UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of September 2003
Petrobras International Finance Company - PIFCo
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(Translation of Registrant's Name Into English)
Cayman Islands
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(Jurisdiction of incorporation or organization)
Anderson Square Building, P.O. Box 714
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George Town, Grand Cayman
Cayman Islands, B.W.I.
(Address of principal executive offices)
(Indicate by check mark whether the registrant files or will file
annual reports under cover of Form 20-F or Form 40-F.)
Form 20-F x Form 40-F
--- ---
(Indicate by check mark whether the registrant by furnishing the
information contained in this form is also thereby furnishing the information to
the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.)
Yes No x
--- ---
(If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-_____.)
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UNDERWRITING AGREEMENT
Among
PETROBRAS INTERNATIONAL FINANCE COMPANY,
PETROLEO BRASILEIRO S.A. --PETROBRAS
and
BEAR, STEARNS & CO. INC.,
Relating to
PIFCo's
U.S.$250,000,000
9.125% Global Notes Due 2013
September 11, 2003
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties.....................................2
SECTION 2. Purchase and Sale.................................................12
SECTION 3. Delivery and Payment..............................................13
SECTION 4. Offering by Underwriter...........................................13
SECTION 5. Covenants.........................................................13
SECTION 6. Conditions to the Obligations of the Underwriter..................17
SECTION 7. Reimbursement of Expenses.........................................23
SECTION 8. Indemnification and Contribution..................................23
SECTION 9. Termination.......................................................26
SECTION 10. Representations and Indemnities to Survive.......................26
SECTION 11. Notices..........................................................26
SECTION 12. Successors.......................................................26
SECTION 13. Jurisdiction.....................................................27
SECTION 14. Governing Law....................................................27
SECTION 15. Currency.........................................................27
SECTION 16. Waiver of Immunity...............................................27
SECTION 17. Counterparts.....................................................28
SECTION 18. Entire Agreement.................................................28
SECTION 19. Headings.........................................................28
PETROBRAS INTERNATIONAL FINANCE COMPANY -- PIFCo
U.S.$250,000,000
9.125% Global Notes Due 2013
Underwriting Agreement
----------------------
September 11, 2003
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Petrobras International Finance Company, a company organized
under the laws of the Cayman Islands ("PIFCo") and a wholly-owned subsidiary of
Petroleo Brasileiro S.A. - Petrobras, a sociedade de economia mista ("Petrobras"
and, collectively with PIFCo, the "Companies") organized and existing under the
laws of the Federative Republic of Brazil ("Brazil"), proposes to issue and sell
to Bear, Stearns & Co. Inc. (the "Underwriter") U.S.$250,000,000 principal
amount of its 9.125% Global Notes Due 2013 (the "Notes"). The Notes are to be
issued under the indenture (the "Original Indenture") dated July 19, 2002
between PIFCo and JPMorgan Chase Bank, as trustee (the "Trustee"), as
supplemented by the Amended and Restated Second Indenture Supplement (the
"Indenture Supplement", and together with the Original Indenture, the
"Indenture") to be dated the Closing Date (as defined herein) between PIFCo and
the Trustee. The Notes to be issued by PIFCo will be evidenced initially by one
or more Registered Global Notes (each a "Global Note") representing the Notes
sold or resold pursuant to a registration statement on Form F-3 under the
Securities Act of 1933, as amended (the "Securities Act"), initially dated July
5, 2002 and as amended on July 19, 2002 and further amended on August 14, 2002,
filed with the Securities and Exchange Commission (the "Commission") (File No.
333-92044) covering the registration of the Notes under the Securities Act and
including the related base prospectus in the form dated August 14, 2002 at the
time such registration statement was declared effective by the Commission (the
"Base Prospectus"). Such registration statement (including the Base Prospectus),
as amended to the date hereof (including any post-effective amendment that
includes a prospectus or prospectus supplement), together with any documents
incorporated by reference therein are hereinafter referred to as the
"Registration Statement." References to the "effective date" of the Registration
Statement shall be deemed to refer to the date the Registration Statement was
declared effective by the Commission.
All of PIFCo's obligations under the Notes will have the
benefit of certain credit support provided by Petrobras, in the form of an
Amended and Restated Standby Purchase Agreement (the "Amended and Restated
Standby Purchase Agreement") to be dated the Closing Date between it and the
Trustee, pursuant to which Petrobras will agree, subject to certain conditions,
to purchase from the holders of the Notes their rights to receive payments from
PIFCo in respect of principal, interest and other amounts due on or with respect
to the Notes if not paid by PIFCo within specified time periods. Terms not
otherwise defined herein are used as defined in the Indenture.
SECTION 1. Representations and Warranties. Each of the
Companies jointly and severally represents and warrants to the Underwriter as
set forth below:
(a) The Companies and the transactions contemplated in this
Underwriting Agreement in connection with the offer and sale of the
Notes meet the requirements set forth in Form F-3 under the Securities
Act for use of the Registration Statement in connection with the
offering of the Notes that are the subject of this Agreement.
(b) Petrobras and PIFCo have filed the Registration Statement
with the Commission, the Registration Statement has been declared
effective under the Securities Act, no stop order suspending the
effectiveness of the Registration Statement (including the Base
Prospectus) is in effect and no proceedings for such purposes are
pending or, to the best of the Companies' knowledge, threatened by the
Commission.
(c) Petrobras and PIFCO confirm their intention to file with
the Commission pursuant to Rule 424(b) under the Securities Act a final
form of supplement to the Base Prospectus (the "Final Prospectus
Supplement") to be dated as of the date hereof relating to the Notes
and the distribution thereof. The Base Prospectus as supplemented by
the Final Prospectus Supplement in the form in which it shall be filed
with the Commission pursuant to Rule 424(b), together with any
documents incorporated by reference therein, is herein referred to as
the "Final Offering Document."
(d) Each of the Companies has filed all the documents required
to be filed by it with the Commission pursuant to the United States
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including but not limited to the annual reports on Form 20-F for the
year ended December 31, 2002 and Forms 6-K in connection with their
respective financial statements for the three months ended March 31,
2003 and for the six months ended June 30, 2003. Each document filed or
to be filed by the Companies under the Exchange Act complied and will
comply when so filed in all material respects with the requirements of
the Exchange Act and the applicable rules and regulations of the
Commission and the documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Final Offering
Document, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Act, the Exchange Act and the rules and
regulations thereunder.
(e) The Original Indenture has been, and the form of Indenture
Supplement and the form of Amended and Restated Standby Purchase
Agreement, as of the Closing Date, will be, qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), and all filings and
other actions required under the TIA to permit the use of the
Indenture, the issuance of the Notes thereunder and the execution by
Petrobras and the Trustee of the Amended and Restated Standby Purchase
Agreement have been made and taken prior to the date hereof.
(f) Prior to the termination of the offering of the Notes,
neither Petrobras nor PIFCo has filed any amendment to the Registration
Statement or supplement to the Final Offering Document which shall not
have previously been furnished to the Underwriter or of which the
Underwriter shall not previously have been advised or to which any
Underwriter shall have reasonably objected in writing.
(g) Each of the Registration Statement, as amended, as of the
time it became effective under the Securities Act, and the Final
Offering Document as amended or supplemented as of the date hereof and
as of the Closing Date, contained, contains and will contain all
disclosures required under applicable laws, including the Securities
Act and the rules and regulations thereunder. Neither (i) the
Registration Statement, as amended, as of the time it became effective
under the Securities Act or (ii) the Final Offering Document as amended
or supplemented as of the date hereof and as of the Closing Date
(including, for this purpose, documents incorporated by reference
therein) contains or will contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the Companies
do not make any representation or warranty as to the information
contained in or omitted from the Registration Statement or the Final
Offering Document in reliance upon and in conformity with information
furnished in writing to the Companies by any Underwriter, specifically
for inclusion therein which shall consist solely of the first and sixth
paragraphs under the captions "Plan of Distribution" in the Final
Prospectus Supplement.
(h) Neither of the Companies is, and after giving effect to
the offering and sale of the Notes and the application of the proceeds
thereof as described in the Registration Statement and the Final
Offering Document will be, an "investment company" or a company
"controlled by" an "investment company" as such terms are defined in
the United States Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the
Commission promulgated thereunder.
(i) Neither of the Companies, nor any of their affiliates, nor
any person acting on their behalf (other than the Underwriter, as to
which the Companies make no representation or warranty), has paid or
agreed to pay to any person any compensation for soliciting another to
purchase (i) the Notes or (ii) any other securities of Petrobras or
PIFCo within the last 90 days, except in the case of either (i) or (ii)
as contemplated by this Underwriting Agreement and the Underwriting
Agreement dated June 27, 2003 among the Underwriter, the Companies,
Deutsche Bank Securities Inc., Santander Central Hispano Investment
Securities Inc and HSBC Securities (USA) Inc.
(j) Neither of the Companies, nor any of their affiliates, nor
any person acting on their behalf (other than the Underwriter, as to
which the Companies make no representation or warranty), has, directly
or indirectly, taken any action designed to cause or which has
constituted or which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of
either of the Companies to facilitate the initial sale or resale of the
Notes under the Exchange Act, or otherwise.
(k) PIFCo has been duly incorporated and is validly existing
as a limited company in good standing under the laws of the Cayman
Islands. Each of PIFCo's subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing (to the extent that
good standing is applicable under applicable law) under the laws of the
jurisdiction in which it was chartered or organized. Each of PIFCo and
its subsidiaries has the full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct
its business as described in the Final Offering Document. PIFCo has the
full corporate power and authority to enter into and perform its
obligations under this Underwriting Agreement, the Indenture, the Notes
and the Amended and Restated Standby Purchase Agreement (collectively,
the "Transaction Documents"), to which it is a party, and is duly
qualified to do business as a foreign corporation under the laws of
each jurisdiction which requires such qualification except where the
failure to be so qualified will not have a Material Adverse Effect. For
the purposes of this Underwriting Agreement, the term "Material Adverse
Effect" shall mean (A) any material adverse effect on the condition
(financial or otherwise), results of operation or prospects of either
of the Companies, together with their respective consolidated
subsidiaries, (B) any material adverse effect on the ability of PIFCo,
Petrobras or any other person to perform their respective obligations
under any of the Transaction Documents or (C) any material adverse
effect on the rights of the Trustee, acting on behalf of the holders of
the Notes, or such holders, under any of the Transaction Documents.
(l) Petrobras has been duly organized and is validly existing
as a sociedade de economia mista in good standing (to the extent that
good standing is applicable under applicable law) under the laws of
Brazil. Each of Petrobras' Material Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
(to the extent relevant) under the laws of the jurisdiction in which it
is chartered or organized. Each of Petrobras and its Material
Subsidiaries is licensed (if and to the extent necessary) and has the
full corporate power and authority to own or lease, as the case may be,
and to operate its properties and to conduct its business as described
in the Registration Statement and the Final Offering Document and to
enter into and perform its obligations under this Underwriting
Agreement and the other Transaction Documents to which it is a party,
and is duly qualified or licensed as a foreign corporation in good
standing in each jurisdiction which requires such qualification,
except, in the case of its Material Subsidiaries other than PIFCo,
where the failure to be so qualified will not have a Material Adverse
Effect. Petrobras owns, directly or indirectly, all of the outstanding
equity interests of PIFCo and its other Material Subsidiaries. For the
purposes of this Underwriting Agreement, the term "Material Subsidiary"
shall mean, as to any person, any subsidiary of such person which, on
any given date of determination, accounts for more than 5% of such
person's total assets, as such total assets are set forth on the most
recent consolidated financial statements of such person prepared in
accordance with U.S. generally accepted accounting principles (or if
any such person does not prepare financial statements in U.S. generally
accepted accounting principles, consolidated financial statements
prepared in accordance with such other generally accepted accounting
principles then applicable to such person).
(m) All the outstanding shares of capital stock, if any, of
each subsidiary of the Companies have been duly and validly authorized
and issued and are fully paid and nonassessable except, in the case of
the subsidiaries (other than PIFCo), as would not have a Material
Adverse Effect, and all outstanding shares of capital stock of the
subsidiaries are owned by the Companies, as the case may be, either
directly or through wholly-owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances.
(n) The Companies' respective capitalizations are as set forth
in the Final Offering Document.
(o) There have been no material changes with respect to the
matters disclosed in "Item 11. Qualitative and Quantitative Disclosure
About Market Risk" in the Form 20-F of Petrobras for the year ended
December 31, 2002 except as otherwise specified in the Final Offering
Document.
(p) This Underwriting Agreement has been duly authorized,
executed and delivered by each of the Companies; each of the Indenture,
the Amended and Restated Standby Purchase Agreement and each other
document executed and delivered in connection therewith to which either
of the Companies is party has been duly authorized and, assuming due
authorization, execution and delivery thereof by each other party to
those Transaction Documents (other than the Companies), when executed
and delivered by the Companies, will constitute a legal, valid and
binding agreement of the Companies, as the case may be, enforceable
against each of the Companies in accordance with its terms (subject, as
to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); and the descriptions of the Transaction
Documents in the Registration Statement and the Final Offering Document
fairly summarize the rights and obligations of the parties thereto.
(q) The Notes have been duly authorized, and, when issued
under the Indenture, authenticated by the Trustee and delivered to and
paid for by the Underwriter pursuant to this Underwriting Agreement,
will have been duly executed, issued and delivered and will constitute
legal, valid and binding obligations of PIFCo, enforceable in
accordance with their terms, subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, or other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity and
will be entitled to the benefits provided by the Indenture as described
in the Registration Statement and the Final Offering Document.
(r) The Notes will constitute the general unsecured and
unsubordinated obligations of PIFCo and will rank pari passu in
priority of payment and in right of seniority with all other unsecured
and unsubordinated obligations of PIFCo that are not, by their terms,
expressly subordinated in right of payment to the Notes except for
statutory liens and preferences. The obligations of Petrobras under the
Amended and Restated Standby Purchase Agreement will constitute the
general unsecured and unsubordinated obligations of Petrobras and will
rank pari passu in priority of payment and in right of seniority with
all other unsecured and unsubordinated obligations of Petrobras that
are not, by their terms, expressly subordinated in right of payment to
the rights of the Trustee under the Amended and Restated Standby
Purchase Agreement, except for statutory liens and preferences.
(s) No consent, approval, authorization, filing with or order
of any court or governmental agency or other regulatory authority or
body having jurisdiction over either of the Companies or any of their
respective properties or assets in Brazil, the Cayman Islands or
elsewhere ("Government Authorities") is required for (i) the valid
authorization, issuance, sale and delivery of the Notes, or (ii) the
execution, delivery or performance by the Companies of any of their
respective obligations under any of the Transaction Documents in the
manner contemplated in the Registration Statement and the Final
Offering Document, including, without limitation, making any of the
applicable payments required to be made after the date hereof under or
in respect of any of the Transaction Documents, except for (i) the
filing of the Final Prospectus Supplement pursuant to Rule 424(b) under
the Securities Act, (ii) such consents as may be required under state
or foreign securities or blue sky laws and (iii) such filings or
consents as may be required by the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") or NASD
Regulation, Inc. ("NASDR") in connection with the use of the Base
Prospectus for issuances of securities by the Companies and the
purchase and distribution of the Notes by the Underwriter and the
confirmation by the NASD that it has no objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements,
each of which has, to the best knowledge of the Companies, been
obtained and is in full force and effect.
(t) Neither of the Companies is currently in violation of its
charter, by-laws or comparable organizational documents; neither the
issuance and sale of the Notes, the execution and delivery of any of
the Transaction Documents nor the consummation of any of the
transactions described or contemplated therein, nor the fulfillment of
the terms thereof will conflict with, or give rise to any right to
accelerate the maturity or require the prepayment, repurchase or
redemption of any indebtedness under, or result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Companies or any of their subsidiaries
pursuant to, (i) the charter, by-laws or comparable organizational
documents of either of the Companies or any of their Material
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
either of the Companies or any of their subsidiaries is a party or is
bound or to which any of their property or assets is subject or (iii)
any statute, law, rule, regulation, judgment, order or decree
applicable to either of the Companies or any of their subsidiaries,
except in the case of clauses (ii) or (iii) such as could not
reasonably be expected to have a Material Adverse Effect.
(u) The consolidated historical financial statements of the
Companies and their consolidated subsidiaries included in the Final
Offering Document, together with the related notes, have been prepared
in accordance with accounting principles generally accepted in the
United States applied on a consistent basis throughout the periods
involved (except as otherwise noted therein) and present fairly in all
material respects the financial condition, results of operations and
cash flows of the Companies as of the dates and for the periods
indicated; the summary financial information set forth under the
captions "Summary Financial Information for PIFCo" and "Summary
Financial Information for Petrobras" in the Final Offering Document
fairly present, on the basis stated in the Final Offering Document, the
information included therein. The financial information relating to
Perez Companc S.A. and its consolidated subsidiaries set forth in the
Final Offering Document fairly present, on the basis stated in the
Final Offering Document, the information included therein. Except as
disclosed in the Final Offering Document, there has been no material
adverse change in the operations, business, property or assets of or in
the financial condition of either of the Companies and their
consolidated subsidiaries, taken as a whole, since December 31, 2002.
The segment data and other financial and statistical information
incorporated by reference in the Registration Statement and the Final
Offering Document present fairly the information included therein and
have been prepared on a basis consistent with that of the financial
statements that are incorporated by reference in the Registration
Statement and the Final Offering Document and the books and records of
the respective entities presented therein.
(v) There are no pro forma or consolidated financial
statements or other financial statements or data which are required to
be included or incorporated by reference in the Registration Statement
and the Final Offering Document in accordance with Regulation S-X under
the Securities Act which have not been included as so required.
(w) The statistical, industry-related and market-related data
included in the Final Offering Document are based on or derived from
sources which the Companies reasonably and in good faith believe are
reliable and accurate, and such data agree with the sources from which
they are derived.
(x) Except as set forth or contemplated in the Final Offering
Document, neither of the Companies has entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to either of the Companies individually or the Companies taken as a
whole with their consolidated subsidiaries.
(y) No action, suit or proceeding by or before any
Governmental Authority involving the Companies or any of their
subsidiaries or their property or assets is pending or, to the best
knowledge of the Companies, threatened, involving or in any way
relating to (i) this Underwriting Agreement, any of the other
Transaction Documents or the transactions contemplated herein or
therein or (ii) any other matter that individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, except
as set forth in or contemplated in the Final Offering Document. Neither
the Companies nor any of their subsidiaries is in violation of or in
default with respect to any applicable statute (including, without
limitation, any applicable provision of the Sarbanes-Oxley Act,
including any rules and regulations thereunder or related thereto),
rule, writ, injunction, decree, order or regulation of any Governmental
Authority having jurisdiction over such Person which is reasonably
likely to have a Material Adverse Effect.
(z) Each of the Companies and each of their respective
subsidiaries has good and marketable title to all of their properties
and assets and owns or leases all such properties and assets as are
both described in the Final Offering Document and necessary to the
conduct of its operations as presently conducted free and clear of any
liens, charges, security interests or other encumbrances except such as
(i) do not materially interfere with the intended use thereof and (ii)
could not reasonably be expected to have a Material Adverse Effect. All
leases and subleases material to the business of each of the Companies
under which either of the Companies holds properties, as described in
the Final Offering Document, are in full force and effect; and neither
of the Companies has had any notice that any material claim of any sort
has been asserted by anyone adverse to the Companies' rights under any
leases or subleases mentioned above, or affecting or questioning the
rights thereof to the continued possession of the leased or subleased
premises under any such lease or sublease, except as would not result
in a Material Adverse Effect.
(aa) Each of PricewaterhouseCoopers Auditores Independentes
and Ernst & Young Auditores Independentes (who have certified the
financial statements of the Companies and supporting schedules and
information of the Companies and their consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and other financial information included in the
Final Offering Document relating to the Companies and their
consolidated subsidiaries) and Pistrelli, Henry Martin y Associados
S.R.L., a member firm of Ernst & Young (who have delivered their report
with respect to the financial information included in the Final
Offering Document relating to Petrobras Energia Participaciones S.A. -
PEPSA (formerly known as Perez Companc S.A.) and its consolidated
subsidiaries) are independent public accountants within the meaning of
the Code of Professional Conduct of the American Institute of Certified
Public Accountants and the applicable requirements of Regulation S-X
under the Securities Act and the Exchange Act and, in the case of
PricewaterhouseCoopers Auditores Independentes and Ernst & Young
Auditores Independentes, are certified public accountants with respect
to the Companies under the standards established by the local
authorities in the Cayman Islands and Brazil, and, in the case of
Pistrelli, Henry Martin y Associados S.R.L., are certified public
accountants with respect to Petrobras Energia Participaciones S.A. -
PEPSA (formerly known as Perez Companc S.A.) under the standards
established by the local authorities in the Argentine Republic.
(bb) Each of the Companies and their respective subsidiaries
has filed or caused to be filed all tax returns which to the knowledge
of the Companies are required to be filed, and has paid all taxes shown
to be due and payable on said returns or on any assessments made
against such person or any of its respective properties and all other
taxes, assessments, fees or other charges imposed on such person or any
of its respective properties by, any Governmental Authority (other than
those the amount or validity of which is currently being contested in
good faith by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles
have been provided on the books of such person); and no material tax
liens or material liens with respect to any assessments, fees or other
charges have been filed and, to the knowledge of such person, no
material claims are being asserted with respect to any such taxes,
assessments, fees or other charges.
(cc) The Companies and each of their respective subsidiaries
are insured by insurers that the Companies reasonably believe to be
financially sound against such losses and risks and in such amounts as
are prudent and customary in the businesses and in the geographical
regions in which they are engaged, except when the failure to do so
would not have a Material Adverse Effect; and neither of the Companies
nor any subsidiary thereof has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
(dd) No subsidiary of the Companies is currently prohibited,
directly or indirectly, from paying any dividends to either of the
Companies, from making any other distribution on such subsidiary's
capital stock, from repaying to the Companies any loans or advances to
such subsidiary from the Companies or from transferring any of such
subsidiary's property or assets to the Companies or any other
subsidiary of the Companies.
(ee) The Companies and their subsidiaries possess all material
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither of the Companies
nor any of their subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could have a
Material Adverse Effect.
(ff) To ensure the legality, validity, enforceability or
admissibility into evidence of any of the Transaction Documents, it is
not necessary that any such other document be filed or recorded with
any court or other authority in Brazil or the Cayman Islands (other
than such authorizations or filings that have already been obtained or
made, as applicable), or that any stamp or similar tax be paid in
either Brazil or the Cayman Islands on or in respect of any such
document, except as provided in the Registration Statement and the
Final Offering Document. It is not necessary under the laws of Brazil
or the Cayman Islands that any of the holders of the Notes be licensed,
qualified or entitled to carry on business in either Brazil or the
Cayman Islands by reason of the execution, delivery, performance or
enforcement of any of the Transaction Documents.
(gg) The Companies and each of their respective subsidiaries
each maintain a system of internal accounting and other controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with accounting
principles generally accepted in the United States and to maintain
asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(hh) The Companies and their respective subsidiaries (i) are
in compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under the applicable Environmental Laws to conduct
their respective businesses and (iii) except as described in the
Registration Statement and the Final Offering Document, have not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except in the
case of clauses (i), (ii) and (iii) above where such non-compliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth in the
Registration Statement and the Final Offering Document, neither of the
Companies nor any of their subsidiaries has been named as a
"potentially responsible party" under the United States Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, nor has the Company or any such subsidiary been identified as
the party responsible or potentially responsible for any breach or
violation of any other similar Environmental Law.
(ii) In the ordinary course of its business, the Companies
periodically review the effect of Environmental Laws on the business,
operations and properties of the Companies and their subsidiaries, in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the
Companies have reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material
Adverse Effect.
(jj) The information set forth in the Registration Statement
and the Final Offering Document relating to oil and gas reserves, oil
and gas wells and any other oil and gas related information required to
be disclosed in such Registration Statement and the Final Offering
Document has been prepared by the Companies in all material respects on
the basis disclosed in the Registration Statement and the Final
Offering Document and conforms in all material respects to the
requirements of the Securities Act and the Exchange Act, as the case
may be.
(kk) The indemnification and contribution provisions set forth
in Section 8 hereof do not contravene Brazilian or Cayman Islands law
or public policy.
(ll) The Companies are subject to civil and commercial law in
respect of their obligations hereunder and the Companies are not, nor
are any of their properties, assets or revenues subject to any right of
immunity under Cayman Islands, Brazilian or New York law, from any
legal action, suit or proceeding, from the giving of any relief in any
such legal action, suit or proceeding, from set-off or counterclaim,
from the jurisdiction of any Cayman Islands, Brazilian, New York or
U.S. federal court, from service of process, attachment upon or prior
to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such
court with respect to its obligations, liabilities or any other matter
under or arising out of or in connection herewith; and, to the extent
that the Companies or any of their properties, assets or revenues may
have or may hereafter become entitled to any such right of immunity in
any such court in which proceedings arising out of, or relating to the
transactions contemplated hereby, may at any time be commenced, the
Companies have waived or will waive such right to the extent permitted
by law and have consented to such relief and enforcement as provided
herein.
(mm) The submission of the Companies to the non-exclusive
jurisdiction of the courts of the Supreme Court of the State of New
York, County of New York, and the United States District Court for the
Southern District of New York (each, a "New York court") in Section 13
hereof and under each of the Transaction Documents, as applicable, is
legal, valid and binding under the laws of Brazil and the Cayman
Islands; the appointment of Petrobras' New York office located at 570
Lexington Avenue, 43rd Floor, New York, New York 10022 as its
authorized agent for the purpose described in Section 13 below and
under each of the other Transaction Documents, as applicable, is legal,
valid and binding under the laws of Brazil and the Cayman Islands; and
the choice of law provision set forth in Section 14 below and in each
Transaction Document, as applicable, is legal, valid and binding under
the laws of Brazil and the Cayman Islands.
(nn) Any final judgment for any amount payable by the
Companies rendered by any court of the State of New York or of the
United States located in the State of New York having jurisdiction
under its own domestic laws in respect of any suit, action or
proceeding against the Companies based upon any Transaction Document
would be declared enforceable against the Companies by the courts of
the Cayman Islands or Brazil, as applicable, without re-examination,
review of the merits of the cause of action in respect of which the
original judgment was given or relitigation of the matters adjudicated
upon or payment of any stamp, registration or similar tax or duty, as
provided in the provisions for enforcement of foreign judgments set
forth in the Final Prospectus.
(oo) No part of the proceeds of the sale of the Notes will be
used for any purpose that violates the provisions of any of Regulation
T, U or X of the Board of Governors of the Federal Reserve System or
any other regulation of such Board of Governors.
(pp) Both presently and immediately after giving effect to the
transactions contemplated hereunder, each of the Companies (i) is and
will be able to pay its debts as they become due and (ii) is not
insolvent as defined under applicable Brazilian bankruptcy, insolvency
or similar law or Cayman Islands bankruptcy, insolvency or similar law.
(qq) None of the Noteholders, the Underwriter or the Trustee
will be deemed resident, domiciled, carrying on business or subject to
taxation in Brazil or the Cayman Islands solely by the execution,
delivery, performance or enforcement of any of the Transaction
Documents or by virtue of the ownership or transfer of a Note or
Exchange Note or the receipt of payment thereon assuming that none of
such persons is a resident of Brazil or the Cayman Islands or has a
permanent establishment or a fixed base in Brazil or the Cayman
Islands.
(rr) There are no Cayman Islands taxes on or by virtue of the
execution or delivery of this Underwriting Agreement, the Indenture,
the Notes or any of the other Transaction Documents or any other
document to be furnished hereunder or thereunder. Payments to be made
by the Companies or any other party to any of the Transaction Documents
pursuant to the Transaction Documents will not be subject to Cayman
Islands taxes. There are no stamp or other issuance or transfer taxes
or duties or other similar fees or charges required to be paid in
connection with the execution and delivery of any of the Transaction
Documents or the consummation of any of the other transactions
described therein or the issuance and sale by PIFCo of the Notes.
(ss) There is no tax, levy, impost, deduction, charge or
withholding imposed, levied or made by or in Brazil or any political
subdivision or taxing authority thereof or therein either (i) on or by
virtue of the execution or delivery of this Underwriting Agreement or
any of the other Transaction Documents or (ii) on any payment to be
made by Petrobras to the Trustee or the holders of the Notes pursuant
to the Amended and Restated Standby Purchase Agreement, except with
respect to any payment of interest, fees or other income made to a
party hereto or thereto outside of Brazil from funds of Petrobras in
Brazil each of which currently would be subject to a withholding tax
which, as of the date hereof, is levied at the rate of 15%, 25% if the
beneficiary is domiciled in a tax haven jurisdiction, or such other
lower rate, as it may be contemplated in a bilateral treaty aimed at
avoiding double taxation between Brazil and such other country where
the recipient of the payment has its domicile. Petrobras is permitted
to make all payments pursuant to the Amended and Restated Standby
Purchase Agreement free and clear of all taxes, levies, imposts,
deductions, charges or withholdings imposed, levied or made by or in
Brazil or any political subdivision or taxing authority thereof or
therein, and no such payment in the hands of the Trustee will be
subject to any tax, levy, impost, deduction, charge or withholding
imposed, levied or made by or in Brazil or any political subdivision or
taxing authority therein or thereof, in each case except as provided in
the immediately preceding sentence. Petrobras intends to make all
payments pursuant to this Agreement from funds offshore Brazil. To
ensure the legality, validity, enforceability or admissibility in
evidence of the Transaction Documents in Brazil, it is not necessary
that the Transaction Documents or any other document be filed or
recorded with any court or other authority in Brazil, other than the
notarization of the signatures of the parties signing outside Brazil,
the subsequent consularization (authentication) of the signature of
such a notary by a Brazilian consulate official and the subsequent
translation of the relevant Transaction Document into Portuguese by a
sworn translator.
SECTION 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, PIFCo agrees to sell the Notes with an aggregate principal amount of
U.S.$250,000,000 to the Underwriter, and the Underwriter agrees to purchase the
Notes from PIFCo, at a purchase price of 104.996388889% of the aggregate
principal amount of the Notes (the "Purchase Price").
SECTION 3. Delivery and Payment. (a) Delivery of and payment
for the Notes shall be made at the offices of Shearman & Sterling in New York or
such other place as shall be agreed upon by the parties hereto at 10:00 A.M.,
New York City time, on September 18, 2003, or at such time on such later date as
the Underwriter shall designate, which date and time may be postponed by
agreement between the Underwriter and PIFCo (such date and time of delivery and
payment for the Notes being herein called the "Closing Date"). Delivery of the
Notes shall be made to the Underwriter against payment by the Underwriter of
U.S.$261,365,972.22 (the "Net Proceeds") to or upon the order of PIFCo by wire
transfer payable in immediately available funds to the account specified in
writing by PIFCo not less than three Business Days prior to the Closing Date.
The Net Proceeds shall represent an amount equal to (i) U.S.$262,490,972.22 as
the Purchase Price less (ii) an amount payable to the Underwriter equal to .45%
of the U.S.$250,000,000 aggregate principal amount of the Notes to be issued on
the Closing Date or U.S.$1,125,000 (the "Selling Commission"). Delivery of the
Notes shall be made through the facilities of The Depository Trust Company
unless the Underwriter shall otherwise instruct.
(b) PIFCo agrees to arrange to have the Notes available for
inspecting, checking and packaging by the Underwriter in New York, New
York not later than 1:00 p.m. on the Business Day prior to the Closing
Date.
(c) For the purposes of this Underwriting Agreement, the term
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in the City of
New York are authorized or obligated by law, executive order or
regulation to close.
SECTION 4. Offering by Underwriter. The Underwriter represents
and warrants to and agrees as to itself with the Companies that:
(a) Except as set forth in the Final Offering Document, the
Underwriter will not engage in any activity that reasonably can be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of PIFCo or
Petrobras to facilitate the sale or resale of the Notes.
(b) The Underwriter shall offer the Notes for sale to the
public upon the terms and conditions set forth in the "Plan of
Distribution" section in the Final Offering Document.
SECTION 5. Covenants. The Companies agree with the Underwriter
that:
(a) The Companies will furnish to the Underwriter and to
counsel for the Underwriter, without charge, during the period referred
to in paragraph (d) below, as many copies of the Registration Statement
and the Final Offering Document and any amendments and supplements
thereto (in each case including all exhibits filed therewith and all
documents incorporated therein not previously furnished to the
Underwriter) as any Underwriter may reasonably request, including the
delivery of copies of the Final Prospectus Supplement to the
Underwriter, one of which shall be signed by a duly authorized officer
of the Companies.
(b) The Companies will not amend or supplement, during the
period specified in (d) below, the Registration Statement or the Final
Offering Document without the prior written consent of the Underwriter,
which consent will not be unreasonably withheld.
(c) The Companies will notify the Underwriter in writing
immediately (i) of any request by the Commission for any amendment of
or supplement to the Registration Statement or the Final Offering
Document or for any additional information, (ii) of the Companies'
intention to file or prepare any supplement or amendment to the
Registration Statement or the Final Offering Document, (iii) of the
mailing or the delivery to the Commission for filing of any amendment
of or supplement to the Registration Statement or the Final Offering
Document, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the
threatening, of any proceedings therefor, (v) of the receipt of any
comments from the Commission, and (vi) of the receipt by the Companies
of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Companies will make
every reasonable effort to prevent the issuance of any such stop order
and, if issued, to obtain the prompt lifting of such order.
(d) If, during such period after the commencement of the
offering of the Notes the Underwriter or any dealer is required by law
to deliver a prospectus, any event occurs as a result of which the
Final Offering Document, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Offering Document
to comply with applicable law, the Companies promptly (i) will notify
the Underwriter of any such event, (ii) subject to the requirements of
paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance and (iii) will supply any supplemented or amended Final
Offering Document to the Underwriter and counsel for the Underwriter,
without charge, in such quantities as such Underwriter may reasonably
request.
(e) PIFCo will (i) prepare the Final Prospectus Supplement in
form reasonably satisfactory to the Underwriter, (ii) file the Final
Prospectus Supplement with the Commission pursuant to Rule 424(b)
within 2 Business Days of the date hereof and (iii) advise the
Underwriter promptly of the filing of the Final Prospectus Supplement
pursuant to Rule 424(b) or otherwise and of any amendment or supplement
to the Final Offering Document or Registration Statement or of official
notice of institution of proceeding for, or the entry of, a stop order
suspending the effectiveness of the Registration Statement and, if such
a stop order should be issued, make every reasonable effort to obtain
the prompt lifting thereof.
(f) The Companies will promptly deliver to the Underwriter's
counsel a signed copy of the Registration Statement, as initially filed
and all amendments thereto, including all consents and exhibits filed
therewith, and will maintain in the Companies' files manually signed
copies of such documents for at least five years after the date of
filing.
(g) PIFCo will arrange, if necessary, for the qualification of
the Notes for sale by the Underwriter under the laws of such
jurisdictions as the Underwriter may designate and will maintain such
qualifications in effect so long as required for the completion of the
distribution of the Notes; provided, however, that in no event shall
the Companies be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Notes, in any jurisdiction
where it is not now so subject. The Companies will promptly inform the
Underwriter, and shall confirm such information in writing, of the
receipt by either of the Companies of any notification with respect to
the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Companies will file such statements and reports as
may be required by the laws of each jurisdiction in which the Notes
have been qualified or registered as provided above.
(h) Prior to the completion of the distribution of the Notes
by the Underwriter (as determined by the Underwriter), the Companies
will not, and will not permit any of their affiliates to, acquire any
Notes.
(i) The Companies will cooperate with the Underwriter and will
take all such action as is necessary to permit the Notes to be eligible
for clearance and settlement through DTC.
(j) Neither of the Companies will, for so long as the Notes
are outstanding, be or become, or be or become owned by, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act, and will not be or become, or be or become
owned by a closed-end investment company required to be registered but
not registered thereunder.
(k) The Companies will not for a period of 45 days following
the date hereof, without the prior written consent of the Underwriter,
offer, sell or contract to sell, or otherwise dispose of or enter into
any transaction which is designed to, or could reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Companies or any of their affiliates or any person in privity with
the Companies or any of their affiliates, directly or indirectly, or
announce the offering of, or file a registration statement for, any
debt securities substantially similar to the Notes issued or guaranteed
by the Companies (other than the Notes, any export credit agency loans
and trade-related facilities).
(l) The Companies will not and will request their affiliates
not to offer, sell or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) the offering
of which security could be integrated with the sale of the Notes.
(m) The Companies will not take, directly or indirectly, any
action designed to or which has constituted or which could reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of PIFCo or
Petrobras to facilitate the sale or resale of the Notes.
(n) PIFCo will use the net proceeds received by it from the
sale of the Notes in the manner specified in the Final Prospectus under
the caption "Use of Proceeds."
(o) Prior to the Closing Date, neither of the Companies nor
their affiliates will issue any press release or other communications
directly or indirectly or hold any press conference relating to the
Notes, without the Underwriter's prior written consent (which shall not
be unreasonably withheld), unless in the judgment of either of the
Companies and its counsel, and after notification to the Underwriter,
such press release or communication is required by law or except as
issued or held, as the case may be, in accordance with the applicable
regulations promulgated under the Securities Act.
(p) The Companies will pay any stamp, issue, registration,
transaction or similar documentary taxes and duties, including interest
and penalties, payable on or in connection with the creation, issue and
offering of the Notes, or the execution or delivery of the Transaction
Documents or the enforcement by the Underwriter of this Underwriting
Agreement against the Companies or any transaction carried out pursuant
to this Underwriting Agreement; and, in addition to any amount payable
by it under this Underwriting Agreement, any value-added, turnover or
similar tax payable in respect of that amount (and references in this
Underwriting Agreement to such amount shall be deemed to include any
such taxes so payable in addition to it and express mention of such
payment of any taxes (if applicable) in any provisions hereof shall not
be construed as excluding such payment of any taxes in those provisions
hereof where such express mention is not made); the Companies will
indemnify the Underwriter against any loss, liability, cost, claim,
action, demand or expense (including, but not limited to, reasonable
legal fees) which the Underwriter may incur or which may be made
against such Underwriter arising out of or in relation to or in
connection with any failure to pay or delay in paying any such taxes.
(q) Neither the sale of the Notes nor the use of the proceeds
thereof will violate any regulation of the United States Treasury
Department contained in 31 C.F.R., Chapter V Subpart B, as amended, or
Executive Orders 12722 and 12724 (55 Fed. Reg. 31803 and 55 Fed. Reg.
33089) Blocking Iraqi Government Property and Prohibiting Transactions
with Iraq or the International Money Laundering Statement and Financial
Anti-Terrorism Act of 2001.
(r) The Companies will furnish a copy of each amendment of the
Transaction Documents to the Underwriter at the Underwriter's address
set forth in Section 11 hereof.
(s) The Companies agree to pay all costs and expenses relating
to the offering of Notes, including, without limitation, (i) the fees
and expenses of the Companies' accountants and counsel (including
Brazilian, Cayman Islands and United States counsel), (ii) the
preparation, printing or reproduction of the Final Offering Documents
and all amendments or supplements and all expenses in connection with
the filing of the Final Offering Documents and any and all amendments
and supplements thereto with the Commission, (iii) the filing fees
incident to, and the fees and disbursements of counsel for the
Underwriter in connection with, securing any required review by the
NASD of the terms of the offering of the Notes, (iv) the fees and
expenses of the Trustee and any registrars and paying agent
contemplated in the Indenture, (v) the transportation and other
expenses incurred by or on behalf of Companies' personnel and all
expenses incurred by the Underwriter, in both cases in connection with
"road show" presentations to prospective purchasers of the Notes, (vi)
the costs of delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Final
Offering Document, and all amendments or supplements thereto, as may,
in each case, be reasonably requested for use in connection with the
offering and sale of the Notes, (vii) the preparation, printing,
authentication, issuance and delivery of certificates for the Notes,
including any stamp, transfer or other similar taxes in connection with
the original issuance and sale of the Notes, (viii) the printing (or
reproduction) and delivery of this Underwriting Agreement, any blue sky
memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Notes,
(ix) any registration or qualification of the Notes for offer and sale
under the securities or blue sky laws of the several states (including
filing fees but not including the fees and expenses of counsel for the
Underwriter relating to such registration and qualification), (x)
subject to receipt of reasonable documentation, the fees and expenses
of U.S. and international counsel to the Underwriter and reasonable
out-of-pocket costs and expenses incurred in connection with any of the
transactions contemplated herein and (xi) all other costs and expenses
incident to the performance by PIFCo and Petrobras of their obligations
hereunder and under any of the various transaction documents entered
into in connection with the Notes; it being understood and agreed that
all amounts payable hereunder shall be paid in U.S. dollars and free
and clear of, and without any deduction or withholding for or on
account of, any current or future taxes, levies, imposts, duties,
charges or other deductions or withholdings levied in any jurisdiction
from or through which payment is made, unless such deduction or
withholding is required by applicable law, in which event the Companies
will pay additional amounts so that the persons entitled to such
payments will receive the amount that such persons would otherwise have
received but for such deduction or withholding.
SECTION 6. Conditions to the Obligations of the Underwriter.
The obligations of the Underwriter to purchase the Notes shall be subject to the
following conditions:
(a) The Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or threatened by,
the Commission on the Closing Date.
(b) PIFCo and Petrobras shall have filed the Final Prospectus
Supplement with the Commission pursuant to Rule 424(b) within 2
Business Days of the date hereof.
(c) On or prior to the Closing Date (i) a certified copy of
the Original Indenture and (ii) a certified copy of a signed copy of
the Registration Statement, as initially filed and all amendments
thereto, including all consents and exhibits filed therewith shall have
been delivered to the Underwriter.
(d) On or prior to the Closing Date, the following shall have
been executed and delivered to the Underwriter, each dated the Closing
Date:
(i) the Indenture Supplement duly executed and delivered
by PIFCo and the Trustee in form and substance reasonably
acceptable to the Underwriter;
(ii) a Registered Global Note, in the form attached to the
Indenture, duly executed and delivered by PIFCo and duly
authenticated by the Trustee in accordance with the Indenture,
in the aggregate principal amount equal to U.S.$250,000,000,
and otherwise in form and substance reasonably acceptable to
the Underwriter; and
(iii) the Amended and Restated Standby Purchase Agreement
duly executed and delivered by Petrobras and the Trustee in
form and substance reasonably acceptable to the Underwriter.
(e) All of the applicable taxes, fees and other charges due
and owing in connection with the execution and delivery of the
Transaction Documents shall have been paid.
(f) The Underwriter shall have received:
(i) from each of PricewaterhouseCoopers Auditores
Independentes and Ernst & Young Auditores Independentes
independent public accountants for the Companies (x) on the
date hereof, a comfort letter dated the date hereof addressed
to the Underwriter, in form and substance reasonably
satisfactory to the Underwriter, concerning the financial
statements and certain information with respect to the
Companies set forth in the Final Offering Document (including
the documents incorporated by reference therein) and (y) on
the Closing Date, a "bring down" comfort letter, dated the
Closing Date, in form and substance reasonably satisfactory to
the Underwriter.
(ii) from Pistrelli, Henry Martin y Associados S.R.L., a
member firm of Ernst & Young, independent public accountants
for Petrobras Energia Participaciones S.A. - PEPSA (formerly
known as Perez Companc S.A.) (x) on the date hereof, a comfort
letter dated the date hereof addressed to the Underwriter, in
form and substance reasonably satisfactory to the Underwriter,
concerning the financial information with respect to Petrobras
Energia Participaciones S.A. - PEPSA (formerly known as Perez
Companc S.A.) and its consolidated subsidiaries set forth in
the Final Offering Document (including the documents
incorporated by reference therein) and (y) on the Closing
Date, a "bring down" comfort letter, dated the Closing Date,
in form and substance reasonably satisfactory to the
Underwriter.
(g) The National Association of Securities Dealers, Inc. shall
have approved the underwriting arrangements contemplated herein and the
Notes shall be eligible for clearance and settlement through DTC.
(h) PIFCo shall have furnished to the Underwriter a
certificate of PIFCo, signed by an authorized officer of PIFCo
acceptable to the Underwriter, dated the Closing Date and in form and
substance reasonably satisfactory to the Underwriter certifying:
(i) that the conditions set forth in subsections (a), (b)
and (c) of this Section 6 have been satisfied;
(ii) that no stop order suspending the effectiveness of
the Registration Statement, the Final Offering Document or any
amendment thereto has been issued and no proceedings therefor
have been initiated or threatened by the Commission;
(iii) that the representations and warranties of PIFCo in
this Underwriting Agreement and any of the other Transaction
Documents to which it is a party are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and PIFCo has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(iv) that since the date of the most recent financial
statements included in the Final Offering Document (exclusive
of any amendment or supplement thereto), there has been no
material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of
PIFCo and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Final Offering
Document (exclusive of any amendment or supplement thereto);
(v) that no Default or Event of Default (or other event
that with the passage of time or notice, or both, will ripen
into a Default or an Event of Default) under the Notes or the
Indenture has occurred and is continuing as of the Closing
Date;
(vi) as to the incumbency of the officers or
representatives of PIFCo signing the applicable Transaction
Documents and the other documents delivered hereunder and
thereunder on behalf of PIFCo and containing specimen
signatures thereof;
(vii) that the Memorandum and Articles of Association of
PIFCo have not been amended and is in full force and effect,
copies of which shall be attached to such certificate; and
(viii) that the copy of the Original Indenture attached to
the certificate is a true and correct copy thereof.
(i) Petrobras shall have furnished to the Underwriter a
certificate, signed by an authorized officer of Petrobras acceptable to
the Underwriter, dated the Closing Date and in form and substance
reasonably satisfactory to the Underwriter, certifying:
(i) that the representations and warranties of Petrobras
in this Underwriting Agreement and any of the other
Transaction Documents to which it is a party are true and
correct in all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date, and
Petrobras has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) that since the date of the most recent financial
statements included in the Final Offering Document (exclusive
of any amendment or supplement thereto), there has been no
material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of
Petrobras and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Final
Offering Document (exclusive of any amendment or supplement
thereto);
(iii) that no Default or Event of Default (or other event
that with the passage of time or notice, or both, will ripen
into a Default or an Event of Default) has occurred and is
continuing as of the Closing Date;
(iv) as to the incumbency of the officers or
representatives of Petrobras signing the applicable
Transaction Documents and the other documents delivered
hereunder and thereunder on behalf of Petrobras and containing
specimen signatures thereof; and
(v) that the Estatuto Social of Petrobras has not been
amended and is in full force and effect, copies of which shall
be attached to such certificate.
(j) The Trustee shall have furnished to the Underwriter a
certificate of the Trustee, signed by an authorized officer of the
Trustee acceptable to the Underwriter, dated the Closing Date, (i)
stating that the Trustee is a banking corporation organized and validly
existing under the laws of the State of New York and that its principal
office and place of business is not located in the Cayman Islands or
Brazil, (ii) regarding the authority of the Trustee to enter into the
Transaction Documents to which it is a party and to execute all
documents related thereto and (iii) regarding the incumbency of its
officers executing such documents.
(k) Subsequent to the date hereof and on or prior to the
Closing Date, there shall not have been any decrease in the rating of
any of the Companies' debt securities by any "nationally recognized
statistical rating organization" (as defined for the purposes of Rule
436(g) under the Securities Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of such possible
change, or any withdrawal of any such rating.
(l) Subsequent to the date hereof and on or prior to the
closing of the issuance of the Notes, no legislation shall have been
enacted by either house of the United States or Brazilian congress or
any national legislative body in the Cayman Islands or by any state
legislature, no other action shall have been taken by any Governmental
Authority, whether by order, regulation, rule, ruling or otherwise, and
no decision shall have been rendered by any court of competent
jurisdiction in the United States, Brazil, the Cayman Islands or any
other country, which would have a Material Adverse Effect.
(m) On the Closing Date, none of the events listed below shall
have occurred and be continuing:
(i) a default in the performance or observance by the
Companies of any covenant or agreement made by it under this
Underwriting Agreement or any other Transaction Document to
which they are a party; or
(ii) proceedings shall have been commenced against either
of the Companies or the Trustee under any Brazilian, United
States, Cayman Islands or other bankruptcy act or other
foreign, federal or state law relating to bankruptcy or
insolvency or laws relating to the relief of debtors,
readjustments of indebtedness, reorganizations, arrangements,
compositions or extensions, or appointing a receiver or
decreeing or ordering the winding up or liquidation of the
affairs of either Company or the Trustee or similar
proceedings for any relief which includes or might result in,
any material modification of the obligations of either Company
or the Trustee hereunder or under the applicable Transaction
Documents; or
(iii) either Company or the Trustee shall have instituted
proceedings to be adjudicated insolvent or a bankrupt or shall
have consented to the institution of bankruptcy or insolvency
proceedings against it or shall have filed a petition or
answer or consent seeking reorganization or relief under any
Brazilian, United States, Cayman Islands or other bankruptcy
act or any other federal or state law relating to bankruptcy
or insolvency or shall have consented to the appointment of a
receiver or shall have made an assignment for the benefit of
creditors or shall have admitted in writing its inability to
pay its debts.
(n) Subsequent to the date hereof and on or prior to the
Closing Date or, if earlier, the dates as of which information is given
in the Final Offering Document (exclusive of any amendment or
supplement thereto), there shall not have been (i) any material change
or decrease in any of the financial line items specified in the letter
or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), prospects, earnings,
business or properties of the Companies and their subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth or contemplated in the Final
Offering Document (exclusive of any amendment or supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the judgment of the Underwriter, so material and adverse
as to make it impractical or inadvisable to market the Notes as
contemplated by the Final Offering Document (exclusive of any amendment
or supplement thereto).
(o) The Underwriter shall have received from Cleary, Gottlieb,
Steen & Hamilton, special United States counsel to the Companies, an
opinion (including a disclosure letter covering the Final Offering
Document), dated the Closing Date and addressed to the Underwriter, in
form and substance reasonably acceptable to the Underwriter.
(p) The Underwriter shall have received from Walkers, Cayman
Islands counsel to the Companies, an opinion, dated the Closing Date
and addressed to the Underwriter, in form and substance reasonably
acceptable to the Underwriter.
(q) The Underwriter shall have received an opinion (including
a disclosure opinion covering the Final Offering Document) of internal
counsel to Petrobras, dated the Closing Date and addressed to the
Underwriter, in form and substance reasonably acceptable to the
Underwriter.
(r) The Underwriter shall have received an opinion of Pryor,
Cashman, Sherman & Flynn LLP, external New York counsel to the Trustee,
dated the Closing Date and addressed to the Underwriter, in form and
substance reasonably acceptable to the Underwriter.
(s) The Underwriter shall have received an opinion (including
a disclosure opinion covering the Final Offering Document) of Machado,
Meyer, Sendacz e Opice, special Brazilian counsel for the Underwriter,
in form and substance reasonably acceptable to the Underwriter (it
being understood that the Companies shall have furnished to such
counsel such documents as they request for the purposes of enabling
them to pass on such matters).
(t) The Underwriter shall have received an opinion (including
a disclosure opinion covering the Final Offering Document) from
Shearman & Sterling, special United States counsel to the Underwriter,
in form and substance reasonably acceptable to the Underwriter, dated
the Closing Date and addressed to the Underwriter, and the Companies
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(u) Prior to the Closing Date, the Companies shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(w) None of the events contemplated in Section 9 of this
Underwriting Agreement shall have occurred.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter, this Underwriting Agreement and all obligations of
the Underwriter hereunder may be canceled at, or at any time prior to, the
Closing Date by the Underwriter. Notice of such cancellation shall be given to
PIFCo in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of counsel for the Underwriter, at 599 Lexington
Avenue, New York, N.Y. 10022, on the Closing Date.
SECTION 7. Reimbursement of Expenses. If the sale of the Notes
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of either of the Companies to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriter, the Companies will reimburse the Underwriter on
demand for all properly documented out-of-pocket expenses (including the fees
and disbursements of counsel) that shall have been incurred by it in connection
with the proposed purchase and sale of the Notes; provided, however that if the
Underwriter resigns without having good commercial reasons for resigning (having
regard to good international capital markets practice), then the Companies shall
be under no obligation to reimburse such expenses. The Companies' liability to
the Underwriter under this Section 7 is joint and several.
SECTION 8. Indemnification and Contribution. (a) The Companies
agree to indemnify and hold harmless the Underwriter, the directors, officers,
employees and agents of the Underwriter and each person who controls the
Underwriter within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Registration Statement at the effective date thereof and as of the date of any
amendment thereof or supplement thereto or, (B) the Final Offering Document, or
in any amendment thereof or supplement thereto, in each case as of the date
thereof, the Closing Date (including, for this purpose, documents incorporated
by reference therein), the date of any amendment thereof or supplement thereto
and as of any date delivery thereof is required under applicable law or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any properly documented
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Companies will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Final Offering Document, or in any amendment
thereof or supplement thereto, in reliance upon and in conformity with written
information relating to the Underwriter furnished to the Companies by or on
behalf of the Underwriter specifically for inclusion therein (which shall
consist of solely of the information in the first and sixth paragraphs under the
captions "Plan of Distribution" in the Final Prospectus Supplement). This
indemnity agreement will be in addition to any liability which the Companies may
otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Companies, each of their directors, officers, employees and agents, and each
person who controls the Companies within the meaning of either the Securities
Act or the Exchange Act, to the same extent (subject to the proviso set forth
below) as the foregoing indemnity from the Companies to the Underwriter, but
only with reference to written information relating to the Underwriter furnished
to the Companies by or on behalf of the Underwriter specifically for inclusion
in the Final Offering Document (or in any amendment or supplement thereto)
provided that the Underwriter's aggregate liability to the parties set forth
above shall in no event exceed the amount of the Selling Commission. This
indemnity agreement will be in addition to any liability which the Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless (x) such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, investigation, action or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or any failure to act, by or on behalf of the indemnified party, and
(y) the indemnifying party confirms in writing its indemnification obligations
hereunder with respect to such settlement, compromise or judgment.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Companies and the Underwriter agrees to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Companies and the
Underwriter may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Companies (on the one hand) and by the
Underwriter (on the other) from the offering of the Notes. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Companies and the Underwriter shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Companies (on the one hand) and of the Underwriter (on the other)
in connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Companies shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by PIFCo, and benefits received by
the Underwriter shall be deemed to be equal to the total amount of the
Underwriter's Selling Commission. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Companies (on the one hand)
or the Underwriter (on the other), the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. Each of the Companies and the Underwriter agrees
that it would not be just and equitable if contribution pursuant to this Section
8 were determined by pro rata allocation (even if the Underwriter were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls the Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls either of the Companies within the
meaning of either the Securities Act or the Exchange Act and each officer and
director of either of the Companies shall have the same rights to contribution
as the Companies, subject in each case to the applicable terms and conditions of
this paragraph (d). Notwithstanding the provisions of this Section 8, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the Underwriter's total Selling Commission exceeds the amount of
any damage which the Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission.
(e) The liability of each of the Companies under this Section
8 is joint and several.
SECTION 9. Termination. This Underwriting Agreement shall be
subject to termination in the absolute discretion of the Underwriter, by notice
given to the Companies prior to delivery of and payment for the Notes, if at any
time prior to such time (i) trading in any of the Companies' securities shall
have been suspended by the Sao Paulo Stock Exchange or trading in securities
generally on the New York Stock Exchange or the Sao Paulo Stock Exchange shall
have been suspended or limited or minimum prices shall have been established on
either such exchanges, or (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or by the relevant banking
authorities in Brazil or the Cayman Islands or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred, or (iii) any downgrading shall have occurred in either of the
Companies' corporate credit rating or the rating accorded either of the
Companies' debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act)
or if any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Companies debt securities, or (iv) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States or Brazil of a
national emergency or war or other calamity (including any terrorist act) or any
crisis the effect of which on financial markets is such as to make it, in the
sole judgment of the Underwriter, impracticable or inadvisable to proceed with
the offering or delivery of the Notes as contemplated by the Final Offering
Document (exclusive of any amendment or supplement thereto).
SECTION 10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of each of the Companies or their officers and of the Underwriter set
forth in or made pursuant to this Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter or the Companies or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Underwriting Agreement.
SECTION 11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to Bear, Stearns & Co. Inc.,
will be mailed, delivered or telefaxed to Bear, Stearns & Co. Inc., 383 Madison
Avenue, New York, New York 10179, Attention: Emerging Markets Debt Capital
Market (with a copy, which shall not constitute notice under this Underwriting
Agreement, to the Legal and Compliance Department of Bear, Stearns & Co. Inc. at
the same address); if sent to PIFCo, will be mailed, delivered or telefaxed to
PIFCo, Avenida Republica do Chile 65, Rio de Janeiro, RJ 20035-900, Brazil,
20035-901, Attention: Wilson de Oliveira Senna, Financings, Leasing and
Corporate Loans Manager Administration, or, if sent to Petrobras, will be
mailed, delivered or telefaxed to Petrobras, Avenida Republica do Chile 65, Rio
de Janeiro, RJ 20035-900, Brazil, 20035-901, Attention: Wilson de Oliveira
Senna, Financings, Leasing and Corporate Loans Manager Administration.
SECTION 12. Successors. This Underwriting Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
SECTION 13. Jurisdiction. Each of PIFCo, Petrobras and the
Underwriter agrees that any suit, action or proceeding against them, arising out
of or based upon this Underwriting Agreement or the transactions contemplated
hereby, may be instituted in any State or federal court in the Borough of
Manhattan, City of New York, New York, or in the competent courts of their own
corporate domiciles with respect to actions brought against any of them as a
defendant, and waive any objection which they may now or hereafter have to the
laying of venue of any such proceeding and any right to which any of them may be
entitled on account of places of residence or domicile, and irrevocably submit
to the jurisdiction of such courts in any suit, action or proceeding. The
Companies have appointed the New York office of Petrobras, located at 570
Lexington Avenue, 43rd Floor, New York, New York 10022 as its authorized agent
(the "Authorized Agent") upon whom process may be served in any suit, action or
proceeding arising out of or based upon this Underwriting Agreement or the
transactions contemplated herein which may be instituted in any State or federal
court in the City of New York, New York, by the Underwriter, the directors,
officers, employees and agents of the Underwriter, or by any person who controls
any of the Underwriter, and expressly accepts the jurisdiction of any such court
in respect of any such suit, action or proceeding. The Companies hereby
represent and warrant that the Authorized Agent has accepted such appointments
and has agreed to act as said agent for service of process, and the Companies
agree to take any and all action, including the filing of any and all documents
that may be necessary to continue such appointment in full force and effect as
aforesaid. Subject to applicable law, service of process upon the Authorized
Agent shall be deemed, in every respect, effective service of process upon each
of the Companies.
SECTION 14. Governing Law. This Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York.
SECTION 15. Currency. Each reference in this Underwriting
Agreement to U.S. dollars is of the essence. To the fullest extent permitted by
law, the obligation of PIFCo in respect of any amount due under this
Underwriting Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in U.S. dollars that the party entitled to receive such payment
may, in accordance with its normal procedures, purchase with the sum paid in
such other currency (after any premium and costs of exchange) on the Business
Day immediately following the day on which such party receives such payment. If
the amount in U.S. dollars that may be so purchased for any reason falls short
of the amount originally due, the applicable Company will pay such additional
amounts, in U.S. dollars, as may be necessary to compensate for the shortfall.
Any obligation of the Companies not discharged by such payment will, to the
fullest extent permitted by applicable law, be due as a separate and independent
obligation and, until discharged as provided herein, will continue in full force
and effect.
SECTION 16. Waiver of Immunity. This Underwriting Agreement,
the other Transaction Documents and any other documents delivered pursuant
hereto or thereto, and any actions taken hereunder or thereunder, constitute
commercial acts by each of the Companies. Each of the Companies irrevocably and
unconditionally and to the fullest extent permitted by law, waives, and agrees
not to plead or claim, any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) for itself of 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 Underwriting Agreement, the other Transaction Documents, or any document
delivered pursuant hereto or thereunder, in each case for the benefit of each
assigns, it being intended that the foregoing waiver and agreement will be
effective, irrevocable and not subject to withdrawal in any and all
jurisdiction, and, without limiting the generality of the foregoing, agrees that
the waivers set forth in this Section 16 shall have the fullest scope permitted
under the United States Foreign Sovereign Immunities Act of 1976 and are
intended to be irrevocable for the purposes of such act.
SECTION 17. Counterparts. This Underwriting Agreement may be
executed in one or more counterparts (including via telecopier), each of which
shall constitute an original and all of which together shall constitute one and
the same instrument.
SECTION 18. Entire Agreement. This Underwriting Agreement sets
forth the entire agreement of the parties hereto with respect to the subject
matter hereof.
SECTION 19. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
[Remainder of page intentionally left blank]
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Underwriting Agreement and your acceptance shall represent a
binding agreement among PIFCo, Petrobras and the Underwriter.
Very truly yours,
PETROBRAS INTERNATIONAL FINANCE COMPANY
By: /s/ Joseph Vieira
----------------------------------------
Name: Joseph Vieira
Title: Assistant Finance Manager
PETROLEO BRASILEIRO S.A. --PETROBRAS
By: /s/ Joseph Vieira
----------------------------------------
Name: Joseph Vieira
Title: Assistant Finance Manager
WITNESSES:
1. /s/ Manuel Silva
----------------------
Name: Manuel Silva
2. /s/ Harry Li
----------------------
Name: Harry Li
STATE OF NEW YORK. )
) ss:
COUNTY OF NEW YORK )
On this 11th day of September, 2003, before me personally came Joseph Vieira
to me known, who, being by me duly sworn, did depose and say that he is the
Assistant Finance Manager of Petroleo Brasileiro S.A. - Petrobras and the
Assistant Finance Manager of Petrobras International Finance Company - PIFCo,
each a corporation described in and which executed the foregoing instrument and
acknowledges said instrument to be the free act and deed of said entities.
On this 11th day of September, 2003, before me personally came
Manuel Silva and Harry Li 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]
/s/ Michael Tonkinson
-----------------
Notary Public
COMMISSION EXPIRES
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BEAR, STEARNS & CO. INC.
By: /s/ Ajata Madiratta
----------------------
Name: Ajata Madiratta
Title: Managing Director
WITNESSES:
1. /s/ Rohit Gajendragadkar
----------------------
Name: Rohit (Gadkar) Gajendragadkar
2. /s/ Robson Galiano
----------------------
Name: Robson Galiano
STATE OF NEW YORK. )
) ss:
COUNTY OF NEW YORK )
On this 11th day of September 2003 before me, a notary public within and for
said county, personally appeared Ajata Madiratta and _____________, to me
personally known who being duly sworn, did say that they are each a
Managing Director and a _______________, respectively of Bear, Stearns & Co.
Inc., 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 11th day of September, 2003, before me personally came Rohit
Gajendragadkar and Robson Galiano 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]
/s/ Michael Tonkinson
---------------------
Notary Public
COMMISSION EXPIRES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
PETROBRAS INTERNATIONAL FINANCE COMPANY - PIFCo
By: /s/ Daniel Lima de Oliveira
-------------------------------------------
Name: Daniel Lima de Oliveira
Title: Financial Manager
Date: September 19, 2003