Exhibit No. 2.25
EXECUTION COPY
AMENDED AND RESTATED 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 as of May 21, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS, CONSTRUCTION...................................... 2
1.01 Definitions.................................................. 2
1.02 Construction................................................. 16
ARTICLE II PURCHASE AND SALE............................................. 16
2.01 Sale and Purchase of Rights to Receivables................... 16
2.02 Designation of Receivables for Sale.......................... 17
2.03 Future Purchases of Rights to Qualified Receivables.......... 19
2.04 Sale of Purchased Receivables................................ 19
2.05 Certain Understandings Regarding the Purchased Receivables... 20
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS................... 21
3.01 Representations and Warranties Relating to Receivables....... 21
3.02 Representations and Warranties Relating to Specified Buyers
and Notice and Consents...................................... 22
3.03 General Representations and Warranties....................... 23
3.04 Representations and Warranties of Petrobras.................. 26
ARTICLE IV COVENANTS..................................................... 27
4.01 Covenants and Agreements of Petrobras Finance................ 27
4.02 Covenants and Agreements of Petrobras........................ 34
ARTICLE V REPURCHASE OF RECEIVABLES, TERMINATION EVENTS, ACCUMULATION
EVENTS AND ACCELERATION EVENTS................................ 35
5.01 Optional Repurchase of Receivables........................... 35
5.02 Accumulation Events; Reserve Account......................... 37
5.03 Acceleration Events.......................................... 38
5.04 Petrobras Finance Defaults................................... 38
5.05 Effect of a Petrobras Finance Default or Other Termination
Event........................................................ 39
5.06 Disputed Receivables......................................... 40
5.07 Adjustments.................................................. 40
ARTICLE VI ADDITION OF SPECIFIED BUYERS.................................. 41
6.01 Addition and Other Modification.............................. 41
6.02 Effect of Addition or Other Modification..................... 41
ARTICLE VII PETROBRAS PERFORMANCE GUARANTY............................... 41
7.01 Guaranty..................................................... 41
ARTICLE VIII MISCELLANEOUS............................................... 42
8.01 Reimbursement................................................ 42
8.02 Rights Confined to Parties................................... 42
8.03 Amendment or Waiver: Remedies Cumulative..................... 42
8.04 Binding Upon Assigns......................................... 00
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0.00 Xxxxxx xx Xxxxxxxx; Submission to Jurisdiction; Agent........ 43
8.06 Notices...................................................... 44
8.07 Severability................................................. 46
8.08 Governing Law................................................ 46
8.09 Use of English Language...................................... 46
8.10 Judgment Currency............................................ 46
8.11 Counterparts................................................. 46
8.12 Survival of Representations and Warranties................... 46
8.13 Certain Indemnities.......................................... 47
8.14 Payments..................................................... 47
8.15 Liability of Trustee......................................... 47
8.16 No Petition.................................................. 48
8.17 Limited Recourse............................................. 48
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 GUARANTY
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of May 21,
2003 (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.
Petrobras Finance, Petrobras and the Trustee are party to a Receivables
Purchase Agreement dated as of December 21, 2001 (said Receivables Purchase
Agreement, as in effect on the date hereof immediately before giving effect to
the amendment and restatement contemplated hereby, being herein called the
"EXISTING RECEIVABLES PURCHASE AGREEMENT").
The parties hereto wish to amend the Existing Receivables Purchase
Agreement in certain respects and, as amended, to restate the Existing
Receivables Purchase Agreement in its entirety. Accordingly, the parties hereby
agree that the Existing Receivables Purchase Agreement shall, subject to the
execution and delivery of this Agreement by each of the intended parties hereto,
but with effect as of the Second Closing Date (as defined below), be amended and
restated to read in its entirety as follows:
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, (i) on the Closing Date, Petrobras
Finance conveyed and transferred to the Trustee without recourse (except as
expressly provided herein) all of its then existing and future right, title and
interest in, to and under certain Receivables, as specified herein, (ii) in
connection with the issuance of Additional Senior Trust Certificates on the
Second Closing Date, Petrobras Finance wishes to convey and transfer to the
Trustee without recourse (except as expressly provided herein) all of its
present and future right, title and interest in, to and under certain additional
Receivables, as specified herein and (iii) Petrobras Finance may from time to
time Sell to the Trustee its present and future right, title and interest in, to
and under other Receivables;
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WHEREAS, the parties hereto entered into the Existing Receivables Purchase
Agreement in connection with the issuance, pursuant to the Amended and Restated
Trust Deed dated December 21, 2001 (as amended by the Supplemental Trust Deed
dated May 16, 2003 and as amended and restated from time to time hereafter, 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, on the Closing Date of Senior Trust Certificates in the principal amount
of $750,000,000 and Junior Trust Certificates in the principal amount of
$150,000,000;
WHEREAS, pursuant to each of the Supplemental Trust Deeds dated May 21,
2003, the Trustee has issued Additional Senior Trust Certificates in the
principal amount of $550,000,000 and $200,000,000, respectively, and Additional
Junior Trust Certificates in the principal amount of $110,000,000 and
$40,000,000, respectively;
WHEREAS, the parties to the Existing Receivables Purchase Agreement wish
to amend and restate the Existing Receivables Purchase Agreement in connection
with the issuance, on the Second Closing Date, of such Additional Trust
Certificates, as required in Section 4.01(b) of the Trust Deed;
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.
"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.
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"ADMINISTRATIVE SERVICES AGREEMENT" shall mean the agreement dated
December 21, 2001 (as amended by the letter agreement, dated as of May 16, 2003
and, from time to time, in accordance with the provisions thereof) between
Petrobras Finance and Petrobras pursuant to which Petrobras has agreed, 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.
"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
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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 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
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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
(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 Xxx Xxxx, Xxx Xxxx, Xxxxxx, Xxxxxxx 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.
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"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 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.
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"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 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, (i) XLCA, MBIA, and Ambac, as
issuers of the Financial Guaranty Insurance Policies covering Series 2001-A1 and
Series 2001-A2 Senior Trust Certificates, Series 2001-B Senior Trust
Certificates and Series 2001-C Senior Trust Certificates, respectively, (ii)
MBIA, as issuer of the Financial Guaranty Insurance Policy covering Series
2003-B Senior Trust Certificates, and (iii) any other issuers of Financial
Guaranty Insurance Policies issued in respect of any additional Series of Senior
Trust Certificates.
"EXISTING RECEIVABLES PURCHASE AGREEMENT" shall have the meaning assigned
to such term in the recitals hereto.
"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.
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"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.
"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
(as amended by the amendment dated as of May 21, 2003 and, from time to time, in
accordance with the provisions thereof) entered into between Petrobras and
Petrobras Finance pursuant to which Petrobras has agreed, among other things, to
Sell Eligible Products to Petrobras Finance over a term equal to that of the
Senior Trust Certificates.
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"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 immediately
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 (25th) 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.
"MONTHLY PERIOD" means, (a) when used in respect of the Offtake Contract
described in clause (i) of the definition of "Offtake Contract", 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, and (b) when used in respect of the Offtake
Contract described in clause (ii) of the definition of "Offtake Contract", the
period beginning on the Second Closing Date and ending on June 30, 2003, and
thereafter, each period beginning on the first day of each calendar month and
ending on the last day of such calendar month and (c) when used in any other
context herein, 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 X-0, X-0 or A-3 hereto, as applicable.
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"OFFTAKE CONTRACT" shall mean collectively (i) the agreement dated
December 21, 2001 (as amended by the letter agreement dated as of May 16, 2003)
between Petrobras Finance and Citibank, N.A., as Offtaker; (ii) the agreement
dated as of May 21, 2003 between Petrobras Finance and Citibank, N.A., as
Offtaker, and (iii) in respect of any additional issuances of Series of Senior
Trust Certificates, any other offtake agreement substantially in the form of the
agreements in clause (i) and (ii) (except for the floor price), pursuant to
which 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 Contract, 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, (including any counterparty entering into
hedging arrangements with respect to an Offtake Contract) which offtaker is
rated at least A2 by Xxxxx'x 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 indirectly wholly 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 each Series of 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, each
Series of 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.
"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.
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"PREPAID OIL PRODUCTS" shall have the meaning assigned to such term in the
Prepayment Agreement.
"PREPAYMENT AGREEMENT" shall mean the Amended and Restated Prepayment
Agreement dated as of May 21, 2003 between Petrobras Finance and Petrobras
pursuant to which Petrobras Finance has agreed 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 collectively (i) the amount, equal to
$750,000,000 that Petrobras Finance paid to Petrobras on the Closing Date and
(ii) the amount, equal to $750,000,000 that Petrobras Finance will pay to
Petrobras on the Second Closing Date, as a purchase price for the Prepaid Oil
Products under the Prepayment Agreement.
"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 Amended and Restated Product Sale
Agreement dated as of May 21, 2003 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 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 xxxx 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,
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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 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 at least 1.1 times the aggregate of the scheduled
amounts for such Monthly Period set forth on
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Annex A to each 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 have the meaning assigned to such term in
Annex A of the Trust Deed.
"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.
"SECOND CLOSING DATE" shall mean the date of the second issuance of the
Senior Trust Certificates (in the aggregate principal amount of $750,000,000)
pursuant to the Supplemental Trust Deeds each dated as of May 21, 2003, and the
resale of those Senior Trust Certificates to the Initial Purchasers of such
Additional Senior Trust Certificates.
"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.
"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.
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"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 Amended and Restated Servicing
Agreement dated May 31, 2002 (as amended by the amendment dated as of May 16,
2003) among Petrobras, the Servicer, the Trustee and Petrobras Finance pursuant
to which the Servicer has agreed, 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.
"TRANSFER AGENT" shall have the meaning assigned to such term in Annex A
of the Trust Deed.
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"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.
"U.S. SELLER ACCOUNT AGREEMENT" shall have the meaning ascribed to such
term in Annex A of the Trust Deed.
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"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 the Transaction
Documents and to include any appendices, schedules and Exhibits executed in
connection and in accordance 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.
ARTICLE II
PURCHASE AND SALE
2.01 Sale and Purchase of Rights to Receivables.
(a) On the Closing Date, Petrobras Finance conveyed and transferred
without recourse (except as expressly provided herein), and the Trustee received
in consideration of the
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issuance of the Trust Certificates, all of the then existing and future right,
title and interest of Petrobras Finance in, to and under a designated value of
Qualified Receivables, as provided in the Existing Receivables Purchase
Agreement. On the Second Closing Date, subject to the terms and conditions of
this Agreement, Petrobras Finance hereby conveys and transfers without recourse
(except as expressly provided herein), and the Trustee shall receive in
consideration of the issuance of the Trust Certificates, all of the present and
future right, title and interest of Petrobras Finance in, to and under a
designated value of Qualified Receivables (the Qualified Receivables Sold on the
Closing Date and to be Sold on the Second Closing Date, collectively, 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 Period 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) As consideration for the transfer by Petrobras Finance of the right to
the Offtaker Receivables and Additional Purchased Receivables, (i) on the
Closing Date, the Trustee issued to Petrobras Finance $750,000,000 principal
amount of Senior Trust Certificates and $150,000,000 principal amount of Junior
Trust Certificates and (ii) on the Second Closing Date, the Trustee shall issue
to Petrobras Finance $750,000,000 aggregate principal amount of Senior Trust
Certificates and $150,000,000 aggregate 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 for such Monthly Period shall equal
one-third of the aggregate Required Offtake Quantity for the relevant
Quarterly Delivery Period, as specified in Annex A hereto.
(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
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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 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
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Qualified Receivable subsequently Generated, until the aggregate amount of such
Additional 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 Junior Trust Certificate Payment Date, in exchange for the
payment received from the Trustee on such Junior Trust Certificate Payment Date
pursuant to Clause Second of Section 5.06(b)(ii) 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 Junior Trust Certificate 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 Junior Trust Certificate Payment Date, the aggregate amount of such
purchases scheduled to be made on or prior to such Junior Trust Certificate
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
Amended and Restated Receivables Purchase Agreement
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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 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.
Amended and Restated Receivables Purchase Agreement
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ARTICLE III
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS
3.01 Representations and Warranties Relating to Receivables. Petrobras
Finance represented, warranted and agreed as of the Closing Date, and on each
date prior to the date hereof on which Purchased Receivables were Generated and
represents, warrants and agrees as of the date hereof and on each date on which
Purchased Receivables are Generated hereafter, for the benefit of the Trustee,
as follows:
(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.
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(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 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 represented, warranted and agreed as of
the date of the Closing Date and on each date prior to the date hereof on which
Buyers were included as additional Specified Buyers and represents, warrants and
agrees as of 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 X-0, X-0 or A-3, as
applicable; provided, that, except in the case of any Offtaker who enters
into an Offtake Contract after the Closing Date or any U.S. Seller who
enters into an assumption agreement in respect of the Product Sale
Agreement (or a new agreement which contains substantially the same terms
and conditions as the Product Sale Agreement) 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
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(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).
(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
represented, warranted and agreed as of the date of the Existing Receivables
Purchase Agreement and 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.
Amended and Restated Receivables Purchase Agreement
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(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).
(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.
Amended and Restated Receivables Purchase Agreement
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(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.
(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
Amended and Restated Receivables Purchase Agreement
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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).
(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.
(q) Use of Proceeds. Petrobras Finance used the proceeds from the
offer and sale of the Senior Trust Certificates on the Closing Date 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
offering of the Senior Trust Certificates on the Closing Date, and (iii)
to fund certain of the Trust Accounts.
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 and as of each date on which Additional Senior Trust
Certificates are issued, except that (i) each reference therein to the
Transaction Documents to which Petrobras is a party shall include this
Agreement, and (ii) in respect of issuances of Additional Senior Trust
Certificates, (A) references to the Offering Memorandum shall be deemed to be
references to the offering memorandum for such issuance of Additional Senior
Trust Certificates and (B) references to the financial statements of Petrobras
and its consolidated subsidiaries shall be deemed to be references to such
financial statements of Petrobras and its consolidated subsidiaries as shall be
included or incorporated by reference in the Offering Memorandum for such
issuance of Additional Senior Trust Certificates.
Amended and Restated Receivables Purchase Agreement
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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.
(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
Amended and Restated Receivables Purchase Agreement
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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 Second
Closing Date, enter into a Notice and Consent with the Buyer listed
on Exhibit C-2 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 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
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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 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
Amended and Restated Receivables Purchase Agreement
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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 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
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:
(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
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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 shareholders 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.
(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
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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 on
the Second Closing Date, together with other funds available (i) to pay
the amount payable to Petrobras on the Second Closing Date under the
Prepayment Agreement (ii) to pay certain amounts due and payable in
respect of the offering of the Senior Trust Certificates on the Second
Closing Date 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 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.
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(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 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
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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.
(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
Closing Date.
Amended and Restated Receivables Purchase Agreement
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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 purchase of
Purchased Receivables 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
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
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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.
(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.
Amended and Restated Receivables Purchase Agreement
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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 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.
Amended and Restated Receivables Purchase Agreement
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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 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;
Amended and Restated Receivables Purchase Agreement
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(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 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
Amended and Restated Receivables Purchase Agreement
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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.
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.
Amended and Restated Receivables Purchase Agreement
- 41 -
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 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.
Amended and Restated Receivables Purchase Agreement
- 42 -
(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 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.
Amended and Restated Receivables Purchase Agreement
- 43 -
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.
(c) Petrobras Finance hereby irrevocably designates, appoints and empowers
Petrobras, with offices located at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, and its successors as its process agent and Petrobras
hereby irrevocably designates, appoints and empowers its New York office located
at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, 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
Amended and Restated Receivables Purchase Agreement
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(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:
To Petrobras Finance:
Petrobras Finance Ltd.
Attn: Roldao de Xxxxx Xxxxxxx
Director
Room 302
Xxxxxxx Xxxxxxxxx xx Xxxxx, 00
00000-000
Xxx xx Xxxxxxx-XX, Xxxxxx
Telephone: 000 00 00 0000 0000
Facsimile: 011 55 21 2534 1011
Amended and Restated Receivables Purchase Agreement
- 45 -
with a copy to:
To Petrobras:
Petroleo Brasileiro S.A. - Petrobras
Attn: Roldao de Xxxxx Xxxxxxx
Manager - Corporate Finance
Room 302
Xxxxxxx Xxxxxxxxx xx Xxxxx, 00
00000-000
Xxx xx Xxxxxxx-XX, Xxxxxx
Telephone: 000 00 0000 0000
Facsimile: 000 00 0000 1011
To the Trustee:
U.S. Bank, National Association, Xxxxxx Xxxxxxx Xxxxxx
x/x Xxxxx Xxxx xx Xxxxxx
Trust Co. (Cayman) Ltd.
X.X. Xxx 0000 XX
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Attn: Xxx Xxxxxxxx
Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Servicer:
Petrobras International Finance Company
Attn: Xxxxxxxxxx Xxxxxxxx Tizatto
Deputy General Manager Accounting
Room 301 M
Xxxxxxx Xxxxxxxxx xx Xxxxx, 00
00000-000
Xxx xx Xxxxxxx-XX, Xxxxxx
Telephone: 000 00 00 0000 0000
Facsimile: 011 55 21 2534 0438
Amended and Restated Receivables Purchase Agreement
- 46 -
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 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.
Amended and Restated Receivables Purchase Agreement
- 47 -
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.
(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
Amended and Restated Receivables Purchase Agreement
- 48 -
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]
Amended and Restated Receivables Purchase Agreement
S-1
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.
STATE OF NEW YORK ) PETROBRAS FINANCE LTD.
COUNTY OF NEW YORK ) ss.:
Sworn before me this By:
_________________________
____ day of __________________, 2003 Name:
Title:
STATE OF NEW YORK ) PETROLEO BRASILEIRO S.A. - PETROBRAS
COUNTY OF NEW YORK ) ss.:
Sworn before me this By:
___________________________
____ day of __________________, 2003 Name:
Title:
By:
___________________________
Name:
Title:
STATE OF NEW YORK ) U.S. BANK, NATIONAL ASSOCIATION,
COUNTY OF NEW YORK ) ss.: CAYMAN ISLANDS BRANCH,
as Trustee for PF EXPORT
RECEIVABLES MASTER TRUST
Sworn before me this By:
___________________________
____ day of __________________, 2003 Name:
Title:
Amended and Restated Receivables Purchase Agreement
S-2
WITNESSES
1. By: STATE OF NEW YORK )
-------------------------------
Name: COUNTY OF NEW YORK ) ss.:
Title:
Sworn before me this
____ day of ________________, 2003
2. By: STATE OF NEW YORK )
-------------------------------
Name: COUNTY OF NEW YORK ) ss.:
Title:
Sworn before me this
____ day of ________________, 2003
Amended and Restated Receivables Purchase Agreement
S-3
Action by the Controlling Parties:
Pursuant to the requirements of Section 7.01(o)(i) of the Amended and Restated
Trust Deed dated December 21, 2001 as amended and restated from time to time
(the "TRUST DEED") among U.S. Bank, National Association, Cayman Islands Branch,
in its capacity as trustee of the PF Export Receivables Master Trust (the
"TRUST"), Citibank, N.A., a national banking association organized under the
laws of the United States of America, in its capacity as Registrar, Paying
Agent, Transfer Agent and Depositary Bank, and Petrobras International Finance
Company, a company organized and existing under the laws of the Cayman Islands,
in its capacity as Servicer under the Servicing Agreement, the undersigned,
being the Controlling Parties with respect to all of the outstanding Senior
Trust Certificates issued by the Trust, do hereby consent to the amendment and
restatement of the Receivables Purchase Agreement attached hereto.
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them under the Trust Deed.
This consent may be executed in two or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Action of the Controlling
Parties on the dates set forth following their respective signatures.
AMBAC ASSURANCE CORPORATION
By:
--------------------------------------------------
Name:
Title:
MBIA INSURANCE CORPORATION
By:
--------------------------------------------------
Name:
Title:
XL CAPITAL ASSURANCE INC.
By:
--------------------------------------------------
Name:
Title:
Amended and Restated Receivables Purchase Agreement
Annex A
to the Amended and Restated
Receivables Purchase Agreement
SCHEDULE OF OFFTAKER RECEIVABLES
Annex A to Amended and Restated Receivables Purchase Agreement
Annex B
to the Amended and Restated
Receivables Purchase Agreement
SCHEDULE OF ADDITIONAL PURCHASED RECEIVABLES
Annex B to Amended and Restated Receivables Purchase Agreement
Annex C
to the Amended and Restated
Receivables Purchase Agreement
SCHEDULE OF JUNIOR CERTIFICATE PAYMENTS
Annex C to Amended and Restated Receivables Purchase Agreement
Annex D
to the Amended and Restated
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 Amended and Restated Receivables Purchase Agreement
Exhibit A-1
to the Amended and Restated
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 has entered into a Master Export Contract
dated as of December 21, 2001 (as amended by the amendment dated as of May 21,
2003) with Petrobras Finance Ltd., an indirect wholly owned subsidiary of
Petrobras, pursuant to which Petrobras has agreed 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. has entered into an Amended and
Restated Receivables Purchase Agreement dated as of May 21, 2003, 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. has sold and 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 have agreed that, from and
after the date hereof (the "EFFECTIVE DATE"), all Receivables should be paid by
you directly to the Trustee as trustee for the benefit of the Trust at the
following account: Citibank, N.A., No. 00000000, ABA No. 000-000-000, Reference
Collection A/C (the "COLLECTION ACCOUNT").
----------
(1) To be inserted in all Notices and Consents executed after the Closing
Date.
Exhibit A-1 to Amended and Restated 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 Amended and Restated 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 Amended and Restated Receivables Purchase Agreement
Exhibit A-2
to the Amended and Restated
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,(1)
"PETROBRAS") has entered into a Master Export Contract dated as of December 21,
2001 (as amended by the amendment dated as of May 21, 2003) with Petrobras
Finance Ltd., an indirect wholly owned subsidiary of Petrobras, pursuant to
which Petrobras has agreed 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. has entered into an Amended and
Restated Receivables Purchase Agreement dated as of May 21, 2003 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. has sold and 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 have agreed that, from and
after the date hereof (the "EFFECTIVE DATE"), all Receivables should be paid by
you directly to the Trustee as trustee for the benefit of the Trust at the
following account: Citibank, N.A., No. 00000000, ABA No. 000-000-000, Reference
Collection A/C (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
----------
(1) To be inserted in all Notices and Consents executed after the Closing
Date.
Exhibit A-2 to Amended and Restated 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 Amended and Restated 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, National Association, Cayman Islands Branch,
on behalf of PF Export Receivables Master Trust
By __________________________
Name:
Title:
Exhibit A-2 to Amended and Restated Receivables Purchase Agreement
Exhibit A-3
to the Amended and Restated
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,(1) 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 have entered into an
Amended and Restated Product Sale Agreement dated as of May 21, 2003 with
Petrobras Finance Ltd., an indirect wholly owned subsidiary of Petroleo
Brasileiro S.A.-PETROBRAS ("PETROBRAS"), pursuant to which Petrobras Finance
Ltd. may from time to time sell to us, for resale to end customers, certain
Eligible Products. In addition, Petrobras Finance Ltd. has entered into an
Amended and Restated Receivables Purchase Agreement dated as of May 21, 2003,
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. has sold and 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. have agreed that, from and after the
date hereof (the "EFFECTIVE DATE"), the Receivables should be paid by you
directly to the following account: Citibank, N.A., No. 00000000, ABA No.
000-000-000, Reference U.S. Seller A/C (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.
----------
(1) To be inserted in all Notices and Consents executed after the Closing
Date.
Exhibit A-3 to Amended and Restated 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 Amended and Restated 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 Amended and Restated Receivables Purchase Agreement
Exhibit B
to the Amended and Restated
Receivables Purchase Agreement
BUYER MODIFICATION NOTICE
[Date]
U.S. Bank, National Association, Cayman Islands Branch
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Receivables
Purchase Agreement dated as of May 21, 2003 (as amended, supplemented or
modified from time to time, 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](1).
Very truly yours,
Petrobras Finance Ltd.
By:
-----------------------------------------
Name:
Title:
----------
(1) To be used to add a Specified Buyer.
Exhibit B to Amended and Restated Receivables Purchase Agreement
Exhibit C-1
to the Amended and Restated
Receivables Purchase Agreement
INITIAL SPECIFIED BUYERS
NOTICE AND CONSENTS FROM SPECIFIED BUYERS OF PETROBRAS AMERICA, INC.
1. El Paso Global Petroleum Marketing
2. Fuel and Marine Marketing LLC
3. Glencore Ltd.
4. Xxxx Petroleum Group LP
5. Novarco Ltd.
6. Tosco Corporation
7. Trafigura A.G.
8. Veba Oil Supply & Trading, Inc.
9. Vitol S.A., Inc.
10. Westport Petroleum Inc.
NOTICE AND CONSENTS FROM SPECIFIED BUYERS OF PETROBRAS FINANCE LTD.
1. Citibank, N.A.
2. CSAV - Compania Sudamericana de Vapores
3. El Paso Global Petroleum Marketing
4. Fuel and Marine Marketing LLC
5. Glencore Ltd.
6. Hamburg Sudamerikanische
7. KG Bominflot
8. Xxxx Petroleum Group LP
9. Mitsui Xxxxxx Marine Service Co. Ltd.
10. Novarco Ltd.
11. Petrobras America, Inc.
12. P&O Nedlloyd B.V.
13. Tosco Corporation
14. Trafigura A.G.
15. Tramp Oil Ltd.
16. Veba Oil Supply and Trading, Inc.
17. Vitol Asia Pte Ltd.
18. Vitol S.A., Inc.
19. Westport Petroleum Inc.
Exhibit C-1 to Amended and Restated Receivables Purchase Agreement
Exhibit C-2
to the Amended and Restated
Receivables Purchase Agreement
ADDITIONAL SPECIFIED BUYERS
Citibank, N.A.
Exhibit C-2 to Amended and Restated Receivables Purchase Agreement
Exhibit D
to the Amended and Restated
Receivables Purchase Agreement
FORM OF BUYER INSTRUCTION
This is to notify you that we have entered into an Amended and Restated
Receivables Purchase Agreement dated as of May 21, 2003, 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 Amended and Restated Receivables Purchase Agreement
Exhibit E
to the Amended and Restated
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 (together with its successors and assigns, 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 Amended and Restated Receivables Purchase Agreement dated as of May 21, 2003
(as amended, supplemented or modified from time to time, the "RECEIVABLES
PURCHASE AGREEMENT") 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.
Exhibit E to Amended and Restated Receivables Purchase Agreement
E2
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.
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 Amended and Restated Receivables Purchase Agreement
