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
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(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
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(If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-_____.)
AMENDED AND RESTATED SECOND SUPPLEMENTAL INDENTURE
AMENDED AND RESTATED SECOND SUPPLEMENTAL INDENTURE (the "Second
Supplemental Indenture"), initially dated as of July 2, 2003, as amended and
restated as of September 18, 2003, by and among Petrobras International Finance
Company, an exempted company incorporated with limited liability under the laws
of the Cayman Islands , having its principal office at Anderson Square Building,
P.O. Box 714, George Town, Grand Cayman, Cayman Islands (the "Company"),
JPMorgan Chase Bank, a New York banking corporation, as Trustee hereunder (the
"Trustee"), and Petroleo Brasileiro S.A. - PETROBRAS, a mixed capital company
(sociedade de economia mista) organized under the laws of Brazil , having its
principal office at Avenida Republica do Chile, 65, 20035-900 Rio de Janeiro -
RJ, Brazil ("Petrobras").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee previously have entered into an
indenture, dated as of July 19, 2002 (the "Original Indenture", and as
supplemented by this Second Supplemental Indenture and any further supplements
thereto, the "Indenture"), providing for the issuance from time to time of
secured or unsecured debentures, notes or other evidences of indebtedness of the
Company to be issued in one or more series as provided in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that, subsequent to
the execution of the Original Indenture and subject to satisfaction of certain
conditions, the Company and the Trustee may enter into one or more indentures
supplemental to the Original Indenture to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Securities (as
defined in the Indenture);
WHEREAS, the Company issued pursuant to its Registration Statement on
Form F-3 (File No. 333-92044) (the "Registration Statement"), effective on
August 14, 2002, the Prospectus Supplement dated June 27, 2003, the related Base
Prospectus dated August 14, 2002 and the Original Indenture, as supplemented by
the supplemental indenture dated July 2, 2003 (the "Original Second Supplemental
Indenture") U.S. $500,000,000 of its 9.125% Global Notes due 2013 (the "Original
Notes");
WHEREAS, the Company has duly authorized the execution and delivery of
this amendment and restatement of the Original Second Supplemental Indenture, to
supplement the Original Indenture and provide for the issuance of an additional
U.S. $250,000,000 principal amount of 9.125% Global Notes due 2013 in the form
attached as Exhibit A hereto (the "Re-Opening Notes" and together with the
Original Notes, the "Notes"), having the terms and conditions contemplated in
the Offering Document (as defined below), and the Indenture;
WHEREAS, as contemplated in the Registration Statement, the Prospectus
Supplement dated June 27, 2003, the Prospectus Supplement dated September 11,
2003 and related Base Prospectus dated August 14, 2002 (collectively, the
"Offering Document"), Petrobras and the Trustee intend, in connection with the
issuance of the Notes, to (i) enter into an Amended and Restated Standby
Purchase Agreement, dated as of the date hereof in the form attached as Exhibit
B hereto (the "Standby Purchase Agreement"), to provide the holders of the Notes
(the "Holders") with assurances that, if the Company shall fail to make all
required payments of principal, interest or other amounts due in respect of the
Notes and the Indenture, Petrobras will purchase the rights of the Holders to
receive such amounts in consideration of the payment by Petrobras of an amount
of funds equal to the amounts then owed under the Indenture and the Notes,
subject to the provisions thereof and (ii) grant Holders of the Notes direct
rights against Petrobras in respect of the Standby Purchase Agreement by
Petrobras being a party to the Indenture as provided herein;
WHEREAS, the Trustee has provided to the Company and Petrobras
Statements of Eligibility under the Trust Indenture Act of 1939, as amended,
with respect to each of the Companies which have been filed as exhibits to the
Registration Statement;
WHEREAS, any and all conditions and requirements necessary to make
this Second Supplemental Indenture a valid, binding, and legal instrument in
accordance with the terms of the Indenture have been performed and fulfilled and
the execution and delivery of this Second Supplemental Indenture have been in
all respects duly authorized;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Second Supplemental Indenture; and
WHEREAS, the Company and Petrobras have requested that the Trustee
execute and deliver this Second Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants contained herein and in the Indenture and for other good and
valuable consideration, the receipt and sufficiency of which are herein
acknowledged, the Company, Petrobras and the Trustee hereby agree, for the equal
and ratable benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms. All capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in the Indenture,
as supplemented and amended hereby. All definitions in the Original Indenture
shall be read in a manner consistent with the terms of this Second Supplemental
Indenture.
Section 1.02. Additional Definitions. (a) For the benefit of the
Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by
adding the following new definitions:
"Closing Date" means September 18, 2003.
"Currency Judgment" has the meaning set forth in Section
2.03(e) herein.
"Default Rate" has the meaning set forth in Section 2.01(f)
herein.
"Denomination Currency" has the meaning set forth in Section
2.03(e) herein.
"Denomination Judgment" has the meaning set forth in Section
2.03(e) herein.
"Interest Period" means the period beginning on an Interest
Payment Date and ending on the day before the next Interest Payment Date, except
that the first Interest Period shall be the period beginning on the Original
Closing Date and ending on the day before the next Interest Payment Date.
"Lien" means any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance on any property or asset,
including, without limitation, any equivalent created or arising under
applicable Law.
"Material Subsidiary" means, as to any Person, any Subsidiary
of such Person which, on any given date of determination, accounts for more than
7.5% of Petrobras' total consolidated assets, as such total assets are set forth
on the most recent consolidated financial statements of Petrobras prepared in
accordance with U.S. GAAP (or if Petrobras does not prepare financial statements
in U.S. GAAP, consolidated financial statements prepared in accordance with
Brazilian generally accepted accounting principles).
"Offering Document" shall have the meaning set forth in the
recitals to the Second Supplemental Indenture.
"Original Closing Date" means July 2, 2003.
"Payment Account" has the meaning set forth in Section 2.01(g)
herein.
"Permitted Lien" means a:
(a) Lien arising by operation of law, such as merchants',
maritime or other similar Liens arising in the Company's ordinary course of
business or that of any Subsidiary or Lien in respect of taxes, assessments
or other governmental charges that are not yet delinquent or that are being
contested in good faith by appropriate proceedings;
(b) Lien arising from the Company's obligations under
performance bonds or surety bonds and appeal bonds or similar obligations
incurred in the ordinary course of business and consistent with the
Company's past practice;
(c) Lien arising in the ordinary course of business in
connection with Indebtedness maturing not more than one year after the date
on which such Indebtedness was originally incurred and which is related to
the financing of export, import or other trade transactions;
(d) Lien granted upon or with respect to any assets hereafter
acquired by the Company or any Subsidiary to secure the acquisition costs
of such assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such assets, including any Lien existing at
the time of the acquisition of such assets as long as the maximum amount so
secured shall not exceed the aggregate acquisition costs of all such assets
or the aggregate Indebtedness incurred solely for the acquisition of such
assets;
(e) Lien granted in connection with the Indebtedness of a
Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned
Subsidiary;
(f) Lien existing on any asset or on any stock of any
Subsidiary prior to the acquisition thereof by the Company or any
Subsidiary as long as such Lien is not created in anticipation of such
acquisition;
(g) Lien existing as of the date of the Indenture;
(h) Lien resulting from the Transaction Documents;
(i) Lien incurred in connection with the issuance of debt or
similar securities of a type comparable to those already issued by the
Company, on amounts of cash or cash equivalents on deposit in any reserve
or similar account to pay interest on such securities for a period of up to
24 months as required by any Rating Agency as a condition to such Rating
Agency rating such securities investment grade or as is otherwise
consistent with market conditions at such time, as such conditions are
satisfactorily demonstrated to the Trustee;
(j) Lien granted or incurred to secure any extension, renewal,
refinancing, refunding or exchange (or successive extensions, renewals,
refinancings, refundings or exchanges), in whole or in part, of or for any
Indebtedness secured by Lien referred to in paragraphs (a) through (i)
above (but not paragraph (c)), provided that such Lien does not extend to
any other property, the principal amount of the Indebtedness secured by
such Lien is not increased, and in the case of paragraphs (a), (b) and (c),
the obligees meet the requirements of such paragraphs; and
(k) Lien in respect of Indebtedness the principal amount of
which in the aggregate, together with all Liens not otherwise qualifying as
the Company's Permitted Liens pursuant to clauses (a) through (j) of this
definition, does not exceed 7.5% of the Company's consolidated total assets
(as determined in accordance with U.S. GAAP) at any date as at which the
Company's balance sheet is prepared and published in accordance with
applicable Law.
"Taxing Jurisdiction" shall mean, Brazil, the Cayman Islands
or any political subdivision or any taxing authority thereof or therein.
ARTICLE 2
TERMS OF THE NOTES
Section 2.01. General. In accordance with Section 3.01 of the Original
Indenture, the following terms relating to the Notes are hereby established:
(a) Title: The Notes shall constitute a series of Securities
having the title "9.125% Global Notes due 2013".
(b) Aggregate Amount: The aggregate principal amount of the
Notes that may be initially authenticated and delivered under the Second
Supplemental Indenture shall be U.S.$750,000,000. As provided in the Original
Indenture, the Company may, from time to time, without the consent of the
Holders of Notes, issue Add On Notes having identical terms (including CUSIP,
ISSN and other relevant identifying characteristics as the Notes), so long as,
on the date of issuance of such Add On Notes: (i) no Default or Event of Default
shall have occurred and then be continuing, or shall occur as a result of the
issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with
the Notes and shall have identical terms, conditions and benefits as the Notes
and be part of the same series as the Notes, (iii) the Company and the Trustee
shall have executed and delivered a further supplemental indenture to the
Indenture providing for the issuance of such Add On Notes and reflecting such
amendments to the Indenture as may be required to reflect the increase in the
aggregate principal amount of the Notes resulting from the issuance of the Add
On Notes, (iv) Petrobras and the Trustee shall have executed and delivered an
amended Standby Purchase Agreement reflecting the increase in the aggregate
principal amount of the Notes resulting from the issuance of the Add On Notes
and (v) the Trustee shall have received all such opinions and other documents as
it shall have requested, including an Opinion of Counsel stating that such Add
On Notes are authorized and permitted by the Indenture and all conditions
precedent to the issuance of such Add On Notes have been complied with by the
Company and Petrobras. All Add On Notes issued hereunder will, when issued, be
considered Notes for all purposes hereunder and will be subject to and take the
benefit of all of the terms, conditions and provisions of this Indenture.
(c) Ranking: The Notes (including the Add On Notes) shall be
general senior unsecured and unsubordinated obligations of the Company and shall
at all times rank pari passu among themselves and at least equal in right of
payment with all of the Company's other present and future unsecured and
unsubordinated obligations from time to time outstanding that are not, by their
terms, expressly subordinated in right of payment to the Notes.
(d) Maturity: The entire outstanding principal of the Notes
shall be payable in a single installment on July 2, 2013 (the "Stated
Maturity"). No payments in respect of the principal of the Notes shall be paid
prior to the Stated Maturity except in the case of the occurrence of an Event of
Default and acceleration of the aggregate outstanding principal amount of the
Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of
the Indenture.
(e) Interest: Interest shall accrue on the Notes at the rate
of 9.125% per annum from the Original Closing Date until all required amounts
due in respect of the Notes have been paid. All interest shall be paid by the
Company to the Trustee and distributed by the Trustee in accordance with this
Indenture semiannually in arrears on January 2 and July 2 of each year (or, as
provided in the Original Indenture, if such date is not a Business Day, the next
succeeding Business Day following such day) during which any portion of the
Notes shall be Outstanding (each, an "Interest Payment Date"), commencing on
January 2, 2004 to the Person in whose name a Note is registered at the close of
business on the preceding Regular Record Date (which shall mean, with respect to
any payment to be made on an Interest Payment Date, the Business Day that is ten
Business Days prior to such Interest Payment Date.) As provided in the Original
Indenture, (i) interest shall be calculated based on a 360-day year of twelve
30-day months, (ii) payment of principal and interest and other amounts on the
Notes will be made at the Corporate Trust Office of the Trustee in New York
City, or such other paying agent office in the United States as the Company
appoints, in the form provided for in Section 10.17 of the Indenture, (iii) all
such payments to the Trustee shall be made by the Company by depositing
immediately available funds in U.S. dollars one Business Day prior to the
relevant Interest Payment Date to the Payment Account and (iv) so long as any of
the Notes remain Outstanding, the Company shall maintain a paying agent in New
York City.
(f) Default Rate: Upon the occurrence and during the
continuation of an Event of Default, (i) interest on the outstanding principal
amount of the Notes shall accrue on the Notes at a rate equal to 1.0% per annum
above the interest rate on the Notes at that time (the "Default Rate") and (ii)
to the fullest extent permitted by law, interest shall accrue on the amount of
any interest, fee, Additional Amounts, or other amount payable under the
Indenture and the Notes that is not paid when due, from the date such amount was
due until such amount shall be paid in full, excluding the date of such payment,
at the Default Rate.
(g) Payment Account: On the Original Closing Date, the Trustee
established (and promptly notified the Company of the establishment of such
account, including the relevant account numbers and other relevant identifying
details) and, until the Notes and all accounts due in respect thereof have been
paid in full, maintain a special purpose non-interest bearing trust account (the
"Payment Account") into which all payments required to be made by the Company
under or with respect to the Notes shall be deposited. The Company agrees that
the Payment Account shall be maintained in the name of the Trustee and under its
sole dominion and control (acting on behalf of the Holders of the Notes) and
used solely to make payments of principal, interest and other amounts from time
to time due and owing on, or with respect to, the Notes. No funds contained in
the Payment Account shall be used for any other purpose or in any manner not
expressly provided for herein nor shall the Company or any other Person have an
interest therein or amounts on deposit therein. All amounts on deposit in the
Payment Account on any Interest Payment Date after the Trustee has paid all
amounts due and owing to the holders of the Notes as of such Interest Payment
Date shall be retained in the Payment Account and used by the Trustee to pay any
amounts due and owing to the Holders of the Notes on the next succeeding
Interest Payment Date.
(h) Form and Denomination: The Notes shall be issuable in
whole in the registered form of one or more Global Notes (without coupons), in
minimum denominations of U.S.$1,000 and integral multiples of U.S.$1,000 in
excess thereof, and shall be transferable in integral multiples of U.S.$1,000
and the Depository for such Global Notes shall be The Depository Trust Company,
New York, New York.
(i) Standby Purchase Agreement: The Notes shall have the
benefit of the Standby Purchase Agreement in the manner provided in Article 3 of
this Second Supplemental Indenture.
(j) Rating: The Notes can be issued without the requirement
that they have any rating from a nationally recognized statistical rating
organization.
(k) Optional Early Redemption: The Notes are not redeemable at
the Company's option prior to the Stated Maturity except in the circumstances
provided for in Section 11.08 of the Indenture.
(l) Conversion: The Notes will not be convertible into, or
exchangeable for, any other securities.
Section 2.02. Amendments to Article Five Relating to Events of
Default. (a) Restated Events of Default: As it applies to the Notes, Section
5.01 of the Original Indenture shall be amended to read in its entirety as
follows:
"Section 5.01 Events of Default
"Event of Default," wherever used herein with respect to the
Notes, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
1. The Company shall fail to make any payment in respect of
principal on any of the Notes whether on the Stated Maturity, upon
redemption or prior to the Maturity or otherwise in accordance with the
terms of the Notes and this Indenture, non-payment of which shall
continue for a period of three calendar days and the Trustee shall not
have otherwise received such amounts from Petrobras under the Standby
Purchase Agreement, or otherwise by the end of such three calendar day
period;
2. The Company shall fail to make any payment in respect of
any interest or other amounts due on or with respect to the Notes
(including Additional Amounts, if any) in accordance with the terms of
the Notes and this Indenture, non-payment of which shall continue for a
period of 30 calendar days and the Trustee shall not have otherwise
received such amounts from Petrobras under the Standby Purchase
Agreement, or otherwise by the end of such 30 calendar day period;
3. Any of the representation or warranty made by Petrobras
under Sections 9(l), (p) (other than the last clause thereof), (q),
(r), (s), (t), (y), (ee), (ff), (kk), (ll), (mm), (uu) and (vv) (but,
in the case of Sections 9(s), (t), (y) and (ee), only to the extent
that breach thereof affects the enforceability of the Indenture, the
Standby Purchase Agreement or the Notes) under the Standby Purchase
Agreement shall prove to be incorrect as of the time when the same
shall have been made and as a result thereof there is a Material
Adverse Effect;
4. The Company or Petrobras shall fail to perform, or breach,
any term, covenant, agreement or obligation contained in this Indenture
or the Standby Purchase Agreement and such failure (other than any
failure to make any payment under the Standby Purchase Agreement, for
which there is no cure) is either incapable of remedy or continues for
a period of 60 calendar days (inclusive of any time frame contained in
any such term, covenant, agreement or obligation for compliance
thereunder) after there has been received by the Company or Petrobras
from the Trustee or the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
5. (i) The acceleration of any Indebtedness of the Company,
Petrobras or any Material Subsidiary thereof in accordance with the
terms of such Indebtedness, it being understood that prepayment or
redemption by the Company, Petrobras or the relevant Material
Subsidiary thereof of any Indebtedness is not acceleration for this
purpose; (ii) the Company, Petrobras or any Material Subsidiary thereof
shall fail to pay any Indebtedness when due or, as the case may be,
beyond any applicable grace period specified in the underlying
transaction document; or (iii) the Company, Petrobras or any Material
Subsidiary thereof shall fail to pay when due any amount payable by it
under any Guarantee for, or indemnity in respect of, the Indebtedness
of any other Person; provided, however, that the aggregate amount of
any such Indebtedness falling within (i), (ii) or (iii) above (as to
which the time for payment has not been extended by the relevant
obligees) equals or exceeds U.S.$100,000,000 (or its equivalent in
another currency);
6. One or more final and non-appealable judgments or final
decrees is entered against the Company, Petrobras or any Material
Subsidiary thereof involving in the aggregate a liability (not
theretofore paid or covered by insurance) of U.S.$100,000,000 (or its
equivalent in another currency) or more, and all such judgments or
final decrees shall not have been vacated, discharged or stayed within
120 calendar days after the rendering thereof;
7. The Company, Petrobras or any Material Subsidiary thereof
stops payment of, or is generally unable to pay, its debts as and when
they become due except (i) as is otherwise expressly provided under
this Indenture or the Standby Purchase Agreement, or (ii) in the case
of a winding-up, dissolution or liquidation for the purpose of and
followed by a consolidation, merger, conveyance or transfer, the terms
of which shall have been approved by a resolution of a meeting of the
Holders;
8. Proceedings are initiated against the Company, Petrobras or
any Material Subsidiary thereof under any applicable bankruptcy,
reorganization, insolvency, moratorium or intervention law or law with
similar effect, or under any other law for the relief of, or relating
to, debtors, and any such proceeding is not dismissed or stayed within
90 days after the entering of such proceeding, or an administrator,
receiver, trustee, manager, fiduciary, statutory manager, intervener or
assignee for the benefit of creditors (or other similar official) is
appointed to take possession or control of, or a distress, execution,
attachment or sequestration or other process is levied, enforced upon,
sued out or put in force against, all or any material part of the
undertaking, property, assets or revenues of the Company, Petrobras or
any Material Subsidiary thereof;
9. The Company, Petrobras or any Material Subsidiary thereof
commences voluntarily or consents to judicial, administrative or other
proceedings relating to it under any applicable bankruptcy,
reorganization, insolvency, moratorium or intervention law or law with
similar effect, or under any other law for the relief of, or relating
to, debtors, or makes or enters into any composition, concordata or
other similar arrangement with its creditors, or appoints or applies
for the appointment of an administrator, receiver, trustee, manager,
fiduciary, statutory manager, intervener or assignee for the benefit of
creditors (or other similar official) to take possession or control of
the whole or any material part of its undertaking, property, assets or
revenues, or takes any judicial, administrative or other similar
proceeding under any law for a readjustment or deferment of its
Indebtedness or any part of it;
10. An effective resolution is passed for, or any authorized
action is taken by any court of competent jurisdiction, directing the
winding-up, dissolution or liquidation of the Company, Petrobras or any
Material Subsidiary thereof (other than in any of the circumstances
referred to as exceptions in paragraph (6) above);
11. Any event occurs that under the laws of any relevant
jurisdiction has substantially the same effect as any of the events
referred to in any of paragraphs (6), (7), (8) or (9) of this Section
5.01;
12. Any action, condition or thing (including the obtaining or
effecting of any necessary consent, approval, authorization, exemption,
filing, license, order, recording or registration) at any time required
to be taken, fulfilled or done in order to (i) enable the Company and
Petrobras lawfully to enter into, exercise its rights and perform and
comply with its obligations under the Indenture, the Notes and the
Standby Purchase Agreement, (ii) ensure that those obligations under
the Indenture, the Notes and the Standby Purchase Agreement are legally
binding and enforceable or (iii) make the Indenture, the Notes and the
Standby Purchase Agreement admissible in evidence in the courts of
Brazil and the Cayman Islands that is not taken, fulfilled or done
within ten calendar days after notice thereof has been given to the
Company or Petrobras by the Trustee or once any such authorization or
consent has been given, is removed, withdrawn, modified, withheld or
otherwise fails to remain valid and subsisting in full force and effect
within ten calendar days after notice of such removal, withdrawal,
modification, or failure has been given to the Company or Petrobras by
the Trustee;
13. This Indenture, the Notes, the Standby Purchase Agreement
or any part thereof shall cease to be in full force and effect or
binding and enforceable against the Company or Petrobras, it becomes
unlawful for the Company or Petrobras to perform any material
obligation under the Indenture, the Notes or the Standby Purchase
Agreement, or the Company or Petrobras shall contest the enforceability
of this Indenture, the Notes or the Standby Purchase Agreement or deny
that it has liability under this Indenture, the Notes or the Standby
Purchase Agreement; and
14. Petrobras fails to retain at least 51% direct or indirect
ownership of the outstanding voting and economic interests (equity or
otherwise) of and in the Company."
(b) Amendment to Acceleration Provision Relating to Events of
Default: As it applies to the Notes, Section 5.02 of the Original Indenture is
hereby amended by deleting the references to "Section 5.01(6), 5.01(7), 5.01(8)
or 5.01(9)" in the first and second sentences of the first paragraph and
replacing them with references to "Section 5.01(7), 5.01(8), 5.01(9), 5.01(10)
or 5.01(11)."
Section 2.03. Amendments to Article 10 Relating to Covenants. (a) Use
of Proceeds: As it applies to the Notes, Section 10.12 of the Original Indenture
shall be amended to read in its entirety as follows:
"Section 10.12 Use of Proceeds.
The Company will use the proceeds from the offer and sale of
the Notes after the deduction of any commissions principally for
general corporate purposes, including the financing of the purchase of
oil product imports and the repayment of existing trade-related debt."
(b) Statement of Officers as to Default and Notices of Events
of Default: As it applies to the Notes, Section 10.13 of the Original Indenture
shall be amended by deleting the second sentence in its entirety and replacing
it with the following:
"Within 10 calendar days (or promptly with respect to Events
of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7),
5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than
10 calendar days) after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default pursuant to
Section 5.01 hereunder, the Company shall provide notice to the Trustee
of such occurrence, accompanied by an Officer's Certificate of the
Company setting forth the details thereof."
(c) Provision of Financial Statements and Reports: As it
applies to the Notes, Section 10.14 of the Original Indenture shall be amended
by deleting the second paragraph in its entirety and replacing it with the
following:
"The Company will provide, together with each of the financial
statements delivered pursuant to this Section, an Officer's Certificate
stating (A) that a review of the Company's activities has been made
during the period covered by such financial statements with a view to
determining whether the Issuer has kept, observed, performed and
fulfilled its covenants and agreements under this Indenture; (B) a
schedule specifying the amount of Indebtedness of the type described
under clause (c) of "Permitted Lien" under Section 1.1 and the value of
property securing such Indebtedness, in each case as of the last day
covered by the financial statements specified above; and (C) that no
Default or Event of Default has occurred during such period or, if one
or more have actually occurred, specifying all such events and what
actions have been taken and will be taken with respect to such Event of
Default."
(d) Additional Amounts: As it applies to the Notes, Section
10.19 of the Original Indenture shall be amended by (i) deleting the word
"Brazil" throughout Section 10.19 of the Original Indenture and replacing it
with the expression "Taxing Jurisdiction" (as defined in Section 1.02 of this
Second Supplemental Indenture) and (ii) adding the following new paragraph at
the end of Section 10.19:
"The Company shall promptly pay when due any present or future
stamp, court or documentary taxes or any other excise or property
taxes, charges or similar levies that arise in a Taxing Jurisdiction
from the execution, delivery, enforcement or registration of each Note
or any other document or instrument referred to herein or therein. The
Company shall indemnify and make whole the Holders of the Notes for any
present or future stamp, court or documentary taxes or any other excise
or property taxes, charges or similar levies payable by the Issuer as
provided in this paragraph paid by such Holder of the Notes."
(e) Additional Covenants Applicable to the Notes: As it
applies to the Notes, Article 10 of the Original Indenture shall be amended to
include the following:
"Section 10.20 Negative Pledge
So long as any Note remains Outstanding, the Company will not
create or permit any Lien, other than a Permitted Lien, on any of the
Company's assets to secure (a) any of the Company's Indebtedness or (b)
the Indebtedness of any other Person, unless the Company
contemporaneously creates or permits such Lien to secure equally and
ratably the Company's obligations under the Notes and this Indenture or
the Company provides such other security for the Notes as is duly
approved by a resolution of the Holders of the Notes in accordance with
this Indenture. In addition, the Company will not allow any of the
Company's Subsidiaries to create or permit any Lien, other than a
Permitted Lien, on any of its assets to secure (a) any of the Company's
Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness
of any other Person, unless it contemporaneously creates or permits the
Lien to secure equally and ratably the Company's obligations under the
Notes and this Indenture or the Company provides such other security
for the Notes as is duly approved by a resolution of the Holders of the
Notes.
Section 10.21 Transactions with Affiliates
The Company will not, and will not permit any of its
Subsidiaries to, enter into or carry out (or agree to enter into or
carry out) any transaction or arrangement with any Affiliate, except
for any transaction or arrangement entered into or carried out on terms
no less favorable to the Company or the Subsidiary than those which
could have been obtained on an arm's-length basis with a person that is
not an Affiliate. However, this requirement will not apply to
transactions (i) between Petrobras and the Company or any of the
Company's Subsidiaries or (ii) except as otherwise permitted under
clause (i), between or among the Company, Petrobras and any of their
respective Subsidiaries not involving any other Person so long as
consummation of any transaction described in this clause (ii) will not
have a Material Adverse Effect.
Section 10.22 Currency Rate Indemnity. (a) The Company shall
(to the extent lawful) indemnify the Trustee and the Holders of the
Notes and keep them indemnified against:
(i) in the case of nonpayment by the Company of any amount
due to the Trustee, on behalf of the Holders of the Notes, under the
Indenture any loss or damage incurred by any of them arising by reason
of any variation between the rates of exchange used for the purposes of
calculating the amount due under a judgment or order in respect thereof
and those prevailing at the date of actual payment by the Company; and
(ii) any deficiency arising or resulting from any variation
in rates of exchange between (i) the date as of which the local
currency equivalent of the amounts due or contingently due under the
Indenture or in respect of the Notes is calculated for the purposes of
any bankruptcy, insolvency or liquidation of the Company, and (ii) the
final date for ascertaining the amount of claims in such bankruptcy,
insolvency or liquidation. The amount of such deficiency shall be
deemed not to be increased or reduced by any variation in rates of
exchange occurring between the said final date and the date of any
bankruptcy, insolvency or liquidation or any distribution of assets in
connection therewith.
(b) The Company agrees that, if a judgment or order given or
made by any court for the payment of any amount in respect of its
obligations hereunder is expressed in a currency (the "Judgment
Currency") other than U.S. dollars (the "Denomination Currency"), it
will indemnify the relevant Holder against any deficiency arising or
resulting from any variation in rates of exchange between the date at
which the amount in the Denomination Currency is notionally converted
into the amount in the Judgment Currency for the purposes of such
judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and
independent obligations of the Company from its obligations under the
Indenture, will give rise to separate and independent causes of action,
will apply irrespective of any indulgence granted from time to time and
will continue in full force and effect notwithstanding any judgment or
the filing of any proof or proofs in any bankruptcy, insolvency or
liquidation of the Company for a liquidated sum or sums in respect of
amounts due under the Indenture or the Notes."
Section 2.04. Application of the Article of the Indenture Regarding
Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and
14.03 of the Original Indenture shall apply to the Notes.
ARTICLE 3
STANDBY PURCHASE AGREEMENT
Section 3.01. Execution. The Trustee is hereby authorized and directed
to execute and deliver the Standby Purchase Agreement and to perform all of its
duties and obligations thereunder.
Section 3.02. Enforcement. The Trustee shall enforce the provisions of
the Standby Purchase Agreement against Petrobras in accordance with the terms
thereof and the terms of the Indenture and Petrobras, by execution of this
Second Supplemental Indenture, and by so agreeing to become a party to the
Indenture, agrees that each Holder of the Notes shall have direct rights under
the Standby Purchase Agreement as if it were a party thereto.
Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound
by the provisions of Sections 1.08 and 3.14 of the Indenture and (ii) confirms
that (A) its obligations under the Standby Purchase Agreement shall be issued
pursuant to the Indenture and (B) it intends for the Holders of the Notes, in
addition to those rights under the Standby Purchase Agreement as provided
therein, to be entitled to the benefits of the Indenture with respect to their
rights against Petrobras under the Standby Purchase Agreement.
Section 3.04. Definition of the Term "Securities." For all purposes
relating to the Notes, the term "Securities" in Section 1.01 of the Original
Indenture shall be amended by inserting the following at the end thereof: "All
references herein to any Securities shall be deemed to include the rights of the
Holder thereof under any standby purchase agreement or guarantee arrangement
entered into by Petrobras with the Trustee in connection with the issuance of
such Securities pursuant to Section 3.14 hereof, which are an integral part of
such Securities."
ARTICLE 4
MISCELLANEOUS
Section 4.01. Effect of the Second Supplemental Indenture. This Second
Supplemental Indenture supplements the Indenture and shall be a part, and
subject to all the terms, thereof. The Original Indenture, as supplemented and
amended by this Second Supplemental Indenture, is in all respects ratified and
confirmed, and the Original Indenture and this Second Supplemental Indenture
shall be read, taken and construed as one and the same instrument. All
provisions included in this Second Supplemental Indenture supersede any
conflicting provisions included in the Original Indenture unless not permitted
by law. The provisions of this Second Supplemental Indenture are intended to
apply solely to the Notes and the Holders thereof and shall not apply to any
future issuance of securities by the Company (other than any Add On Notes as
provided herein) and all references to provisions of the Original Indenture
herein amended and restated or otherwise modified shall have effect solely with
respect to the Notes contemplated in this Second Supplemental Indenture. The
Trustee accepts the trusts created by the Original Indenture, as supplemented by
this Second Supplemental Indenture, and agrees to perform the same upon the
terms and conditions of the Original Indenture, as supplemented by this Second
Supplemental Indenture.
Section 4.02. Governing Law. This Second Supplemental Indenture shall
be governed by, and construed in accordance with, the laws of the State of New
York.
Section 4.03. Trustee Makes No Representation. The Trustee shall not
be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Second Supplemental Indenture or for or in respect of the
recitals contained herein, all of which are made solely by the Company and
Petrobras.
Section 4.04. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of this Second
Supplemental Indenture.
Section 4.05. Counterparts. The parties may sign any number of copies
of this Second Supplemental Indenture. Each signed copy shall be an original,
but all of them shall represent the same agreement.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
PETROBRAS INTERNATIONAL FINANCE COMPANY
By: /s/ Joseph Vieira
--------------------------------
Name: Joseph Vieira
Title: Assistant Finance Manager
of PETROBRAS' New York Office
PETROLEO BRASILEIRO S.A. - PETROBRAS
By: /s/ Joseph Vieira
--------------------------------
Name: Joseph Vieira
Title: Assistant Finance Manager
of PETROBRAS' New York Office
WITNESSES:
1. /s/ Eleanor Webb
---------------------------------
Name: Eleanor Webb
2. /s/ Rodrigo Nascimento
---------------------------------
Name: Rodrigo Nascimento
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 17th 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 Attorney-in-Fact of Petrobras International Finance Company - PIFCo, a
corporation described in and which executed the foregoing instrument and
acknowledge that said instrument to be the free act and deed of said entity.
On this 17th 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 Attorney-in-Fact of Petroleo Brasileiro S.A. - Petrobras, a
corporation described in and which executed the foregoing instrument and
acknowledge that said instrument to be the free act and deed of said entity.
On this 17th day of September, 2003, before me personally came
Eleanor Webb and Rodrigo Nascimento 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/ Christine Dionne
--------------------
Notary Public
COMMISSION EXPIRES
JPMORGAN CHASE BANK, as Trustee
By: /s/ Susy P. Pestana
--------------------------------
Name: Susy P. Pestana
Title: Assistant Vice President
WITNESSES:
1. /s/ Eleanor Webb
---------------------------------
Name: Eleanor Webb
2. /s/ Rodrigo Nascimento
---------------------------------
Name: Rodrigo Nascimento
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 17ht day of September, 2003 before me, a notary
public within and for said county, personally appeared Susy Pestana, to me
personally known who being duly sworn, did say that she is a Assistant Vice
President of JPMorgan Chase Bank, one of the persons described in and which
executed the foregoing instrument, and acknowledge said instrument to be the
free act and deed of said corporation.
On this 17th day of September, 2003, before me personally came
Eleanor Webb and Rodrigo Nascimento to me personally known, who being by me
sworn, did depose and say that they signed their names to the foregoing
instrument as witnesses.
/s/ Christine Dionne
--------------------
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