Exhibit No. 2.6
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"),
effective as of March 31, 2003, by and among Petrobras International Finance
Company, an exempted company incorporated with limited liability under the laws
of the Cayman Islands, having its principal office at ▇▇▇▇▇▇▇▇ Square Building,
P.O. Box 714, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands (the "Company"),
JPMorgan Chase Bank, a New York banking corporation, as Trustee hereunder (the
"Trustee"), and Petroleo Brasileiro S.A. - PETROBRAS, a mixed capital company
(sociedade de economia mista) organized under the laws of Brazil, having its
principal office at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ -
▇▇, ▇▇▇▇▇▇ ("Petrobras").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee previously have entered into an
indenture, dated as of July 19, 2002 (the "Original Indenture", and as
supplemented by this First Supplemental Indenture and any further supplements
thereto, the "Indenture"), providing for the issuance from time to time of
secured or unsecured debentures, notes or other evidences of indebtedness of the
Company to be issued in one or more series as provided in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that, subsequent to the
execution of the Original Indenture and subject to satisfaction of certain
conditions, the Company and the Trustee may enter into one or more indentures
supplemental to the Original Indenture to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Securities (as
defined in the Indenture);
WHEREAS, on the date hereof, the Company intends to issue pursuant to
its Registration Statement on Form F-3 (File No. 333-92044) (the "Registration
Statement"), effective on August 14, 2002, the Prospectus Supplement dated March
24, 2003 and related Base Prospectus dated August 14, 2002 (collectively, the
"Offering Document"), and the Indenture U.S.$400,000,000 of its 9.00% Global
Step-Up Notes due 2008 in the form attached as Exhibit A hereto (the "Notes"),
having the terms and conditions contemplated in the Offering Document as
provided for in the Original Indenture, as supplemented by this First
Supplemental Indenture;
WHEREAS, as contemplated in the Offering Document, Petrobras and the
Trustee intend, in connection with the issuance of the Notes, to (i) enter into
a Standby Purchase Agreement, dated as of the date hereof in the form attached
as Exhibit B hereto (the "Standby Purchase Agreement"), to provide the holders
of the Notes (the "Holders") with assurances that, if the Company shall fail to
make all required payments of principal, interest or other amounts due in
respect of the Notes and the Indenture, Petrobras will purchase the rights of
the Holders to receive such amounts in consideration of the payment by Petrobras
of an amount of funds equal to the amounts then owed under the Indenture and the
Notes, subject to the provisions thereof and (ii) grant Holders of the Notes
direct rights against Petrobras in respect of the Standby Purchase Agreement by
Petrobras being a party to the Indenture as provided herein;
First Supplemental Indenture
WHEREAS, the Trustee has provided to the Company and Petrobras
Statements of Eligibility under the Trust Indenture Act of 1939, as amended,
with respect to each of the Companies which have been filed as exhibits to the
Registration Statement;
WHEREAS, any and all conditions and requirements necessary to make this
First Supplemental Indenture a valid, binding, and legal instrument in
accordance with the terms of the Indenture have been performed and fulfilled and
the execution and delivery of this First Supplemental Indenture have been in all
respects duly authorized;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this First Supplemental Indenture; and
WHEREAS, the Company and Petrobras have requested that the Trustee
execute and deliver this First Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Indenture and for other good and valuable
consideration, the receipt and sufficiency of which are herein acknowledged, the
Company, Petrobras and the Trustee hereby agree, for the equal and ratable
benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms. All capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Indenture, as
supplemented and amended hereby. All definitions in the Original Indenture shall
be read in a manner consistent with the terms of this First Supplemental
Indenture.
Section 1.02. Additional Definitions. (a) For the benefit of the
Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by
adding the following new definitions:
"Closing Date" means March 31, 2003.
"Currency Judgment" has the meaning set forth in Section
2.03(e) herein.
"Default Rate" has the meaning set forth in Section 2.01(f)
herein.
"Denomination Currency" has the meaning set forth in Section
2.03(e) herein.
"Denomination Judgment" has the meaning set forth in Section
2.03(e) herein.
"Interest Period" means the period beginning on an Interest
Payment Date and ending on the day before the next Interest Payment
Date, except that the first Interest Period shall be the period
beginning on the Closing Date and ending on the day before the next
Interest payment Date.
2 First Supplemental Indenture
"Lien" means any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance on any property or
asset, including, without limitation, any equivalent created or arising
under applicable Law.
"Material Subsidiary" means, as to any Person, any Subsidiary
of such Person which, on any given date of determination, accounts for
more than 7.5% of Petrobras' total consolidated assets, as such total
assets are set forth on the most recent consolidated financial
statements of Petrobras prepared in accordance with U.S. GAAP (or if
Petrobras does not prepare financial statements in U.S. GAAP,
consolidated financial statements prepared in accordance with Brazilian
generally accepted accounting principles).
"Offering Document" shall have the meaning set forth in the
recitals to the First Supplemental Indenture.
"Payment Account" has the meaning set forth in Section 2.01(g)
herein.
"Permitted Lien" means a:
(a) Lien arising by operation of law, such as merchants',
maritime or other similar Liens arising in the Company's ordinary
course of business or that of any Subsidiary or Lien in respect of
taxes, assessments or other governmental charges that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings;
(b) Lien arising from the Company's obligations under
performance bonds or surety bonds and appeal bonds or similar
obligations incurred in the ordinary course of business and consistent
with the Company's past practice;
(c) Lien arising in the ordinary course of business in
connection with Indebtedness maturing not more than one year after the
date on which such Indebtedness was originally incurred and which is
related to the financing of export, import or other trade transactions;
(d) Lien granted upon or with respect to any assets hereafter
acquired by the Company or any Subsidiary to secure the acquisition
costs of such assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such assets, including any Lien
existing at the time of the acquisition of such assets as long as the
maximum amount so secured shall not exceed the aggregate acquisition
costs of all such assets or the aggregate Indebtedness incurred solely
for the acquisition of such assets;
(e) Lien granted in connection with the Indebtedness of a
Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned
Subsidiary;
(f) Lien existing on any asset or on any stock of any
Subsidiary prior to the acquisition thereof by the Company or any
Subsidiary as long as such Lien is not created in anticipation of such
acquisition;
(g) Lien existing as of the date of the Indenture;
(h) Lien resulting from the Transaction Documents;
(i) Lien incurred in connection with the issuance of debt or
similar securities of a type comparable to those already issued by the
Company, on amounts of cash or cash
3 First Supplemental Indenture
equivalents on deposit in any reserve or similar account to pay
interest on such securities for a period of up to 24 months as required
by any Rating Agency as a condition to such Rating Agency rating such
securities investment grade or as is otherwise consistent with market
conditions at such time, as such conditions are satisfactorily
demonstrated to the Trustee;
(j) Lien granted or incurred to secure any extension, renewal,
refinancing, refunding or exchange (or successive extensions, renewals,
refinancings, refundings or exchanges), in whole or in part, of or for
any Indebtedness secured by Lien referred to in paragraphs (i) through
(i) above (but not paragraph (c)), provided that such Lien does not
extend to any other property, the principal amount of the Indebtedness
secured by such Lien is not increased, and in the case of paragraphs
(a), (b) and (c), the obligees meet the requirements of such
paragraphs; and
(k) Lien in respect of Indebtedness the principal amount of
which in the aggregate, together with all Liens not otherwise
qualifying as the Company's Permitted Liens pursuant to clauses (a)
through (j) of this definition, does not exceed 7.5% of the Company's
consolidated total assets (as determined in accordance with U.S. GAAP)
at any date as at which the Company's balance sheet is prepared and
published in accordance with applicable Law.
"Put Date" has the meaning set forth in Section 2.01(e)
herein.
"Put Notice" has the meaning set forth in Section 2.01(l)
herein.
"Put Option" has the meaning set forth in Section 2.01(l)
herein.
"Put Price" has the meaning set forth in Section 2.01(l)
herein.
"Taxing Jurisdiction" shall mean, Brazil, the Cayman Islands
or any political subdivision or any taxing authority thereof or therein.
ARTICLE 2
TERMS OF THE NOTES
Section 2.01. General. In accordance with Section 3.01 of the Original
Indenture, the following terms relating to the Notes are hereby established:
(a) Title: The Notes shall constitute a series of
Securities having the title "9.00% Global Step-Up Notes due 2008".
(b) Aggregate Amount: The aggregate principal amount of
the Notes that may be initially authenticated and delivered under the First
Supplemental Indenture shall be U.S.$400,000,000. As provided in the Original
Indenture, the Company may, from time to time, without the consent of the
Holders of Notes, issue Add On Notes having identical terms (including CUSIP,
ISSN and other relevant identifying characteristics as the Notes), so long as,
on the date of issuance of such Add On Notes: (i) no Default or Event of Default
shall have occurred and then be continuing, or shall occur as a result of the
issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with
the Notes and shall have identical terms,
4 First Supplemental Indenture
conditions and benefits as the Notes and be part of the same series as the
Notes, (iii) the Company and the Trustee shall have executed and delivered a
further supplemental indenture to the Indenture providing for the issuance of
such Add On Notes and reflecting such amendments to the Indenture as may be
required to reflect the increase in the aggregate principal amount of the Notes
resulting from the issuance of the Add On Notes, (iv) Petrobras and the Trustee
shall have executed and delivered an amended Standby Purchase Agreement
reflecting the increase in the aggregate principal amount of the Notes resulting
from the issuance of the Add On Notes and (v) the Trustee shall have received
all such opinions and other documents as it shall have requested, including an
Opinion of Counsel stating such Add On Notes are authorized and permitted by the
Indenture and all conditions precedent to the issuance of such Add On Notes have
been complied with by the Company and Petrobras. All Add On Notes issued
hereunder will, when issued, be considered Notes for all purposes hereunder and
will be subject to and take the benefit of all of the terms, conditions and
provisions of this Indenture.
(c) Ranking: The Notes (including the Add On Notes) shall
be general senior unsecured and unsubordinated obligations of the Company and
shall at all times rank pari passu among themselves and at least equal in right
of payment with all of the Company's other present and future unsecured and
unsubordinated obligations from time to time outstanding that are not, by their
terms, expressly subordinated in right of payment to the Notes.
(d) Maturity: The entire outstanding principal of the
Notes shall be payable in a single installment on April 1, 2008 (the "Stated
Maturity"). No payments in respect of the principal of the Notes shall be paid
prior to the Stated Maturity except in the case of the occurrence of an Event of
Default and acceleration of the aggregate outstanding principal amount of the
Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of
the Indenture or upon the exercise by a Holder of a Note of a Put Option
pursuant to Section 2.01(l) of this First Supplemental Indenture.
(e) Interest: Interest shall accrue on the Notes at the
rate of 9.00% per annum for each Interest Period from the Closing Date until
April 1, 2006 (the "Put Date") and at a rate of 12.375% per annum thereafter
until all required amounts due in respect of the Notes have been paid. All
interest shall be paid by the Company to the Trustee and distributed by the
Trustee in accordance with this Indenture semiannually in arrears on April 1 and
October 1 of each year (or, as provided in the Original Indenture, if such date
is not a Business Day, the next succeeding Business Day following such day)
during which any portion of the Notes shall be Outstanding (each, an "Interest
Payment Date"), commencing on October 1, 2003 to the Person in whose name a Note
is registered at the close of business on the preceding Regular Record Date
(which shall mean, with respect to any payment to be made on an Interest Payment
Date, the Business Day that is ten Business Days prior to such Interest Payment
Date.) As provided in the Original Indenture, (i) interest shall be calculated
based on a 360-day year of twelve 30-day months, (ii) payment of principal and
interest and other amounts on the Notes will be made at the Corporate Trust
Office of the Trustee in New York City, or such other paying agent office in the
United States as the Company appoints, in the form provided for in Section 10.17
of the Indenture, (iii) all such payments to the Trustee shall be made by the
Company by depositing immediately available funds in U.S. dollars one Business
Day prior to the relevant Interest Payment Date to the Payment Account and (iv)
so long as any of the Notes remain Outstanding, the Company shall maintain a
paying agent in New York City.
5 First Supplemental Indenture
(f) Default Rate: Upon the occurrence and during the
continuation of an Event of Default, (i) interest on the outstanding principal
amount of the Notes shall accrue on the Notes at a rate equal to 1.0% per annum
above the interest rate on the Notes at that time (the "Default Rate") and (ii)
to the fullest extent permitted by law, interest shall accrue on the amount of
any interest, fee, Additional Amounts, or other amount payable under the
Indenture and the Notes that is not paid when due, from the date such amount was
due until such amount shall be paid in full, excluding the date of such payment,
at the Default Rate.
(g) Payment Account: On the Closing Date, the Trustee
shall establish (and shall promptly notify the Company of the establishment of
such account, including the relevant account numbers and other relevant
identifying details) and, until the Notes and all accounts due in respect
thereof have been paid in full, maintain a special purpose non-interest bearing
trust account (the "Payment Account") into which all payments required to be
made by the Company under or with respect to the Notes shall be deposited. The
Company agrees that the Payment Account shall be maintained in the name of the
Trustee and under its sole dominion and control (acting on behalf of the Holders
of the Notes) and used solely to make payments of principal, interest and other
amounts from time to time due and owing on, or with respect to, the Notes. No
funds contained in the Payment Account shall be used for any other purpose or in
any manner not expressly provided for herein nor shall the Company or any other
Person have an interest therein or amounts on deposit therein. All amounts on
deposit in the Payment Account on any Interest Payment Date after the Trustee
has paid all amounts due and owing to the holders of the Notes as of such
Interest Payment Date shall be retained in the Payment Account and used by the
Trustee to pay any amounts due and owing to the Holders of the Notes on the next
succeeding Interest Payment Date.
(h) Form and Denomination: The Notes shall be issuable in
whole in the registered form of one or more Global Notes (without coupons), in
minimum denominations of U.S.$10,000 and integral multiples of U.S.$10,000 in
excess thereof, and shall be transferable in integral multiples of U.S.$1,000
and the Depository for such Global Notes shall be The Depository Trust Company,
New York, New York.
(i) Standby Purchase Agreement: The Notes shall have the
benefit of the Standby Purchase Agreement in the manner provided in Article 3 of
this First Supplemental Indenture.
(j) Rating: The Notes can be issued without the
requirement that they have any rating from a nationally recognized statistical
rating organization.
(k) Optional Early Redemption: The Notes are not
redeemable at the Company's option prior to the Stated Maturity except in the
circumstances provided for in Section 11.08 of the Indenture.
(l) Put Option: Not less than 60 days prior to the Put
Date, the Trustee shall furnish to the Holders of the Notes a written notice in
the form attached as Exhibit C hereto (the "Put Notice") together with a
reminder of the Put Date. On the Put Date, each Holder of a Note will have the
unilateral right to require, upon delivery of an executed Put Notice (and
provided that such Put Notice is not withdrawn) that the Company repurchase, in
whole or in part (provided that, if in part, the amount of the Note that the
Holder shall require the Company to repurchase shall be in an amount equal to
U.S.$10,000 or any integral multiple thereof) a Note
6 First Supplemental Indenture
held by it (the "Put Option") for a payment equal to the sum of (i) the
aggregate then outstanding principal amount of such Note, (ii) all accrued but
unpaid interest on the Note at the applicable interest rate then applicable to
the Notes through and excluding the Put Date and (iii) all other amounts then
due and payable on or with respect to the Note (the "Put Price"). Following the
repurchase of a Note by the Company, such Note (or part thereof) shall be
cancelled, unless such repurchase is in part, in which case the Note shall be
reissued (or the records of the Trustee on behalf of the Company adjusted) in
such manner as the Trustee deems appropriate to give effect to the same. The Put
Notice shall be given to the Company by such Holder by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Put Date.
The Company shall pay the Put Price (in immediately available funds in U.S.
dollars) to the Trustee (on behalf of the Holders of the Notes) on the Put Date.
At least one Business Day prior to any Put Date, the Company shall deposit with
the Trustee an amount of funds sufficient to pay the Put Price with respect to
all Notes to be repurchased. For so long as any outstanding Certificated Note is
held by the Trustee in accordance with this Section 2.01(l) and the terms of the
Put Notice, the depositor of such Note and not the Trustee shall be deemed to be
the holder of such Note for all purposes.
(m) Conversion: The Notes will not be convertible into,
or exchangeable for, any other securities.
Section 2.02. Amendments to Article Five Relating to Events of Default.
(a) Restated Events of Default: As it applies to the Notes, Section 5.01 of the
Original Indenture shall be amended to read in its entirety as follows:
"Section 5.01 Events of Default
"Event of Default," wherever used herein with respect to the
Notes, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
1. The Company shall fail to make any payment in respect
of principal on any of the Notes whether on the Stated Maturity, upon
redemption or prior to the Maturity or otherwise in accordance with the
terms of the Notes and this Indenture, non-payment of which shall
continue for a period of three calendar days and the Trustee shall not
have otherwise received such amounts from Petrobras under the Standby
Purchase Agreement, or otherwise by the end of such three calendar day
period;
2. The Company shall fail to make any payment in respect
of any interest or other amounts due on or with respect to the Notes
(including Additional Amounts, if any) in accordance with the terms of
the Notes and this Indenture, non-payment of which shall continue for a
period of 30 calendar days and the Trustee shall not have otherwise
received such amounts from Petrobras under the Standby Purchase
Agreement, or otherwise by the end of such 30 calendar day period;
3. Any of the representation or warranty made by
Petrobras under Sections 9(l), (p) (other than the last clause
thereof), (q), (r), (s), (t), (y), (ee), (ff), (kk), (ll), (mm), (uu)
and (vv) (but, in the case of Sections 9(s), (t), (y) and (ee), only to
the extent that
7 First Supplemental Indenture
breach thereof affects the enforceability of the Indenture, the Standby
Purchase Agreement or the Notes) under the Standby Purchase Agreement
shall prove to be incorrect as of the time when the same shall have
been made and as a result thereof there is a Material Adverse Effect;
4. The Company or Petrobras shall fail to perform, or
breach, any term, covenant, agreement or obligation contained in this
Indenture or the Standby Purchase Agreement and such failure (other
than any failure to make any payment under the Standby Purchase
Agreement, for which there is no cure) is either incapable of remedy or
continues for a period of 60 calendar days (inclusive of any time frame
contained in any such term, covenant, agreement or obligation for
compliance thereunder) after there has been received by the Company or
Petrobras from the Trustee or the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
5. (i) The acceleration of any Indebtedness of the
Company, Petrobras or any Material Subsidiary thereof in accordance
with the terms of such Indebtedness, it being understood that
prepayment or redemption by the Company, Petrobras or the relevant
Material Subsidiary thereof of any Indebtedness is not acceleration for
this purpose; (ii) the Company, Petrobras or any Material Subsidiary
thereof shall fail to pay any Indebtedness when due or, as the case may
be, beyond any applicable grace period specified in the underlying
transaction document; or (iii) the Company, Petrobras or any Material
Subsidiary thereof shall fail to pay when due any amount payable by it
under any Guarantee for, or indemnity in respect of, the Indebtedness
of any other Person; provided, however, that the aggregate amount of
any such Indebtedness falling within (i), (ii) or (iii) above (as to
which the time for payment has not been extended by the relevant
obligees) equals or exceeds U.S.$100,000,000 (or its equivalent in
another currency);
6. One or more final and non-appealable judgments or
final decrees is entered against the Company, Petrobras or any Material
Subsidiary thereof involving in the aggregate a liability (not
theretofore paid or covered by insurance) of U.S.$100,000,000 (or its
equivalent in another currency) or more, and all such judgments or
final decrees shall not have been vacated, discharged or stayed within
120 calendar days after the rendering thereof;
7. The Company, Petrobras or any Material Subsidiary
thereof stops payment of, or is generally unable to pay, its debts as
and when they become due except (i) as is otherwise expressly provided
under this Indenture or the Standby Purchase Agreement, or (ii) in the
case of a winding-up, dissolution or liquidation for the purpose of and
followed by a consolidation, merger, conveyance or transfer, the terms
of which shall have been approved by a resolution of a meeting of the
Holders;
8. Proceedings are initiated against the Company,
Petrobras or any Material Subsidiary thereof 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, and any such proceeding is not dismissed or
stayed within 90 days after the entering of such proceeding, or an
administrator, receiver, trustee, manager, fiduciary, statutory
manager, intervener or assignee for the benefit of
8 First Supplemental Indenture
creditors (or other similar official) is appointed to take possession
or control of, or a distress, execution, attachment or sequestration or
other process is levied, enforced upon, sued out or put in force
against, all or any material part of the undertaking, property, assets
or revenues of the Company, Petrobras or any Material Subsidiary
thereof;
9. The Company, Petrobras or any Material Subsidiary
thereof commences voluntarily or consents to judicial, administrative
or other 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 any composition, concordata or
other similar arrangement with its creditors, or appoints or applies
for the appointment of an administrator, receiver, trustee, manager,
fiduciary, statutory manager, 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, assets or
revenues, or takes any judicial, administrative or other similar
proceeding under any law for a readjustment or deferment of its
Indebtedness or any part of it;
10. An effective resolution is passed for, or any
authorized action is taken by any court of competent jurisdiction,
directing the winding-up, dissolution or liquidation of the Company,
Petrobras or any Material Subsidiary thereof (other than in any of the
circumstances referred to as exceptions in paragraph (6) above);
11. Any event occurs that under the laws of any relevant
jurisdiction has substantially the same effect as any of the events
referred to in any of paragraphs (6), (7), (8) or (9) of this Section
5.01.
12. Any action, condition or thing (including the
obtaining or effecting of any necessary consent, approval,
authorization, exemption, filing, license, order, recording or
registration) at any time required to be taken, fulfilled or done in
order to (i) enable the Company and Petrobras lawfully to enter into,
exercise its rights and perform and comply with its obligations under
this Indenture, the Notes and the Standby Purchase Agreement, (ii)
ensure that those obligations under this Indenture, the Notes and the
Standby Purchase Agreement are legally binding and enforceable or (iii)
make this Indenture, the Notes and the Standby Purchase Agreement
admissible in evidence in the courts of Brazil and the Cayman Islands
that is not taken, fulfilled or done within ten calendar days after
notice thereof has been given to the Company or 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 within ten calendar days
after notice of such removal, withdrawal, modification, or failure has
been given to the Company or Petrobras by the Trustee;
13. This Indenture, the Notes, the Standby Purchase
Agreement or any part thereof shall cease to be in full force and
effect or binding and enforceable against the Company or Petrobras, it
becomes unlawful for the Company or Petrobras to perform any material
obligation under this Indenture, the Notes or the Standby Purchase
Agreement, or the Company or Petrobras shall contest the enforceability
of this Indenture, the Notes or the Standby Purchase Agreement or deny
that it has liability under this Indenture, the Notes or the Standby
Purchase Agreement; and
9 First Supplemental Indenture
14. Petrobras fails to retain at least 51% direct or
indirect ownership of the outstanding voting and economic interests
(equity or otherwise) of and in the Company."
(b) Amendment to Acceleration Provision Relating to
Events of Default: As it applies to the Notes, Section 5.02 of the Original
Indenture is hereby amended by deleting the references to "Section 5.01(6),
5.01(7), 5.01(8) or 5.01(9)" in the first and second sentences of the first
paragraph and replacing them with references to "Section 5.01(7), 5.01(8),
5.01(9), 5.01(10) or 5.01(11)."
Section 2.03. Amendments to Article 10 Relating to Covenants. (a) Use
of Proceeds: As it applies to the Notes, Section 10.12 of the Original Indenture
shall be amended to read in its entirety as follows:
"Section 10.12 Use of Proceeds.
The Company will use the proceeds from the offer and sale of
the Notes after the deduction of any commissions principally for
general corporate purposes, including the financing of the purchase of
oil product imports and the repayment of existing trade-related debt."
(b) Statement of Officers as to Default and Notices of
Events of Default: As it applies to the Notes, Section 10.13 of the Original
Indenture shall be amended by deleting the second sentence in its entirety and
replacing it with the following:
"Within 10 calendar days (or promptly with respect to Events
of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7),
5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than
10 calendar days) after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default pursuant to
Section 5.01 hereunder, the Company shall provide notice to the Trustee
of such occurrence, accompanied by an Officer's Certificate of the
Company setting forth the details thereof."
(c) Provision of Financial Statements and Reports: As it
applies to the Notes, Section 10.14 of the Original Indenture shall be amended
by deleting the second paragraph in its entirety and replacing it with the
following:
"The Company will provide, together with each of the financial
statements delivered pursuant to this Section, an Officer's Certificate
stating (A) that a review of the Company's activities has been made
during the period covered by such financial statements with a view to
determining whether the Issuer has kept, observed, performed and
fulfilled its covenants and agreements under this Indenture; (B) a
schedule specifying the amount of Indebtedness of the type described
under clause (c) of "Permitted Lien" under Section 1.1 and the value of
property securing such Indebtedness, in each case as of the last day
covered by the financial statements specified above; and (C) that no
Default or Event of Default has occurred during such period or, if one
or more have actually occurred, specifying all such events and what
actions have been taken and will be taken with respect to such Event of
Default."
(d) Additional Amounts: As it applies to the Notes,
Section 10.19 of the Original Indenture shall be amended by (i) deleting the
word "Brazil" throughout Section 10.19 of the Original Indenture and replacing
it with the expression "Taxing Jurisdiction" (as defined
10 First Supplemental Indenture
in Section 1.02 of this First Supplemental Indenture) and (ii) adding the
following new paragraph at the end of Section 10.19:
"The Company shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property
taxes, charges or similar levies that arise in a Taxing Jurisdiction
from the execution, delivery, enforcement or registration of each Note
or any other document or instrument referred to herein or therein. The
Company shall indemnify and make whole the Holders of the Notes for any
present or future stamp, court or documentary taxes or any other excise
or property taxes, charges or similar levies payable by the Issuer as
provided in this paragraph paid by such Holder of the Notes."
(e) Additional Covenants Applicable to the Notes: As it
applies to the Notes, Article 10 of the Original Indenture shall be amended to
include the following:
"Section 10.20 Negative Pledge
So long as any Note remains Outstanding, the Company will not
create or permit any Lien, other than a Permitted Lien, on any of the
Company's assets to secure (a) any of the Company's Indebtedness or (b)
the Indebtedness of any other Person, unless the Company
contemporaneously creates or permits such Lien to secure equally and
ratably the Company's obligations under the Notes and this Indenture or
the Company provides such other security for the Notes as is duly
approved by a resolution of the Holders of the Notes in accordance with
this Indenture. In addition, the Company will not allow any of the
Company's Subsidiaries to create or permit any Lien, other than a
Permitted Lien, on any of its assets to secure (a) any of the Company's
Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness
of any other Person, unless it contemporaneously creates or permits the
Lien to secure equally and ratably the Company's obligations under the
Notes and this Indenture or the Company provides such other security
for the Notes as is duly approved by a resolution of the Holders of the
Notes.
Section 10.21 Transactions with Affiliates
The Company will not, and will not permit any of its
Subsidiaries to, enter into or carry out (or agree to enter into or
carry out) any transaction or arrangement with any Affiliate, except
for any transaction or arrangement entered into or carried out on terms
no less favorable to the Company or the Subsidiary than those which
could have been obtained on an arm's-length basis with a person that is
not an Affiliate. However, this requirement will not apply to
transactions (i) between Petrobras and the Company or any of the
Company's Subsidiaries or (ii) except as otherwise permitted under
clause (i), between or among the Company, Petrobras and any of their
respective Subsidiaries not involving any other Person so long as
consummation of any transaction described in this clause (ii) will not
have a Material Adverse Effect.
Section 10.22 Currency Rate Indemnity. (a) The Company shall
(to the extent lawful) indemnify the Trustee and the Holders of the
Notes and keep them indemnified against:
11 First Supplemental Indenture
(i) in the case of nonpayment by the Company of any
amount due to the Trustee, on behalf of the Holders of the Notes, under
the Indenture any loss or damage incurred by any of them arising by
reason of any variation between the rates of exchange used for the
purposes of calculating the amount due under a judgment or order in
respect thereof and those prevailing at the date of actual payment by
the Company; and
(ii) any deficiency arising or resulting from any
variation in rates of exchange between (i) the date as of which the
local currency equivalent of the amounts due or contingently due under
the Indenture or in respect of the Notes is calculated for the purposes
of any bankruptcy, insolvency or liquidation of the Company, and (ii)
the final date for ascertaining the amount of claims in such
bankruptcy, insolvency or liquidation. The amount of such deficiency
shall be deemed not to be increased or reduced by any variation in
rates of exchange occurring between the said final date and the date of
any bankruptcy, insolvency or liquidation or any distribution of assets
in connection therewith.
(b) The Company agrees that, if a judgment or order given or
made by any court for the payment of any amount in respect of its
obligations hereunder is expressed in a currency (the "Judgment
Currency") other than U.S. dollars (the "Denomination Currency"), it
will indemnify the relevant Holder against any deficiency arising or
resulting from any variation in rates of exchange between the date at
which the amount in the Denomination Currency is notionally converted
into the amount in the Judgment Currency for the purposes of such
judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and
independent obligations of the Company from its obligations under the
Indenture, will give rise to separate and independent causes of action,
will apply irrespective of any indulgence granted from time to time and
will continue in full force and effect notwithstanding any judgment or
the filing of any proof or proofs in any bankruptcy, insolvency or
liquidation of the Company for a liquidated sum or sums in respect of
amounts due under the Indenture or the Notes."
Section 2.04. Application of the Article of the Indenture Regarding
Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and
14.03 of the Original Indenture shall apply to the Notes.
ARTICLE 3
STANDBY PURCHASE AGREEMENT
Section 3.01. Execution. The Trustee is hereby authorized and directed
to execute and deliver the Standby Purchase Agreement and to perform all of its
duties and obligations thereunder.
Section 3.02. Enforcement. The Trustee shall enforce the provisions of
the Standby Purchase Agreement against Petrobras in accordance with the terms
thereof and the terms of the Indenture and Petrobras, by execution of this First
Supplemental Indenture, and by so agreeing to
12 First Supplemental Indenture
become a party to the Indenture, agrees that each Holder of the Notes shall have
direct rights under the Standby Purchase Agreement as if it were a party
thereto.
Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound
by the provisions of Sections 1.08 and 3.14 of the Indenture and (ii) confirms
that (A) its obligations under the Standby Purchase Agreement shall be issued
pursuant to the Indenture and (B) it intends for the Holders of the Notes, in
addition to those rights under the Standby Purchase Agreement as provided
therein, to be entitled to the benefits of the Indenture with respect to their
rights against Petrobras under the Standby Purchase Agreement.
Section 3.04. Definition of the Term "Securities." For all purposes
relating to the Notes, the term "Securities" in Section 1.01 of the Original
Indenture shall be amended by inserting the following at the end thereof: "All
references herein to any Securities shall be deemed to include the rights of the
Holder thereof under any standby purchase agreement or guarantee arrangement
entered into by Petrobras with the Trustee in connection with the issuance of
such Securities pursuant to Section 3.14 hereof, which are an integral part of
such Securities."
ARTICLE 4
MISCELLANEOUS
Section 4.01. Effect of the First Supplemental Indenture. This First
Supplemental Indenture supplements the Indenture and shall be a part, and
subject to all the terms, thereof. The Original Indenture, as supplemented and
amended by this First Supplemental Indenture, is in all respects ratified and
confirmed, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed as one and the same instrument. All
provisions included in this First Supplemental Indenture supersede any
conflicting provisions included in the Original Indenture unless not permitted
by law. The provisions of this First Supplemental Indenture are intended to
apply solely to the Notes and the Holders thereof and shall not apply to any
future issuance of securities by the Company (other than any Add On Notes as
provided herein) and all references to provisions of the Original Indenture
herein amended and restated or otherwise modified shall have effect solely with
respect to the Notes contemplated in this First Supplemental Indenture. The
Trustee accepts the trusts created by the Original Indenture, as supplemented by
this First Supplemental Indenture, and agrees to perform the same upon the terms
and conditions of the Original Indenture, as supplemented by this First
Supplemental Indenture.
Section 4.02. Governing Law. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 4.03. Trustee Makes No Representation. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this First Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company and
Petrobras.
Section 4.04. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of this First
Supplemental Indenture.
13 First Supplemental Indenture
Section 4.05. Counterparts. The parties may sign any number of copies
of this First Supplemental Indenture. Each signed copy shall be an original, but
all of them shall represent the same agreement.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
14 First Supplemental Indenture
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
PETROBRAS INTERNATIONAL FINANCE COMPANY
By:____________________________
Name:
Title: Attorney-in-Fact
PETROLEO BRASILEIRO S.A. - PETROBRAS
By:____________________________
Name:
Title: Attorney-in-Fact
WITNESSES:
1._______________________________
Name:
2._______________________________
Name:
First Supplemental Indenture
JPMORGAN CHASE BANK, as Trustee
By:_______________________________
Name:
Title: Authorized Officer
WITNESSES:
1.________________________________
Name:
2.________________________________
Name:
First Supplemental Indenture
S&S Draft
3/26/03
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ____ day of __________, 2003 before me, a notary
public within and for said county, personally appeared __________________, to me
personally known who being duly sworn, did say that ___ is a ___________________
of JPMorgan Chase Bank, one of the persons described in and which executed the
foregoing instrument, and acknowledge said instrument to be the free act and
deed of said corporation.
On this ___ day of _________, 2003, before me personally came
___________________ and _________________ to me personally known, who being by
me sworn, did depose and say that they signed their names to the foregoing
instrument as witnesses.
_______________________________
Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ___ day of _________, 2003, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is the Attorney-in-Fact of Petrobras International Finance
Company - PIFCo, a corporation described in and which executed the foregoing
instrument and acknowledge that said instrument to be the free act and deed of
said entity.
On this ___ day of _________, 2003, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is the Attorney-in-Fact of Petroleo Brasileiro S.A. - Petrobras,
a corporation described in and which executed the foregoing instrument and
acknowledge that said instrument to be the free act and deed of said entity.
On this ____ day of _________, 2003, before me personally came
______________________ and ______________________ to me personally known, who
being by me sworn, did depose and say that they signed their names to the
foregoing instrument as witnesses.
[Notarial Seal]
___________________________
Notary Public
COMMISSION EXPIRES
