EXECUTION COPY
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ADMINISTRATIVE SERVICES AGREEMENT
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between
PETROLEO BRASILEIRO, S.A. - PETROBRAS,
as Delivery and Sales Agent
and
PETROBRAS FINANCE LTD.
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Dated as of December 21, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................................... 1
ARTICLE II APPOINTMENT AND DUTIES................................................................................ 2
2.1 Appointment of Delivery and Sales Agent........................................................... 2
2.2 Duties and Obligations............................................................................ 2
2.3 Delivery and Sales Agent Procedures............................................................... 3
2.4 Fee............................................................................................... 3
2.5 Delegation of Duties.............................................................................. 3
ARTICLE III TERM................................................................................................. 3
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE DELIVERY AND SALES AGENT........................................ 4
ARTICLE V COVENANTS OF THE DELIVERY AND SALES AGENT.............................................................. 4
ARTICLE VI CONDITIONS PRECEDENT.................................................................................. 4
ARTICLE VII GENERAL PROVISIONS................................................................................... 4
7.1 Reimbursement..................................................................................... 4
7.2 Rights Confined to Parties; Third Party Beneficiaries............................................. 4
7.3 Amendment or Waiver: Remedies Cumulative.......................................................... 5
7.4 Binding Upon Assigns.............................................................................. 5
7.5 Waiver of Immunity; Submission to Jurisdiction; Agent............................................. 5
7.6 Notices........................................................................................... 6
7.7 Severability...................................................................................... 8
7.8 Governing Law..................................................................................... 8
7.9 Use of English Language........................................................................... 8
7.10 Counterparts...................................................................................... 8
7.11 Survival.......................................................................................... 8
7.12 No Consequential Damages.......................................................................... 8
7.13 No Petition....................................................................................... 8
7.14 Limited Recourse.................................................................................. 9
i
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT dated as of December 21, 2001, between
Petrobras Finance Ltd., an exempted company with limited liability incorporated
and existing under the laws of the Cayman Islands ("Petrobras Finance") and
Petroleo Brasileiro, S.A. - Petrobras ("Petrobras"), a mixed capital company
(sociedade anonima de economia mista) organized and existing under the laws of
Brazil, in its capacity as agent for Petrobras Finance (the "Delivery and Sales
Agent").
WHEREAS, Petrobras Finance and Petrobras have entered into a Master Export
Contract and a Prepayment Agreement, each dated as of the date hereof
(respectively, the "Master Export Contract" and "Prepayment Agreement") with
Petrobras, pursuant to which agreements Petrobras shall sell to Petrobras
Finance and Petrobras Finance shall purchase from Petrobras certain Eligible
Products;
WHEREAS, Petrobras Finance has entered into the Receivables Purchase
Agreement, dated as of the date hereof (the "Receivables Purchase Agreement")
with U.S. Bank, National Association, Cayman Islands Branch, acting solely in
its capacity as Trustee (the "Trustee") of the PF Export Receivables Master
Trust and Petrobras, pursuant to which Petrobras Finance will sell to the
Trustee the rights to certain designated receivables to be generated from the
sale of the Eligible Products by Petrobras Finance;
WHEREAS, in order to facilitate the purchase by Buyers of Eligible Products
from Petrobras Finance, Petrobras Finance desires to appoint Petrobras as its
delivery and sales agent to market, sell and arrange for the delivery of
Eligible Products to Buyers, subject to the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, except as otherwise expressly provided or unless
the context otherwise requires, the following capitalized terms shall have the
following meanings; provided that capitalized terms used but not defined in this
Agreement shall have the meanings assigned to them in the Master Export
Contract:
"Agreement" means this Agreement and the schedules hereto and shall include
all amendments, modifications and supplements hereto as the same may be in
effect from time to time.
"Delivery and Sales Agent" has the meaning assigned to such term in the
recitals.
"Master Export Contract" has the meaning assigned to such term in the
recitals.
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"Petrobras" has the meaning assigned to such term in the recitals.
"Petrobras Finance" has the meaning assigned to such term in the recitals.
"Prepayment Agreement" has the meaning assigned to such term in the
recitals.
"Receivables Purchase Agreement" has the meaning assigned to such term in
the recitals.
"Servicer" shall mean Petrobras International Finance Company and its
successors and assigns, as Servicer under the Servicing Agreement dated as of
the date hereof among the Servicer, the Trustee, Petrobras Finance and
Petrobras.
"Trustee" has the meaning assigned to such term in the recitals.
ARTICLE II
APPOINTMENT AND DUTIES
2.1 Appointment of Delivery and Sales Agent. Petrobras Finance hereby
appoints Petrobras as its Delivery and Sales Agent to undertake the duties and
obligations set forth herein. Petrobras hereby accepts such appointment
hereunder, subject to the terms and conditions contained herein.
2.2 Duties and Obligations.
(a) Subject to and upon the terms, provisions and conditions contained
herein, the Delivery and Sales Agent shall, from time to time on behalf of
Petrobras Finance, market, sell and arrange for the delivery of any Barrels of
Eligible Products sold or to be sold by Petrobras Finance to Buyers during the
term of this Agreement.
(b) Without limiting the obligations of the Delivery and Sales Agent set
forth in Section 2.2(a) and unless otherwise instructed by Petrobras Finance,
the Delivery and Sales Agent shall undertake the following duties and
obligations:
(i) as early as practicable prior to each date of delivery of
Eligible Products by Petrobras, notify Petrobras and Petrobras Finance of
(A) the identity of the Buyers to whom such Eligible Products are to be
delivered, (B) the applicable Delivery Point for such delivery and (C) the
price to be paid by such Buyers for the sale of such Eligible Products;
(ii) notify the Buyers of the quantity and the applicable Delivery
Date for the Eligible Products sold to such Buyers;
(iii) arrange for the Required Documents, together with any
certificates of quality and quantity requested by any Buyer relating to
such Eligible Products, to be delivered to such Buyer in respect of each
sale of Eligible Products;
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(iv) at the request of the Servicer or Petrobras Finance, take all
necessary and reasonable actions to assist the Servicer in collecting any
amounts due from Buyers in respect of sales by Petrobras Finance of
Eligible Products;
(v) facilitate sales of Eligible Products and provide marketing
services to Petrobras Finance in respect of the Eligible Products; and
(vi) perform such additional or ancillary activities as may be
reasonably required in furtherance of the above.
(c) The Delivery and Sales Agent shall ensure that the Eligible Products
are delivered in compliance with the terms and conditions of the Master Export
Contract and the Prepayment Agreement, and in such a manner as is necessary to
create, on the part of the Buyers, a payment obligation in favor of Petrobras
Finance.
(d) The Delivery and Sales Agent shall ensure that all sales of Eligible
Products by Petrobras Finance are invoiced in the name of Petrobras Finance, as
legal owner.
2.3 Delivery and Sales Agent Procedures. In performing any duties pursuant
to this Agreement, the Delivery and Sales Agent agrees to use a commercially
reasonable degree of skill and attention and to employ the customary diligence
that it would use in acting for its own account and not as agent in respect of
the activities in question, and to follow such practices and procedures as it
employs in the ordinary course of its business when performing such activities,
unless any such practices and procedures would conflict with any provision of
the Master Export Contract or the Prepayment Agreement, as the case may be, in
which case, the Delivery and Sales Agent shall act in accordance with the Master
Export Contract or the Prepayment Agreement, as applicable. In the case of any
such conflict, the Delivery and Sales Agent shall notify the Trustee.
2.4 Fee. In consideration of Delivery and Sales Agent's obligations under
this Agreement, Petrobras Finance shall pay to the Delivery and Sales Agent, on
the Closing Date and on each anniversary thereof, an annual fee equal to
U.S.$10,000. The failure of Petrobras Finance to pay this fee shall not be
grounds for the termination by Petrobras of this Agreement.
2.5 Delegation of Duties. The Delivery and Sales Agent may at any time at
its own expense delegate its duties under this Agreement to a sub-servicer,
provided that any such sub-servicer shall deliver to the Trustee, each Enhancer
and Petrobras Finance a written instrument in which such sub-servicer accepts
such duties and agrees to conduct such duties in accordance with the terms of
and in the manner set forth in this Agreement. Such delegation shall not relieve
the Delivery and Sales Agent of its liability and responsibility with respect to
such duties.
ARTICLE III
TERM
The term of this Agreement shall commence as of the date set forth in the
introductory paragraph hereof and shall expire upon the termination of the
Master Export Contract.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE DELIVERY AND SALES AGENT
Petrobras, in its capacity as Delivery and Sales Agent, hereby confirms the
representations and warranties contained in clauses (a), (b), (c), (d), (e),
(f), (g), (h), (i), (j), (k), (l), (n), (o), (p), (q) and (r) of Section 4.01 of
the Master Export Contract, which representations and warranties are
incorporated herein by reference as if fully set forth in this Agreement,
mutatis mutandis.
ARTICLE V
COVENANTS OF THE DELIVERY AND SALES AGENT
For so long as this Agreement shall remain in effect, Petrobras, in its
capacity as Delivery and Sales Agent, agrees that it shall observe and perform
the covenants contained in clauses (a), (b), (c), (d), (e), (f), (h), (i), (j),
(k), (l), (m) and (n) of Section 5.01, and clauses (a), (b) and (c) of Section
6.01 of the Master Export Contract, which covenants and agreements are
incorporated by reference in this Agreement as if fully set forth herein, in
accordance with their terms, mutatis mutandis. The Delivery and Sales Agent
further covenants and agrees that it shall not take any action, nor fail to take
any action, which would impair the title to the Eligible Products delivered
under the Master Export Contract or Prepayment Agreement, or which would result
in the creation of any lien or adverse claim in respect of such Eligible
Products.
ARTICLE VI
CONDITIONS PRECEDENT
The prior execution and delivery of all of the other Transaction Documents
to which Petrobras and Petrobras Finance are a party shall be a condition
precedent to the effectiveness of this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.1 Reimbursement. The Delivery and Sales Agent agrees to reimburse each
of Petrobras Finance and the Trustee, as the case may be, on demand for all
reasonable and documented costs and expenses incurred by Petrobras Finance or
the Trustee in connection with the enforcement of its rights and benefits under
this Agreement.
7.2 Rights Confined to Parties; Third Party Beneficiaries.
(a) Except as set forth in sub-section (b) below, nothing expressed or
implied herein is intended or shall be construed to confer upon or to give to
any person, other than the parties hereto, any right, remedy or claim under or
by reason of this Agreement, and the terms,
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covenants, conditions, promises and agreements contained herein shall be for the
sole and exclusive benefit of the parties hereto.
(b) The Trustee is expressly made hereby a third party beneficiary with
respect to all obligations of the Delivery and Sales Agent under this Agreement
and shall be entitled to enforce the same.
7.3 Amendment or Waiver: Remedies Cumulative.
(a) No provision of this Agreement may be amended or waived, and this
Agreement may not be terminated, without the written consent of the Trustee and
each of the parties hereto.
(b) No failure or delay on the part of any party hereto in exercising any
right, power or privilege hereunder or under any other document delivered in
connection herewith or therewith and no course of dealing between Petrobras
Finance and the Delivery and Sales Agent shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or under any other document delivered in connection herewith preclude any other
or further exercise thereof or the exercise of any right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein and in any of
the other documents delivered in connection herewith are cumulative and not
exclusive of any rights, powers or remedies which any party hereto would
otherwise have. No notice to or demand on any party hereto in any case shall
entitle such party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of such party to any other or
further action in any circumstances without notice or demand.
7.4 Binding Upon Assigns. The provisions of this Agreement (including any
amendments, modifications and waivers hereof properly adopted) shall be binding
upon and shall inure to the benefit of the parties hereto and any third party
beneficiaries, and each of their respective successors and assigns. Neither
party hereto shall be entitled to assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the other
parties hereto and the Trustee.
7.5 Waiver of Immunity; Submission to Jurisdiction; Agent.
(a) This Agreement, and any actions taken hereunder, constitute commercial
acts by the parties. Each party hereto hereby irrevocably and unconditionally
and to the fullest extent permitted by the laws of any jurisdiction waives and
agrees not to plead or claim, any right to immunity from jurisdiction, set-off,
legal proceedings, attachment prior to judgment, other attachment or execution
of judgment on the grounds of sovereignty or otherwise for itself or any of its
property, assets or revenues wherever located with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement or any other Transaction Document, in each case for the benefit
of any third party beneficiary hereunder and their respective successors and
assigns, it being intended that the foregoing waiver and agreement shall be
effective, irrevocable and not subject to withdrawal in any and all
jurisdictions.
(b) The parties hereto irrevocably agree that any legal action, suit or
proceeding brought by or against either of them with respect to any matter under
or arising out of or in any
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way connected with this Agreement or any document delivered pursuant to this
Agreement or for recognition or enforcement of any judgment rendered in any such
action, suit or proceeding may be brought in the courts of the United States for
the Southern District of New York (and the courts of appeal thereto) and if such
courts cannot or will not hear such action, suit or proceeding, then in the
courts of the County and State of New York (and the courts of appeal thereto),
and by execution and delivery of this Agreement, the parties hereto hereby
irrevocably accept and submit to the non-exclusive jurisdiction of the aforesaid
courts in person, generally and unconditionally, with respect to any such
action, suit or proceeding for themselves and in respect of any of their
property, assets and revenues. In addition, the parties hereto hereby
irrevocably and unconditionally waive (i) all rights to a trial by jury and (ii)
to the fullest extent permitted by law, any objection which any of them may now
or hereafter have to the laying of venue of any of the aforesaid actions, suits
or proceedings arising out of or in connection with this Agreement, brought in
any of the aforesaid courts, and hereby further irrevocably and unconditionally
waive and agree, to the fullest extent permitted by law, not to plead or claim
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) The Delivery and Sales Agent hereby irrevocably designates, appoints
and empowers the New York office of Petrobras at 570 Lexington Avenue, New York,
New York 10022-6837, and its successors as its process agent; and Petrobras
Finance hereby irrevocably designates, appoints and empowers the New York office
of Petrobras at 570 Lexington Avenue, New York, New York 10022-6837, and its
successors as its process agent (each, a "Process Agent"), to receive, accept
and acknowledge for and on its behalf and on behalf of its property service of
any and all legal process, summons, notices and documents which may be served in
any such action, suit or proceeding in the courts of the County and State of New
York (and the courts of appeal thereto) or of the United States of America for
the Southern District of New York (and the courts of appeal thereto), which
service may be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts. Each of Petrobras Finance and the
Delivery and Sales Agent agrees to take any and all action necessary to continue
such designation in full force and effect; and should such Process Agent become
unavailable for this purpose for any reason, each of Petrobras Finance and the
Delivery and Sales Agent, as the case may be, shall forthwith irrevocably
designate a new Process Agent with an office in New York, New York, which shall
agree to act as such, with the powers and for the purposes specified in this
subsection. Each of Petrobras Finance and the Delivery and Sales Agent further
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents of any of the aforesaid courts in any such
action, suit or proceeding by hand delivery, to it at its address set forth in
Section 7.6 or to any other address of which it shall have given notice pursuant
to Section 7.6 or to its then Process Agent.
7.6 Notices.
(a) Except as otherwise expressly provided herein, all notices, requests,
demands or other communications to or upon the respective parties hereto shall
be in writing and shall become effective when received. Any written notice shall
either be mailed, certified or registered mail, return receipt requested with
proper postage for airmail prepaid, or by overnight delivery service (providing
for delivery receipts) or delivered by hand or sent in the form of a tested
telex or confirmed facsimile.
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(b) All notices, requests, demands or other communications under this
Agreement shall be addressed as follows or as any of the parties to this
Agreement shall have specified to all other parties in writing:
To the Delivery and Sales Agent:
Petrobras
Petroleo Brasileiro S.A. - Petrobras
Avenida Republica do Chile 20035-900
Rio de Janeiro - RJ Brazil
Attn: Lair Oliveira
Manager - Long Term Finance
Room 302 L
Telephone: 011 55 21 2534 1450
011 55 21 2534 4258
To: Petrobras Finance
Petrobras Finance Limited
Avenida Republica do Chile 20035-900
Rio de Janeiro - RJ, Brazil
Attn: Lair Oliveira
Director
Room 302 L
Telephone: 011 55 21 2534 1450
011 55 21 2534 4258
With a copy to:
The Trustee:
U.S. Bank, National Association, Cayman Islands Branch
c/o IBJ Whitehall Bank and Trust Company
P.O. Box 1040 GT
Grand Cayman, Cayman Islands
Telephone: (345) 949-2849
Facsimile: (345) 949-5409
with a copy to:
U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Telephone: (212) 361-2501
Facsimile: (212) 809-5459
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To Servicer:
Petrobras International Finance Co.
As Servicer to Petrobras Finance
Avenida Republica do Chile 20035-900
Rio de Janeiro - RJ Brazil
Attn: Mariangela Monteiro Tizatto
Deputy General Manager Accounting
Telephone: 011 55 21 2534-6245
011 55 21 2534-0438
7.7 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.8 Governing Law. THE PROVISIONS OF THIS AGREEMENT, AND ALL THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
7.9 Use of English Language. All certificates, reports, notices and other
documents and communications given or delivered pursuant to this Agreement shall
be in the English language or accompanied by a certified English translation.
7.10 Counterparts. This Agreement may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Agreement.
7.11 Survival. Notwithstanding anything to the contrary herein, all
representations and warranties of the Delivery and Sales Agent hereunder and the
obligations of the Delivery and Sales Agent under Section 7.1 shall survive the
termination of this Agreement.
7.12 No Consequential Damages. Notwithstanding anything to the contrary
contained in this Agreement, in no event shall either party hereto be liable to
the other party for any consequential damages or lost profits that such other
party may suffer. The parties acknowledge that this Section is intended only to
limit their liability to each other for consequential loss or damage, and shall
not be construed so as to limit their liability to third parties or their right
to seek indemnification for third party claims in accordance with any other
Section.
7.13 No Petition. Petrobras shall not be entitled to take any step for the
winding-up of, or initiate proceedings against, Petrobras Finance under any
applicable bankruptcy, reorganization or insolvency laws or laws with similar
effect.
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7.14 Limited Recourse. Petrobras hereby agrees that its only recourse for
the payment of any obligations owing to it by Petrobras Finance hereunder or in
connection with the Transaction Documents and the transactions contemplated
hereby and thereby, including but not limited to payments in respect of any
liability arising out of breaches of representations, warranties and covenants
given by Petrobras Finance, shall in all events be limited to Receivables and
any other monies and assets which are available to Petrobras Finance. Petrobras
further agrees that it shall not otherwise take or pursue any judicial
proceedings or other actions, or join with any Person in taking or pursuing any
such proceedings or actions, against Petrobras Finance or its assets, or
exercise any other right or remedy that it might otherwise have against
Petrobras Finance or its assets, other than in respect of such assets, for
payment of any obligations referred to in the immediately preceding sentence and
that Petrobras Finance shall not otherwise be liable for such obligations and
any claim therefor shall be extinguished.
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IN WITNESS WHEREOF, the parties hereto have executed this Administrative
Services Agreement as of the date and year first above written.
PETROLEO BRASILEIRO, S.A. - PETROBRAS,
as Delivery and Sales Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
PETROBRAS FINANCE, LTD.
By:_____________________________________
Name:
Title:
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WITNESSES
1. By:___________________________
Name:
2. By:___________________________
Name:
Administrative Services Agreement