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 December 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-_____.)
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (the "Third Supplemental Indenture"),
effective as of December 10, 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 Third Supplemental Indenture and any further supplements
thereto, the "Indenture"), providing for the issuance from time to time of
secured or unsecured debentures, notes or other evidences of indebtedness of the
Company to be issued in one or more series as provided in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that, subsequent to
the execution of the Original Indenture and subject to satisfaction of certain
conditions, the Company and the Trustee may enter into one or more indentures
supplemental to the Original Indenture to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Securities (as
defined in the Indenture);
WHEREAS, on the date hereof the Company intends to issue pursuant to
its Registration Statement on Form F-3 (File No. 333-92044) (the "Registration
Statement"), effective on August 14, 2002, the Prospectus Supplement dated
December 3, 2003 and related Base Prospectus dated August 14, 2002
(collectively, the "Offering Document") and the Indenture, U.S. $750,000,000 of
its 8.375% Global Notes due 2018, in the form attached as Exhibit A hereto (the
"Notes"), having the terms and conditions contemplated in the Offering Document
as provided for in the Original Indenture, as supplemented by this Third
Supplemental Indenture;
WHEREAS, as contemplated in the Offering Document, Petrobras and the
Trustee intend, in connection with the issuance of the Notes, to (i) enter into
a Standby Purchase Agreement, dated as of the date hereof in the form attached
as Exhibit B hereto (the "Standby Purchase Agreement"), to provide the holders
of the Notes (the "Holders") with assurances that, if the Company shall fail to
make all required payments of principal, interest or other amounts due in
respect of the Notes and the Indenture, Petrobras will purchase the rights of
the Holders to receive such amounts in consideration of the payment by Petrobras
of an amount of funds equal to the amounts then owed under the Indenture and the
Notes, subject to the provisions thereof and (ii) grant Holders of the Notes
direct rights against Petrobras in respect of the Standby Purchase Agreement by
Petrobras being a party to the Indenture as provided herein;
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 Third 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 Third 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 Third Supplemental Indenture; and
WHEREAS, the Company and Petrobras have requested that the Trustee
execute and deliver this Third 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 Third 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 December 10, 2003.
"Currency Judgment" has the meaning set forth in Section 2.03(e)
herein.
"Default Rate" has the meaning set forth in Section 2.01(f)
herein.
"Denomination Currency" has the meaning set forth in Section
2.03(e) herein.
"Denomination Judgment" has the meaning set forth in Section
2.03(e) herein.
"Interest Period" means the period beginning on an Interest
Payment Date and ending on the day before the next Interest Payment
Date, except that the first Interest Period shall be the period
beginning on the Closing Date and ending on the day before the next
Interest Payment Date.
"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 Third Supplemental Indenture.
"Payment Account" has the meaning set forth in Section 2.01(g)
herein.
"Permitted Lien" means a:
(a) Lien arising by operation of law, such as merchants',
maritime or other similar Liens arising in the Company's ordinary
course of business or that of any Subsidiary or Lien in respect of
taxes, assessments or other governmental charges that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings;
(b) Lien arising from the Company's obligations under performance
bonds or surety bonds and appeal bonds or similar obligations incurred
in the ordinary course of business and consistent with the Company's
past practice;
(c) Lien arising in the ordinary course of business in connection
with Indebtedness maturing not more than one year after the date on
which such Indebtedness was originally incurred and which is related
to the financing of export, import or other trade transactions;
(d) Lien granted upon or with respect to any assets hereafter
acquired by the Company or any Subsidiary to secure the acquisition
costs of such assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of such assets, including any
Lien existing at the time of the acquisition of such assets as long as
the maximum amount so secured shall not exceed the aggregate
acquisition costs of all such assets or the aggregate Indebtedness
incurred solely for the acquisition of such assets;
(e) Lien granted in connection with the Indebtedness of a
Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned
Subsidiary;
(f) Lien existing on any asset or on any stock of any Subsidiary
prior to the acquisition thereof by the Company or any Subsidiary as
long as such Lien is not created in anticipation of such acquisition;
(g) Lien existing as of the date of the Indenture;
(h) Lien resulting from the Transaction Documents;
(i) Lien incurred in connection with the issuance of debt or
similar securities of a type comparable to those already issued by the
Company, on amounts of cash or cash 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,
Luxembourg or any other jurisdiction in which the Company appoints a
paying agent hereunder 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 "8.375% Global Notes due 2018".
(b) Aggregate Amount: The aggregate principal amount of the Notes that
may be initially authenticated and delivered under the Third 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 December 10, 2018 (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 8.375%
per annum 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 June 10 and
December 10 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 June 10, 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 Closing Date, the Trustee shall establish
(and shall promptly notify the Company of the establishment of such account,
including the relevant account numbers and other relevant identifying details)
and, until the Notes and all accounts due in respect thereof have been paid in
full, maintain a special purpose non-interest bearing trust account (the
"Payment Account") into which all payments required to be made by the Company
under or with respect to the Notes shall be deposited. The Company agrees that
the Payment Account shall be maintained in the name of the Trustee and under its
sole dominion and control (acting on behalf of the Holders of the Notes) and
used solely to make payments of principal, interest and other amounts from time
to time due and owing on, or with respect to, the Notes. No funds contained in
the Payment Account shall be used for any other purpose or in any manner not
expressly provided for herein nor shall the Company or any other Person have an
interest therein or amounts on deposit therein. All amounts on deposit in the
Payment Account on any Interest Payment Date after the Trustee has paid all
amounts due and owing to the holders of the Notes as of such Interest Payment
Date shall be retained in the Payment Account and used by the Trustee to pay any
amounts due and owing to the Holders of the Notes on the next succeeding
Interest Payment Date.
(h) Form and Denomination: The Notes shall be issuable in whole in the
registered form of one or more Global Notes (without coupons), in minimum
denominations of U.S.$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 Third
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 representations or warranties 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 this Indenture, the
Notes and the Standby Purchase Agreement, (ii) ensure that those
obligations under this Indenture, the Notes and the Standby Purchase
Agreement are legally binding and enforceable or (iii) make this
Indenture, the Notes and the Standby Purchase Agreement admissible in
evidence in the courts of Brazil and the Cayman Islands that is not
taken, fulfilled or done within ten calendar days after notice thereof
has been given to the Company or Petrobras by the Trustee or once any
such authorization or consent has been given, is removed, withdrawn,
modified, withheld or otherwise fails to remain valid and subsisting
in full force and effect within ten calendar days after notice of such
removal, withdrawal, modification, or failure has been given to the
Company or Petrobras by the Trustee;
13. This Indenture, the Notes, the Standby Purchase Agreement or
any part thereof shall cease to be in full force and effect or binding
and enforceable against the Company or Petrobras, it becomes unlawful
for the Company or Petrobras to perform any material obligation under
this Indenture, the Notes or the Standby Purchase Agreement, or the
Company or Petrobras shall contest the enforceability of this
Indenture, the Notes or the Standby Purchase Agreement or deny that it
has liability under this Indenture, the Notes or the Standby Purchase
Agreement; and
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 such Section 10.19 and
replacing it with the expression "Taxing Jurisdiction" (as defined in Section
1.02 of this Third Supplemental Indenture);
(ii) adding the phrase, ", levies" after the phrase, "deduction or
withholding for any present or future taxes" in the first sentence of such
Section 10.19;
(iii) deleting the phrase, "who, with respect to any such tax,
assessment or other governmental charge, is not resident in Brazil" in the first
sentence of such Section 10.19;
(iv) deleting the proviso to the first sentence of such Section 10.19
that includes clauses (1)-(7) thereof and ends with the phrase, "who would not
have been entitled to such Additional Amounts had it been the Holder or
beneficial owner, as the case may be, of such Security" and replacing such
proviso with the following:
"; provided, however, that the Company shall not be required to
make any payment of Additional Amounts that is imposed due to any of
the following:
(1) such Holder or the Trustee has a connection with the Taxing
Jurisdiction other than merely holding the Notes or receiving
principal or interest payments on the Notes (such as citizenship,
nationality, residence, domicile, or existence of a business, a
permanent establishment, a dependent agent, a place of business or a
place of management present or deemed present within the Taxing
Jurisdiction);
(2) any tax imposed on, or measured by, net income;
(3) such Holder or the Trustee fails to comply with any
certification, identification or other reporting requirements
concerning its nationality, residence, identity or connection with the
Taxing Jurisdiction, if (x) such compliance is required by applicable
law, regulation, administrative practice or treaty as a precondition
to exemption from all or a part of the tax, levy, deduction or other
governmental charge, (y) such Holder or the Trustee is able to comply
with such requirements without undue hardship and (z) at least 30
calendar days prior to the first payment date with respect to which
such requirements under the applicable law, regulation, administrative
practice or treaty will apply, the Company has notified all Holders
that they will be required to comply with such requirements;
(4) such Holder or the Trustee fails to present (where
presentation is required) its Note within 30 calendar days after the
Company has made available to such Holder or the Trustee a payment
under the Notes and this Indenture, provided that the Company will pay
Additional Amounts which a Holder or the Trustee would have been
entitled to had the Note owned by such Holder or the Trustee been
presented on any day (including the last day) within such 30 calendar
day period;
(5) any estate, inheritance, gift, value added, use or sales
taxes or any similar taxes, assessments or other governmental charges;
or
(6) such taxes, levies, deductions or other governmental charges
are imposed on a payment on the Notes to an individual and are
required to be made pursuant to any European Union Council Directive
implementing the conclusions of the ECOFIN Council meeting of November
26-27, 2000 on the taxation of savings income, or any law implementing
or complying with, or introduced in order to conform to, such
directive;
(7) where such Holder or the Trustee could have avoided such
taxes, levies, deductions or other governmental charges by requesting
that a payment on the Notes be made by, or presenting the relevant
notes for payment to, another paying agent of the Company located in a
member state of the European Union; or
(8) where the Holder or the Trustee would have been able to avoid
the tax, levy, deduction or other governmental charge by taking
reasonable measures available to such Holder or the Trustee ."
(v) 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.
The Company shall, if European Council Directive 2003/48/EC or any
other Directive implementing the conclusions of the ECOFIN council
meeting of November 26-27, 2000 is brought into force, ensure that it
maintains a paying agent hereunder in a member state of the European
Union that will not be obliged to withhold or deduct tax pursuant to
such Directive."
(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 Third
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 Third Supplemental Indenture. This Third
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 Third Supplemental Indenture, is in all respects ratified and
confirmed, and the Original Indenture and this Third Supplemental Indenture
shall be read, taken and construed as one and the same instrument. All
provisions included in this Third Supplemental Indenture supersede any
conflicting provisions included in the Original Indenture unless not permitted
by law. The provisions of this Third 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 Third Supplemental Indenture. The
Trustee accepts the trusts created by the Original Indenture, as supplemented by
this Third Supplemental Indenture, and agrees to perform the same upon the terms
and conditions of the Original Indenture, as supplemented by this Third
Supplemental Indenture.
Section 4.02. Governing Law. This Third 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 Third 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 Third
Supplemental Indenture.
Section 4.05. Counterparts. The parties may sign any number of copies
of this Third 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 Third 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/ Gavin Lee Parrish
------------------------------------
Name: Gavin Lee Parrish
2. /s/ Michael Fruchter
-------------------------------------
Name: Michael Fruchter
JPMORGAN CHASE BANK, as Trustee
By: /s/ Susy P. Pestana
------------------------------------
Name: Susy P. Pestana
Title: Assistant Vice President
WITNESSES:
1. /s/ Michael Fruchter
-------------------------------------
Name: Michael Fruchter
2. /s/ Raha Ramezani
-------------------------------------
Name: Raha Ramezani
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 10th day of December, 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 an 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 10th day of December, 2003, before me personally came
Michael Fruchter and Raha Ramezani 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/ Nick Ferrer
--------------------------
Nick Ferrer
Notary Public
COMMISSION EXPIRES October 14, 2007
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 10th day of December, 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 10th day of December, 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 10th day of December, 2003, before me personally came Gavin
Parrish and Michael Fruchter 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/ Nick Ferrer
--------------------------
Nick Ferrer
Notary Public
COMMISSION EXPIRES October 14, 2007
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: December 11, 2003