Exhibit No. 2.27
EXECUTION COPY
AMENDED AND RESTATED PREPAYMENT AGREEMENT
by and between
PETROLEO BRASILEIRO S.A. - PETROBRAS
and
PETROBRAS FINANCE LTD.
Dated as of May 21, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS, CONSTRUCTION...............................................................................2
Section 1.01 Definitions............................................................................2
Section 1.02 Construction..........................................................................10
ARTICLE II EXPORT PREPAYMENT.....................................................................................11
Section 2.01 Terms of Prepayment...................................................................11
Section 2.02 Export of Product.....................................................................11
Section 2.03 Taxes .............................................................................12
Section 2.04 Reimbursement.........................................................................12
ARTICLE III NON-DELIVERY OF ELIGIBLE PRODUCTS....................................................................13
Section 3.01 Non-Delivery of Eligible Products; Liquidated Damages.................................13
ARTICLE IV DEFAULT TERMINATION...................................................................................13
Section 4.01 Petrobras Defaults....................................................................13
Section 4.02 Termination Events....................................................................16
ARTICLE V MISCELLANEOUS..........................................................................................16
Section 5.01 Rights Confined to Parties; Third Party Beneficiaries.................................16
Section 5.02 Amendment or Waiver; Remedies Cumulative..............................................17
Section 5.03 Binding Upon Assigns..................................................................17
Section 5.04 Waiver of Immunity; Submission to Jurisdiction; Agent.................................17
Section 5.05 Notices 18
Section 5.06 Severability..........................................................................20
Section 5.07 Governing Law.........................................................................20
Section 5.08 Use of English Language...............................................................20
Section 5.09 Judgment Currency.....................................................................20
Section 5.10 Counterparts..........................................................................21
Section 5.11 Payments 21
Section 5.12 Survival 21
Section 5.13 No Petition...........................................................................21
Section 5.14 Limited Recourse......................................................................21
EXHIBIT A - Quarterly Delivery Requirement
ANNEX A - Definition of Bunker Fuel
ANNEX B - Definition of Fuel Oil
- i -
AMENDED AND RESTATED PREPAYMENT AGREEMENT dated as of May 21, 2003
(this "AGREEMENT"), between PETROLEO BRASILEIRO S.A. - PETROBRAS, a mixed
capital company (sociedade anonima de economia mista) organized and existing
under the laws of Brazil ("PETROBRAS"), and PETROBRAS FINANCE LTD., an exempted
company with limited liability incorporated and existing under the laws of the
Cayman Islands ("PETROBRAS FINANCE"). Unless the context otherwise requires, all
defined terms used herein shall have the meaning given thereto in Article I.
Petrobras Finance and Petrobras are party to a Prepayment Agreement
dated as of December 21, 2001 (said Prepayment Agreement, as in effect on the
date hereof immediately before giving effect to the amendment and restatement
contemplated hereby, being herein called the "EXISTING PREPAYMENT AGREEMENT").
The parties hereto wish to amend the Existing Prepayment Agreement in
certain respects and, as amended, to restate the Existing Prepayment Agreement
in its entirety. Accordingly, the parties hereto hereby agree that the Existing
Prepayment 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:
R E C I T A L S:
WHEREAS, Petrobras exports for sale Eligible Products in the ordinary
course of its business and intends to continue to sell certain Eligible Products
to Petrobras Finance, an indirect and wholly owned subsidiary of Petrobras,
pursuant to the Master Export Contract;
WHEREAS, U.S. Bank, National Association, Cayman Islands Branch, as
Trustee (the "TRUSTEE") of the PF Export Receivables Master Trust under the
Trust Deed (as defined below) (i) on the Closing Date, issued to Petrobras
Finance $750,000,000 aggregate principal amount of Senior Trust Certificates and
$150,000,000 principal amount of Junior Trust Certificates and (ii) on the
Second Closing Date, intends to issue to Petrobras Finance additional
$750,000,000 aggregate principal amount of Senior Trust Certificates and
$150,000,000 principal amount of Junior Trust Certificates, each in
consideration of the purchase by the Trustee of certain receivables from
Petrobras Finance, generated or to be generated from the sale by Petrobras
Finance to certain Buyers of Eligible Products received from Petrobras under the
Master Export Contract and this Agreement;
WHEREAS, (i) Petrobras Finance paid Petrobras, on the Closing Date, an
amount equal to $750,000,000 as an advance payment (the "INITIAL PREPAYMENT
AMOUNT") for Eligible Products and (ii) Petrobras Finance intends to pay
Petrobras, on the Second Closing Date, an amount equal to $750,000,000 as an
advance payment (the "SECOND PREPAYMENT AMOUNT" and, together with the Initial
Prepayment Amount, the "PREPAYMENT AMOUNT") for Eligible Products;
WHEREAS, in connection with the issuance, on the Second Closing Date,
of Additional Trust Certificates and the concurrent payment of the Second
Prepayment Amount, the parties desire to amend and restate the Existing
Prepayment Agreement, as required in Section 4.01(b) of the Trust Deed;
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WHEREAS, during each Quarterly Delivery Period described below,
Petrobras desires to export to Petrobras Finance and Petrobras Finance desires
to acquire from Petrobras, Eligible Products having a market value at the time
of delivery of no less than a specified amount; and
WHEREAS, the parties hereto desire to enter into this pre-export
financing transaction with respect thereto;
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
Section 1.01 Definitions. The following terms shall have the respective
meanings hereinafter specified; provided that capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in 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, the "TRUST DEED"), by and among the Trustee, PIFCo, as Servicer and
Citibank, N.A., as Registrar, Paying Agent, Transfer Agent and Depositary Bank:
"ADDITIONAL AMOUNTS" shall have the meaning set forth in Annex A of the
Trust Deed.
"ADMINISTRATIVE SERVICES AGREEMENT" shall mean the Administrative
Services Agreement dated as of December 21, 2001 (as amended by the letter
agreement dated May 16, 2003 and, from time to time, in accordance with the
provisions thereof), between Petrobras Finance and Petrobras.
"AGGREGATE HEDGED AMOUNT" shall have the meaning set forth in Annex A
of the Trust Deed.
"APPLICABLE HEDGE FACTOR" shall have the meaning set forth in Annex A
of the Trust Deed.
"BANKRUPTCY EVENT" shall mean the occurrence of any of the following
events:
(a) 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);
(b) 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;
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(c) 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 (i) a winding-up,
dissolution or liquidation for the purpose of and followed by a
consolidation, merger, conveyance or transfer (or in the case of
Petrobras, a Material Subsidiary thereof, whereby the undertaking,
business and assets of such Material Subsidiary are transferred to or
otherwise vested in Petrobras) or the terms of which shall have been
approved by a unanimous vote of the Controlling Party of each Series of
the Senior Trust Certificates; or (ii) 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 distributed to such party and/or any such
Material Subsidiary thereof;
(d) 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);
(e) 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
(f) Either (i) 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 (ii) 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 (i) and (ii) in the
circumstances referred to as exceptions in paragraph (c) above).
"BARRELS" shall have the meaning assigned to such term in Section 1.01
of the Master Export Contract.
"BRAZIL" shall mean the Federative Republic of Brazil.
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"BUNKER FUEL" shall have the meaning set forth in Annex A hereto.
"BUSINESS DAY" shall mean a day that is not a day on which banking
institutions in New York City, New York or Rio de Janeiro, Brazil, as
applicable, are required or authorized by law to remain closed.
"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 Senior Certificate
Holders and Junior Certificate Holders.
"CLOSING DATE" shall have the meaning set forth in Annex A of the Trust
Deed.
"COMMERCIAL CONTRACTS" shall mean, collectively, the Receivables
Purchase Agreement, the Master Export Contract, this 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 set forth in Annex A of the
Trust Deed.
"CUT-OFF DATE" shall mean, with respect to a Payment Date, the fourth
Business Day prior to such Payment Date.
"DELIVERY AND SALES AGENT" shall mean Petrobras, in its capacity as
delivery and sales agent under the Administrative Services Agreement.
"DEPOSITARY AGREEMENT" shall have the meaning set forth in Annex A of
the Trust Deed.
"DOLLARS" or "$" shall mean the lawful currency of the United States.
"ELIGIBLE PRODUCTS" shall mean Heavy Fuel Oil and, in certain
circumstances and subject to certain limitations 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 in accordance with Section 2.02(d).
"ENHANCER" shall have the meaning assigned to such term in Annex A of
the Trust Deed.
"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 set forth in Annex B hereto.
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"HEAVY FUEL OIL" shall mean, collectively, Bunker Fuel and Fuel Oil.
"INDEMNIFIED TAXES" shall mean all shortfalls, costs, expenses,
liabilities, obligations, losses, damages, penalties, actions, suits or claims
which may be imposed upon, incurred or suffered by Petrobras Finance, the Trust
or the Trustee or any Enhancer as the result of entering into the transactions
contemplated by the Transaction Documents or performing their various
obligations and enforcing their various rights thereunder, in each case, in
respect of any present or future Taxes assessed against Petrobras Finance, the
Trust, the Trustee or any Enhancer, including, in the case of the Trust and
Petrobras Finance only, income Taxes and branch profits Taxes.
"INITIAL PREPAYMENT AMOUNT" shall have the meaning set forth in the
recitals hereto.
"JUNIOR CERTIFICATE HOLDERS" shall mean the holders of the Junior Trust
Certificates.
"JUNIOR TRUST CERTIFICATES" shall mean the Junior Trust Certificates
representing the junior subordinated beneficial interests in the Trust that are
issued from time to time pursuant to the Trust Deed.
"LIEN" shall have the meaning assigned to such term in the Master
Export Contract.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
3.01(a).
"MARKET PRICE PER BARREL" shall have the meaning set forth in the
Offtake Contract.
"MASTER EXPORT CONTRACT" shall mean the Master Export Contract dated as
of December 21, 2001 (as amended by the amendment dated May 21, 2003 and, from
time to time, in accordance with the provisions thereof) between Petrobras and
Petrobras Finance pursuant to which Petrobras agrees, among other things, to
sell to Petrobras Finance Eligible Products from time to time.
"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, (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 the Purchased Receivables, taken as a whole.
"MATERIAL SUBSIDIARY" shall mean a subsidiary of Petrobras with total
assets of more than $100,000,000 (or its equivalent in another currency), as
reflected in the most recent consolidated financial statements of Petrobras.
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"NET INVOICE AMOUNT" shall have the meaning set forth in the
Receivables Purchase Agreement.
"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 Annex A to the Receivables Purchase Agreement.
"OFFTAKE CONTRACT" shall mean collectively (i) the agreement dated as
of 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 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) 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 an Offtaker will agree to buy, Eligible Products
and, if applicable, any additional 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 Citibank, N.A. and any other offtaker that enters
into an Offtake Contract, which offtaker (including any counterparty entering
into hedging arrangements with respect to an Offtake Contract) is rated at least
A2 by Xxxxx'x and is rated at least A by S&P.
"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.
"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, the
Senior Trust Certificates, beginning on the respective dates set forth on each
Senior Trust Certificate on such Series.
"PERFORMANCE GUARANTY" shall mean the guaranty by Petrobras of the
performance obligations of Petrobras Finance and PIFCo under the Transaction
Documents.
"PERSON" (whether or not capitalized) means an individual, 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 introductory
paragraph.
"PETROBRAS DEFAULT" shall have the meaning set forth in Section 4.01.
"PETROBRAS FINANCE" shall have the meaning set forth in the
introductory paragraph.
"PETROBRAS FINANCE DEFAULT" shall have the meaning assigned to such
term in Annex A of the Trust Deed.
Amended and Restated Prepayment Agreement
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"PETROBRAS GUARANTEE" means an obligation of Petrobras or any Material
Subsidiary to pay the indebtedness of another Person including, without
limitation, (a) an obligation to pay or purchase such indebtedness, (b) an
obligation to lend money or to purchase or subscribe for shares or other
securities or to purchase assets or services in order to provide funds for the
payment of such indebtedness, (c) an indemnity against the consequences of a
default in the payment of such indebtedness or (d) any other agreement to be
responsible for such indebtedness.
"PETROBRAS INDEBTEDNESS" means any obligation (whether present or
future, actual or contingent and including, without limitation, any guarantee)
of Petrobras or any Material Subsidiary for the payment or repayment of money
which has been borrowed or raised (including money raised by acceptances and all
leases which, under generally accepted accounting principles in the country of
incorporation of the relevant obligor, would constitute a capital lease
obligation).
"PETROBRAS PARTY" shall mean, individually, any of Petrobras, Petrobras
Finance or PIFCo or any affiliate thereof (other than the U.S. Seller) and,
collectively, all of them.
"PIFCO" shall mean Petrobras International Finance Company, a
wholly-owned subsidiary of Petrobras incorporated and existing under the law of
the Cayman Islands.
"PREPAID OIL PRODUCTS" shall mean the aggregate volume of Eligible
Products in respect of the Initial Prepayment Amount and the Second Prepayment
Amount that Petrobras is required to deliver to Petrobras Finance in scheduled
quarterly installments pursuant to the terms of this Agreement and as set forth
in Column (E) of Exhibit A.
"PREPAYMENT AMOUNT" shall have the meaning set forth in the recitals
hereto.
"PROCESS AGENT" shall have the meaning set forth in Section 5.04(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, pursuant to which the U.S. Seller may from time to time purchase from
Petrobras Finance the Eligible Products intended for resale to Buyers primarily
in the United States.
"PURCHASED RECEIVABLES ACCOUNT" shall have the meaning set forth in
Annex A of the Trust Deed.
"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 thereafter, (b) each period commencing on a Payment Date and ending on the
day immediately preceding the next following Payment Date.
"QUARTERLY DELIVERY REQUIREMENT" shall have the meaning set forth in
Section 2.02(a), as further described in Section 3.01(b).
"QUARTERLY EXPORT REQUIREMENT" shall mean Petrobras' obligation under
the Master Export Contact to export to Petrobras Finance in each Quarterly
Delivery Period an amount of
Amended and Restated Prepayment Agreement
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Eligible Products that satisfies each of the following requirements: (a) such
amount includes at least 80% of the total volume of Heavy Fuel Oil exported by
Petrobras during such Quarterly Delivery Period and (b) such amount has a
minimum aggregate value (based upon the Net Invoice Amount at which such
Eligible Products are actually Sold by Petrobras Finance) equal to, at least,
the Maximum Scheduled Senior Payment Amount multiplied by the Required Senior
Coverage Ratio.
"QUARTERLY SCHEDULED SENIOR PAYMENT AMOUNT" shall have the meaning set
forth in Annex A of the Trust Deed.
"RECEIVABLES" shall have the meaning assigned to such term in the
Receivables Purchase Agreement.
"RECEIVABLES PURCHASE AGREEMENT" shall mean the Amended and Restated
Receivables Purchase Agreement dated as of May 21, 2003 between the Trustee,
Petrobras and Petrobras Finance.
"REQUIRED SENIOR COVERAGE RATIO" shall mean, as at any calculation
date, the ratio of (a) the Applicable Hedge Factor at such calculation date to
(b) one (1).
"ROF" shall have the meaning assigned to such term in Section 2.02(b).
"RPA TERMINATION PRICE" has the meaning assigned to such term in
Section 1.01 of the Receivables Purchase Agreement.
"SALE" shall mean the absolute and unconditional sale, assignment,
transfer or disposition (and not by way of charge or security), and "SELL" and
"SOLD" shall have correlative meanings and, when used with respect to
Receivables, shall have the meaning assigned to such term in the Receivables
Purchase Agreement.
"SECOND CLOSING DATE" shall have the meaning assigned to such term in
the Receivables Purchase Agreement.
"SECOND PREPAYMENT AMOUNT" shall have the meaning set forth in the
recitals hereto.
"SENIOR CERTIFICATE HOLDERS" shall mean the holders of the Senior Trust
Certificates.
"SENIOR TRUST CERTIFICATE DOCUMENTS" shall mean, collectively, the
Senior Trust Certificates, the Trust Deed, the Trust Administration Agreement
(as defined in the Trust Deed), the Purchase Agreement (as defined in the Trust
Deed), the Financial Guaranty Insurance Policies, the Insurance and
Reimbursement Agreements (as defined in the Trust Deed), the Indemnification
Agreement (as defined in the Trust Deed), the Depositary Agreement, the Notice
and Consents and other related documents.
"SENIOR TRUST CERTIFICATES" shall mean the senior trust certificates
representing senior beneficial interests in the Trust that are issued from time
to time pursuant to the Trust Deed.
"SERIES" shall have the meaning assigned to such term in Annex A of the
Trust Deed.
Amended and Restated Prepayment Agreement
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"SERVICER" shall mean PIFCo in such capacity under the Servicing
Agreement.
"SERVICING AGREEMENT" shall mean the Amended and Restated Servicing
Agreement dated as of May 31, 2002 (as amended by the amendment dated May 16,
2003) among PIFCo, the Trustee, Petrobras and Petrobras Finance pursuant to
which PIFCo, as Servicer, agreed, among other things, to service, manage,
administer and collect the Receivables for the benefit of the Trustee and
Petrobras Finance.
"SPECIFIED BUYERS" shall have the meaning assigned to such term in the
Master Export Contract.
"TAX" or "TAXES" shall have the meaning set forth in Section 2.03.
"TERMINATION EVENT" shall have the meaning set forth in Annex A of the
Trust Deed.
"TERMINATION PAYMENT" shall mean a payment equal to (a) the aggregate
value of Prepaid Oil Products under this Agreement which have not theretofore
been delivered to Petrobras Finance (i) set forth in Column (C) of Exhibit A for
all Quarterly Delivery Periods and (ii) set forth in Columns (D-1) through (D-3)
of Exhibit A through the last day of the Quarterly Delivery Period in which such
Termination Payment is made, and (b) any indemnity or other amounts then due and
payable by Petrobras to Petrobras Finance under the Master Export Contract and
this Agreement and (without duplication) by Petrobras to the Trustee in respect
of the Performance Guaranty of the obligations of PIFCo and Petrobras Finance;
provided, that such payment in the aggregate shall not exceed the RPA
Termination Price to be paid by Petrobras Finance in the event that the
Receivables Purchase Agreement becomes subject to termination.
"TRANSACTION DOCUMENTS" shall mean, collectively, the Commercial
Contracts and the Senior Trust Certificate Documents.
"TRUST" shall mean the PF Export Receivables Master Trust, a trust
established and existing under the laws of the Cayman Islands and created by the
Trust Deed.
"TRUST DEED" shall have the meaning set forth in this Section 1.01.
"TRUSTEE" shall have the meaning set forth in the recitals.
"UNITED STATES" shall mean the United States of America.
"U.S. GAAP" shall mean generally accepted accounting principles in 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 and (c) solvent, and (d) engaged exclusively in
the business of marketing and selling petroleum-based products primarily
produced in Brazil, unless each of the Rating
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Agencies issues a Rating Affirmation and each Enhancer with an outstanding
Series of Senior Trust Certificates consents (such consent not to be
unreasonably withheld). For purposes of this definition, the terms "Rating
Agencies", "Rating Affirmation" and "Enhancer" shall have the meaning given to
such terms in Annex A of the Trust Deed.
Section 1.02 Construction.
(a) The words "hereof," "hereto," "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) Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations made hereunder or in any
certificate or other document made or delivered pursuant hereto shall be made,
and all financial statements required to be delivered hereunder shall be
prepared, in accordance with U.S. GAAP (except as discussed in the notes to such
statements) applied on a basis consistent (except for changes concurred in by
the independent public accountants of the relevant person; provided that the
concurrence of such accountants shall not be required with respect to changes in
application reflected in unaudited interim financials) with the most recent
audited financial statements of such relevant person.
(c) The meanings given to terms used herein shall be equally applicable
to both the singular and plural forms of such terms.
(d) References in this Agreement to any statute, law, decree,
regulation or other applicable law shall be construed as a reference to such
statue, law, decree, regulation or other applicable law as re-enacted,
redesigned, amended or extended from time to time, except as otherwise provided
in this Agreement.
(e) 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.
(f) 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.
(g) The Table of Contents and the Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
(h) Any report, document, officer's certificate or any other instrument
delivered hereunder which does not conform to the requirements hereof shall be
deemed non-conforming 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.
Amended and Restated Prepayment Agreement
11
ARTICLE II
EXPORT PREPAYMENT
Section 2.01 Terms of Prepayment. On the Closing Date, Petrobras
Finance paid to Petrobras the Initial Prepayment Amount for the export and sales
by Petrobras to Petrobras Finance of Eligible Products under this Agreement.
Subject to the terms and conditions set forth herein, Petrobras Finance hereby
agrees to pay to Petrobras on the Second Closing Date the Second Prepayment
Amount for future export and sales by Petrobras to Petrobras Finance of Eligible
Products under this Agreement. Petrobras agrees to deliver Eligible Products to,
or as directed by, Petrobras Finance or the Delivery and Sales Agent in
shipments as hereinafter provided over a term equal to the term of the Senior
Trust Certificates issued on the Closing Date and the Second Closing Date.
Deliveries of Eligible Products shall be made from time to time during each
Quarterly Delivery Period and the amount of Eligible Products to be delivered
during each Quarterly Delivery Period shall be no less than the Quarterly
Delivery Requirement, as further described in Section 2.02 below.
Section 2.02 Export of Product.
(a) Notwithstanding anything herein to the contrary, Petrobras hereby
agrees to pay the aggregate principal amount and the interest factor accrued
thereon as set forth in Exhibit A, by the export and delivery to, or as directed
by, Petrobras Finance during each Quarterly Delivery Period commencing on the
dates specified in Exhibit A, of Eligible Products having a market value (as
described in Section 3.01(b)) equal to the amounts specified in Column (E) of
Exhibit A (the "QUARTERLY DELIVERY REQUIREMENT") for each such related Quarterly
Delivery Period. Petrobras shall satisfy such obligation during the first 60
days of each Quarterly Delivery Period. Any payment in full of Liquidated
Damages made in accordance with Section 3.01(c) shall satisfy the obligations of
Petrobras to satisfy the Quarterly Delivery Requirement for the relevant
Quarterly Delivery Period.
(b) The Initial Prepayment Amount was paid on the Closing Date. It
shall be a condition precedent to the payment of the Second Prepayment Amount by
Petrobras Finance that (i) all orders, licenses, consents, authorizations,
approvals, exemptions or notices of registration of or with any federal, state,
municipal or other foreign or domestic governmental department, commission,
board, bureau, agency or other foreign or domestic governmental, administrative
or judicial authority or regulatory body necessary in connection with the
execution, delivery and performance by Petrobras of this Agreement, including
without limitation, (A) the registration (Registro de Operacoes Financeiras or
"ROF") from the Central Bank of Brazil with respect to the transactions
contemplated hereunder in connection with the Second Prepayment Amount, which
ROF shall be in full force and effect as of the Second Closing Date and (B) the
export registration, each of which shall have been obtained or given and (ii)
any filings, recordings, publications or registrations of any kind necessary in
connection with the execution, delivery and performance by Petrobras of this
Agreement shall have been made, provided, however, that prior registration with
the Central Bank of Brazil of Petrobras' payment obligations contained in the
Transaction Documents that are not covered by the ROF shall not be a condition
precedent to the payment of the Second Prepayment Amount. Petrobras shall obtain
the customary export licenses within SISCOMEX prior to each individual export of
goods.
Amended and Restated Prepayment Agreement
12
(c) Any and all Eligible Products to be delivered by Petrobras
hereunder shall be delivered to Petrobras Finance in accordance with and subject
to the terms and conditions of the Master Export Contract (including, without
limitation, Article II thereof).
(d) No oil products other than Heavy Fuel Oil shall be deemed to be
Eligible Products except in accordance with the terms and conditions set forth
in Section 2.06 of the Master Export Contract. 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.
(e) Any Eligible Products delivered under this Agreement shall be of
Readily Marketable Quality (as defined in Section 2.3 of the Offtake Contract).
None of the obligations of Petrobras under this Agreement (including
the obligation of Petrobras to deliver the Eligible Products purchased on the
Closing Date and, subject to the payment in full of the Second Prepayment
Amount, its obligation to deliver the additional Eligible Products purchased on
the Second Closing Date) may be suspended for any reason (including without
limitation, as a result of an event of force majeure or the breach by Petrobras
Finance of any of its obligations hereunder or under any other Transaction
Document to which it is a party).
Section 2.03 Taxes.
(a) Petrobras shall pay all amounts due to Petrobras Finance under this
Agreement, free and clear of all deductions of any present or future taxes,
duties, levies, imposts, assessments or other governmental charges (including
penalties, interest and other liabilities related thereto) of any nature imposed
by the United States, the Cayman Islands or Brazil or any other jurisdiction
from or through which payment is made, or any political subdivision of such
jurisdiction (collectively, "TAXES") (including, without limitation, Taxes
imposed on the income of Petrobras Finance by the jurisdiction under which
Petrobras Finance is incorporated and branch profits Taxes) assessed against
Petrobras Finance. In the event Petrobras is required to deduct or withhold any
Taxes, Petrobras hereby agrees to pay the required deductions contemplated in
the preceding sentence, including deductions applicable to the additional
amounts payable thereunder, so that Petrobras Finance shall receive an amount
equal to the sum it would have received had no such deductions been made.
(b) Petrobras shall indemnify Petrobras Finance against all shortfalls,
costs, expenses, liabilities, obligations, losses, damages, penalties, actions,
suits or claims which may be imposed upon, incurred or suffered by Petrobras
Finance in respect of any Taxes described in Section 2.03(a) above.
Section 2.04 Reimbursement. Petrobras shall reimburse Petrobras Finance
and the Trustee, as the case may be, on demand for all reasonable and documented
fees and expenses incurred by Petrobras Finance in connection with the
enforcement of its rights under this Agreement and by the Trustee in connection
with the enforcement of its rights and benefits as a third party beneficiary
under this Agreement.
Amended and Restated Prepayment Agreement
13
ARTICLE III
NON-DELIVERY OF ELIGIBLE PRODUCTS
Section 3.01 Non-Delivery of Eligible Products; Liquidated Damages.
(a) If Petrobras fails during any Quarterly Delivery Period, for any
reason whatsoever, to export to Petrobras Finance Eligible Products with a value
equal to the Quarterly Delivery Requirement for any such period pursuant to
Section 2.02 (including, without limitation, clause (a) thereof), Petrobras
shall pay to Petrobras Finance, prior to 12:00 p.m. one Business Day prior to
the Cut-Off Date immediately preceding the last day of such Quarterly Delivery
Period, liquidated damages (the "LIQUIDATED DAMAGES") equal to (i) the value of
the Quarterly Delivery Requirement for such Quarterly Delivery Period (as
specified in Column ([E]) of Exhibit A) minus (ii) the market value of Eligible
Products actually delivered during such Quarterly Delivery Period.
(b) The "market value" referred to in each of Section 2.02(a), clause
(ii) of Section 3.01(a) above and the definition of "Quarterly Delivery
Requirement" in Section 1.01 shall mean the sum of the aggregate Net Invoice
Amount of all Eligible Products Sold to Buyers other than the Offtaker plus the
aggregate Market Price per Barrel of all Eligible Products Sold to the Offtaker
(regardless of whether the Market Price per Barrel was the basis for the Net
Invoice Amount).
(c) Petrobras Finance hereby irrevocably instructs Petrobras to pay any
and all Liquidated Damages into the Purchased Receivables Account. Payment in
full of the Liquidated Damages into the Purchased Receivables Account shall
satisfy the obligations of Petrobras to satisfy the Quarterly Delivery
Requirement for the relevant Quarterly Delivery Period. If the Trustee informs
Petrobras that such Purchased Receivables Account has ceased to exist or has
been replaced by another account, then Petrobras shall thereafter deposit any
Liquidated Damages into such other account as designated by the Trustee.
ARTICLE IV
DEFAULT TERMINATION
Section 4.01 Petrobras Defaults. The occurrence of any of the following
events shall constitute a "PETROBRAS DEFAULT":
(a) The failure by Petrobras to export in any Quarterly
Delivery Period an amount of Eligible Products at least equal to the
Quarterly Delivery Requirement plus a minimum aggregate value (based
upon the Net Invoice Amount at which such Eligible Products are
actually sold by Petrobras Finance) equal to 0.2 times the Quarterly
Scheduled Senior Payment Amount;
(b) Any representation or warranty of Petrobras in any of the
Transaction Documents to which it is a party (i) shall fail to be
correct in any material respect as of the time when the same shall have
been made, and (ii) such failure has a Material Adverse Effect;
Amended and Restated Prepayment Agreement
14
(c) The failure of Petrobras to pay any amount payable by it
under any guarantee it provides pursuant to Section 4.01(w) of the
Receivables Purchase Agreement and such amount is not paid within 5
Business Days;
(d) (i) The failure of Petrobras 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 (other than Petrobras'
agreement to deliver the Quarterly Export Requirement, the failure of
which shall not, in and of itself, constitute a Petrobras Default) or
in any guarantee provided by Petrobras substantially in the form of
Exhibit E to the Receivables Purchase Agreement as contemplated in
Section 4.01(w) of the Receivables Purchase Agreement, (ii) such
failure has a Material Adverse Effect and (iii) such failure (other
than any failure as described in paragraph (a), (b) or (c) 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 by the Trustee;
(e) One or more final and non-appealable judgments or final
decrees is or are entered against Petrobras involving at any time in
the aggregate a liability (not paid or fully covered by insurance) of
US$50,000,000 (or its equivalent in another currency) or more, and any
such judgments or decrees are not vacated, discharged or stayed within
120 days after the rendering thereof;
(f) Any Bankruptcy Event of Petrobras shall occur and be
continuing;
(g) 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 by Petrobras in order (i) to enable
Petrobras lawfully to enter into, exercise its rights and perform and
comply with its material obligations under the Transaction Documents to
which it is a party, (ii) to ensure that those obligations are legally
binding and enforceable or (iii) 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 of New York, Brazil and the
Cayman Islands that is not taken, fulfilled or done within 10 days
after notice thereof has been given to Petrobras 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, provided, however, that Petrobras
shall be under no obligation to seek prior registration with the
Central Bank of Brazil of the payment obligations contained in the
Transaction Documents which are not covered by the ROF, and provided,
further, that approval for such payment obligations with the Central
Bank of Brazil shall only be required once enforcement thereof is
sought by the Trustee;
(h) (i) Any of the Transaction Documents entered into by
Petrobras, or any material part thereof, shall cease to be in full
force and effect or binding and enforceable against Petrobras, (ii) it
becomes unlawful for Petrobras to perform any obligation under any of
the foregoing Transaction Documents, or (iii) Petrobras shall contest
the
Amended and Restated Prepayment Agreement
15
enforceability of, or deny that it has liability under, any of the
foregoing Transaction Documents;
(i) The failure of Petrobras to retain, (i) with respect to
Petrobras Finance, 100%, and (ii) with respect to the U.S. Seller, at
least 51%, direct or indirect ownership of the outstanding voting and
economic interests in Petrobras Finance and the U.S. Seller,
respectively;
(j) The failure of Petrobras, during any rolling twelve-month
period from and after the Closing Date until the Final Scheduled
Principal Payment Date for each Series of outstanding Senior Trust
Certificates, to export pursuant to the Master Export Contract a daily
average of gross exports of at least 70,000 Barrels of Heavy Fuel Oil;
(k) (i) The acceleration on any Petrobras Indebtedness, unless
such acceleration is at the option of Petrobras or any Material
Subsidiary thereof; (ii) Petrobras or any Material Subsidiary thereof
fails to pay any Petrobras Indebtedness when due or, as the case may
be, beyond any applicable grace period; or (iii) Petrobras or any
Material Subsidiary thereof fails to pay when due any amount payable by
it under any Petrobras Guarantee for, or indemnity in respect of, the
indebtedness of any other Person or entity; provided, however, that the
aggregate amount of any such Petrobras Indebtedness falling within (i),
(ii) and (iii) above (as to which the time for payment has not been
extended by the relevant obligees) equals or exceeds U.S.$50,000,000
(or its equivalent in another currency);
(l) The performance by any Petrobras Party of any of their
respective obligations under any of the Transaction Documents is
prohibited under the law of any jurisdiction in which such performance
is required to take place, or any governmental authority of any such
jurisdiction takes any action that prevents any Petrobras Party from
carrying on all or a substantial portion of its business or operations
so that such Petrobras Party will be unable to perform its respective
obligations under the Transaction Documents and such action is not
withdrawn, rescinded or reversed within 30 days;
(m) Any governmental authority condemns, seizes, makes a
compulsory purchase of or expropriates all or a substantial portion of
the assets or business of Petrobras, such that Petrobras is no longer
able to produce Heavy Fuel Oil for export;
(n) For any rolling 12-month period from and after the Closing
Date, less than 50% of Petrobras' aggregate sales of Bunker Fuel (both
domestic and export), measured by volume, are exported from Brazil to
Petrobras Finance and sold to Buyers (including Specified Buyers);
(o) A moratorium is agreed or declared in respect of, or
affecting all or any part of, Petrobras Indebtedness; or
(p) Any event occurs that under the laws of any relevant
jurisdiction has substantially the same effect as any of the events
referred to in either sub-section (f) or (o).
Amended and Restated Prepayment Agreement
16
Section 4.02 Termination Events.
(a) If either (i) a Petrobras Default occurs and is continuing and, as
a result thereof, Controlling Parties representing at least 35% of the aggregate
principal amount of outstanding Senior Trust Certificates declare an
Acceleration Event or (ii) a Petrobras Finance Default has occurred and is
continuing then, in each case, the 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
Petrobras Finance shall notify Petrobras that this Agreement and the Master
Export Contract are subject to termination, provided that this Agreement and the
Master Export Contract 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, and provided further, however, that no termination of this
Agreement or the Master Export Contract shall be or become effective until such
time as the Termination Payment shall have been deposited into the Purchased
Receivables Account (or such replacement account therefore as the Trustee may
designate).
(b) In the event that this Agreement and the Master Export Contract
become subject to termination as provided in the preceding clause (a), on the
next succeeding Business Day Petrobras shall pay to Petrobras Finance the
Termination Payment directly into the Purchased Receivables Account. If the
Trustee informs Petrobras that such Purchased Receivables Account has been
replaced by another account, Petrobras shall deposit the Termination Payment
into such other account as designated by the Trustee.
(c) The right of Petrobras Finance to the payment of the Termination
Payment shall not be exclusive of any other right, power or remedy referred to
herein or now or hereinafter available to Petrobras Finance and the Trustee at
law, in equity, by statute or otherwise. Notwithstanding anything herein to the
contrary (including, without limitation, the first proviso in Section 4.02(a)
above), this Agreement and the Master Export Contract shall remain in full force
and effect until the payment in full by Petrobras of the Termination Payment.
Upon the payment in full of the Termination Payment, and the payment in full of
the principal of and interest on the Senior Trust Certificates and all other
amounts payable as provided in Section 9.11(d) of the Trust Deed, this Agreement
shall terminate.
ARTICLE V
MISCELLANEOUS
Section 5.01 Rights Confined to Parties; Third Party Beneficiaries.
(a) Except as set forth in sub-section (b) below, 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.
Amended and Restated Prepayment Agreement
17
(b) The Trustee, on behalf of the Certificate Holders and the
Enhancers, is expressly hereby a third party beneficiary with respect to all
obligations of Petrobras and Petrobras Finance under this Agreement and the
Master Export Contract and shall be entitled to enforce the same.
Section 5.02 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 and the Trustee.
(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.
Section 5.03 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
any third party beneficiaries, and each of their respective successors and
assigns. Neither party hereto shall be entitled to assign or transfer any of its
rights or obligations under this Agreement without the prior consent of the
other party hereto and the Trustee.
Section 5.04 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, in
each case for the benefit of any third party beneficiary hereunder 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) The parties hereto irrevocably agree that any legal action, suit or
proceeding brought by or against either of them 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
Amended and Restated Prepayment Agreement
18
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 will
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 to the non-exclusive jurisdiction of the aforesaid courts in person,
generally and unconditionally, 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 the New York office of Petrobras 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 courts of appeal thereto) or of the United
States of America for the Southern District of New York (and the courts of
appeal thereto), which service may be made on such designee, appointee and agent
in accordance with legal procedures prescribed for such courts. Each of
Petrobras and Petrobras Finance agrees to take any and all action necessary to
continue such designation in full force and effect and should such Process Agent
become unavailable for this purpose for any reason, each of Petrobras and
Petrobras Finance shall forthwith irrevocably designate a new Process Agent with
an office in New York, New York, which shall agree to act as such, with the
powers and for the purposes specified in this subsection. Each of Petrobras and
Petrobras Finance further irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents of any of the aforesaid
courts in any such action, suit or proceeding by hand delivery, to it at its
address set forth in Section 5.05(b) or to any other address of which it shall
have given notice pursuant to Section 5.05 or to its then Process Agent.
Section 5.05 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.
Amended and Restated Prepayment Agreement
19
(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 000
Xxxxxxx Xxxxxxxxx do Chile, 00
00000-000
Xxx xx Xxxxxxx - XX, Xxxxxx
Telephone: 000 00 00 0000 0000
Facsimile: 011 55 21 2534 1011
with a copy to:
To Petrobras:
Petroleo Brasileiro S.A. - Petrobras
Attn: Roldao de Xxxxx Xxxxxxx
Manager - Corporate Finance
Room 000
Xxxxxxx Xxxxxxxxx do Chile, 00
00000-000
Xxx xx Xxxxxxx - XX, Xxxxxx
Telephone: 000 00 00 0000 0000
Facsimile: 011 55 21 2534 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
Attention: Xxx Xxxxxxxx, Manager
Tel.: 000-000-0000
Fax: 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
Amended and Restated Prepayment Agreement
20
To the Servicer:
Petrobras International Finance Company
As Service to Petrobras Finance
Xxxxxxx Xxxxxxxxx xx Xxxxx, 00
00000-000
Xxx xx Xxxxxxx - XX, Xxxxxx
Attn: Xxxxxxxxxx Xxxxxxxx Tizatto
Deputy General Manager, Accounting
Xxxx 000 M
Telephone: 000 00 00 0000 0000
011 55 21 2534 4258
Section 5.06 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.
Section 5.07 Governing Law. THE PROVISIONS OF THIS AGREEMENT, AND ALL
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 5.08 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.
Section 5.09 Judgment Currency.
(a) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in 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 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 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 Dollars with such other
currency. If the Dollars so purchased are less than the sum originally due to
the recipient in 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 Dollars so purchased exceed the sum originally due to the
recipient in Dollars, the recipient agrees to remit to the other such excess.
Amended and Restated Prepayment Agreement
21
Section 5.10 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.
Section 5.11 Payments. Any payment to be made to Petrobras Finance by
Petrobras hereunder shall be made in 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.
Section 5.12 Survival. Notwithstanding anything to the contrary herein,
all obligations of Petrobras set forth in Sections 2.03, 2.04 and 5.11 shall
survive the termination of this Agreement.
Section 5.13 No Petition. Petrobras shall not be entitled to take any
step for the winding-up of, or initiate proceedings against, Petrobras Finance
under any applicable bankruptcy, reorganization or insolvency laws or laws with
similar effect.
Section 5.14 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 Receivables,
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.
Amended and Restated Prepayment Agreement
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
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:
Consented and Agreed:
U.S. BANK, NATIONAL ASSOCIATION, STATE OF NEW YORK )
CAYMAN ISLANDS BRANCH, COUNTY OF NEW YORK ) ss.:
as Trustee on behalf of the
PF Export Receivables Master
Trust
By: _________________________________ Sworn before me this
Name: ____ day of __________________, 2003
Title:
Amended and Restated Prepayment 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 Prepayment 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 Prepayment 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 Prepayment Agreement
EXHIBIT A
to the Prepayment Agreement
Amended and Restated Prepayment Agreement
ANNEX A
to the Prepayment Agreement
Definition of Bunker Fuel
"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.
Annex A to the Amended and Restated Prepayment Agreement
ANNEX B
to the Prepayment Agreement
Definition of Fuel Oil
"FUEL OIL" means fuel oil that originates from residual fractions of
distillation units at the refinery and from other processes such as
deasphalting.
Annex B to the Amended and Restated Prepayment Agreement
