2.03 hereof shall be Sold and purchased
immediately upon being Generated without any further action by Petrobras Finance
or any other Person in the order in which they are by their respective terms
Generated, with Qualified Receivables first Generated being Sold and purchased
first and Qualified Receivables last Generated being Sold and purchased last.
Qualified Receivables Generated on the same date shall be Sold and purchased in
the order in which they are or will by their respective terms, be scheduled to
become due, with Qualified Receivables first to become due being Sold and
purchased first and Qualified Receivables last to become due being Sold and
purchased last. Qualified Receivables Generated on the same date and scheduled
to become due on the same date shall be Sold and purchased in alphabetical order
based on the legal name of the obligor.
(b) The parties to this Agreement intend that for all purposes,
including accounting and commercial purposes, the transactions contemplated
hereby shall be, and shall be treated as, a purchase by the Trustee and a Sale
by Petrobras Finance of the Purchased Receivables. All Sales of Qualified
Receivables by Petrobras Finance hereunder shall be without recourse to, or by,
Petrobras Finance, except as otherwise specifically provided herein. A Sale of
Purchased
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Receivables hereunder does not constitute and is not intended to result in the
creation or assumption by the Trustee of any obligation of Petrobras Finance or
any other Person in connection with the Purchased Receivables or any agreement
or instrument relating thereto, including any obligation to any Buyer.
(c) Upon the Sale and purchase of any Purchased Receivables as
contemplated by this Section 2.04, the Trustee, as owner of the Purchased
Receivables, shall be entitled to receive all payments in respect of the Net
Invoice Amount of, and all other proceeds in respect thereof otherwise due to,
Petrobras Finance from the Purchased Receivables. Payments to the Trustee by any
Buyer in respect of the Purchased Receivables shall be deposited directly into
the Collection Account by such Buyer and, if paid to or received by Petrobras
Finance, shall be held in trust for the Trustee and immediately deposited in the
Collection Account.
2.05 Certain Understandings Regarding the Purchased Receivables.
(a) Each of Petrobras, Petrobras Finance and the Trustee hereby agree
and confirm their understanding that, except as expressly provided or permitted
by this Agreement, from and after the Sale to the Trustee of the right to any
Receivable pursuant to this Article II (whether or not then Generated),
Petrobras Finance shall not have any (i) right, title or interest in or to the
Purchased Receivables, (ii) right or obligation to repurchase the Purchased
Receivables or, (iii) except as expressly set forth herein, any right or
obligation to substitute other Receivables for the Purchased Receivables.
(b) The parties hereto agree and confirm their understanding that (i)
none of Petrobras, Petrobras Finance nor any of their Subsidiaries or Affiliates
(x) make any representations or warranties regarding the ability of any of the
Buyers to perform their respective obligations in respect of the Purchased
Receivables or under any Notice and Consents or agree to be liable for any
non-performance by any such Buyer of its obligations thereunder, (y) in any way
guarantee payment of any sums payable by any Buyer with respect to any Purchased
Receivables, or (z) make any representations or projections regarding the
amounts payable in the future by any Buyer, and (ii) Petrobras and/or Petrobras
Finance shall remain liable to perform all of the obligations required to be
performed by such party or parties under any arrangements or agreements between
such party or parties or any of such party or parties' respective Affiliates and
any Buyer related to the Sale of the Eligible Products in accordance with and
pursuant to the terms and provisions thereof and the Trustee shall not be
required or obligated in any manner to perform or fulfill any obligations of
Petrobras and/or Petrobras Finance under or pursuant to such arrangements or
agreements or to make any payment in respect thereof.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
3.01 Representations and Warranties Relating to Receivables. Petrobras
Finance hereby represents, warrants and agrees on the date hereof and on each
date on which Purchased Receivables are Generated hereafter, for the benefit of
the Trustee, as follows:
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(a) Each Purchased Receivable, when Generated, will be the
legal, valid and binding obligation of the relevant Buyer, enforceable
in accordance with its terms, except in each case as enforcement may be
limited by bankruptcy, insolvency, reorganization and other similar
laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or law).
(b) Each Purchased Receivable, when Generated, will be free of
any interest, claim or right of any other Person and the separate and
absolute property of Petrobras Finance, and will not be the subject of
any other transaction involving Petrobras Finance.
(c) The Purchased Receivables were, or will be, created and
Generated in accordance with, and do not contravene any, laws, rules or
regulations applicable thereto or any contract to which Petrobras or
Petrobras Finance may be a party.
(d) This Agreement constitutes a valid transfer to the Trustee
of all of Petrobras Finance's right, title and interest, present and
future, in and to the Purchased Receivables, free and clear of any
Lien.
(e) Each Purchased Receivable shall be a Qualified Receivable.
(f) Upon the Generation of Receivables and the designation of
such Receivables as Purchased Receivables, the Trustee shall acquire a
first priority perfected ownership interest in the Purchased
Receivables and the Collections with respect thereto.
(g) (i) (A) Purchased Receivables are either (I) not evidenced
by instruments (as defined in the UCC) or (II) if evidenced by an
instrument, such instrument has been delivered to the Trustee and (B)
Petrobras Finance does not maintain a place of business or any
executive offices (within the meaning of Section 9-307 of the UCC) in
the United States or Canada, has not done so during the four-month
period immediately preceding the date of this Agreement and does not
have any present intent to locate an executive office in the United
States or Canada and (ii) Petrobras Finance will have sufficient rights
in the Purchased Receivables to permit attachment under the UCC and to
permit an assignment under New York common law no later than the time
at which such Purchased Receivables are Generated.
(h) No financing statement or other instrument similar in
effect covering any Receivable or the Collections or other proceeds
thereof in favor of any Person other than Petrobras Finance and the
Trustee is on file in any recording office in the United States,
Brazil, the Cayman Islands, or, to the best knowledge of Petrobras
Finance, any other location, and Petrobras Finance has taken all
actions necessary to perfect the ownership of the Trustee in the
Purchased Receivables under the UCC or the applicable laws of Brazil
and the Cayman Islands.
(i) Upon the consummation of any Sale of Receivables in
accordance with the terms of this Agreement and the delivery of the
Notice and Consents by Petrobras Finance to the Specified Buyers, and
in connection with the Sale of any Receivables to a Specified Buyer
added after the date of this Agreement, the delivery of a Notice and
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Consent by Petrobras Finance to, and the acknowledgement thereof by,
such new Specified Buyer, as the case may be, (i) Petrobras Finance
shall have taken all steps necessary for the perfection prior to the
rights of all third parties of its respective ownership interest in the
Purchased Receivables under the laws of New York, the Cayman Islands,
Brazil and the jurisdiction of incorporation of each of the Specified
Buyers, including, but not limited to, any recording, filing,
registration, giving of notice or other similar action, (ii) no
material rights of rescission, set-off, counterclaim or defense has
been asserted and no contractual basis for the same exists with respect
to the Generated Purchased Receivables, (iii) there are no amounts
outstanding in respect of the Generated Purchased Receivables owed by a
Specified Buyer to Petrobras Finance on the date thereof that have not
been paid on or before the date which is 15 days after the last day on
which such amounts are payable in accordance with their respective
terms (other than amounts which are being disputed in good faith by the
parties), and (iv) neither the Purchased Receivables nor any part
thereof or interest therein has been sold, transferred, assigned, or
pledged by Petrobras Finance to any Person other than to the Trustee.
(j) No Receivable at the time of Generation thereof will have
been satisfied, subordinated or rescinded by the payor thereof.
3.02 Representations and Warranties Relating to Specified Buyers and
Notice and Consents. Petrobras Finance hereby represents, warrants and agrees on
the date hereof and, on each date on which Buyers are included as additional
Specified Buyers hereafter, for the benefit of the Trustee as follows:
(a) Each Specified Buyer (i)(A) has been instructed to pay in
respect of any Receivable into the Collection Account or the U.S.
Seller Account, as applicable and (B)(I) has executed and delivered a
Notice and Consent substantially in the form of Exhibit A-1, A-2 or
A-3, as applicable; provided, that, except in the case of any Offtaker
who enters into an Offtake Contract after the Closing Date, a Specified
Buyer may expressly retain its right of setoff or counterclaim (or any
other analogous rights) in such Notice and Consent, and (II) such
Notice and Consent is the only notice or agreement currently in effect
between such Specified Buyer and Petrobras Finance, Petrobras, U.S.
Seller or any of its Affiliates that contains instructions in respect
of payments of Receivables, (ii) is organized under the laws of a
jurisdiction other than Brazil, (iii) at the time of execution by it of
a Notice and Consent is not the obligor on any Delinquent Receivable,
(iv) at the time of execution by it of a Notice and Consent conforms to
the credit standards of the Servicer and (v) at the time of execution
by it of a Notice and Consent, no Bankruptcy Event has occurred, and is
continuing, with respect to such Specified Buyer.
(b) The Notice and Consents are binding and enforceable in
accordance with their terms against Petrobras, Petrobras Finance, the
U.S. Seller and the Specified Buyers, except that enforceability
against any party may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights
of creditors of such party generally and by general equitable
principles of law (whether enforcement is sought by proceedings in
equity or at law).
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(c) The instructions given to the Specified Buyers in the Notice and
Consents do not contravene any laws or regulations of the United States,
the Cayman Islands or Brazil to which Petrobras, Petrobras Finance, the
U.S. Seller or any of Petrobras' Affiliates (if applicable) is subject. The
Notice and Consents are the only authorizations to the Specified Buyers
required from any of the parties to this Agreement or under any of the
agreements referred to herein to authorize, and no authorization, other
than those which have already been obtained, is required from any authority
of the United States, the Cayman Islands or Brazil or from any Specified
Buyer or from any creditor or shareholder of Petrobras Finance in order to
authorize the payments to the Collection Account or the U.S. Seller
Account, as applicable, in accordance with the Notice and Consents.
(d) The Notice and Consents constitute the irrevocable notice and
instruction of Petrobras Finance and effective notice to each Specified
Buyer party thereto, for the purpose stated therein.
3.03 General Representations and Warranties. Petrobras Finance hereby
represents, warrants and agrees on the date hereof and on each date on which
Additional Senior Trust Certificates are issued and on each date on which
Purchased Receivables are Generated hereafter, for the benefit of the Trustee as
follows:
(a) Organization. Petrobras Finance is (i) duly incorporated and
validly existing under the laws of the jurisdiction of its incorporation
and has the requisite power and authority to own its properties and assets
and conduct its business as now being conducted and as proposed to be
conducted and (ii) qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except
where the failure to so qualify could not reasonably be expected to result
in a Material Adverse Effect.
(b) Power and authority. Petrobras Finance has full power, authority
and legal right to execute and deliver this Agreement and each other
Transaction Document to which it is a party, and to perform and observe the
terms and conditions thereof.
(c) Execution and delivery. The execution, delivery and performance
by Petrobras Finance of this Agreement and the other Transaction Documents
to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action.
(d) Enforceability. Each of this Agreement and the other Transaction
Documents to which it is a party have been duly executed and delivered by
Petrobras Finance and is the legal, valid and binding obligation of
Petrobras Finance enforceable against Petrobras Finance in accordance with
its terms, except that enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by general equitable
principles of law (whether enforcement is sought by proceedings in equity
or at law).
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(e) Payment of Taxes. Petrobras Finance has paid all Taxes relating
to it which it is required to have paid, except any Tax the payment of
which is being contested by it or on its behalf in good faith and by
appropriate means, and for which adequate reserves have been established to
the extent required by general accounting principles in the United States.
(f) Litigation. There is no litigation, investigation or proceeding
pending or, to the knowledge of Petrobras Finance, threatened against or
affecting Petrobras Finance or its assets before any arbitrator, court or
governmental department, bureau or other administrative agency or other
instrumentality (domestic or foreign), (i) with respect to this Agreement
or any of the other Transaction Documents to which it is a party or any of
the transactions contemplated hereby or thereby or (ii) as to which,
individually or in the aggregate, there is a likelihood of it being
adversely determined and which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
(g) No injunctions. There is no injunction, judgment, writ,
restraining order or other order or decree of any nature that adversely
affects the performance by Petrobras Finance of this Agreement, any of the
other Transaction Documents to which it is a party or any of the
transactions contemplated hereby or thereby.
(h) No violation. The execution and delivery of this Agreement and
the other Transaction Documents to which Petrobras Finance is a party, the
consummation of the transactions contemplated herein or therein and the
fulfillment of the terms hereof and thereof shall not result in any breach
of, violate, or constitute a default under, or result in the creation of
any Lien (except as contemplated by this Agreement and the other
Transaction Documents) upon any property or assets of Petrobras Finance
pursuant to (i) any United States, Cayman Islands or Brazilian law,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality applicable to Petrobras Finance, (ii) the charter documents
of Petrobras Finance or (iii) any other indenture, agreement or instrument
to which Petrobras Finance is a party or by which it may be bound.
(i) Consent and approvals. No authorization, filing, notice,
registration, approval or consent of any governmental agency or commission
or public body or authority of the United States, the Cayman Islands or
Brazil is necessary to permit the (i) execution and delivery by Petrobras
Finance of this Agreement and each of the other Transaction Documents to
which it is a party, (ii) performance by Petrobras Finance of its
obligations under this Agreement and each of the other Transaction
Documents to which it is a party and (iii) validity and enforceability
against Petrobras Finance of this Agreement and the other Transaction
Documents to which it is a party, except as have been obtained and are in
full force and effect.
(j) No Immunity. Neither Petrobras Finance nor any of its property
has any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise), under any
applicable law.
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(k) Filings. All steps necessary or advisable to ensure the legality,
validity, enforceability or admissibility in evidence of this Agreement and
any other Transaction Documents to which Petrobras Finance is a party have
been taken in the United States, the Cayman Islands and Brazil and in the
jurisdiction whose laws govern such document and it is not necessary that
such documents or any other document be filed or recorded with any court or
other authority in any such jurisdiction or that any stamp or similar Tax
be paid in any such jurisdiction on or in respect of such documents or any
other document called for thereunder; provided, however, that for the
admission of the Transaction Documents before Brazilian courts and
governmental agencies in Brazil, (i) the signatures of the parties thereto
signing outside Brazil should be notarized by a notary public licensed as
such under the law of the place of signing and the signature of such notary
public should be authenticated by a consular official of Brazil, (ii) the
Transaction Documents should be registered with the appropriate Registry of
Deeds and Documents in Brazil, and (iii) the Transaction Documents should
be translated into the Portuguese language by a sworn translator.
(l) No Taxes. There are no Taxes (i) imposed upon Petrobras Finance
or the Trustee by virtue of the execution, delivery or performance of this
Agreement or any other Transaction Document by the parties thereto or (ii)
as of the date of execution of this Agreement, imposed upon the income,
assets or operations of Petrobras Finance or the Trustee solely as a result
of the Trustee entering into and performing the Trust Deed.
(m) Margin stock. Petrobras Finance shall not, directly or
indirectly, use any of the proceeds of the Sale of the Purchased
Receivables pursuant to this Agreement for any purpose, whether immediate,
incidental, or ultimate, of buying a "margin stock" or of maintaining,
reducing, or retiring any indebtedness originally incurred to purchase a
stock that is currently a "margin stock," and the Sale of the Purchased
Receivables pursuant to this Agreement will not constitute an extension of
"purpose credit" that is directly or indirectly secured by "margin stock,"
in each case within the meaning of Regulation U of the Board of Governors
of the United States Federal Reserve System Board (12 C.F.R. 221, as
amended), and will not violate or result in the violation of Regulation U
or of Regulation T (12 C.F.R. 220, as amended) or of Regulation X (12
C.F.R. 224, as amended) or any other regulation of such Board.
(n) Special purpose company. Petrobras Finance is a special purpose
company established for the purpose of entering into, and performing its
obligations under, this Agreement and the other Transaction Documents to
which it is a party. As such, Petrobras Finance is (i) not engaged in any
business other than as contemplated in the Transaction Documents, (ii) has
no liabilities, obligations or indebtedness other than such liabilities and
obligations contemplated by the Transaction Documents or otherwise imposed
by applicable law, (iii) has no subsidiaries, (iv) has no employees and (v)
is not party to any material agreements or contracts other than the
Transaction Documents and each other agreement, document or instrument
delivered pursuant thereto (including, without limitation, any indenture,
mortgage, deed of trust, credit agreement, loan agreement or any other
instrument).
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(o) Compliance with laws. Petrobras Finance is in compliance with all
applicable law, rules, regulations and orders, except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
(p) Solvency. There is no Bankruptcy Event with respect to Petrobras
Finance and, as of the Closing Date and prior to the consummation of the
transactions contemplated by the Transaction Documents, Petrobras Finance
has no other assets or liabilities other than its initial capitalization as
provided for in the Transaction Documents. The transactions to be entered
into by Petrobras Finance pursuant to the Transaction Documents on the
Closing Date will not render Petrobras Finance insolvent or otherwise cause
a Bankruptcy Event in respect of Petrobras Finance.
3.04 Representations and Warranties of Petrobras. Each of the
representations and warranties made by Petrobras in Section 4.01 of the Master
Export Contract is hereby incorporated herein by reference as if made herein as
of the date hereof, except that each reference therein to the Prepayment
Agreement or the Master Export Contract, as the case may be, shall be deemed to
be a reference to this Agreement.
ARTICLE IV
COVENANTS
4.01 Covenants and Agreements of Petrobras Finance. Petrobras Finance
hereby covenants and agrees, for the benefit of the Trustee and the Certificate
Holders, so long as this Agreement shall remain in full force and effect or any
obligation of Petrobras Finance hereunder remains unsatisfied, as follows:
(a) The Receivables. Petrobras Finance shall (i) upon Generation,
promptly identify, or cause the Servicer to identify, as Sold to the
Trustee, any Receivables designated under this Agreement to be Sold to the
Trustee, (ii) not purport to sell, pledge or otherwise encumber any
Receivables or any other portion of its property (other than pursuant to
this Agreement), (iii) not take any action or cause or permit any Person to
take any action which would impair in any material respect the rights of
the Trustee in the Purchased Receivables, (iv) at all times comply in all
material respects with all contractual obligations and all Requirements of
Law applicable to or in any way affecting the Generation of Receivables or
the transactions contemplated by this Agreement or any other Transaction
Document to which it is a party and (v) not take any action to cause any
Receivable to be evidenced by an instrument (as defined in the UCC), except
to the extent that (A) causing a Receivable to be evidenced by such an
instrument is required for the Collection of such Receivable or for the
enforcement of any rights therein and (B) the original of such instrument
is promptly delivered to the Trustee. In exercising its discretion with
respect to the Sale of Eligible Products, both Petrobras and Petrobras
Finance shall select customers and shipments on the same basis as they
otherwise would have had they not entered into the Transaction Documents
and, in any event, shall not select customers and shipments in a manner
intended to be adverse to Certificate Holders or the Enhancers.
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(b) Collection of Payments.
(i) Petrobras Finance shall (A) take actions requested by the
Servicer to enforce payment with respect to any Purchased Receivables
for the full Net Invoice Amount thereof, without abatement or set-off
for any other amounts, and (B) not act in any manner with respect to
any Purchased Receivables which could reasonably be expected to have a
Material Adverse Effect;
(ii) Petrobras Finance shall agree (A) to the extent that the
payment obligations of a Buyer in respect of a Receivable are
supported by a stand-by letter of credit or guarantee, to draw upon
such letter of credit or guarantee in its name for the benefit of the
Trustee at such time as it would have taken such action had such
Receivable not been Sold to the Trustee (but not earlier than the
earliest date on which such letter of credit or guarantee may be drawn
pursuant to its terms) and, to the extent that such instruction has
not been given, to instruct the bank or guarantor upon which drawing
is made to deliver the amounts drawn to the Depositary Bank for
deposit in the Collection Account, and (B) to promptly deliver, or
cause to be delivered, to the Depositary Bank for deposit in the
Collection Account any payments on Purchased Receivables that
Petrobras Finance shall receive;
(iii) Petrobras Finance shall not take or purport to take any
action to extend the time for payment of, discharge, vary or otherwise
modify the terms of any Purchased Receivables, or take or purport to
take any action to release the applicable Buyer from its obligations
with respect to any such Purchased Receivables in whole or in part;
and
(iv) Petrobras Finance shall (A) instruct, and shall have any
agent on its behalf instruct, all Buyers of Eligible Products from it
to pay the proceeds of any Sale of Eligible Products directly into the
Collection Account and (B) on or prior to the Closing Date, enter into
Notices and Consents with each of the Buyers listed on Exhibit C
hereto;
provided, however, that the provisions of clauses (i), (ii) and (iii) shall
not limit the ability of the Servicer to make certain adjustments as set
forth elsewhere in this Agreement.
(c) Further actions; filings. Petrobras Finance agrees that at any
time and from time to time, upon the written, reasonable request of the
Trustee, it shall promptly and duly execute and deliver, at its own
expense, any and all such further instruments and documents and take such
further action to (i) correct any errors or inconsistencies, clarify any
ambiguities and effect more fully the purposes of this Agreement and the
other Transaction Documents and the transfer of the Purchased Receivables
under this Agreement, (ii) protect or more fully evidence the right, title
and interest of the Trustee in the Purchased Receivables, or (iii) enable
the Trustee to exercise or enforce any of its rights in respect thereof.
Without limiting the generality of the foregoing, Petrobras Finance shall
execute and file such financing statements and any continuation statements
with respect thereto and take any other action necessary in order to
perfect, and maintain
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the perfection of, and preserve the priority of the respective interests
arising under, the Sale of the Purchased Receivables to the Trustee for
purposes of the UCC and shall promptly provide the Trustee with
confirmation of all such filings and shall file such other UCC financing
statements and any continuation statements with respect to the Purchased
Receivables as may be reasonably requested in writing by the Trustee.
(d) Business activity. Petrobras Finance shall not (a) engage at any
time in any business or business activity other than agreements to purchase
or sell Eligible Products or rights to Eligible Products, including offtake
or similar long-term supply agreements and related oil price hedge
arrangements, any other transactions contemplated by the Transaction
Documents and any activity incidental to the foregoing and necessary or
convenient to accomplish the foregoing or (b) enter into or be party to any
agreement or instrument other than in connection with the foregoing.
(e) Performance of obligations under the Transaction Documents.
Petrobras Finance shall comply with and perform all of the obligations
required to be performed by it under each Transaction Document to which it
is a party in accordance with and pursuant to the terms and provisions
thereof, and to take all actions on its part reasonably necessary to
maintain in full force and effect its rights under such Transaction
Documents.
(f) Maintenance of corporate existence. (i) Petrobras Finance shall
preserve and maintain its corporate existence in good standing and preserve
and maintain all of its material rights, franchises and privileges in the
jurisdiction of its incorporation and in any other jurisdiction necessary
for the performance of its obligations under any Transaction Document to
which it is a party, unless failure to do so could not reasonably be
expected to have a Material Adverse Effect and (ii) Petrobras Finance shall
not consolidate with or merge into any other corporation or convey,
transfer or lease all or any part of its assets as an entirety to any
Person unless (A) the corporation formed by such consolidation or into
which it is merged or the Person which acquires by conveyance, transfer or
lease all or substantially all of its assets as an entirety shall be a
company, which (1) assumes in writing all of the obligations of Petrobras
Finance under this Agreement and under the other Transaction Documents to
which Petrobras Finance is party and such Person is capable of performing
such obligations, (2) confirms in writing that the interest of the Trustee
in the Purchased Receivables will continue to be perfected, and (3)
delivers to the Trustee an opinion of counsel of recognized standing to the
effect that (x) such assumption is sufficient for each such agreement to
constitute a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its respective terms,
except in each case as enforcement may be limited by bankruptcy,
insolvency, reorganization and other similar laws affecting the enforcement
of creditors' rights generally and general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
law), and (y) following such assumption, the interest of the Trustee in the
Purchased Receivables will be entitled to the same priority that it enjoyed
immediately prior to such assumption, (B) upon the effectiveness of such
event, neither Petrobras Finance nor such Person would be in violation or
breach of any of its covenants, agreements, representations or warranties
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under any Transaction Documents, (C) each of the Rating Agencies shall have
issued a Ratings Affirmation, and (D) the consent of each of the Enhancers
has been obtained.
(g) Maintenance of administrative and operating procedures. Without
limiting any other provisions of this Agreement or any other Transaction
Document, Petrobras Finance shall (a) keep and maintain administrative and
operating procedures, and all documents and books of record and account in
a manner consistent for all purposes with the characterization of the
transfer of the Purchased Receivables as a Sale and not a pledge (with true
and correct entries in conformity with Brazilian GAAP and, if applicable,
U.S. GAAP, and in conformity with all material Requirements of Law), (b)
keep and maintain records and other information reasonable, necessary or
advisable for the administration, servicing and collection of the Purchased
Receivables and (c) permit representatives of the Trustee to examine such
documentation relating to the Generation, Sale, administration and
collection of Purchased Receivables as shall be reasonable.
(h) Maintenance of insurance. Petrobras Finance shall maintain with
financially sound and responsible insurance companies insurance on its
properties and assets against such risks, in such amounts, with such
deductibles and in such form as are currently maintained by Petrobras, or
as are generally carried by companies engaged in the same or similar
businesses in Brazil, in each case subject to availability at commercially
reasonable rates.
(i) Maintenance of, and compliance with, consents and approvals.
Petrobras Finance shall promptly obtain from time to time, and maintain in
full force and effect, at its own expense, all such required governmental
licenses, authorizations, consents, permits and approvals, and shall
promptly effect from time to time, at its own expense, all such filings,
registrations, notarizations and other formalizations as may be required to
enable it to comply with its obligations under this Agreement and the other
Transaction Documents to which it is a party except in each case where the
failure to take such action could not reasonably be expected to have a
Material Adverse Effect.
(j) Maintenance of office or agency. Petrobras Finance shall maintain
in the Borough of Manhattan, The City of New York, an office or agency
where notices to and demands upon Petrobras Finance in respect of the
Transaction Documents may be served. Initially this office shall be located
at 570 Lexington Avenue, 43/rd/ Floor, New York, New York 10022-6837 at the
offices of Petrobras. Petrobras Finance shall agree not to change the
designation of such office to another office or to an agent commonly used
for such purpose without prior notice to the Trustee and designation of a
replacement office or agency in New York, New York.
(k) Preservation of corporate status. Petrobras Finance shall take
all reasonable steps to continue its identity as a separate legal entity
and to make it apparent to third Persons that Petrobras Finance is an
entity with assets and liabilities distinct from those of Petrobras and any
other Person, and that Petrobras Finance is not a division of Petrobras or
of any other Person. Without limiting the generality of the foregoing,
Petrobras Finance shall take the following actions:
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(i) Petrobras Finance shall compensate each of its employees
(if any), directors, consultants and agents from Petrobras Finance's
own funds for services provided to Petrobras Finance. Petrobras
Finance shall engage no agents other than the accountants, attorneys,
trustees, custodians and other agents in connection with the
transactions contemplated in this Agreement and the other Transaction
Documents to which it is a party, each of which shall be compensated
by Petrobras Finance for its fees and other charges as agreed to by
Petrobras Finance and such Person, as applicable, and any
indebtedness, liabilities or obligations incurred by Petrobras Finance
shall be paid by Petrobras Finance out of its own funds.
(ii) Petrobras Finance shall pay from its own assets all
obligations of any kind incurred by Petrobras Finance, recognizing,
however, that certain organizational expenses of Petrobras Finance and
expenses relating to the creation and initial implementation of
certain transactions as provided in this Agreement have been or may be
paid by one or more Affiliates in such capacity. Petrobras Finance
shall promptly reimburse any Affiliate for any payments made by such
Affiliate in respect of services provided to Petrobras Finance after
the Closing Date.
(iii) Petrobras Finance shall conduct its own business in its own
name and shall observe all customary formalities, including, without
limitation, holding regular meetings of its board of directors and its
stockholders and maintaining current minute books. Regular meetings of
the board of directors shall be held at least annually. The quorum
necessary for the transaction of the business of the board of
directors may be fixed by the board of directors, and unless so fixed,
if there be more than two directors shall be two, and if there be two
or less directors shall be one. A director represented by proxy, by an
alternate director, or participating by means of telephone conference
or similar communications equipment shall be deemed to be present for
the purpose of determining whether or not a quorum is present.
(iv) Petrobras Finance shall at all times maintain an office
separate and apart from those of any other Person or entity and shall
conspicuously identify such office as its office, except that
Petrobras Finance may lease, on an arm's-length basis, office space
from Petrobras. Petrobras Finance shall allocate fairly and reasonably
any overhead for shared office space and shared employees.
(v) Petrobras Finance shall maintain financial reports,
corporate records and books of account separate from those of any
other Person, and stationery, invoices, and business forms, telephone
numbers (if any) and mailing addresses that are separate and distinct
from those of any other Person. Petrobras Finance shall at all times
hold itself out to the public (including any creditor of an Affiliate
of Petrobras Finance) as a separate entity operating solely under
Petrobras Finance's own name and through its Authorized Officers and
agents.
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(vi) Any annual financial statements prepared by Petrobras
Finance shall disclose, in accordance with U.S. GAAP, any transactions
between Petrobras Finance and Petrobras or any of its consolidated
subsidiaries.
(vii) Except as expressly contemplated by the Transaction
Documents, Petrobras Finance shall not commingle its funds and assets
with those of any of its Affiliates. Petrobras Finance's assets will
be separately identified and segregated. All of Petrobras Finance's
assets shall at all times be held by or on behalf of Petrobras Finance
and, if held on behalf of Petrobras Finance by another entity, shall
be kept identifiable (in accordance with customary usages) as assets
owned by Petrobras Finance. Petrobras Finance shall strictly observe
corporate formalities in its dealings with Petrobras and each of its
subsidiaries. Petrobras Finance shall not maintain joint bank accounts
or other depositary accounts to which any of its Affiliates has
independent access.
(viii) To the extent that Petrobras Finance enters into
arrangements with any of its Affiliates (other than the purchase of
Eligible Products or the rights thereto and as contemplated by the
Transaction Documents), such arrangements shall be on an arm's-length
basis. All business transactions entered into by Petrobras Finance
with its Affiliates, when taken as a whole, shall be on terms that are
at least as favorable to Petrobras Finance as the terms and conditions
that could have been obtained, under similar circumstances, from
unaffiliated Persons. In addition, all such transactions shall be
approved by the unanimous written consent of the board of directors of
Petrobras Finance.
(ix) Except as expressly provided in the Transaction Documents,
neither Petrobras Finance, on the one hand, nor Petrobras or any of
its subsidiaries, on the other hand, shall guarantee the debts of the
other, shall pledge, or grant a security interest in or Lien upon, its
assets for the benefit of the other, or shall be or shall hold itself
out to be responsible for the debts of the other or the decisions or
actions respecting the daily business and affairs of the other, unless
such transactions are conducted on an arm's-length basis according to
industry standards.
(x) Petrobras Finance shall retain as its auditors an
internationally recognized firm of certified public accountants (which
firm may also serve as auditors of Petrobras or any of its
consolidated subsidiaries).
(l) Use of proceeds; negative pledge. Petrobras Finance shall use the
proceeds from the offer and sale of the Senior Trust Certificates and from the
equity contribution by the sole common shareholder of Petrobras Finance (i) to
pay the amount payable to Petrobras under the Prepayment Agreement (ii) to pay
certain amounts due and payable in respect of the offering of the Senior Trust
Certificates and, (iii) if applicable, to fund certain of the Trust Accounts.
Petrobras Finance shall use or cause to be used all funds in the Petrobras
Finance Account and, to the extent necessary, all amounts payable in respect of
the Junior Trust Certificates to purchase Eligible Products or the rights
thereto from Petrobras under and pursuant to the Master Export Contract or
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from other Petrobras Affiliates, and Petrobras Finance shall not,
directly or indirectly, incur any Lien on or with respect to any such
proceeds to secure any indebtedness.
(m) Limitation on indebtedness. Petrobras Finance shall not incur
indebtedness other than (i) indebtedness contemplated by the
Transaction Documents and (ii) indebtedness arising by operation of
law, the incurrence of which indebtedness (in the case of this clause
(ii)) would not have a Material Adverse Effect.
(n) Amendments to charter documents. Petrobras Finance shall not
amend or make any change or modification to its Memorandum and
Articles of Association (other than an amendment, change or
modification made pursuant to changes in law of the jurisdiction of
Petrobras Finance's incorporation or amendments to change Petrobras
Finance's name, registered agent or address of registered office)
unless such amendment, change or modification could not reasonably be
expected to have a Material Adverse Effect.
(o) Payment of Taxes, claims. Petrobras Finance shall pay or
discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all Taxes levied or imposed upon Petrobras
Finance, except for any Tax the payment of which is being contested by
it or on its behalf in good faith and by appropriate methods, and for
which adequate reserves have been established to the extent required
by general accounting principles in the United States and (ii) all
other claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of Petrobras Finance.
(p) Limitation on investments, subsidiaries. Other than as
contemplated by the Transaction Documents, Petrobras Finance shall not
make or acquire any investment in any Person other than Eligible
Investments and shall not create any subsidiaries.
(q) Delivery of notices. Petrobras Finance shall deliver to the
Trustee, each Enhancer, the Servicer and each Rating Agency then
providing a rating of any Series of Senior Trust Certificates (i)
promptly, any notices, opinions of counsel, financial statements,
officer's certificates or other forms of communication that it gives
or receives pursuant to the terms of the Prepayment Agreement, the
Master Export Contract and the other Transaction Documents and (ii) as
soon as is practicable and in any event within three Business Days
after Petrobras Finance becomes aware or should have reasonably become
aware, of the occurrence of (A) any event or condition which could
reasonably be expected to have a Material Adverse Effect, (B) any
pending or threatened litigation or administrative proceeding which,
if adversely determined, could reasonably be expected to have a
Material Adverse Effect or (C) any Petrobras Default or Petrobras
Finance Default, any default, or any Accumulation Event or Specified
Event, notice of such occurrence accompanied by a certificate of an
Authorized Officer of Petrobras Finance setting forth the details of
such event and stating the action that Petrobras Finance proposes to
take with respect thereto.
(r) Enforcement of rights. Petrobras Finance shall, with due
diligence and in a reasonable, prudent and punctual manner, enforce
all of the rights granted to it under
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and in connection with all applicable approvals and the Transaction
Documents to which it is a party against the other parties thereto.
(s) Provision of financial statements and reports. Petrobras
Finance shall provide to the Trustee and the Enhancers, in English or
accompanied by a certified English translation thereof, (i) within 90
days after the end of each fiscal quarter (other than the fourth
quarter), its unaudited balance sheet, statement of income, statement
of changes in shareholders' equity and statement of cash flow
calculated in accordance with U.S. GAAP, (ii) within 120 days after
the end of each fiscal year, its audited balance sheet, statement of
income, statement of changes in shareholders' equity and statement of
cash flow calculated in accordance with U.S. GAAP and (iii) such other
financial data as the Trustee may reasonably request. Petrobras
Finance shall provide, together with each of the financial statements
delivered hereunder, an officers' certificate stating that a review of
Petrobras Finance's activities has been made during the period covered
by such financial statements with a view to determining whether
Petrobras Finance has kept, observed, performed and fulfilled its
covenants and agreements under the Transaction Documents, and that no
Petrobras Finance Default, Accumulation Event or Termination Event has
occurred during such period.
(t) Ranking. Petrobras Finance shall ensure at all times that its
monetary obligations under this Agreement shall constitute the general
senior, unsecured and unsubordinated obligations of Petrobras Finance
and shall rank at least pari passu, without any preferences among
themselves, with all other present and future unsecured and
unsubordinated obligations of Petrobras Finance (other than
obligations preferred by statute or by operation of law).
(u) No assignment, etc. Petrobras Finance shall not, except as
expressly provided in the Transaction Documents, without the prior
written consent of the Trustee (acting at the direction of the
Controlling Parties of all series of outstanding Senior Trust
Certificates, in the case of the following clauses (i) and (iii), and
of Controlling Parties representing more than 66 2/3% of the aggregate
principal amount of all outstanding Senior Trust Certificates, in the
case of following clause (ii)), (i) assign its rights or delegate its
obligations under this Agreement or under any other Transaction
Document to which it is a party, (ii) amend, modify or in any way
terminate this Agreement or any other Transaction Document to which it
is a party, except for amendments or modifications necessary to cure
any ambiguity, defect or inconsistency, or (iii) amend or modify its
charter documents.
(v) Agreements. Petrobras Finance shall maintain in effect the
Servicing Agreement.
(w) Sales to Affiliates. At any time that any Accumulation Event
or Acceleration Event shall have occurred and be continuing, Petrobras
Finance shall not permit or suffer to exist the aggregate amount
payable to it by all Affiliates (including the U.S. Seller) at such
time in respect of Receivables to exceed U.S.$50,000,000, unless any
excess amounts are covered by an Acceptable Letter of Credit or are
guaranteed by Petrobras pursuant to a guarantee substantially in the
form of Exhibit E hereto.
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(x) Sale of Eligible Products. Petrobras Finance shall ensure
that the terms of sale of any Eligible Products to Buyers will provide
that title to and risk of loss with respect to such Eligible Products
shall pass to such Buyer when the relevant shipment of Eligible
Products is delivered to such Buyer by or on behalf of Petrobras
Finance.
(y) Buyers' Credit Criteria. In respect of sales of Eligible
Products to Buyers, Petrobras Finance agrees to employ the diligence
and credit criteria that would have been used by Affiliates of
Petrobras (other than Petrobras Finance) in the business of marketing
of Eligible Products sold by Petrobras had such Affiliates been the
sellers to such Buyers.
4.02 Covenants and Agreements of Petrobras. Each of the covenants and
agreements made by Petrobras in Sections 5.01 and 6.01 of the Master Export
Contract is hereby incorporated herein by reference as if made herein as of the
date hereof.
ARTICLE V
REPURCHASE OF RECEIVABLES, TERMINATION EVENTS, ACCUMULATION
EVENTS AND ACCELERATION EVENTS
5.01 Optional Repurchase of Receivables.
(a) Petrobras Finance shall have the option on any Payment Date to
repurchase from the Trustee certain portions or all of the rights to receive
Purchased Receivables to be Generated from and after such Payment Date, upon 60
days' notice to the Trustee and the Servicer specifying the amount of such
rights to be repurchased and the purchase price therefor in accordance with this
Section 5.01(a). The proceeds from such purchase shall be applied by the Trustee
to the prepayment in whole, but not in part, of one or more outstanding Series
of Senior Trust Certificates as provided in Section 3.01 of the Trust Deed. The
Senior Trust Certificates to be so prepaid shall be designated by the Servicer
pursuant to Section 2.02(a) of the Servicing Agreement.
(i) The amount of any repurchase of the right to Purchased
Receivables pursuant to this Section 5.01(a) will be equal to the
product of (A) the total amount of the Purchased Receivables to be
Generated that have been Sold to the Trustee pursuant to the Sale and
repurchase of Purchased Receivables made on the Closing Date and
described in Section 2.01 and 2.03 hereof multiplied by (B) a fraction
(the "Prepayment Fraction"), the numerator of which is the aggregate
outstanding principal amount of each Series of Senior Trust
Certificates to be prepaid from the proceeds of such repurchase on the
relevant Payment Date, and the denominator of which is the aggregate
outstanding principal amount of all Senior Trust Certificates on such
Payment Date.
(ii) The purchase price for any repurchase pursuant to this
Section 5.01(a) shall be the fair market value of the amount to be
repurchased, as determined by an independent internationally recognized
financial institution or consulting firm selected by Petrobras Finance,
provided, that, Petrobras may not repurchase any right to Purchased
Receivables referred to in clause (i) above unless the purchase price
determined in
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accordance with this clause (ii) is at least equal to the Optional
Prepayment Price for the Series of Senior Trust Certificates that is
to be prepaid with the proceeds of such repurchase. Petrobras Finance
shall include a copy of such valuation in its notice to the Trustee
delivered pursuant to this Section 5.01(a).
(iii) The repurchase of the rights to Purchased Receivables in
accordance with this Section 5.01 shall, upon payment of the purchase
price determined in accordance with the foregoing clause (ii),
automatically result in a modification to Annexes A, B and C hereto by
reducing each amount set forth therein for each Monthly Period or
Quarterly Delivery Period thereafter, as the case may be, by the
product of (A) such amount multiplied by (B) the applicable Prepayment
Fraction(s) related to such repurchase. No repurchase of less than all
of the rights to Purchased Receivables to be Generated shall be
permitted under this Section 5.01 if the result of such repurchase
would reduce the aggregate remaining amounts scheduled on Annex C
hereto to less than the sum of (A) U.S.$75,000,000 plus (B) 10% of the
original aggregate principal amount of each Series of Senior Trust
Certificates issued after the Closing Date which at such time has any
principal amount remaining outstanding.
(b) (i) If Petrobras Finance is required to designate for Sale
to the Trustee Supplemental Purchased Receivables (A) because of any
change in, or amendment to, the laws or regulations of the Cayman
Islands, Brazil, the United States, or any jurisdiction from or
through which payment is made in respect of the Senior Trust
Certificates, or any political subdivision or governmental authority
thereof or therein having power to tax, or any change in the
application or official interpretation of such laws or regulations,
which change or amendment occurs on or after the date of the Trust
Deed, and as a result thereof (I) the Trustee becomes or will become
obligated to pay Additional Amounts with respect to any Series or
tranche of Senior Trust Certificates or (II) the Trust becomes subject
to Tax in any such jurisdiction, and (B) such obligation cannot be
avoided by any of the Trustee, Petrobras Finance or Petrobras taking
reasonable measures available to it, then Petrobras Finance shall have
the option on any Payment Date thereafter to repurchase from the
Trustee all (but not part) of the right to receive Purchased
Receivables to be Generated from and after such Payment Date, upon 60
days' notice to the Trustee and the Servicer specifying the amount of
rights to be repurchased and the purchase price therefor in accordance
with this Section 5.01(b). The proceeds from such repurchase shall be
applied by the Trustee to the prepayment in whole, but not in part, of
all outstanding Senior Trust Certificates as provided in Section 3.07
of the Trust Deed.
(ii) The purchase price for any repurchase of the right to
Purchased Receivables pursuant to this Section 5.01(b) shall be the
fair market value of the amount to be repurchased as provided in
clause (i) above, as determined by an independent internationally
recognized financial institution or consulting firm selected by
Petrobras Finance, provided that, Petrobras Finance may not repurchase
the right to Purchased Receivables to be Generated pursuant to this
Section 5.01(b) unless the purchase price determined in accordance
with this clause (ii) is at least equal to the Tax Prepayment Price
provided in Section 3.07 of the Trust Deed for all outstanding Senior
Trust Certificates. Petrobras Finance shall include a copy of such
valuation in its notice to the Trustee delivered pursuant to this
Section 5.01.
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(iii) Concurrently with, and as a condition to, such repurchase,
Petrobras Finance shall deliver to the Trustee, and the Trustee shall
deliver (or cause to be delivered) to the Servicer, the Senior Certificate
Holders and the Enhancers, (A) an officer's certificate stating that
Petrobras Finance is entitled to such repurchase and setting forth a
statement of facts showing that the conditions precedent to such repurchase
as set forth in clauses (A) and (B) of Section 5.01(b)(i) hereto have
occurred and (B) an opinion of independent Brazilian, Cayman Islands,
United States or other counsel, as appropriate, or independent public
accountants selected by the Trustee, to the effect that the Trustee has or
will become obligated to pay such Additional Amounts as a result of such
change or amendment.
5.02 Accumulation Events; Reserve Account.
(a) Upon the receipt by Petrobras Finance from the Trustee of written
notice of the occurrence of an Accumulation Event, Petrobras Finance shall be
required to designate for Sale to the Trustee, in the Quarterly Delivery Period
in which such notice is received, and for each Quarterly Delivery Period
thereafter for so long as such Accumulation Event is continuing, Purchased
Receivables, in addition to the Offtaker Receivables, Additional Purchased
Receivables and Supplemental Receivables scheduled to be designated for Sale to
the Trustee in such Quarterly Delivery Period, that are sufficient to result in
Collections equal to (A) the amount, if any, necessary to cause the amount of
funds on deposit in the Reserve Account for each such Quarterly Delivery Period
to be at least equal the Reserve Account Cap and (B) an amount equal to (x) 2.0
times the Maximum Scheduled Senior Payment Amount for each such Quarterly
Delivery Period minus (y) the amount of funds, if any, retained in the Retention
Account from prior Quarterly Delivery Periods but not applied to the mandatory
prepayment of the Senior Trust Certificates pursuant to Section 9.10(c) of the
Trust Deed, provided, that, if such Accumulation Event is the result of an
Incipient Offtaker Payment Default, all Qualified Receivables to be Generated
from and after the receipt by Petrobras Finance of such notice shall be
automatically designated for Sale to the Trustee until either (1) Petrobras
Finance receives notice from the Trustee that such Incipient Offtaker Payment
Default has been cured or waived or (2) Qualified Receivables in an amount equal
to the aggregate of the Senior Certificate Interest and the Junior Certificate
Interest shall have been Generated. Such additional Qualified Receivables will
be automatically designated for Sale in the order in which they are Generated,
and any such additional Qualified Receivables so designated will constitute
Purchased Receivables and reduce first, the right to Additional Purchased
Receivables Sold pursuant to Section 2.03(a), and second, ratably the scheduled
amounts of Additional Purchased Receivables set forth in Annex B hereto and the
scheduled amounts of Offtaker Receivables set forth in Annex A hereto, for each
subsequent Quarterly Delivery Period.
(b) Upon receipt by Petrobras Finance from the Trustee of notice that
amounts credited to the Reserve Account have been applied as provided in Section
5.10(a) of the Trust Deed, that no Accumulation Event has occurred and is
continuing, and that funds on deposit in the Reserve Account are not at least
equal to the Reserve Account Cap, Petrobras Finance shall designate for Sale to
the Trustee in the Quarterly Delivery Period in which such notice is received,
and for each Quarterly Delivery Period thereafter for so long as necessary to
fully fund such account, Purchased Receivables, in addition to the Offtaker
Receivables, Additional Purchased Receivables and Supplemental Receivables
already designated for Sale in such
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Quarterly Delivery Period, that result in Collections (after giving effect to
the distributions required to be made under Clauses First and Second of Section
5.06(a) of the Trust Deed) sufficient to cause the funds on deposit in the
Reserve Account to be at least equal to the Reserve Account Cap. Such additional
Qualified Receivables will be automatically designated for Sale in the order in
which they are Generated, and any such additional Qualified Receivables so
designated will constitute Purchased Receivables and reduce first, the right to
Additional Purchased Receivables Sold pursuant to Section 2.03(a), and second,
ratably the scheduled amounts of Additional Purchased Receivables set forth in
Annex B hereto and the scheduled amounts of Offtaker Receivables set forth in
Annex A hereto, for each subsequent Quarterly Delivery Period.
5.03 Acceleration Events. Upon receipt by Petrobras Finance from the
Trustee of notice of the occurrence of an Acceleration Event, all Qualified
Receivables to be Generated from and after such time shall be automatically
designated for Sale to the Trustee until Purchased Receivables in an amount
equal to the aggregate of the Senior Certificate Interest and the Junior
Certificate Interest shall have been Generated. Such Additional Purchased
Receivables will be automatically designated for Sale in the order in which they
are Generated and will constitute Purchased Receivables.
5.04 Petrobras Finance Defaults.
(a) The occurrence of each of the following events shall constitute a
"Petrobras Finance Default" under this Agreement:
(i) Any representation or warranty made by Petrobras Finance in any
Transaction Document to which it is a party (other than the representations
contained in clauses (a) through (j) under Section 3.01 above) (A) shall
prove to be false or incorrect in any respect as of the time when the same
shall have been made and (B) such representation or warranty being false or
incorrect has a Material Adverse Effect;
(ii) The failure of Petrobras Finance to perform, observe or comply
with any term, covenant, agreement or obligation contained in any of the
Transaction Documents to which it is a party, such failure has a Material
Adverse Effect and such failure (other than any failure as described in
paragraph (a) above) is either incapable of remedy or continues for a
period of 60 days (inclusive of any time frame contained in any such term,
covenant, agreement or obligation) after written notice of such failure has
been given to Petrobras Finance by the Trustee;
(iii) Any Bankruptcy Event of Petrobras Finance shall occur and be
continuing;
(iv) Any action, condition or thing (including the obtaining or
effecting of any necessary consent, approval, authorization, exemption,
filing, license, order, recording or registration) at any time required to
be taken, fulfilled or done in order (A) to enable Petrobras Finance to
lawfully enter into, exercise its rights and perform and comply with its
material obligations under the Transaction Documents to which it is a
party, (B) to ensure that those obligations are legally binding and
enforceable or (C) to make any of
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the Trust Deed, the Senior Trust Certificates or any of the other relevant
Transaction Documents entered into in connection with the transactions
described herein admissible in evidence in the courts in and of Brazil, New
York and the Cayman Islands that is not taken, fulfilled or done within 10
days after notice thereof has been given to Petrobras Finance by the
Trustee, or once any such authorization or consent has been given, is
removed, withdrawn, modified, withheld or otherwise fails to remain valid
and subsisting in full force and effect if the failure to take, fulfill or
to do such action, condition or thing, or to reinstate the full force and
effect of such authorization or consent, has a Material Adverse Effect;
(v) Any of the Transaction Documents entered into by Petrobras
Finance, or any material part thereof, shall cease to be in full force and
effect or binding and enforceable against Petrobras Finance or it becomes
unlawful for Petrobras Finance to perform any material obligation under any
of the foregoing Transaction Documents, or Petrobras Finance shall contest
the enforceability of, or denies that it has liability under, any of the
foregoing Transaction Documents;
(vi) The failure of Petrobras Finance to deliver, in accordance with
the terms of the Offtake Contract, the Required Offtake Quantity during any
Monthly Delivery Period;
(vii) The failure of the Trustee to have 100% legal ownership in the
Trust Property;
(viii) The failure by the Trustee to have, at any time and for a
period of five Business Days thereafter, a valid unencumbered ownership
interest in all of the right, title and interest of Petrobras Finance in
the Purchased Receivables designated for Sale to the Trustee on the Closing
Date or any date thereafter whether existing as of such date or to be
Generated; or
(ix) Petrobras Finance shall purport to sell, grant, pledge, assign,
transfer or otherwise finance, or permit to suffer to exist any Lien on,
any Purchased Receivables or Receivables of Specified Buyers (other than
with respect to the Purchased Receivables under the Trust Deed and the
other Transaction Documents), any Eligible Products that have been sold or
purported to be sold, or payments with respect thereto; or
(x) One or more final and non-appealable judgments or final decrees
is entered against Petrobras Finance which has a Material Adverse Effect.
5.05 Effect of a Petrobras Finance Default or Other Termination Event.
(a) If either a Petrobras Finance Default occurs and is continuing and, as
a result thereof, the Controlling Parties representing at least 35% of the
aggregate principal amount of the outstanding Senior Trust Certificates declare
an Acceleration Event, or another Termination Event has occurred and is
continuing, then Controlling Parties representing at least 35% of the aggregate
principal amount of the outstanding Senior Trust Certificates may instruct the
Trustee to notify Petrobras Finance thereof, whereupon this Agreement shall be
subject to termination, provided, that, this Agreement shall be subject to
termination automatically without any further
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action by Petrobras Finance, the Trustee or any other Person upon the occurrence
of a Bankruptcy Event with respect to Petrobras (other than a Bankruptcy Event
solely with respect to a Material Subsidiary of Petrobras) or Petrobras Finance.
Notwithstanding anything herein or elsewhere to the contrary, this Agreement
shall remain in full force and effect until the RPA Termination Price is paid in
full.
(b) In the event that this Agreement becomes subject to termination as
aforesaid, on the next following Monthly Payment Date, Petrobras Finance shall
be obligated to repurchase from the Trustee Purchased Receivables to be
Generated from and after the date this Agreement becomes subject to termination
in an amount and for a purchase price equal to the aggregate of the Senior
Certificate Interest and the Junior Certificate Interest (the "RPA Termination
Price").
(c) The right of the Trustee to the payment of the RPA Termination Price
shall not be exclusive of any other right, power or remedy referred to herein or
now or hereinafter available to the Trustee at law, in equity, by statute or
otherwise. To the extent Petrobras Finance repurchases the right to Purchased
Receivables pursuant to this Agreement, (a) the Trustee shall, following the
delivery, in full, of the RPA Termination Price, be deemed, without further
action by any Person, and without representation, recourse or warranty (express
of implied), not to have any further right, title and interest in and to such
Purchased Receivables to be Generated, (b) all of the right, title and interest
of the Trustee in and to such Purchased Receivables to be Generated shall
transfer to Petrobras Finance, and (c) the Trustee shall, at the expense of
Petrobras Finance, execute such documents, and take such other steps, as
Petrobras Finance shall reasonably request to terminate the Notice and Consents.
(d) Upon the payment in full of the RPA Termination Price, and the payment
in full of the principal of and interest on the Senior Trust Certificates and
all other amounts payable as provided in the Trust Deed and under the Insurance
Documents, this Agreement shall terminate.
5.06 Disputed Receivables. If at any time an Authorized Officer of
Petrobras Finance shall have knowledge that a representation or warranty set
forth in this Agreement was false or incorrect in any material respect on the
date when made or deemed made with respect to any Purchased Receivable, and such
misrepresentation results in an adjustment or other reduction in the Net Invoice
Amount or Collections in respect of such Purchased Receivable (it being
understood that a "reduction" in Collections shall be deemed to have occurred
upon any failure to collect payment of a Purchased Receivable in full within 30
days of the date on which such Purchased Receivable, in respect of which a
representation and/or warranty was false or incorrect in any material respect on
the date when made or deemed made, was otherwise due, or deemed due hereunder),
such Receivable shall not be deemed to be a Qualified Receivable to the extent
of such adjustment or reduction and Petrobras Finance shall designate for Sale
to the Trustee, for no added consideration, the next Qualified Receivable or
Receivables Generated which would not otherwise be Purchased Receivables in an
aggregate amount at least equal to the amount of such adjustment or other
reduction. Without limiting the foregoing, but without duplication, if Petrobras
Finance Sells to the Trustee a Receivable that is not a Qualified Receivable,
Petrobras Finance shall designate for Sale to the Trustee the next Qualified
Receivable or Receivables Generated which would not otherwise be Purchased
Receivables in an aggregate amount equal to such Receivable.
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5.07 Adjustments. The Servicer may make adjustments to the amount payable
in respect of outstanding Receivables (including Purchased Receivables)
following the issuance of the Initial Invoice in accordance with the terms of
the Servicing Agreement. In the event that the Servicer makes such adjustment to
a Purchased Receivable and as a result thereof, the adjusted Net Invoice Amount
is lower than the Net Invoice Amount of the Receivable prior to such adjustment,
such Receivable shall be deemed not to be a Purchased Receivable and Petrobras
Finance shall designate for Sale to the Trustee, for no added consideration, the
next Qualified Receivable or Receivables Generated which would not otherwise be
Purchased Receivables in an aggregate amount equal to the amount of such
adjustment.
ARTICLE VI
ADDITION OF SPECIFIED BUYERS
6.01 Addition and Other Modification. Petrobras Finance shall have the
right, from time to time, to include Buyers as additional Specified Buyers
pursuant to this Article VI. In the event Petrobras Finance elects to include
Buyers as additional Specified Buyers, Petrobras Finance shall deliver to the
Trustee (with a copy to the Servicer) (a) an appropriately completed notice in
substantially the form of Exhibit B hereto (a "Buyer Modification Notice") which
shall include the date on which the addition shall take effect (the "Buyer
Modification Date") and (b) a Notice and Consent executed by any additional
Specified Buyer, Petrobras Finance, the U.S. Seller, Petrobras and the Trustee.
6.02 Effect of Addition or Other Modification. Upon the satisfaction of
each of the conditions set forth in Section 6.01, the list of Buyers that shall
be Specified Buyers pursuant to this Agreement shall be adjusted as of the Buyer
Modification Date in accordance with the additions or other modifications
specified in the Buyer Modification Notice without the need for further action
by any Person. Notwithstanding anything herein to the contrary, no modification
to the list of Specified Buyers pursuant to this Article VI shall in any way
impair the right, title and interest of the Trustee in and to Purchased
Receivables of Specified Buyers Generated prior to the Buyer Modification Date
or the Collections related thereto.
ARTICLE VII
PETROBRAS PERFORMANCE GUARANTY
7.01 Guaranty.
(a) Petrobras irrevocably and unconditionally guarantees to the Trustee
and its successors and assigns the due performance and compliance by Petrobras
Finance of all of its obligations under this Agreement and each other
Transaction Document to which Petrobras Finance is party, including, without
limitation, the obligation of Petrobras Finance to pay the RPA Termination Price
pursuant to the terms of this Agreement (all such obligations, collectively, the
"Guaranteed Obligations"). Petrobras hereby waives notice of acceptance of this
guaranty and notice of any liability to which it may apply and waives
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liability, suit or taking of
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other action by Petrobras Finance or the Trustee against, and any other notice
to, any party liable thereon (including Petrobras or any other guarantor).
(b) The obligations of Petrobras under this Article VII are absolute and
unconditional and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged or terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation,
any action or inaction by Petrobras Finance, the Trustee or any other Person or
any invalidity, irregularity or unenforceability of all or part of the
guaranteed obligations.
(c) The guaranty under this Article VII is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of the Trustee or its successors or assigns in exercising any
right, power or privilege hereunder, and no course of dealing between Petrobras,
Petrobras Finance and the Trustee, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights, powers and remedies herein expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Trustee or its successors or assigns would otherwise have. No notice
to or demand on Petrobras in any case shall entitle Petrobras to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Trustee to any other or further action in any
circumstances without notice or demand.
ARTICLE VIII
MISCELLANEOUS
8.01 Reimbursement. Petrobras Finance agrees to reimburse the Trustee
(acting on behalf of the Enhancers and Senior Certificate Holders) on demand for
all reasonable and documented costs and expenses incurred by the Trustee (acting
on behalf of the Enhancers and Senior Certificate Holders) in connection with
the enforcement of its rights under this Agreement.
8.02 Rights Confined to Parties. Nothing expressed or implied herein is
intended or shall be construed to confer upon or to give to any Person, other
than the parties hereto, any right, remedy or claim under or by reason of this
Agreement, and the terms, covenants, conditions, promises and agreements
contained herein shall be for the sole and exclusive benefit of the parties
hereto.
8.03 Amendment or Waiver: Remedies Cumulative.
(a) No provision of this Agreement may be amended or waived and this
Agreement may not be terminated without the written consent of each of the
parties hereto.
(b) No failure or delay on the part of any party hereto in exercising any
right, power or privilege hereunder or under any other document delivered in
connection therewith and no course of dealing between Petrobras and Petrobras
Finance shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other
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-41-
document delivered in connection herewith preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder or
thereunder. The rights, powers and remedies herein and in any of the other
documents delivered in connection herewith are cumulative and not exclusive of
any rights, powers or remedies which any party hereto would otherwise have. No
notice to or demand on any party hereto in any case shall entitle such party to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of such party to any other or further action
in any circumstances without notice or demand.
8.04 Binding Upon Assigns. The provisions of this Agreement (including
any amendments, modifications and waivers hereof properly adopted) shall be
binding upon and shall inure to the benefit of the parties hereto and each of
their respective successors and assigns. None of the parties hereto shall be
entitled to assign or transfer any of its rights or obligations under this
Agreement without the prior consent of the other parties hereto.
8.05 Waiver of Immunity; Submission to Jurisdiction; Agent.
(a) This Agreement, and any actions taken hereunder, constitute
commercial acts by the parties. Each party hereto hereby irrevocably and
unconditionally and to the fullest extent permitted by the laws of any
jurisdiction waives and agrees not to plead or claim, any right to immunity from
jurisdiction, set-off, legal proceedings, attachment prior to judgment, other
attachment or execution of judgment on the grounds of sovereignty or otherwise
for itself or any of its property, assets or revenues wherever located with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Agreement or any other Transaction Document to
which it is a party, in each case for the benefit of any party hereto and their
respective successors and assigns, it being intended that the foregoing waiver
and agreement shall be effective, irrevocable and not subject to withdrawal in
any and all jurisdictions.
(b) Each of the parties hereto irrevocably agree that any legal
action, suit or proceeding brought by or against it with respect to any matter
under or arising out of or in any way connected with this Agreement or any
document delivered pursuant to this Agreement or for recognition or enforcement
of any judgment rendered in any such action, suit or proceeding may be brought
in the federal courts of the United States for the Southern District of New York
(and the courts of appeal thereto) and if such courts cannot or shall not hear
such action, suit or proceeding, then in the courts of the County and State of
New York (and the courts of appeal thereto), and by execution and delivery of
this Agreement, the parties hereto hereby irrevocably accept and submit
generally and unconditionally to the in person jurisdiction of the aforesaid
courts with respect to any such action, suit or proceeding for themselves and in
respect of any of their property, assets and revenues. In addition, the parties
hereto hereby irrevocably and unconditionally waive (i) all rights to a trial by
jury and (ii) to the fullest extent permitted by law, any objection which any of
them may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or in connection with this
Agreement, brought in any of the aforesaid courts, and hereby further
irrevocably and unconditionally waive and agree, to the fullest extent permitted
by law, not to plead or claim that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
Receivables Purchase Agreement
-42-
(c) Petrobras Finance hereby irrevocably designates, appoints and
empowers Petrobras, with offices located at 570 Lexington Avenue, 43/rd/ Floor,
New York, New York 10022-6837, and its successors as its process agent and
Petrobras hereby irrevocably designates, appoints and empowers its New York
office located at 570 Lexington Avenue, 43rd Floor, New York, New York
10022-6837, and its successors as its process agent (each, a "Process Agent"),
to receive, accept and acknowledge for and on its behalf and on behalf of its
property service of any and all legal process, summons, notices and documents
which may be served in any such action, suit or proceeding in the courts of the
County and State of New York (and the court of appeal thereunder) or of the
United States of America for the Southern District of New York (and the courts
of appeal thereto), which service may be made on such designee, appointee and
agent in accordance with legal procedures prescribed for such courts. Each of
Petrobras and Petrobras Finance agrees to take any and all action necessary to
continue such designation in full force and effect; and should such Process
Agent become unavailable for this purpose for any reason, each of Petrobras and
Petrobras Finance shall forthwith irrevocably designate a new Process Agent with
an office in New York, New York, which shall agree to act as such, with the
powers and for the purposes specified in this subsection. Each of Petrobras and
Petrobras Finance further irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents of any of the aforesaid
courts in any such action, suit or proceeding by hand delivery, to it at its
address set forth in Section 8.06(b) or to any other address of which it shall
have given notice pursuant to Section 8.06 or to its then Process Agent.
8.06 Notices.
(a) Except as otherwise expressly provided herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be in writing and shall become effective when received. Any written
notice shall either be mailed, certified or registered mail, return receipt
requested with proper postage for airmail prepaid, or by overnight delivery
service (providing for delivery receipts) or delivered by hand or sent in the
form of a tested telex or confirmed facsimile.
(b) All notices, requests, demands or other communications under this
Agreement shall be addressed as follows or as any of the parties to this
Agreement shall have specified to all other parties in writing:
Receivables Purchase Agreement
-43-
To Petrobras Finance:
Petrobras Finance Ltd.
Attn: Lair Oliveira
Director
Room 302L
Avenida Republica do Chile
20035-900
Rio de Janeiro-R5, Brazil
Telephone: 011 55 21 2534 1450
011 55 21 2534 4258
with a copy to:
To Petrobras:
Petroleo Brasileiro S.A. - Petrobras
Attn: Lair Oliveira
Manager - Long-Term Finance
Room 302L
Avenida Republica do Chile
20035-900
Rio de Janeiro-R5, Brazil
Teleophone: 011 55 2534 1450
011 55 2534 4258
To the Trustee:
U.S. Bank, National Association, Cayman Islands Branch
c/o IBJ Whitehall Bank and Trust Company
P.O. Box 1040 GT
Grand Cayman, Cayman Islands
Telephone: (345) 949-2849
Facsimile: (345) 949-5409
with a copy to:
U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Telephone: (212) 361-2501
Facsimile: (212) 809-5459
To the Servicer:
Receivables Purchase Agreement
-44-
Petrobras International Finance Company
Attn: Mariangela Monteiro Tizatto
Deputy General Manager Accounting
Room 301 M
Avenida Republica do Chile
20035-900
Rio de Janeiro-R5, Brazil
Telephone: 011 55 21 2534 6245
011 55 21 2534 0438
8.07 Severability
. Any provision of this Agreement 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.
8.08 Governing Law. THE PROVISIONS OF THIS AGREEMENT, AND ALL THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, EXCEPT FOR THE PROVISIONS
HEREIN GOVERNING THE SALE OF THE RECEIVABLES WHICH SHALL BE GOVERNED BY THE LAWS
OF THE CAYMAN ISLANDS, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
8.09 Use of English Language. All certificates, reports, notices and
other documents and communications given or delivered pursuant to this Agreement
shall be in the English language or accompanied by a certified English
translation.
8.10 Judgment Currency.
(a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in U.S. Dollars into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the party in question could purchase U.S. Dollars with such
other currency in New York City at 11:00 a.m. New York City time on the Business
Day preceding that on which final judgment is made.
(b) The obligation of either party in respect of any sum due from it
to the other shall, notwithstanding any judgment in a currency other than U.S.
Dollars, be discharged only to the extent that on the Business Day following
receipt by the recipient of any sum adjudged to be so due in such other currency
may in accordance with normal banking procedures purchase U.S. Dollars with such
other currency. If the U.S. Dollars so purchased are less than the sum
originally due to the recipient in U.S. Dollars, the parties agree, as a
separate obligation and
Receivables Purchase Agreement
-45-
notwithstanding any such payment or judgment, to indemnify the recipient against
such loss, and if the U.S. Dollars so purchased exceed the sum originally due to
the recipient in U.S. Dollars, the recipient agrees to remit to the other such
excess.
8.11 Counterparts. This Agreement may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Agreement.
8.12 Survival of Representations and Warranties. Notwithstanding
anything to the contrary herein, all representations and warranties provided by
Petrobras Finance and Petrobras in Article III hereof and the obligations of
Petrobras Finance under Sections 8.01, 8.13 and 8.14 hereof, shall survive, in
the form given on the date of this Agreement, the termination of this Agreement.
8.13 Certain Indemnities.
(a) Without prejudice to any other rights which the Trustee may have
under this Agreement or under applicable law, Petrobras Finance covenants and
agrees to indemnify and hold harmless the Trustee on behalf of the Senior
Certificate Holders and the Enhancers on an after-tax basis from and against any
and all damages, losses, claims, liabilities, fees and expenses (including
reasonable and documented fees and disbursements for external counsel) awarded
against or incurred by it arising out of or as a result of (i) any Lien on, or
any set-off, defense or counterclaim asserted by any Person against, the
Purchased Receivables created by, or resulting from claims against, Petrobras
Finance, Petrobras or any Affiliate thereof, (ii) any representation or warranty
made by Petrobras Finance, Petrobras or any Affiliate thereof in this Agreement,
any other Transaction Document or in any writing furnished by Petrobras Finance,
Petrobras or any Affiliate thereof in connection with or pursuant to this
Agreement that proves to have been false or incorrect in any material respect on
the date as of which such representation or warranty is made or deemed made,
(iii) any claim (whether against the Trustee, the Trust, any Senior Certificate
Holder or any Enhancer) resulting from the Sale to the Trustee of the Purchased
Receivables or from the execution, delivery or performance by the Trustee of the
Transaction Documents, or (iv) the enforcement against Petrobras Finance,
Petrobras, or any Affiliate thereof of any of its respective obligations under
any Transaction Document. For the avoidance of doubt, Indemnified Costs shall
not include any claims for principal, interest, Additional Amounts or premiums
in respect of the Trust Certificates or Guaranty Reimbursements related thereto.
(b) In consideration of the Tax Indemnification Fee, Petrobras Finance
covenants and agrees to indemnify and hold harmless the Trustee against any
Indemnified Taxes. All payments to be made or deemed made by Petrobras Finance
under this Agreement or any other Transaction Document to which Petrobras
Finance is a party or any other document contemplated therein or required to be
executed thereby shall be made without withholding or deduction for or on
account of any Taxes unless Petrobras Finance shall pay such additional amounts
as may be necessary in order that the net amounts received by the Trustee after
such withholding or deduction shall equal the amount that would have been
received if no withholding or deduction had been made.
Receivables Purchase Agreement
-46-
(c) Petrobras Finance covenants and agrees to indemnify and hold
harmless the Trustee against any Indemnified Costs.
8.14 Payments. Any payment to be made to the Trustee by Petrobras
Finance hereunder shall be made in U.S. Dollars, in immediately available funds,
without deduction, set-off, counterclaims or condition whatsoever including,
without limitation, by reason of any Taxes, to the Purchased Receivables
Account. Petrobras Finance has instructed Petrobras to pay any Termination
Payment (as defined in the Prepayment Agreement) payable to Petrobras Finance
under the Prepayment Agreement into the Purchased Receivables Account.
8.15 Liability of Trustee.
(a) Subject to Section 8.15(b), the parties hereto each acknowledges
that the Trustee is acting solely in its capacity as trustee of the Trust and
not in its individual capacity and that the rights of the parties to claim
against the Trustee in respect of any obligations or liabilities of the Trustee
owed to any of the parties hereto hereunder (including to pay fees and expenses)
are limited solely to the assets of the Trust Property from time to time and
each of the parties hereto shall have no rights of recourse against the Trustee
in its personal capacity and once the assets in the Trust Property are exhausted
any remaining obligations or liabilities of the Trustee owed to any of the
parties hereunder shall be extinguished.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Trustee shall not be relieved from any obligation, claim or
liability to the extent of and arising from the Trustee's fraud, willful
misconduct, negligence or breach of trust.
8.16 No Petition. Petrobras shall not be entitled to take any step for
the winding-up of, or initiate proceedings against, the Trustee under any
applicable bankruptcy, reorganization or insolvency laws or laws with similar
effect.
8.17 Limited Recourse. Petrobras hereby agrees that its only recourse
for the payment of any obligations owing to it by Petrobras Finance hereunder or
in connection with the Transaction Documents and the transactions contemplated
hereby and thereby, including but not limited to payments in respect of any
liability arising out of breaches of representations, warranties and covenants
given by Petrobras Finance, shall in all events be limited to Receivables and
any other monies and assets which are available to Petrobras Finance. Petrobras
further agrees that it shall not otherwise take or pursue any judicial
proceedings or other actions, or join with any Person in taking or pursuing any
such proceedings or actions, against Petrobras Finance or its assets, or
exercise any other right or remedy that it might otherwise have against
Petrobras Finance or its assets, other than in respect of such assets, for
payment of any obligations referred to in the immediately preceding sentence and
that Petrobras Finance shall not otherwise be liable for such obligations and
any claim therefor shall be extinguished.
[SIGNATURES ON NEXT PAGE]
Receivables Purchase Agreement
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized on the day
and year first above written.
PETROBRAS FINANCE LTD.
By:_____________________________________________
Name:
Title:
PETROLEO BRASILEIRO S.A - PETROBRAS
By:_____________________________________________
Name:
Title:
By:_____________________________________________
Name:
Title:
U.S. BANK, NATIONAL ASSOCIATION,
CAYMAN ISLANDS BRANCH,
as Trustee for PF EXPORT RECEIVABLES
MASTER TRUST
By:_____________________________________________
Name:
Title:
Receivables Purchase Agreement
-2-
WITNESSES
1. By:_____________________________________________
Name:
2. By:_____________________________________________
Name:
Receivables Purchase Agreement
Annex A
to the Receivables Purchase Agreement
SCHEDULE OF OFFTAKER RECEIVABLES
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Offtaker Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Payment Amortization on Fixed Interest & Quarterly Delivery
Date All Series Scheduled Fees Interest on Floating-Rate Series Requirement
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-02 - + 6,654,375 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-05 19,940,000 + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-05 20,280,000 + 8,303,728 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-05 20,590,000 + 8,050,107 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-05 20,930,000 + 7,792,676 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-06 21,270,000 + 7,531,026 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-06 21,620,000 + 7,265,153 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-06 21,960,000 + 6,994,870 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-06 22,320,000 + 6,720,363 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-07 22,670,000 + 6,441,250 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-07 23,040,000 + 6,157,892 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-07 23,380,000 + 5,869,901 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Payment
Date Offtaker Receivables
------------------------------------------
------------------------------------------
1-Mar-02 = Offtaker Receivables
------------------------------------------
1-Jun-02 = Offtaker Receivables
------------------------------------------
1-Sep-02 = Offtaker Receivables
------------------------------------------
1-Dec-02 = Offtaker Receivables
------------------------------------------
1-Mar-03 = Offtaker Receivables
------------------------------------------
1-Jun-03 = Offtaker Receivables
------------------------------------------
1-Sep-03 = Offtaker Receivables
------------------------------------------
1-Dec-03 = Offtaker Receivables
------------------------------------------
1-Mar-04 = Offtaker Receivables
------------------------------------------
1-Jun-04 = Offtaker Receivables
------------------------------------------
1-Sep-04 = Offtaker Receivables
------------------------------------------
1-Dec-04 = Offtaker Receivables
------------------------------------------
1-Mar-05 = Offtaker Receivables
------------------------------------------
1-Jun-05 = Offtaker Receivables
------------------------------------------
1-Sep-05 = Offtaker Receivables
------------------------------------------
1-Dec-05 = Offtaker Receivables
------------------------------------------
1-Mar-06 = Offtaker Receivables
------------------------------------------
1-Jun-06 = Offtaker Receivables
------------------------------------------
1-Sep-06 = Offtaker Receivables
------------------------------------------
1-Dec-06 = Offtaker Receivables
------------------------------------------
1-Mar-07 = Offtaker Receivables
------------------------------------------
1-Jun-07 = Offtaker Receivables
------------------------------------------
1-Sep-07 = Offtaker Receivables
------------------------------------------
Annex A to Receivables Purchase Agreement
A-2
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Offtaker Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Payment Amortization on Fixed Interest & Quarterly Delivery
Date All Series Scheduled Fees Interest on Floating-Rate Series Requirement
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-07 23,770,000 + 5,577,523 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-08 24,160,000 + 5,280,294 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-08 24,540,000 + 4,978,211 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep 08 24,960,000 + 4,671,304 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-08 25,350,000 + 4,359,302 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-09 25,750,000 + 4,042,446 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-09 26,160,000 + 3,720,547 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-09 26,580,000 + 3,393,412 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-09 27,010,000 + 3,061,014 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-10 27,460,000 + 2,723,325 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-10 27,900,000 + 2,379,963 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-10 28,340,000 + 2,031,120 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-10 28,820,000 + 1,676,795 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-11 21,680,000 + 1,316,713 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-11 22,030,000 + 1,051,879 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-11 22,390,000 + 782,651 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-11 22,770,000 + 509,166 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-12 9,720,000 + 231,041 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-12 9,890,000 + 204,797 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-12 10,040,000 + 178,094 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-12 10,200,000 + 150,986 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-13 10,370,000 + 123,446 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-13 10,540,000 + 95,447 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-13 10,700,000 + 66,989 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-13 10,870,000 + 38,099 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *1.1
------------------------------------------------------------------------------------------------------------------------------------
================= ==================
Totals $ 750,000,000 $ 233,063,403
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
Payment
Date Offtaker Receivables
------------------------------------------
1-Dec-07 = Offtaker Receivables
------------------------------------------
1-Mar-08 = Offtaker Receivables
------------------------------------------
1-Jun-08 = Offtaker Receivables
------------------------------------------
1-Sep 08 = Offtaker Receivables
------------------------------------------
1-Dec-08 = Offtaker Receivables
------------------------------------------
1-Mar-09 = Offtaker Receivables
------------------------------------------
1-Jun-09 = Offtaker Receivables
------------------------------------------
1-Sep-09 = Offtaker Receivables
------------------------------------------
1-Dec-09 = Offtaker Receivables
------------------------------------------
1-Mar-10 = Offtaker Receivables
------------------------------------------
1-Jun-10 = Offtaker Receivables
------------------------------------------
1-Sep-10 = Offtaker Receivables
------------------------------------------
1-Dec-10 = Offtaker Receivables
------------------------------------------
1-Mar-11 = Offtaker Receivables
------------------------------------------
1-Jun-11 = Offtaker Receivables
------------------------------------------
1-Sep-11 = Offtaker Receivables
------------------------------------------
1-Dec-11 = Offtaker Receivables
------------------------------------------
1-Mar-12 = Offtaker Receivables
------------------------------------------
1-Jun-12 = Offtaker Receivables
------------------------------------------
1-Sep-12 = Offtaker Receivables
------------------------------------------
1-Dec-12 = Offtaker Receivables
------------------------------------------
1-Mar-13 = Offtaker Receivables
------------------------------------------
1-Jun-13 = Offtaker Receivables
------------------------------------------
1-Sep-13 = Offtaker Receivables
------------------------------------------
1-Dec-13 = Offtaker Receivables
------------------------------------------
------------------------------------------
Amex A to Receivables Purchase Agreement
Annex B
to the Receivables Purchase Agreement
SCHEDULE OF ADDITIONAL PURCHASED RECEIVABLES
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Additional Purchased Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Payment Amortization on Fixed Interest & Quarterly Delivery
Date All Series Scheduled Fees Interest on Floating-Rate Series Requirement
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-02 - + 6,654,375 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-02 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-03 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-04 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-05 - + 8,553,125 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-05 20,280,000 + 8,303,728 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1 +
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Payment Increase Tax Additional
Date Reserve Indemnity Purchased
Account Fee Receivables
------------------------------------------------------------------------
------------------------------------------------------------------------
Additional Purchased
1-Mar-02 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Jun-02 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Sep-02 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Dec-02 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Mar-03 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Jun-03 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Sep-03 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Dec-03 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Mar-04 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Jun-04 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Sep-04 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Dec-04 19,940,000 - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Mar-05 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Additional Purchased
1-Jun-05 - - 4,166.67 = Receivables
-------------------------------------------------------------------------
Annex B to Receivables Purchase Agreement
B-2
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Additional Purchased Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Amortization
Payment on All Fixed Interest & Interest on Floating-Rate Quarterly Delivery
Date Series Scheduled Fees Series Requirement
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-05 20,590,000 + 8,050,107 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Dec-05 20,930,000 + 7,792,676 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Mar-06 21,270,000 + 7,531,026 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Jun-06 21,620,000 + 7,265,153 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Sep-06 21,960,000 + 6,994,870 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Dec-06 22,320,000 + 6,720,363 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Mar-07 22,670,000 + 6,441,250 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Jun-07 23,040,000 + 6,157,892 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Sep-07 23,380,000 + 5,869,901 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Dec-07 23,770,000 + 5,577,523 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Mar-08 24,160,000 + 5,280,294 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Jun-08 24,540,000 + 4,978,211 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Sep-08 24,960,000 + 4,671,304 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Dec-08 25,350,000 + 4,359,302 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Mar-09 25,750,000 + 4,042,446 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Jun-09 26,160,000 + 3,720,547 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
1-Sep-09 26,580,000 + 3,393,412 + Interest on Floating-Rate Series = Quarterly Delivery Requirement *0.1
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Increase Tax Additional
Payment Reverse Indemnity Purchased
Date Account Fee Receivables
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Additional Purchased
1-Sep-05 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Additional Purchased
1-Dec-05 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Additional Purchased
1-Mar-06 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Additional Purchased
1-Jun-06 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Sep-06 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Dec-06 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Mar-07 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Jun-07 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Sep-07 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Dec-07 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Mar-08 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Jun-08 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Sep-08 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Dec-08 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
- Additional Purchased
1-Mar-09 + - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Additional Purchased
1-Jun-09 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Additional Purchased
1-Sep-09 + - - 4,166.67 = Receivables
-----------------------------------------------------------------------------
Annex B to Receivables Purchase Agreement
B-3
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Additional Purchase Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Amortization Increase
Payment on All Fixed Interest & Interest on Floating-Rate Quarterly Delivery Reserve
Date Series Scheduled Fees Series Requirement Account
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-09 27,010,000 + 3,061,014 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-10 27,460,000 + 2,723,325 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-10 27,900,000 + 2,379,963 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-10 28,340,000 + 2,031,120 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-10 28,820,000 + 1,676,795 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-11 21,680,000 + 1,316,713 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-11 22,030,000 + 1,051,879 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-11 22,390,000 + 782,651 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-11 22,770,000 + 509,166 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-12 9,720,000 + 231,041 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-12 9,890,000 + 204,797 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-12 10,040,000 + 178,094 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-12 10,200,000 + 150,986 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Mar-13 10,370,000 + 123,446 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Jun-13 10,540,000 + 95,447 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Sep-13 10,700,000 + 66,989 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
------------------------------------------------------------------------------------------------------------------------------------
1-Dec-13 10,870,000 + 38,099 + Interest on Floating-Rate Series = Quarterly Delivery Requirement * 0.1 + - -
========== ======
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
Tax Additional
Payment Indemnity Purchased
Date Fee Receivables
----------------------------------------------
----------------------------------------------
Additional Purchased
1-Dec-09 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Mar-10 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Jun-10 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Sep-10 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Dec-10 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Mar-11 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Jun-11 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Sep-11 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Dec-11 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Mar-12 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Jun-12 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Sep-12 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Dec-12 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Mar-13 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Jun-13 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Sep-13 4,166.67 = Receivables
----------------------------------------------
Additional Purchased
1-Dec-13 4,166.67 = Receivables
----------------------------------------------
Annex B to Receivables Purchase Agreement
[Enlarge/Download Table]
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Additional Purchase Receivables
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Principal
Amortization Increase
Payment on All Fixed Interest & Interest on Floating-Rate Quarterly Delivery Reserve
Date Series Scheduled Fees Series Requirement Account
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
$750,000,0
Totals 0 $233,063,403
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Tax Additional
Indemnity Purchased
Fee Receivables
-------------------------------------
-------------------------------------
--------------------------------------
Annex B to Receivables Purchase Agreement
Annex C
to the Receivables Purchase Agreement
SCHEDULE OF JUNIOR CERTIFICATE PAYMENTS
----------------------------------------------
Scheduled Junior Certificate Payments
----------------------------------------------
----------------------------------------------
Payment Date Notional Payments on Junior
Trust Certificates
----------------------------------------------
----------------------------------------------
1-Mar-02 -
----------------------------------------------
1-Jun-02 -
----------------------------------------------
1-Sep-02 -
----------------------------------------------
1-Dec-02 -
----------------------------------------------
1-Mar-03 -
----------------------------------------------
1-Jun-03 -
----------------------------------------------
1-Sep-03 -
----------------------------------------------
1-Dec-03 -
----------------------------------------------
1-Mar-04 -
----------------------------------------------
1-Jun-04 -
----------------------------------------------
1-Sep-04 -
----------------------------------------------
1-Dec-04 -
----------------------------------------------
1-Mar-05 3,988,000
----------------------------------------------
1-Jun-05 4,056,000
----------------------------------------------
1-Sep-05 4,118,000
----------------------------------------------
1-Dec-05 4,186,000
----------------------------------------------
1-Mar-06 4,254,000
----------------------------------------------
1-Jun-06 4,324,000
----------------------------------------------
1-Sep-06 4,392,000
----------------------------------------------
1-Dec-06 4,464,000
----------------------------------------------
1-Mar-07 4,534,000
----------------------------------------------
1-Jun-07 4,608,000
----------------------------------------------
1-Sep-07 4,676,000
----------------------------------------------
1-Dec-07 4,754,000
----------------------------------------------
1-Mar-08 4,832,000
----------------------------------------------
1-Jun-08 4,908,000
----------------------------------------------
1-Sep-08 4,992,000
----------------------------------------------
1-Dec-08 5,070,000
----------------------------------------------
1-Mar-09 5,150,000
----------------------------------------------
1-Jun-09 5,232,000
----------------------------------------------
1-Sep-09 5,316,000
----------------------------------------------
1-Dec-09 5,402,000
----------------------------------------------
1-Mar-10 5,492,000
----------------------------------------------
1-Jun-10 5,580,000
----------------------------------------------
Annex C to Receivables Purchase Agreement
C-2
----------------------------------------------
Scheduled Junior Certificate Payments
----------------------------------------------
----------------------------------------------
Payment Date Notional Payments on Junior
Trust Certificates
----------------------------------------------
----------------------------------------------
1-Sep-10 5,668,000
----------------------------------------------
1-Dec-10 5,764,000
----------------------------------------------
1-Mar-11 4,336,000
----------------------------------------------
1-Jun-11 4,406,000
----------------------------------------------
1-Sep-11 4,478,000
----------------------------------------------
1-Dec-11 4,554,000
----------------------------------------------
1-Mar-12 1,944,000
----------------------------------------------
1-Jun-12 1,978,000
----------------------------------------------
1-Sep-12 2,008,000
----------------------------------------------
1-Dec-12 2,040,000
----------------------------------------------
1-Mar-13 2,074,000
----------------------------------------------
1-Jun-13 2,108,000
----------------------------------------------
1-Sep-13 2,140,000
----------------------------------------------
1-Dec-13 2,174,000
----------------------------------------------
Total $ 150,000,000
----------------------------------------------
Annex C to Receivables Purchase Agreement
Annex D
to the Receivables Purchase Agreement
DEFINITIONS OF BUNKER FUEL AND FUEL OIL
"Bunker Fuel" means marine fuels that are burned in the boilers or
engines of ships. Bunker Fuel is generally of two types:
1. Intermediate Fuel Oil (IFO) or Marine Fuel (MF) - IFO or MF is a
blended oil with a viscosity between heavy fuel oil and cutter stock (middle
distillates) that is formulated to achieve a specific viscosity. IFOs are used
in ships' main engines and occasionally in auxiliary engines. The two most
common types of IFO are 380 cSt and 180 cSt.
2. Marine Diesel Fuel (MDO) or Marine Gas Oil (MGO) - MDO or MGO is a
light distillate fuel frequently used in auxiliary engines and in the main
engines of military vessels.
For the purpose of all Transaction Documents, an "export" of Bunker
Fuel shall include any sale of Bunker Fuel in Brazil to ships owned by
non-Brazilian companies.
"Fuel Oil" means fuel oil that originates from residual fractions of
distillation units at the refinery and from other processes such as
deasphalting.
Annex D to Receivables Purchase Agreement
Exhibit A-1
to the Receivables Purchase Agreement
FORM OF NOTICE AND CONSENT TO SPECIFIED
BUYERS OF ELIGIBLE PRODUCTS SOLD BY
PETROBRAS FINANCE LTD. AND AFFILIATES IN THE U.S.
[Date]
[Specified Buyer]
[Address]
Attention: [_____]
Ladies and Gentlemen:
Petrobras America, Inc. (together with any of its successors and
assigns/1/, "PAI"), an affiliate of Petroleo Brasileiro S.A. - PETROBRAS
("Petrobras"), currently sells fuel oil and, in certain cases, bunker fuel, to
customers in the United States, including you. In connection with certain
financing transactions, Petrobras expects to enter into a Master Export Contract
with Petrobras Finance Ltd., an indirect wholly owned subsidiary of Petrobras,
pursuant to which Petrobras will agree to export and deliver to Petrobras
Finance Ltd., for resale to end customers within and outside of the United
States, fuel oil and/or bunker fuel (collectively, the "Eligible Products"). In
the future, Petrobras, Petrobras Finance Ltd. or any of our respective
affiliates (other than PAI, with whom we understand you have made separate
arrangements regarding these matters), may from time to time sell directly to
you and you may from time to time purchase Eligible Products. Such sales of
Eligible Products will give rise to amounts payable by you in favor of
Petrobras, Petrobras Finance Ltd. or such other affiliates (such amount,
excluding amounts payable to PAI in respect of sales of Eligible Products made
to you directly by PAI, the "Receivables").
In addition, Petrobras Finance Ltd. expects to enter into a Receivables
Purchase Agreement with U.S. Bank, National Association, Cayman Islands Branch
(the "Trustee") on behalf of PF Export Receivables Master Trust (the "Trust")
pursuant to which Petrobras Finance Ltd. will sell to the Trustee on behalf of
the Trust its right, title and interest in and to certain designated receivables
generated from the sale of Eligible Products (including, in certain
circumstances, the Receivables). Petrobras Finance Ltd. and the Trustee will
agree that, from and after the date indicated in a separate written
communication sent to you by the Trustee (such date, the "Effective Date"), all
Receivables should be paid by you directly to the Trustee as trustee for the
benefit of the Trust at the account specified in such notice (the "Collection
Account").
_________________________
/1/ To be inserted in all Notice and Consents executed after the Closing Date.
Exhibit A-1 to Receivables Purchase Agreement
A-1-2
Accordingly, in consideration of your ongoing sales relationship with
our affiliates and us, you are hereby authorized and directed from and after the
Effective Date to pay or cause to be paid all amounts in respect of Receivables
otherwise due to Petrobras Finance Ltd. or any of our affiliates, including
Petrobras, (but other than PAI), to the Collection Account or such other account
or accounts at such other bank or banks as are designated in writing to you from
time to time by the Trustee, in each case in U.S. Dollars (the "Payment
Instructions"). The Payment Instructions may not be changed except pursuant to
an express written instruction to you executed by the Trustee.
By your signature below, you agree to make such payments in accordance
with the Payment Instructions. By executing and delivering this notice and
consent, you further confirm to the Trustee that you have not received any prior
notice of any other sale, pledge or other assignment of, or any lien or
encumbrance upon the Receivables and have not previously agreed to make payments
in respect of the Receivables to any party except pursuant to arrangements that
have been revoked or released by the parties hereto. It is understood and agreed
that this notice and consent shall supersede all other payment instructions from
Petrobras, Petrobras Finance Ltd. or any of our respective affiliates (other
than PAI, who, we understand, has provided separate payment instructions), to
you with respect to the Receivables.
Please note that, except as specified herein, neither this notice and
consent nor the sale of the Receivables to the Trustee on behalf of the Trust
will in any way alter your business relationship with us. Any seller of Eligible
Products to you will be responsible for the performance of its obligations to
you and neither the Trustee nor the beneficiaries of the Trust shall have any
liability in respect of any such obligation. In particular, payments with
respect to products other than Eligible Products will continue to be made in
accordance with our customary practice. This notice and consent shall be binding
upon you and your successors and assigns and is for the benefit of the Trustee
for the benefit of the beneficiaries of the Trust. Except as expressly provided
herein with respect to payments, nothing in this notice and consent shall be
construed as creating or implying any obligation (other than any that may exist
independently of this notice and consent) on your part as purchaser of Eligible
Products from Petrobras Finance Ltd. or its affiliates.
This notice and consent shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles thereof relating to conflicts of law except Section 5-1401 of the New
York General Obligations Law.
Exhibit A-1 to Receivables Purchase Agreement
A-1-3
Please acknowledge your receipt of this notice and consent and your
agreement to comply with the terms specified above where indicated below.
Very truly yours,
Petroleo Brasileiro S.A. - PETROBRAS
By:_______________________________________
Name:
Title:
Petrobras Finance Ltd.
By:_______________________________________
Name:
Title:
AGREED AND ACKNOWLEDGED:
[Specified Buyer]
By __________________________
Name:
Title:
U.S. Bank, National Association, Cayman Islands Branch,
on behalf of PF Export Receivables Master Trust
By __________________________
Name:
Title:
Exhibit A-1 to Receivables Purchase Agreement
Exhibit A-2
to the Receivables Purchase Agreement
FORM OF NOTICE AND CONSENT TO SPECIFIED
BUYERS OF ELIGIBLE PRODUCTS SOLD BY
PETROBRAS FINANCE LTD. AND AFFILIATES OUTSIDE THE U.S.
[Date]
[Specified Buyer]
[Address]
Attention: [_____]
Ladies and Gentlemen:
In connection with certain financing transactions, Petroleo Brasileiro
S.A. - PETROBRAS (together with any of its successors and assigns/2/,
"Petrobras") expects to enter into a Master Export Contract with Petrobras
Finance Ltd., an indirect wholly owned subsidiary of Petrobras, pursuant to
which Petrobras will agree to export and deliver to Petrobras Finance, for
resale to end customers, fuel oil and/or bunker fuel (collectively, the
"Eligible Products"). Accordingly, in the future, Petrobras Finance Ltd. or any
of its affiliates, including Petrobras, may from time to time sell to you and
you may from time to time purchase Eligible Products. Such sales of Eligible
Products will give rise to amounts payable by you in favor of Petrobras Finance
Ltd. or such affiliates (such amounts, the "Receivables").
In addition, Petrobras Finance Ltd. expects to enter into a Receivables
Purchase Agreement with U.S. Bank, National Association, Cayman Islands Branch
(the "Trustee") on behalf of PF Export Receivables Master Trust (the "Trust")
pursuant to which Petrobras Finance Ltd. will sell to the Trustee on behalf of
the Trust its right, title and interest in and to certain designated receivables
generated from the sale of Eligible Products (including, in certain
circumstances, the Receivables). Petrobras Finance Ltd. and the Trustee will
agree that, from and after the date indicated in a separate written
communication sent to you by the Trustee (such date, the "Effective Date"), all
Receivables should be paid by you directly to the Trustee as trustee for the
benefit of the Trust at the account specified in such notice (the "Collection
Account").
Accordingly, in consideration of our ongoing sales relationship, you
are hereby authorized and directed from and after the Effective Date to pay or
cause to be paid all amounts in respect of Receivables otherwise due to
Petrobras Finance Ltd. or any of our affiliates, including Petrobras, to the
Collection Account or such other account or accounts at such other
________________________
/2/ To be inserted in all Notice and Consents executed after the Closing Date.
Exhibit A-2 to Receivables Purchase Agreement
A-2-2
bank or banks as are designated in writing to you from time to time by the
Trustee, in each case in U.S. Dollars (the "Payment Instructions"). The Payment
Instructions may not be changed except pursuant to an express written
instruction to you executed by the Trustee.
By your signature below, you agree to make such payments in accordance with
the Payment Instructions. By executing and delivering this notice and consent,
you further confirm to the Trustee that you have not received any prior notice
of any other sale, pledge or other assignment of, or any lien or encumbrance
upon the Receivables and have not previously agreed to make payments in respect
of the Receivables to any party except pursuant to arrangements that have been
revoked or released by the parties hereto. It is understood and agreed that this
notice and consent shall supersede all other payment instructions from Petrobras
Finance Ltd. or any of its affiliates, including Petrobras, to you with respect
to the Receivables.
Please note that, except as specified herein, neither this notice and
consent nor the sale of the Receivables to the Trustee on behalf of the Trust
will in any way alter your business relationship with us. Any seller of Eligible
Products to you will be responsible for the performance of its obligations to
you and neither the Trustee nor the beneficiaries of the Trust shall have any
liability in respect of any such obligations. In particular, payments with
respect to products other than Eligible Products will continue to be made in
accordance with our customary practice. This notice and consent shall be binding
upon you and your successors and assigns and is for the benefit of the Trustee
for the benefit of the beneficiaries of the Trust. Except as expressly provided
herein with respect to payments, nothing in this notice and consent shall be
construed as creating or implying any obligation (other than any that may exist
independently of this notice and consent) on your part as purchaser of Eligible
Products from Petrobras Finance Ltd. or its affiliates.
This notice and consent shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
thereof relating to conflicts of law except Section 5-1401 of the New York
General Obligations Law.
Exhibit A-2 to Receivables Purchase Agreement
A-2-3
Please acknowledge your receipt of this notice and consent and your
agreement to comply with the terms specified above where indicated below.
Very truly yours,
Petroleo Brasileiro S.A. - PETROBRAS
By:_______________________________________
Name:
Title:
Petrobras Finance Ltd.
By _______________________________________
Name:
Title:
AGREED AND ACKNOWLEDGED:
[Specified Buyer]
By __________________________
Name:
Title:
U.S. Bank, Cayman Islands Branch,
on behalf of PF Export Receivables Master Trust
By __________________________
Name:
Title:
Exhibit A-2 to Receivables Purchase Agreement
Exhibit A-3
to the Receivables Purchase Agreement
FORM OF NOTICE AND CONSENT TO SPECIFIED
BUYERS OF ELIGIBLE PRODUCTS SOLD BY
PETROBRAS AMERICA, INC. IN THE U.S.
[Date]
[Specified Buyer]
[Address]
Attention: [_____]
Ladies and Gentlemen:
Petrobras America, Inc. (together with any of its successors and assigns/3/
the "U.S. Seller") may from time to time sell to you, and you may from time to
time purchase, fuel oil and/or bunker fuel (collectively, "Eligible Products").
Sales of these Eligible Products will give rise to amounts payable by you in
favor of us (such amounts, the "Receivables").
In connection with certain financing transactions, we expect to enter into
a Product Sale Agreement with Petrobras Finance Ltd., an indirect wholly owned
subsidiary of Petroleo Brasileiro S.A.-PETROBRAS ("Petrobras"), pursuant to
which Petrobras Finance Ltd. may sell to us, for resale to end customers,
certain Eligible Products. In addition, Petrobras Finance Ltd. expects to enter
into a Receivables Purchase Agreement with U.S. Bank, National Association,
Cayman Islands Branch (the "Trustee") on behalf of PF Export Receivables Master
Trust (the "Trust") pursuant to which Petrobras Finance Ltd. will sell to the
Trustee on behalf of the Trust its right, title and interest in and to certain
designated receivables generated from the sale of Eligible Products to us. In
the Product Sale Agreement we and Petrobras Finance Ltd. will also agree that,
from and after the date indicated in a separate written communication sent to
you by the Trustee (such date, the "Effective Date"), the Receivables should be
paid by you directly to the account specified by the Trustee in such notice (the
"U.S. Seller Account").
Accordingly, in consideration of our ongoing sales relationship, you are
hereby authorized and directed from and after the Effective Date to pay or cause
to be paid all amounts in respect of Receivables otherwise due to us to the U.S.
Seller Account or such other account or accounts at such other bank or banks as
are designated in writing to you from time to time by the Trustee, in each case
in U.S. Dollars (the "Payment Instructions"). The Payment Instructions may not
be changed except pursuant to an express written instruction to you executed by
the Trustee.
----------------------
/3/ To be inserted in all Notice and Consents executed after the Closing Date.
Exhibit A-3 to Receivables Purchase Agreement
A-3-2
By your signature below, you agree to make such payments in accordance with
the Payment Instructions. By executing and delivering this notice and consent,
you further confirm to the Trustee that you have not received any prior notice
of any other sale, pledge or other assignment of, or any lien or encumbrance
upon the Receivables and have not previously agreed to make payments in respect
of the Receivables to any party except pursuant to arrangements that have been
revoked or released by the parties hereto. It is understood and agreed that this
notice and consent shall supersede all other payment instructions from us to you
with respect to the Receivables.
Please note that, except as specified herein, this notice and consent will
not in any way alter your business relationship with us. We will remain
responsible for the performance of our obligations to you and neither the
Trustee nor the beneficiaries of the Trust shall have any liability in respect
of any such obligation. In particular, payments with respect to products other
than Eligible Products will continue to be made in accordance with our customary
practice. This notice and consent shall be binding upon you and your successors
and assigns and is for the benefit of the Trustee for the benefit of the
beneficiaries of the Trust. Except as expressly provided herein with respect to
payments, nothing in this notice and consent shall be construed as creating or
implying any obligation (other than any that may exist independently of this
notice and consent) on your part as purchaser of Eligible Products from us.
We understand that you will also have been sent a similar letter providing
separate payment instructions with respect to any sales of Eligible Products
that may be made to you directly by Petrobras, Petrobras Finance Ltd. or any of
their respective affiliates (other than us).
This notice and consent shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
thereof relating to conflicts of law except Section 5-1401 of the New York
General Obligations Law.
Exhibit A-3 to Receivables Purchase Agreement
A-3-3
Please acknowledge your receipt of this notice and your agreement to comply
with the terms specified above where indicated below.
Very truly yours,
Petrobras America, Inc.
By:_______________________________________
Name:
Title:
AGREED AND ACKNOWLEDGED:
[Specified Buyer]
By __________________________
Name:
Title:
U.S. Bank, National Association, Cayman Islands Branch,
on behalf of PF Export Receivables Master Trust
By __________________________
Name:
Title:
Exhibit A-3 to Receivables Purchase Agreement
Exhibit B
to the Receivables Purchase Agreement
BUYER MODIFICATION NOTICE
[Date]
U.S. Bank, National Association, Cayman Islands Branch
Ladies and Gentlemen:
Reference is made to that certain Receivables Purchase Agreement dated as
of December [__], 2001 (the "Receivables Purchase Agreement"), between and among
Petrobras Finance Ltd. ("Petrobras Finance") and U.S. Bank, National
Association, Cayman Islands Branch in its capacity as trustee of the PF Export
Receivables Master Trust (the "Trustee") and Petroleo Brasileiro S.A. -
PETROBRAS ("Petrobras"). Capitalized terms used herein not otherwise defined
shall have the meanings set forth in the Receivables Purchase Agreement.
The undersigned, [Authorized Officer], as [ ] of Petrobras Finance, does
hereby notify the Trustee, pursuant to Section 6.01 of the Receivables Purchase
Agreement, of the following addition or other modification to the list of
customers that are Specified Buyers:
1. As of the Buyer Modification Date, [Buyer] is hereby added as a
Specified Buyer.
2. The date on which the foregoing modification shall take effect (the
"Buyer Modification Date") is [ ].
3. Attached hereto is [(i) a fully-executed copy of the Notice and
Consent sent to, and executed by, [Specified Buyer]/4/.
Very truly yours,
Petrobras Finance Ltd.
By:_______________________________________
Name:
Title:
-------------------
/4/ To be used to add a specified Buyer.
Exhibit B to the Receivables Purchase Agreement
6
Exhibit C
to the Receivables Purchase Agreement
INITIAL SPECIFIED BUYERS
Notice and Consent Agreements from Specified Buyers of Petrobras America, Inc.
1. Fuel and Marine Marketing LLC
2. Glencore Ltd.
3. Koch Petroleum Group LP
4. Novarco Ltd.
5. Tosco
6. Trafigua A.G.
7. Veka Oil Supply & Trading, Inc.
8. Vitol S.A., Inc.
Notice and Consent Agreements from Specified Buyers of Petrobras Finance Ltd.
1. CSAV - Compania Sudamericana de Vapores
2. Fuel and Marine Marketing LLC
3. Koch Petroleum Group LP
4. P&O Nedlloyd B.V.
5. Tosco Corporation
6. Tragigura A.G.
7. Tramp Oil Ltd.
8. Veka Oil Supply and Trading, Inc.
9. Vitol Asia Pte Ltd.
10. Vito S.A., Inc.
11. Westport Petroleum Inc.
Exhibit C to the Receivables Purchase Agreement
Exhibit D
to the Receivables Purchase Agreement
FORM OF BUYER INSTRUCTION
This is to notify you that we have entered into a Receivables Purchase
Agreement with U.S. Bank, National Association, Cayman Islands Branch, as
trustee (the "Trustee") of the PF Export Receivables Master Trust pursuant to
which all amounts due and owing by you to us [hereunder] [under the attached
invoice] has been sold, transferred and assigned absolutely (and not by way of
charge) to the Trustee. Accordingly, please pay all amounts due hereunder to the
Trustee at [ACCOUNT DETAILS] or at such other location as may be notified to you
in writing by the Trustee. Please note that we will still be responsible for the
performance of our obligations to you and the Trustee will not have any
obligations with respect to these obligations.
[DATED THIS DAY OF ]
FOR AND ON BEHALF OF PETROBRAS FINANCE LTD.
Exhibit D to the Receivables Purchase Agreement
Exhibit E
to the Receivables Purchase Agreement
GUARANTY
This GUARANTY (this "Guaranty"), dated as of [_______], made by Petroleo
Brasileiro S.A. - PETROBRAS, a mixed capital company organized and existing
under the laws of Brazil (the "Guarantor") in favor of Petrobras Finance Ltd.,
an exempted company incorporated with limited liability organized and existing
under the laws of the Cayman Islands (together with its successors and assigns,
"Petrobras Finance").
W I T N E S S E T H:
For good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Guarantor grants this guaranty pursuant to Section 4.01(w) of
the Receivables Purchase Agreement dated December 21, 2001 between Petrobras,
Petrobras Finance and U.S. Bank, National Association, Cayman Islands Branch
(the "Trustee").
The Guarantor hereby unconditionally guarantees to Petrobras Finance and
the Trustee the prompt payment (whether at stated maturity, by acceleration or
otherwise) of amounts payable to it by all Affiliates of the Guarantor
(including the U.S. Seller) in respect of all Receivables owed by such
Affiliates (hereinafter the "Guaranteed Obligations"). The Guarantor agrees that
this Guaranty is a guaranty of payment and not of collection, and that its
obligations under this Guaranty shall be primary, absolute and unconditional,
irrespective of, and unaffected by: (i) the genuineness, validity, regularity,
enforceability or any future amendment of, or change in this Guaranty, any
Transaction Document, any Receivable, or any other agreement, document or
instrument to which Petrobras Finance and/or the Guarantor is or may become a
party; (ii) the absence of any action to enforce this Guaranty, any Receivable
or any Transaction Document or the waiver or consent by the Trustee and/or
Petrobras Finance with respect to any of the provisions thereof; (iii) the
existence, value or condition of, or failure to perfect any lien over the
Guaranteed Obligations or any action, or the absence of any action, by the
Trustee in respect thereof (including, without limitation, the release of any
such security); (iv) the insolvency of Petrobras Finance or any of its
Affiliates; or (v) any other action or circumstance which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
The Guarantor shall be regarded, and shall be in the same position, as
principal debtor with respect to the Guaranteed Obligations. The Guarantor
agrees, upon the written request of the Trustee or Petrobras Finance, to execute
and deliver to the Trustee or Petrobras Finance, from time to time, any
additional instruments or documents reasonably considered necessary by the
Trustee or Petrobras Finance to cause this Guaranty to be, become or remain
valid and effective in accordance with its terms.
Capitalized terms used herein shall have the meanings assigned to them in
the Amended and Restated Trust Deed dated December 21, 2001, unless otherwise
defined herein.
THE PROVISIONS OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Exhibit E to the Receivables Purchase Agreement
E-2
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first above written.
Petroleo Brasileiro S.A. - PETROBRAS
By:_______________________________________
Name:
Title:
Exhibit E to the Receivables Purchase Agreement
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘20-F’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed as of: | | 7/1/02 |
| Filed on: | | 6/28/02 |
| | 2/1/02 | | 12 |
| | 1/25/02 | | 11 |
| For Period End: | | 12/31/01 | | | | | | | 20-F/A |
| | 12/21/01 | | 1 | | 73 |
| List all Filings |
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