EXECUTION
COPY
DEPOSITARY AGREEMENT
dated as of December 21, 2001
among
U.S. BANK, NATIONAL ASSOCIATION, CAYMAN ISLANDS BRANCH
in its capacity as Trustee of the
PF EXPORT RECEIVABLES MASTER TRUST
and
CITIBANK, N.A.
as Securities Intermediary
and
PETROBRAS FINANCE LTD.
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS, CONSTRUCTION...............................................................................1
1.01 Definitions.....................................................................................1
1.02 Construction....................................................................................2
ARTICLE II ESTABLISHMENT OF ACCOUNTS; PROCEDURES GOVERNING THE ACCOUNTS...........................................3
2.01 Establishment of Accounts.......................................................................3
2.02 Procedures Governing Accounts...................................................................3
2.03 Term of this Agreement..........................................................................5
ARTICLE III SECURITIES INTERMEDIARY...............................................................................5
3.01 Appointment of Securities Intermediary; Powers and Immunities...................................5
3.02 Reliance by Securities Intermediary.............................................................5
3.03 Court Orders....................................................................................6
3.04 Resignation or Removal..........................................................................6
ARTICLE IV MISCELLANEOUS..........................................................................................7
4.01 Reimbursement...................................................................................7
4.02 Rights Confined to Parties......................................................................7
4.03 Amendment or Waiver: Remedies Cumulative........................................................7
4.04 Binding Upon Assigns............................................................................7
4.05 Waiver of Immunity; Submission to Jurisdiction; Agent...........................................8
4.06 Notices.........................................................................................9
4.07 Severability...................................................................................10
4.08 Governing Law..................................................................................10
4.09 Use of English Language........................................................................10
4.10 Counterparts...................................................................................10
4.11 No Consequential Damages.......................................................................11
4.12 Survival.......................................................................................11
4.13 Liability of Trustee...........................................................................11
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This DEPOSITARY AGREEMENT, dated as of December 21, 2001 (this
"Agreement"), is made by and among (i) U.S. Bank, National Association, Cayman
Islands Branch in its capacity as trustee for the PF Export Receivables Master
Trust, a trust formed under the laws of the Cayman Islands (solely in such
capacity and together with its successors and assigns in such capacity, the
"Trustee"), (ii) Petrobras Finance Ltd., an exempted company with limited
liability incorporated and existing under the laws of the Cayman Islands
(together with its successors and assigns, "Petrobras Finance") and (iii)
Citibank, N.A. ("Citibank"), a national banking association in its capacity as
Depositary Bank for the Trustee hereunder (in such capacity and together with
its successors in such capacity, the "Securities Intermediary").
W I T N E S S E T H:
WHEREAS, Petrobras Finance and Petroleo Brasileiro S.A. - PETROBRAS
("Petrobras") have entered into the Prepayment Agreement and the Master Export
Contract each dated the date hereof (respectively, 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 certain
Eligible Products;
WHEREAS, the Trustee, Citibank, N.A. as Registrar, Paying Agent and
Transfer Agent and Petrobras International Finance Company, as Servicer, have
entered into the Trust Deed dated the date hereof (the "Trust Deed"), pursuant
to which the Trustee, in its capacity as trustee for the Trust, will issue
certain trust certificates and hold in trust the Trust Property (as defined in
the Trust Deed) for the benefit of the holders of the trust certificates and
others named therein;
WHEREAS, Petrobras Finance and Petrobras have entered into the
Receivables Purchase Agreement with the Trustee dated as of the date hereof (the
"Receivables Purchase Agreement"), pursuant to which Petrobras Finance will sell
to the Trustee certain designated receivables to be generated from the sale of
Eligible Products by Petrobras Finance;
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained the receipt and sufficiency of which are acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS, CONSTRUCTION
1.01 Definitions. The following capitalized terms (except as otherwise
expressly provided or unless the context otherwise requires) 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:
"Accounts" shall mean the accounts created pursuant to Section 2.02 of
this Agreement.
"Agreement" shall mean this Agreement, as the same may be amended,
modified or supplemented from time to time pursuant to Section 4.03.
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"Citibank" shall mean Citibank, N.A., and its successors and assigns.
"Funds" shall have the meaning set forth in Section 2.02.
"Master Export Contract" shall have the meaning set forth in the
recitals.
"Petrobras" shall have the meaning set forth in the recitals.
"Petrobras Finance" shall have the meaning set forth in the recitals.
"Prepayment Agreement" shall have the meaning set forth in the
recitals.
"Receivables Purchase Agreement" shall have the meaning set forth in
the recitals.
"Securities Intermediary" shall have the meaning set forth in the
recitals.
"Servicer" shall mean Petrobras International Finance Company and its
successors and assigns, as Servicer under the Servicing Agreement dated as of
the date hereof among the Servicer, the Trustee, Petrobras Finance and
Petrobras.
"Trustee" shall have the meaning set forth in the recitals and where
used in this Agreement, the term "Trustee" shall be construed to mean, in each
case, the Trustee acting solely in its capacity as trustee of the Trust.
"Trust Deed" shall have the meanings set forth in the recitals and
where used in this Agreement, the term "Trustee" shall be construed to mean, in
each case, the Trustee acting solely in its capacity as trustee of the Trust.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time.
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 and
Schedule 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) The Table of Contents and the Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
(d) In the event of any conflict between this Agreement (or any
portion thereof) or any other Transaction Document or any other agreement now
existing or hereafter entered into with respect to matters pertaining to the
Accounts, the terms of this Agreement shall prevail.
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ARTICLE II
ESTABLISHMENT OF ACCOUNTS;
PROCEDURES GOVERNING THE ACCOUNTS
2.01 Establishment of Accounts. The Securities Intermediary hereby
establishes the following segregated trust accounts and sub-accounts (the
"Accounts") in the form of non-interest bearing accounts, which Accounts are
described on Schedule I hereto, and which Accounts shall be maintained at all
times in accordance with Section 2.02 hereof during the terms of this Agreement:
(a) the Collection Account;
(b) the Purchased Receivables Account;
(c) the Junior Trust Certificate Subaccount;
(d) the Senior Trust Certificate Account;
(e) the Reserve Account; and
(f) the Retention Account.
2.02 Procedures Governing Accounts.
(a) The Securities Intermediary hereby agrees to accept all Collections,
Eligible Investments, Acceptable Letters of Credit and all other cash, payments
and other amounts (including instruments evidencing such amounts) delivered to
or held by the Securities Intermediary pursuant to the terms of the Transaction
Documents (collectively, the "Funds"), and to promptly deposit, at the direction
of the Trustee, all such Funds into the Accounts established hereunder. The
Securities Intermediary shall hold and safeguard the Accounts and the Funds
contained therein during the term of this Agreement.
(b) The Collection Account and the Purchased Receivables Account shall be
established and maintained in the name of the Trustee for the benefit of the
Trustee, the Certificate Holders and the Enhancers. The Senior Trust Certificate
Account, the Reserve Account and the Retention Account shall be established and
maintained in the name of the Trustee for the benefit of the Trustee, the Senior
Certificate Holders and the Enhancers. All Funds held from time to time on
deposit in or credited to any Account shall be held in the custody of the
Securities Intermediary for the purposes and on the terms set forth in this
Agreement and the other Transaction Documents. The Securities Intermediary shall
maintain the Accounts and all Funds on deposit therein or credited thereto in
New York, New York.
(c) Each of the Accounts shall at all times be in the exclusive
possession, and under the exclusive dominion and control, of the Trustee.
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(d) Petrobras Finance hereby acknowledges, confirms and agrees that it has
no right, title or interest in, to or under any of the Accounts established
hereunder and described on Schedule I hereto or any Funds or other assets
contained therein.
(e) (i) The Securities Intermediary acknowledges, confirms and agrees
that (A) it has established the Accounts as set forth in this Article II, (B)
each Account is a "securities account" (as defined in Section 8-501(a) of the
UCC), (C) the Trustee is the "entitlement holder" (as defined in Section
8-102(a)(7) of the UCC) of the Accounts, (D) all Funds delivered to the
Securities Intermediary pursuant to this Agreement or the other Transaction
Documents will be promptly credited to an Account, (E) all "financial assets"
(within the meaning of Section 8-102(a)(9) of the UCC) in registered form or
payable to or to order and credited to any Account shall be registered in the
name of, payable to or to the order of, or specially endorsed to, the Trustee or
in blank, or credited to another securities account maintained in the name of
the Trustee, (F) the Securities Intermediary shall promptly comply with all
instructions of the Trustee and relating to any Account and Funds credited
thereto without further consent by any other Person, and (G) the Securities
Intermediary shall not change the name or account number of any Account without
the prior written consent of the Trustee.
(ii) The Securities Intermediary agrees that each item of property
(whether a security, an instrument or obligation, share, participation,
interest or other property whatsoever, including cash) credited to any
Account shall be treated as a "financial asset" under and as defined in
Section 8-102(a)(9) of the UCC.
(iii) The financial assets standing to the credit of the Accounts will
not be subject to deduction, set-off, banker's lien, or any other right in
favor of any Person other than the rights of the Trustee set forth in this
Agreement. The Securities Intermediary hereby waives any right of banker's
lien, set-off or counterclaim in respect of any assets contained in any
Account or otherwise that are held by the Securities Intermediary
hereunder.
(iv) The Securities Intermediary and the Trustee represent and
warrant that they have not entered into any agreement with respect to the
Accounts or any financial assets credited to any Account other than this
Agreement and the Trust Deed. The Securities Intermediary represents and
warrants that it has not entered into any agreement with the Servicer or
any other Person purporting to limit or condition its obligation to comply
with instructions originated by the Trustee in accordance with this Section
2.02.
(v) Except for the claims and interest of the Trustee in the
relevant Accounts, the Securities Intermediary does not know of any claim
to, or interest in, any Account or in any financial assets credited
thereto. If any Person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against any Account or in any financial asset
credited thereto, the Securities Intermediary will promptly notify the
Trustee thereof.
(vi) For purposes of the UCC, the Securities Intermediary confirms
and agrees that the "securities intermediary's jurisdiction" (as defined in
Section 8-110(e) of the UCC) with respect to the Accounts is the State of
New York.
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2.03 Term of this Agreement. The obligations of the Securities Intermediary
hereunder shall continue in effect until the termination of the Trust pursuant
to Section 8.01 of the Trust Deed.
ARTICLE III
SECURITIES INTERMEDIARY
3.01 Appointment of Securities Intermediary; Powers and Immunities.
(a) The Securities Intermediary may execute any of its duties under this
Agreement and the other Transaction Documents to which it is a party by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining hereto.
(b) The Trustee hereby appoints Citibank, in its capacity as Depositary
Bank, to act as Securities Intermediary hereunder, with such powers as are
expressly delegated to the Securities Intermediary by the terms of this
Agreement. The Securities Intermediary shall not have any duties or
responsibilities except those expressly set forth in this Agreement. Without
limiting the generality of the foregoing, the Securities Intermediary shall take
all actions as the Trustee shall direct it to perform in accordance with the
express provisions of this Agreement and the other Transaction Documents.
Notwithstanding anything to the contrary contained herein, the Securities
Intermediary shall not be required to take any action which is contrary to this
Agreement, any other Transaction Document to which it is a party or applicable
law. The Securities Intermediary shall not be required to ascertain or inquire
as to the performance by the Trustee or any other parties to the Transaction
Documents of any of their obligations thereunder or any other document or
agreement contemplated thereby. The Securities Intermediary shall not (i) be
required to initiate or conduct any litigation or collection proceeding
hereunder or under any other Transaction Document to which it is a party or (ii)
be responsible for any action taken or omitted to be taken by it hereunder or
under any other Transaction Document to which it is a party (except for its own
gross negligence or willful misconduct). Except as otherwise provided under this
Agreement, the Securities Intermediary shall take action under this Agreement
and any other Transaction Document to which it is a party only as it shall be
directed by the Trustee. Whenever in the administration of this Agreement or any
other Transaction Document to which it is a party the Securities Intermediary
shall deem it necessary or desirable that a factual matter be proved or
established in connection with the Securities Intermediary taking, suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may be deemed to be
conclusively proved or established by an officer's certificate of the Trustee or
any other relevant Person, as applicable. The Securities Intermediary shall have
no obligation to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder.
3.02 Reliance by Securities Intermediary. The Securities Intermediary shall
be entitled to rely upon and shall not be bound to make any investigation into
the facts or matters stated in any officer's certificate of the Trustee or any
other relevant Person, or in any other certificate, notice or other document
(including any cable, telegram, telecopy or telex) believed by it to be genuine
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice or statements of legal counsel, independent accountants and
other experts selected
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by the Securities Intermediary, and shall have no liability for its actions
taken thereupon, unless due to the Securities Intermediary's gross negligence or
willful misconduct. The Securities Intermediary shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Transaction Document to which it is a party (a) if such action would, in the
reasonable opinion of the Securities Intermediary, be contrary to applicable law
or the terms of this Agreement or any other Transaction Document to which it is
a party, (b) if such action is not specifically provided for in this Agreement
or any other Transaction Document to which it is a party, it shall not have
received any such advice or concurrence of the Trustee as it deems appropriate
or (c) if, in connection with the taking of any such action that would
constitute an exercise of remedies under any Transaction Document to which it is
a party (whether such action is or is intended to be an action of the Securities
Intermediary or the Trustee), it shall not first be indemnified to its
satisfaction against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Securities
Intermediary shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Transaction Document in
accordance with a request of the Trustee.
3.03 Court Orders. The Securities Intermediary is hereby authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency affecting any Funds,
documents or other things held by the Securities Intermediary. The Securities
Intermediary shall not be liable to the Trustee, its successors, heirs or
personal representatives by reason of the Securities Intermediary's compliance
with such writs, orders, judgments or decrees, notwithstanding that any such
writ, order, judgment or decree is later reversed, modified, set aside or
vacated.
3.04 Resignation or Removal. Subject to the appointment and acceptance of a
successor Securities Intermediary as provided below, the Securities Intermediary
may resign at any time by giving thirty (30) Business Days' written notice
thereof to the Trustee and the Servicer. The Securities Intermediary may be
removed at any time with cause by the Trustee, acting at the direction of
Controlling Parties representing more than 50% of the aggregate principal amount
of outstanding Senior Trust Certificates. Upon any such resignation or removal,
the Trustee, acting at the direction of Controlling Parties representing more
than 50% of the aggregate principal amount of outstanding Senior Trust
Certificates, shall have the right to appoint a successor Securities
Intermediary. If no successor Securities Intermediary shall have been appointed
by the Trustee or shall have accepted such appointment within thirty (30)
Business Days after the retiring Securities Intermediary's giving of notice of
resignation or the removal of the retiring Securities Intermediary, then (a) the
retiring Securities Intermediary may petition a court of competent jurisdiction
for the appointment of a successor Securities Intermediary or (b) the retiring
Securities Intermediary may appoint a successor Securities Intermediary, which
shall be a bank or trust company (i) reasonable acceptable to the Trustee and
Petrobras and (ii) having a combined capital and surplus of at least
$200,000,000. Upon the acceptance of any appointment as Securities Intermediary
hereunder by any successor Securities Intermediary, such successor Securities
Intermediary shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Securities Intermediary,
and the retiring Securities Intermediary shall be discharged from any further
duties and obligations hereunder and shall promptly transfer all Accounts within
its possession or control to the possession or control of the successor
Securities Intermediary and shall execute and deliver such notices, instructions
and assignments as may be necessary or desirable to transfer the rights
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of the Securities Intermediary with respect to the Accounts to the successor
Securities Intermediary. After the retiring Securities Intermediary's
resignation or removal hereunder as Securities Intermediary, the provisions of
this Article III shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Securities
Intermediary. Notwithstanding anything to the contrary herein, any successor
Securities Intermediary appointed hereunder must be a bank or trust company with
a long-term debt rating of A3 by Xxxxx'x, A- by S&P and A- by Fitch.
ARTICLE IV
MISCELLANEOUS
4.01 Reimbursement. The Securities Intermediary agrees to reimburse the
Trustee on demand for all reasonable and documented expenses incurred by the
Trustee in connection with the enforcement of its rights under this Agreement.
4.02 Rights Confined to Parties. Nothing expressed or implied herein is
intended or shall be construed to confer upon or 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.
4.03 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 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 the parties hereto 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.
4.04 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 their rights or obligations under this Agreement
without the prior written consent of the other parties hereto.
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4.05 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, 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) 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 be brought in the
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) The Trustee hereby irrevocably designates, appoints and empowers
Citibank, N.A., with offices on the date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attn: Structural Finance Group-PF Export Receivables Master
Trust, and its successors as its process agent and Petrobras Finance hereby
appoints Petrobras with offices on the date hereof at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000 (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 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 the parties hereto 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 the parties hereto 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
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subsection. Each of the parties hereto 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 4.06 or to any other address
of which it shall have given notice pursuant to Section 4.06 or to its then
Process Agent.
4.06 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 the Securities Intermediary:
Citibank, N.A.
Attn: Structured Finance Group - PF Export Receivables Master Trust
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
To the Trustee:
U.S. Bank, National Association,
Cayman Islands Branch
Attn: Xxxxx Xxxxxxxxxx
c/o IBJ Whitehall Bank and Trust Company
X.X. Xxx 0000 XX
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
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
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To: Petrobras Finance
Petrobras Finance Limited
Xxxxxxx Xxxxxxxxx xx Xxxxx 00000-000
Xxx xx Xxxxxxx - XX, Xxxxxx
Attn: Lair Xxxxxxxx
Director
Room 302 L
Telephone: 000 00 00 0000 0000
011 55 21 2534 4258
with a copy to:
The Servicer
Petrobras International Finance Company
Xxxxxxx Xxxxxxxxx xx Xxxxx, 00
00000 - 000
Xxx xx Xxxxxxx - XX, Xxxxxx
Attn: Xxxxxxxxxx Xxxxxxxx Tizatto
Deputy General Manager Accounting
Room 301M
Telephone: 000-00-00-0000-0000
011-55-21-2534-0438
4.07 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.
4.08 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.
4.09 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.
4.10 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.
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4.11 No Consequential Damages. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall any party hereto be liable to the
other party for any consequential damages or lost profits that such other party
may suffer. The parties acknowledge that this Section is intended only to limit
their liability to each other for consequential loss or damage, and shall not be
construed so as to limit their liability to third parties or their right to seek
indemnification for third party claims in accordance with any other Section.
4.12 Survival. Notwithstanding anything to the contrary herein, the
obligations of Securities Intermediary under Section 4.01 hereof shall survive
the termination of this Agreement.
4.13 Liability of Trustee.
(a) Subject to Section 4.13(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 any obligations or liabilities of the Trustee owed to any of
the parties hereto hereunder (including to pay fees and expenses) are limited
solely to the assets of the Trust Property from time to time and each of the
parties hereto shall have no rights of recourse against the Trustee in its
personal capacity and once the assets in the Trust Property are exhausted any
remaining obligations or liabilities of the Trustee owed to any of the parties
hereunder shall be extinguished.
(b) Notwithstanding anything to the contrary contained in this Agreement,
the Trustee shall not be relieved from any obligation, claim or liability to the
extent of and arising from the Trustee's fraud, willful misconduct, negligence
or breach of trust.
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Depositary Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Depositary
Agreement to be duly executed as of the day and year first above written.
CITIBANK, N.A.,
as Securities Intermediary
By: ______________________________________________
Name:
Title:
U.S. BANK, NATIONAL ASSOCIATION,
CAYMAN ISLANDS BRANCH,
as Trustee of the PF Export Receivables
Master Trust
By: ______________________________________________
Name:
Title:
PETROBRAS FINANCE LTD.
By:_______________________________________________
Name:
Title:
Depositary Agreement
Schedule I
Accounts
--------
Account Name Account #
------------ ---------
Collection Account 36202624
Purchased Receivables Account 104184
Junior Trust Certificate Account 104189
Senior Trust Certificate Account 104185
Reserve Account 104186
Retention Account 104187
Depositary Agreement
