Exhibit 4.15
FORM OF STANDBY PURCHASE AGREEMENT
Dated as of [_____]
Between
PETROLEO BRASILEIRO S.A.--PETROBRAS,
as Standby Purchaser,
and
THE BANK OF NEW YORK, as
Trustee for the Noteholders
Referred to Herein
TABLE OF CONTENTS
PAGE
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SECTION 1. Definitions................................................ 2
SECTION 2. Partial Purchase Obligation................................ 11
SECTION 3. Total Purchase Obligation.................................. 12
SECTION 4. Obligations Absolute....................................... 13
SECTION 5. Independent Obligation..................................... 15
SECTION 6. Waivers and Acknowledgments................................ 15
SECTION 7. Claims Against the Issuer.................................. 16
SECTION 8. Payments Free and Clear of Taxes, Etc...................... 16
SECTION 9. Covenants.................................................. 19
SECTION 10. Amendments, Etc............................................ 22
SECTION 11. Notices, Etc............................................... 22
SECTION 12. No Waiver; Remedies........................................ 23
SECTION 13. Indemnification............................................ 23
SECTION 14. Subordination.............................................. 23
SECTION 15. Continuing Agreement; Assignment of Rights Under the
Indenture and the Notes.................................... 24
SECTION 16. Currency Rate Indemnity.................................... 25
SECTION 17. Governing Law; Jurisdiction; Waiver of Immunity, Etc....... 25
SECTION 18. Execution in Counterparts.................................. 27
SECTION 19. Pledge of Interests........................................ 27
SECTION 20. Entire Agreement........................................... 28
Standby Purchase Agreement
STANDBY PURCHASE AGREEMENT
STANDBY PURCHASE AGREEMENT (this "Agreement"), dated as of [_____],
between PETROLEO BRASILEIRO S.A.--PETROBRAS (the "Standby Purchaser"), a
sociedade do economia mista organized and existing under the laws of the
Federative Republic of Brazil ("Brazil"), and THE BANK OF NEW YORK, a New York
banking corporation, as successor to JPMORGAN CHASE BANK, N.A., as trustee for
the holders of the Notes (as defined below) issued pursuant to the Indenture (as
defined below) (the "Trustee").
WITNESSETH:
WHEREAS, Petrobras International Finance Company, a Cayman Islands
limited company and a wholly-owned Subsidiary of the Standby Purchaser (the
"Issuer"), has entered into an Indenture dated as of December 15, 2006 (the
"Original Indenture") with the Trustee, as supplemented by the [_____]
Supplemental Indenture among the Issuer, the Standby Purchaser and the Trustee
dated as of [_____] (the "[_____] Supplemental Indenture"). The Original
Indenture, as supplemented by the [_____] Supplemental Indenture, and as amended
or supplemented from time to time with respect to the Notes, is hereinafter
referred to as the "Indenture."
WHEREAS, the Issuer has duly authorized the issuance of its notes in
such principal amount or amounts as may from time to time be authorized in
accordance with the Indenture and is, on the date hereof, issuing U.S.$[_____]
of its [_____]% Global Notes due [_____] under the Indenture (the "Notes");
WHEREAS, the Standby Purchaser is willing to enter into this Agreement
in order to provide the holders of the Notes (the "Noteholders") with assurances
that, if the Issuer shall fail to make all required payments of principal,
interest or other amounts due in respect of the Notes and the Indenture, the
Standby Purchaser will be obligated, without any action on the part of the
Noteholders, to immediately purchase the rights of the Noteholders to receive
such amounts in consideration of the payment by the Standby Purchaser of an
amount of funds equal to the amounts then owed by the Issuer under the Indenture
and the Notes, subject to the provisions hereof;
WHEREAS, the Standby Purchaser agrees that it will derive substantial
direct and indirect benefits from the issuance of the Notes by the Issuer;
WHEREAS, although the following shall not in any way be a condition to
the obligations of the Standby Purchaser hereunder, the Standby Purchaser
intends (but is not obligated hereunder) to enter into and maintain at all times
during the term of this Agreement arrangements for the import of oil and
petroleum products with the Issuer under which payments for such products are
expected to be (i) in an aggregate amount at least equal to the total amount
owed by the Issuer under the Indenture and the Notes (including any accrued and
unpaid interest and any other amounts required to be paid thereunder), (ii) made
through the Brazilian exchange market regulated by Banco Central do Brasil and
(iii) applied to off-set (or be used to otherwise
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liquidate) any amounts required to be paid by the Standby Purchaser under this
Agreement in respect of any obligation owed by the Issuer under the Indenture
and the Notes;
WHEREAS, it is a condition precedent to the issuance of the Notes that
the Standby Purchaser shall have executed this Agreement.
NOW, THEREFORE, the Standby Purchaser and the Trustee hereby agree as
follows:
SECTION 1. Definitions. (a) As used herein the following capitalized
terms shall have the following meanings:
"Affiliate," with respect to any Person, means any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person; it being understood that for purposes of this definition, the
term "control" (including the terms "controlling," "controlled by" and "under
common control with") of a Person shall mean the possession, direct or indirect,
of the power to vote 25% or more of the equity or similar voting interests of
such Person or to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by contract
or otherwise.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Authorized Representative" of the Standby Purchaser or any other
Person means the person or persons authorized to act on behalf of such entity by
its chief executive officer, president, chief operating officer, chief financial
officer or any vice president or its Board of Directors or any other governing
body of such entity.
"Bankruptcy Law" has the meaning specified in Section 14(a).
"Base Prospectus" has the meaning set forth in the definition of
Registration Statement herein.
"Board of Directors", when used with respect to a corporation, means
either the board of directors of such corporation or any committee of that board
duly authorized to act for it, and when used with respect to a limited liability
company, partnership or other entity other than a corporation, any Person or
body authorized by the organizational documents or by the voting equity owners
of such entity to act for them.
"Brazil" has the meaning set forth in the preamble to this Agreement.
"Business Day" means any day except a Saturday, a Sunday or a legal
holiday or a day on which banking institutions (including, without limitation,
the members of the Federal Reserve System) are authorized or required by law,
regulation or executive order to close in The City of New York, the Issuer's
jurisdiction of incorporation or Brazil.
"Closing Date" means [_____].
"Companies" means the Issuer and the Standby Purchaser.
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"Default" has the meaning set forth in the Indenture.
"Default Rate" has the meaning specified in the Indenture.
"Denomination Currency" has the meaning specified in Section 16(b).
"Environmental Laws" means all applicable federal, state and local
statutes, rules, regulations, ordinances, orders, decrees and common law,
including any of the foregoing in any foreign jurisdiction, relating in any
manner to contamination, pollution or protection of human health or the
environment.
"Event of Default" has the meaning specified in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"[_____] Supplemental Indenture" has the meaning set forth in the
preamble to this Agreement.
"Governmental Authority" shall mean any regulatory, administrative or
other legal body, any court, tribunal or authority or any public legal entity or
public agency of the Cayman Islands, Brazil, the United States of America or any
other jurisdictions whether created by federal, provincial or local government,
or any other legal entity now existing or hereafter created, or now or hereafter
controlled, directly or indirectly, by any public legal entity or public agency
of any of the foregoing.
"Guarantee" means an obligation of a person to pay the Indebtedness of
another Person including without limitation:
(i) an obligation to pay or purchase such Indebtedness;
(ii) an obligation to lend money or to purchase or subscribe for
shares or other securities or to purchase assets or services in order to
provide funds for the payment of such Indebtedness;
(iii) an indemnity against the consequences of a default in the
payment of such Indebtedness; or
(iv) any other agreement to be responsible for such Indebtedness.
"Indebtedness" means any obligation (whether present or future, actual
or contingent and including, without limitation, any Guarantee) for the payment
or repayment of money which has been borrowed or raised (including money raised
by acceptances and all leases which, under generally accepted accounting
principles in the country of incorporation of the relevant obligor, would
constitute a capital lease obligation).
"Indemnified Party" has the meaning specified in Section 13.
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"Indemnified Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings of any nature imposed by Brazil,
the jurisdiction of incorporation of the Issuer (or any successor), Luxembourg
or any other jurisdiction in which the Issuer appoints a paying agent under the
Indenture or any political subdivision of such jurisdictions.
"Indenture" has the meaning specified in the preamble to this
Agreement.
"Issuer" has the meaning set forth in the preamble to this Agreement.
"Judgment Currency" has the meaning specified in Section 16(b).
"Law" means any constitutional provision, law, statute, rule,
regulation, ordinance, treaty, order, decree, judgment, decision, certificate,
holding, injunction, enforceable at law or in equity, along with the
interpretation and administration thereof by any Governmental Authority charged
with the interpretation or administration thereof.
"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 Adverse Effect" means a material adverse effect on (a) the
business, operations, assets, property, condition (financial or otherwise) or
results of operation of the Standby Purchaser together with its consolidated
Subsidiaries taken as a whole, (b) the validity or enforceability of this
Agreement or any other Transaction Document or (c) the ability of the Standby
Purchaser to perform its obligations under this Agreement or any other
Transaction Document, or (d) the material rights or benefits available to the
Noteholders or the Trustee, as representative of the Noteholders under the
Indenture, this Agreement or any of the other Transaction Documents.
"Material Subsidiary" means, as to any Person, any Subsidiary of such
Person which, on any given date of determination, accounts for more than 15% 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).
"Noteholders" has the meaning specified in the preamble of this
Agreement.
"Notes" has the meaning specified in the preamble of this Agreement.
"Officer's Certificate" means a certificate of an Authorized
Representative of the Standby Purchaser containing, in respect of each
certificate furnished with respect to a particular condition, covenant or
provision of this Agreement:
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(i) a statement that an Authorized Representative of the Standby
Purchaser has read such covenant, condition or provision;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant, condition or provision has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition, covenant or provision has been complied with.
"Opinion of Counsel" means a written opinion of counsel from any
Person either expressly referred to herein or otherwise reasonably satisfactory
to the Trustee which may include, without limitation, counsel for the Standby
Purchaser, whether or not such counsel is an employee of the Standby Purchaser,
which opinion contains:
(i) a statement that each individual signing such opinion has read
such covenant, condition or provision;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
opinion are based;
(iii) a statement that, in the opinion of each such individual, such
examination or investigation has been made as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant, condition or provision has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition, covenant or provision has been complied with.
"Original Indenture" has the meaning set forth in the preamble to this
Agreement.
"Other Taxes" means any present or future stamp, documentary, excise,
property or similar taxes, charges or levies imposed by Brazil, the jurisdiction
of the Issuer, Luxembourg or any other jurisdiction in which the Issuer appoints
a paying agent under the Indenture or any political subdivision of such
jurisdictions that arise from any payment made hereunder, under the Notes or
under the Transaction Documents or from the execution, delivery or registration
of, performance under, or otherwise with respect to, this Agreement or any of
the other Transaction Documents.
"Partial Non-Payment Amount" has the meaning specified in Section
2(a).
"Partial Non-Payment Amount With Interest" has the meaning specified
in Section 2(a).
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"Partial Non-Payment Due Date" has the meaning specified in Section
2(a).
"Partial Non-Payment Overdue Interest" has the meaning specified in
Section 2(a).
"Partial Non-Payment Notice" has the meaning specified in Section
2(a).
"Payment Account" has the meaning set forth in the Indenture.
"Payment Date" has the meaning set forth in the Indenture.
"Permitted Free Writing Prospectus" has the meaning set forth in the
preamble to the Underwriting Agreement among the Companies, Morgan Stanley & Co.
Incorporated and UBS Securities LLC, dated [__________] related to the offering
of the Notes.
"Permitted Lien" means a:
(i) Lien granted in respect of Indebtedness owed to the Brazilian
government, Banco Nacional de Desenvolvimento Economico e Social or any
official government agency or department of Brazil or of any state or
region thereof;
(ii) Lien arising by operation of law, such as merchants', maritime or
other similar Liens arising in the Standby Purchaser'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;
(iii) Lien arising from the Standby Purchaser'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 Standby
Purchaser's past practice;
(iv) 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;
(v) Lien granted upon or with respect to any assets hereafter acquired
by the Standby Purchaser 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, as the case may be;
(vi) Lien granted in connection with the Indebtedness of a
Wholly-Owned Subsidiary owing to the Standby Purchaser or another
Wholly-Owned Subsidiary;
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(vii) Lien existing on any asset or on any stock of any Subsidiary
prior to the acquisition thereof by the Standby Purchaser or any Subsidiary
as long as such Lien is not created in anticipation of such acquisition;
(viii) Lien over any Qualifying Asset relating to a project financed
by, and securing Indebtedness incurred in connection with, the Project
Financing of such project by the Standby Purchaser, any of the Standby
Purchaser's Subsidiaries or any consortium or other venture in which the
Standby Purchaser or any Subsidiary has any ownership or other similar
interest;
(ix) Lien existing as of the date of the Indenture;
(x) Lien resulting from the Transaction Documents;
(xi) Lien incurred in connection with the issuance of debt or similar
securities of a type comparable to those already issued by the Issuer, 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;
(xii) 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 a Lien referred to in paragraphs (i) through (xi)
above (but not paragraph (iv)), 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 (i), (ii), (iii)
and (vi), the obligees meet the requirements of such paragraphs and in the
case of paragraph (viii), the Indebtedness is incurred in connection with a
Project Financing by the Standby Purchaser, any of the Standby Purchaser's
Subsidiaries or any consortium or other venture in which the Standby
Purchaser or any Subsidiary have any ownership or other similar interests;
and
(xiii) Lien in respect of Indebtedness the principal amount of which
in the aggregate, together with all Liens not otherwise qualifying as the
Standby Purchaser's Permitted Liens pursuant to clauses (i) through (xii)
of this definition, does not exceed 15% of the Standby Purchaser's
consolidated total assets (as determined in accordance with U.S. GAAP) at
any date as at which the Standby Purchaser's balance sheet is prepared and
published in accordance with applicable Law.
"Person" means any individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Post Petition Interest" has the meaning specified in Section 14(b).
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"Pre-Pricing Prospectus" means each preliminary prospectus supplement,
in the form so furnished to the Underwriters, including the Base Prospectus, and
the documents incorporated by reference therein.
"Process Agent" has the meaning specified in Section 17(c).
"Project Financing" of any project means the incurrence of
Indebtedness relating to the exploration, development, expansion, renovation,
upgrade or other modification or construction of such project pursuant to which
the providers of such Indebtedness or any trustee or other intermediary on their
behalf or beneficiaries designated by any such provider, trustee or other
intermediary are granted security over one or more Qualifying Assets relating to
such project for repayment of principal, premium and interest or any other
amount in respect of such Indebtedness.
"Purchase Obligations" has the meaning specified in Section 4.
"Qualifying Asset" in relation to any Project Financing means:
(i) any concession, authorization or other legal right granted by any
Governmental Authority to the Standby Purchaser or any of the Standby
Purchaser's Subsidiaries, or any consortium or other venture in which the
Standby Purchaser or any Subsidiary has any ownership or other similar
interest;
(ii) any drilling or other rig, any drilling or production platform,
pipeline, marine vessel, vehicle or other equipment or any refinery, oil or
gas field, processing plant, real property (whether leased or owned), right
of way or plant or other fixtures or equipment;
(iii) any revenues or claims which arise from the operation, failure
to meet specifications, failure to complete, exploitation, sale, loss or
damage to, such concession, authorization or other legal right or such
drilling or other rig, drilling or production platform, pipeline, marine
vessel, vehicle or other equipment or refinery, oil or gas field,
processing plant, real property, right of way, plant or other fixtures or
equipment or any contract or agreement relating to any of the foregoing or
the Project Financing of any of the foregoing (including insurance
policies, credit support arrangements and other similar contracts) or any
rights under any performance bond, letter of credit or similar instrument
issued in connection therewith;
(iv) any oil, gas, petrochemical or other hydrocarbon-based products
produced or processed by such project, including any receivables or
contract rights arising therefrom or relating thereto and any such product
(and such receivables or contract rights) produced or processed by other
projects, fields or assets to which the lenders providing the Project
Financing required, as a condition therefor, recourse as security in
addition to that produced or processed by such project; and
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(v) shares or other ownership interest in, and any subordinated debt
rights owing to the Standby Purchaser by, a special purpose company formed
solely for the development of a project, and whose principal assets and
business are constituted by such project and whose liabilities solely
relate to such project.
"Rating Agency" means a Nationally Recognized Statistical Rating
Organization as designated by the SEC Division of Market Regulation.
"Registration Statement" means the registration statement on Form F-3
under the Securities Act, initially dated December 15, 2006 filed with the SEC
covering the registration of the Notes under the Securities Act and including
the related base prospectus in the form dated December 15, 2006 (the "Base
Prospectus") at the time such registration became effective, as amended to the
date hereof (including any post-effective amendment that includes a prospectus
or prospectus supplement), together with any documents incorporated by reference
therein.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Standby Purchaser" has the meaning specified in the preamble of this
Agreement.
"Stated Maturity" has the meaning specified in the Indenture.
"Subordinated Obligations" has the meaning specified in Section 14.
"Subsidiary" means, as to any Person, a corporation, company,
partnership or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors (or similar governing body) of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Standby Purchaser.
"Successor Company" has the meaning specified in Section 10(m)(i).
"Taxing Jurisdiction" has the meaning specified in Section 8(c).
"Termination Date" has the meaning specified in Section 7.
"TIA" means the United States Trust Indenture Act of 1939, as amended.
"Total Non-Payment Notice" shall have the meaning specified in Section
3(a).
"Total Non-Payment Amount" shall have the meaning specified in Section
3(a).
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"Total Non-Payment Amount With Interest" has the meaning specified in
Section 3(a).
"Total Non-Payment Due Date" shall have the meaning specified in
Section 3(a).
"Total Non-Payment Overdue Interest" has the meaning specified in
Section 3(a).
"Transaction Documents" means, collectively, the Indenture, the Notes
and this Agreement.
"Trustee" has the meaning specified in the preamble of this Agreement.
"Underwriters" means [__________] and [__________], acting as such
under the Underwriting Agreement.
"United States" or "U.S." means the United States of America.
"U.S. GAAP" means generally accepted accounting principles in effect
in the United States of America applied on a basis consistent with the
principles, methods, procedures and practices set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession.
"Wholly-Owned Subsidiary" means, with respect to any corporate entity,
any person of which 100% of the outstanding capital stock (other than qualifying
shares, if any) having by the terms thereof ordinary voting power (not dependent
on the happening of a contingency) to elect the Board of Directors (or
equivalent controlling governing body) of such person is at the time owned or
controlled directly or indirectly by such corporate entity, by one or more
wholly-owned Subsidiaries of such corporate entity or by such corporate entity
and one or more wholly-owned Subsidiaries thereof.
(b) Construction. For all purposes of this Agreement (and for all
purposes of any other Transaction Document or any other instrument or agreement
that incorporates provisions of this Agreement by reference), except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings assigned to
them in this Section, and include the plural as well as the singular;
(ii) except as otherwise expressly provided herein, (A) all accounting
terms used herein shall be interpreted, (B) all financial statements and
all certificates and reports as to financial matters required to be
delivered to the Trustee hereunder shall be prepared and (C) all
calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made in
accordance with, or by application of, U.S. GAAP;
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(iii) all references in this Agreement (including the Appendices and
Schedules hereto) to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other
subdivisions of this Agreement;
(iv) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(v) unless the context clearly indicates otherwise, pronouns having a
masculine or feminine gender shall be deemed to include the other;
(vi) unless otherwise expressly specified, any agreement, contract or
document defined or referred to herein shall mean such agreement, contract
or document as in effect as of the date hereof, as the same may thereafter
be amended, supplemented or otherwise modified from time to time in
accordance with the terms of this Agreement and the other Transaction
Documents and shall include any agreement, contract, instrument or document
in substitution or replacement of any of the foregoing entered into in
accordance with the terms of this Agreement and the other Transaction
Documents;
(vii) any reference to any Person shall include its permitted
successors and assigns in accordance with the terms of this Agreement and
the other Transaction Documents including, in the case of any Governmental
Authority, any Person succeeding to its functions and capacities; and
(viii) unless the context clearly requires otherwise, references to
"Law" or to any particular Law shall include Laws or such particular Law as
in effect at each, every and any of the times in question, including any
amendments, replacements, supplements, extensions, modifications,
consolidations, restatements, revisions or reenactments thereto or thereof,
and whether or not in effect at the date of this Agreement.
SECTION 2. Partial Purchase Obligation. (a) In the event that, prior
to the Stated Maturity of the principal of the Notes, the Issuer shall fail to
make any payment on the Notes in respect of interest, principal or other amounts
as contemplated in the Indenture and/or the Notes (including, without
limitation, any Additional Amounts) on the date any such payment is due under
the terms of the Notes and the Indenture (other than in the case of an
acceleration thereof in accordance with the Indenture) (such date, the "Partial
Non-Payment Due Date"), then in such event (i) the Standby Purchaser shall be
obligated to pay immediately to the Trustee, for the benefit of the Noteholders
under the Indenture, the amount that the Issuer was required to pay but failed
to pay on such date under the terms of the Indenture and the Notes (the "Partial
Non-Payment Amount") and (ii) the Trustee shall provide notice to the Standby
Purchaser of the failure of the Issuer to make such payment; provided, however,
that the failure to provide such notice shall not in any way excuse the Standby
Purchaser from its obligations hereunder. The notice contemplated herein shall
be provided in writing in substantially the form of Exhibit A hereto (the
"Partial Non-Payment Notice") and shall be sent by the Trustee to the Standby
Purchaser at the address specified for the Standby Purchaser in Section 11
hereof no later than 5:00 p.m. (New York time) on the Partial Non-Payment Due
Date. The Partial Non-Payment Notice shall (i) confirm the Partial Non-Payment
Amount and the fact that such amount was not
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paid on the Partial Non-Payment Due Date and (ii) remind the Standby Purchaser
that it is obligated to pay the Partial Non-Payment Amount immediately. To the
extent that the Standby Purchaser fails to pay the Partial Non-Payment Amount
immediately pursuant to this Section 2(a) (whether or not it has received the
Partial Non-Payment Notice), the Standby Purchaser shall be obligated hereunder
to pay, in addition to the Partial Non-Payment Amount, interest on such amount
at the Default Rate from the Partial Non-Payment Due Date to and including the
actual date of payment by the Standby Purchaser (the "Partial Non-Payment
Overdue Interest" and, together with the Partial Non-Payment Amount, the
"Partial Non-Payment Amount With Interest"), which date of payment shall be a
Business Day.
(b) Payment of the Partial Non-Payment Amount With Interest shall be
in consideration of the purchase by the Standby Purchaser of the rights of the
Noteholders to receive such amount from the Issuer. The Noteholders shall have
no right to retain such rights, and, following the purchase and sale provided
for in this Section 2, the Notes shall remain outstanding with all amounts due
in respect thereof adjusted to reflect the purchase, sale and payment provided
for herein. Upon any such payment, the Standby Purchaser shall be subrogated to
the Noteholders to the extent of any payment under this Section 2.
(c) The obligation of the Standby Purchaser to pay the Partial
Non-Payment Amount With Interest shall be absolute and unconditional upon
failure of the Issuer to make, prior to the Stated Maturity of the principal on
the Notes, any payment on the Notes in respect of interest, principal or other
amounts as contemplated in the Indenture and/or the Notes (including, without
limitation, any Additional Amounts) on the date any such payment is due. All
amounts payable by the Standby Purchaser hereunder in respect of any Partial
Non-Payment Amount With Interest shall be payable in U.S. dollars and in
immediately available funds to the Trustee at the account specified in Section
11 below, or to such other account as may be specified by the Trustee in the
applicable Partial Non-Payment Notice. The Standby Purchaser shall not be
relieved of its obligations hereunder unless and until the Trustee shall have
indefeasibly received all amounts required to be paid by it hereunder (and any
related Event of Default under the Indenture has been cured), including payment
of the Partial Non-Payment Overdue Interest as provided for herein.
(d) All payments actually received by the Trustee pursuant to this
Section 2 after 1:00 p.m. (New York time) on any Business Day will be deemed,
for purposes of this Agreement, to have been received by the Trustee on the next
succeeding Business Day.
SECTION 3. Total Purchase Obligation. (a) In the event that, at the
Stated Maturity of the principal on the Notes (or earlier upon any acceleration
thereof in accordance with the terms of the Indenture), the Issuer shall fail to
make any payment in respect of principal, interest or other amounts due under
the Indenture and the Notes on the date any such payment is so due (such date,
the "Total Non-Payment Due Date") then in such event, (i) the Standby Purchaser
shall be obligated to pay immediately to the Trustee, for the benefit of the
Noteholders under the Indenture, the amount that the Issuer was required to pay
but failed to pay on such date under the terms of the Notes and the Indenture
(the "Total Non-Payment Amount") and (ii) the Trustee shall provide notice to
the Standby Purchaser of the failure of the Issuer to make such payment,
provided, however, that the failure to provide such notice shall not in any way
excuse the Standby Purchaser from its obligations hereunder. The notice
contemplated herein shall be
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provided in writing in substantially the form of Exhibit B hereto (the "Total
Non-Payment Notice") sent to the Standby Purchaser at the address specified for
the Standby Purchaser in Section 11 hereof no later than 5:00 p.m. (New York
time) on the Total Non-Payment Due Date. The Total Non-Payment Notice shall (i)
confirm the amount of the Total Non-Payment Amount and the fact that such amount
was not paid on the Total Non-Payment Due Date and (ii) remind the Standby
Purchaser that it is obligated to pay the Total Non-Payment Amount immediately.
To the extent that the Standby Purchaser fails to pay the Total Non-Payment
Amount immediately when required pursuant to this Section 3(a) (whether or not
it has received the Total Non-Payment Notice), the Standby Purchaser shall be
obligated hereunder to pay, in addition to the amounts specified above, interest
on such amount at the Default Rate from the Total Non-Payment Due Date to and
including the actual date of payment by the Standby Purchaser (the "Total
Non-Payment Overdue Interest" and, together with the Total Non-Payment Amount,
the "Total Non-Payment Amount With Interest"), which date of payment shall be a
Business Day. Notwithstanding anything to the contrary herein, the failure by
the Trustee to deliver a Total Non-Payment Notice as provided herein shall not
release the Standby Purchaser of its obligations to pay the Total Non-Payment
Amount With Interest in the manner set forth in this Section 3(a).
(b) Payment of the Total Non-Payment Amount With Interest by the
Standby Purchaser shall be in consideration of the purchase by the Standby
Purchaser of the rights of the Noteholders to receive such amount from the
Issuer. The Noteholders shall have no right to retain such rights, and,
following the purchase and sale provided for in this Section 3, the Standby
Purchaser shall be subrogated to the Noteholders to the extent of any payment
under this Section 3.
(c) The obligation of the Standby Purchaser to pay the Total
Non-Payment Amount With Interest shall be absolute and unconditional upon
failure of the Issuer to make, at the Stated Maturity of the principal of the
Notes (or earlier upon any acceleration thereof in accordance with the terms of
the Indenture), any payment in respect of principal, interest or other amounts
due under the Indenture and the Notes on the date any such payment is due. All
amounts payable by the Standby Purchaser hereunder in respect of any Total
Non-Payment Amount With Interest shall be payable in U.S. dollars and in
immediately available funds to the Trustee at the account specified in Section
11 below, or to such other account as may be specified by the Trustee in the
applicable Total Non-Payment Notice. The Standby Purchaser shall not be relieved
of its obligations hereunder unless and until the Trustee shall have received
all amounts required to be paid by it hereunder (and any related Event of
Default under the Indenture has been cured), including payment of the Total
Non-Payment Overdue Interest.
(d) All payments actually received by the Trustee pursuant to this
Section 3 after 1:00 p.m. (New York time) on any Business Day will be deemed,
for purposes of this Agreement, to have been received by the Trustee on the next
succeeding Business Day.
SECTION 4. Obligations Absolute. The Standby Purchaser's obligation to
pay one or more Partial Non-Payment Amounts With Interest or the Total
Non-Payment Amount With Interest (collectively, the "Purchase Obligations") are
absolute and unconditional regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Noteholder under its Notes or the Indenture. The Purchase
Obligations and the other obligations of the Standby Purchaser under or in
respect of this
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Agreement are independent of any obligations of the Issuer, the Issuer's
Subsidiaries or the Standby Purchaser's Subsidiaries under or in respect of the
Indenture and the Notes or any other document or agreement, and a separate
action or actions may be brought and prosecuted against the Standby Purchaser to
enforce this Agreement, irrespective of whether any action is brought against
the Issuer or whether the Issuer is joined in any such action or actions. The
liability of the Standby Purchaser under this Agreement shall be irrevocable,
absolute and unconditional irrespective of, and the Standby Purchaser hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any of the Transaction
Documents;
(b) any provision of applicable Law or regulation purporting to
prohibit the payment by the Standby Purchaser of any amount payable by it
under this Agreement;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Purchase Obligations or any other
obligations of any other person or entity under or in respect of the
Transaction Documents, or any other amendment or waiver of or any consent
to departure from any Transaction Document, including, without limitation,
any increase in the obligations of the Issuer under the Indenture and the
Notes as a result of further issuances, any rescheduling of the Issuer's
obligations under the Notes or the Indenture or otherwise;
(d) any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty or agreement similar in function to this
Agreement, for all or any of the obligations of the Issuer under the
Indenture or the Notes;
(e) any manner of sale or other disposition of any assets of any
Noteholder;
(f) any change, restructuring or termination of the corporate
structure or existence of the Issuer or the Standby Purchaser or any
Subsidiary thereof or any change in the name, purposes, business, capital
stock (including ownership thereof) or constitutive documents of the Issuer
or the Standby Purchaser;
(g) any failure of the Trustee to disclose to the Standby Purchaser
any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Issuer
or any of its Subsidiaries (the Standby Purchaser hereby waiving any duty
on the part of the Trustee or any Noteholders to disclose such
information);
(h) the failure of any other person or entity to execute or deliver
any other Guarantee or agreement or the release or reduction of liability
of any other guarantor or surety with respect to the Indenture;
(i) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Trustee or any Noteholder that might otherwise constitute a defense
available to, or a discharge of, the Issuer or the Standby Purchaser or any
other party; or
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(j) any claim of set-off or other right which the Standby Purchaser
may have at any time against the Issuer or the Trustee, whether in
connection with this transaction or with any unrelated transaction.
This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Purchase Obligations is
rescinded or must otherwise be returned by any Noteholder or any other person or
entity upon the insolvency, bankruptcy or reorganization of the Issuer or the
Standby Purchaser or otherwise, all as though such payment had not been made.
SECTION 5. Independent Obligation. The obligations of the Standby
Purchaser hereunder are independent of the Issuer's obligations under the Notes
and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or
forbear to enforce payment under the Indenture and the Notes, without in any way
affecting or impairing the liability of the Standby Purchaser hereunder. The
Trustee shall not be obligated to exhaust recourse or remedies against the
Issuer to recover payments required to be made under the Indenture nor take any
other action against the Issuer or, under any agreement, purchase any security
which the Trustee may hold before being entitled to payment from the Standby
Purchaser of all amounts contemplated in Sections 2 and 3 hereof owed hereunder
or proceed against or have resort to any balance of any deposit account or
credit on the books of the Trustee in favor of the Issuer or in favor of the
Standby Purchaser. Without limiting the generality of the foregoing, the Trustee
shall have the right to bring a suit directly against the Standby Purchaser,
either prior or subsequent to or concurrently with any lawsuit against, or
without bringing suit against, the Issuer.
SECTION 6. Waivers and Acknowledgments. (a) The Standby Purchaser
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Purchase Obligations and this Agreement and any requirement that the
Trustee, on behalf of the Noteholders, protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take any action
against the Issuer or any other Person.
(b) The Standby Purchaser hereby unconditionally and irrevocably
waives any right to revoke this Agreement and acknowledges that this Agreement
is continuing in nature and applies to its Purchase Obligations, whether the
same are existing now or in the future.
(c) The Standby Purchaser hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Noteholder or the Trustee on behalf of the
Noteholders that in any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution or
indemnification rights of the Standby Purchaser or other rights of the Standby
Purchaser to proceed against the Issuer or any other person or entity and (ii)
any defense based on any right of set-off or counterclaim against or in respect
of the Purchase Obligations of the Standby Purchaser hereunder.
(d) The Standby Purchaser hereby unconditionally and irrevocably
waives any duty on the part of the Trustee or any Noteholder to disclose to the
Standby Purchaser any
15
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Issuer now
or hereafter known by the Trustee or any Noteholder, as applicable.
(e) The Standby Purchaser acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Transaction Documents and that the waivers set forth in this
Section 6 are knowingly made in contemplation of such benefits.
SECTION 7. Claims Against the Issuer. The Standby Purchaser hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Issuer or any other guarantor that
arise from the existence, payment, performance or enforcement of the Standby
Purchaser's Purchase Obligations under or in respect of this Agreement or any
other Transaction Document, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to enforce any rights to payments in respect of the Partial Non-Payment
Amount With Interest and/or the Total Non-Payment Amount With Interest purchased
by the Standby Purchaser from the Noteholders as provided hereunder, or to
participate in any claim or remedy of the Trustee, on behalf of the Noteholders,
against the Issuer or any other person, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Issuer or any other
person, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Purchase Obligations and all other amounts payable
under this Agreement shall have been paid in full in cash. If any amount shall
be paid to the Standby Purchaser in violation of the immediately preceding
sentence at any time prior to the later of (a) the payment in full in cash of
the Purchase Obligations and all other amounts payable under this Agreement and
(b) the date on which all of the obligations of the Issuer under the Indenture
and the Notes have been discharged in full (the later of such dates being the
"Termination Date"), such amount shall be received and held by the Trustee in
trust for the benefit of the Noteholders, shall be segregated from other
property and funds of the Standby Purchaser and shall forthwith be paid or
delivered to the Trustee in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Purchase
Obligations and all other amounts payable under this Agreement, whether matured
or unmatured, in accordance with the terms of the Indenture. If (i) the Standby
Purchaser shall make payment to any Noteholder or the Trustee, on behalf of the
Noteholders, of all or any part of the Purchase Obligations, (ii) all of the
Purchase Obligations and all other amounts payable under this Agreement shall
have been paid in full in cash and (iii) the Termination Date shall have
occurred, then the Trustee, on behalf of the Noteholders, will, at the Standby
Purchaser's request and expense, execute and deliver to the Standby Purchaser
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Standby Purchaser of an
interest in the Purchase Obligations resulting from such payment made by the
Standby Purchaser pursuant to this Agreement.
SECTION 8. Payments Free and Clear of Taxes, Etc.
(a) Any and all payments by or on account of any obligation of the
Standby Purchaser hereunder or under any other Transaction Document shall be
made free and clear of
16
and without deduction for any Indemnified Taxes; provided that if the Standby
Purchaser shall be required to deduct any Indemnified Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional amounts
payable under this Section), the Trustee, on behalf of the Noteholders, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Standby Purchaser shall make such deductions and (iii) the
Standby Purchaser shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable Law.
(b) Payment of Other Taxes by the Standby Purchaser. In addition, the
Standby Purchaser shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable Law. The Standby Purchaser shall
indemnify and make whole the Noteholders for any such Other Taxes payable by the
Standby Purchaser under this paragraph paid by such Noteholders.
(c) Notwithstanding anything to the contrary in Section 8(a) of this
Agreement, the Standby Purchaser will not be obligated to pay any Indemnified
Taxes imposed with respect to the Notes due to (i) the Noteholder having a
connection with the jurisdiction imposing the Indemnified Taxes (hereinafter,
the "Taxing Jurisdiction") other than from 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), (ii) any tax imposed on, or measured
by, net income, (iii) the Noteholder failing 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 Indemnified
Taxes, (y) the Noteholder 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 shall apply, the Standby Purchaser has
notified all the Noteholders that they will be required to comply with such
requirements, (iv) the Noteholder failing to present (where presentation is
required) its Note within 30 calendar days after the Standby Purchaser has made
available to the Noteholder a payment under this Agreement; provided that the
Standby Purchaser will pay Indemnified Taxes which a Noteholder would have been
entitled to under such Note had it been presented on any day (including the last
day) within such 30 day period, (v) any estate, inheritance, gift, value added,
use or sales taxes or any similar taxes, assessments or other governmental
charges, (vi) such Indemnified Taxes being imposed on a payment on the Notes to
an individual and are required to be made pursuant to European Union council
Directive 2003/48/EC implementing the conclusions of the Economic and Financial
Council of Ministers of the member states of the European Union (ECONFIN)
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, any
such Directive, (vii) such Note being presented for payment by or on behalf of a
Noteholder who would have been able to avoid such withholding or deduction by
requesting that a payment on the Notes be made by, or presenting the relevant
Notes for payment to another paying agent located in a member state of the
European Union, or (viii) the payment of any
17
obligation of the Standby Purchaser to a Noteholder who would have been able to
cause the avoidance of the Indemnified Taxes by taking reasonable measures
available to such Noteholder.
The Standby Purchaser shall, while European Council Directive
2003/48/EC or any other Directive implementing the conclusions of ECOFIN council
meeting of November 26-27, 2000 is in 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.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Standby Purchaser to a Governmental
Authority, the Standby Purchaser shall deliver to the Trustee the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Trustee.
18
SECTION 9. Covenants
For so long as the Notes remain outstanding or any amount remains
unpaid on the Notes and the Indenture, the Standby Purchaser will, and will
cause each of its Subsidiaries to, comply with the terms and covenants set forth
below (except as otherwise provided in a duly authorized amendment to this
Agreement as provided herein):
(a) Performance of Obligations. The Standby Purchaser shall pay all
amounts owed by it and comply with all its other obligations under the terms of
this Agreement and the Indenture in accordance with the terms thereof.
(b) Maintenance of Corporate Existence. The Standby Purchaser will,
and will cause each of its Subsidiaries to, (i) maintain in effect its corporate
existence and all registrations necessary therefor except as otherwise permitted
by Section 9(m) and (ii) take all actions to maintain all rights, privileges,
titles to property, franchises, concessions and the like necessary or desirable
in the normal conduct of its business, activities or operations; provided,
however, that this Section 9(b) shall not require the Standby Purchaser to
maintain or cause any Subsidiary thereof to maintain any such right, privilege,
title to property or franchise or require the Standby Purchaser to preserve the
corporate existence of any Subsidiary, if, in each case, the failure to do so
does not, and will not, have a Material Adverse Effect.
(c) Maintenance of Ownership of the Issuer. For so long as any Notes
are outstanding, the Standby Purchaser will retain no less than 51% direct or
indirect ownership of the outstanding voting and economic interests (equity or
otherwise) of and in the Issuer.
(d) Maintenance of Office or Agency. So long as any of the Notes are
outstanding, the Standby Purchaser will maintain in the Borough of Manhattan,
The City of New York, an office or agency where notices to and demands upon the
Standby Purchaser in respect of this Agreement may be served, and the Standby
Purchaser will not change the designation of such office without prior notice to
the Trustee and designation of a replacement office in the same general
location.
19
(e) Ranking. The Standby Purchaser will ensure at all times that its
obligations under this Agreement will constitute the general senior unsecured
and unsubordinated obligations of the Standby Purchaser and will rank pari
passu, without any preferences among themselves, with all other present and
future senior unsecured and unsubordinated obligations of the Standby Purchaser
(other than obligations preferred by statute or by operation of law) that are
not, by their terms, expressly subordinated in right of payment to the
obligations of the Standby Purchaser under this Agreement.
(f) Notice of Defaults. The Standby Purchaser will give written notice
to the Trustee, as soon as is practicable and in any event within ten calendar
days after the Standby Purchaser becomes aware, or should reasonably become
aware, of the occurrence of any Default or any Event of Default, accompanied by
a certificate of an officer of the Standby Purchaser setting forth the details
thereof and stating what action the Standby Purchaser proposes to take with
respect thereto.
(g) Limitation on Consolidation, Merger, Sale or Conveyance. (i) The
Standby Purchaser will not, in one or a series of transactions, consolidate or
amalgamate with or merge into any corporation or convey, lease or transfer
substantially all of its properties, assets or revenues to any person or entity
(other than a direct or indirect Subsidiary of the Standby Purchaser) or permit
any person or entity (other than a direct or indirect Subsidiary of the Standby
Purchaser) to merge with or into it, unless:
(A) either the Standby Purchaser is the continuing entity or the
person (the "Successor Company") formed by such consolidation or into which
the Standby Purchaser is merged or that acquired or leased such property or
assets of the Standby Purchaser will assume (jointly and severally with the
Standby Purchaser unless the Standby Purchaser shall have ceased to exist
as a result of such merger, consolidation or amalgamation), by an amendment
to this Agreement (the form and substance of which shall be previously
approved by the Trustee), all of the Standby Purchaser's obligations under
this Agreement;
(B) the Successor Company (jointly and severally with the Standby
Purchaser unless the Standby Purchaser shall have ceased to exist as part
of such merger, consolidation or amalgamation) agrees to indemnify each
Noteholder against any tax, assessment or governmental charge thereafter
imposed on such Noteholder solely as a consequence of such consolidation,
merger, conveyance, transfer or lease with respect to the payment of
principal of, or interest on, the Notes;
(C) immediately after giving effect to such transaction, no Event of
Default and no Default has occurred and is continuing;
(D) the Standby Purchaser has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such merger
consolidation, sale, transfer or other conveyance or disposition and the
amendment to this Agreement comply with the terms of this Agreement and
that all conditions precedent provided for herein and relating to such
transaction have been complied with; and
20
(E) the Standby Purchaser has delivered notice of any such transaction
to Moody's (which notice shall contain a description of such merger,
consolidation or conveyance).
(ii) Notwithstanding anything to the contrary in the foregoing, so
long as no Default or Event of Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom and the Standby
Purchaser has delivered notice of any such transaction to Moody's and the
Trustee (which notice shall contain a description of such merger, consolidation
or conveyance):
(A) the Standby Purchaser may merge, amalgamate or consolidate with or
into, or convey, transfer, lease or otherwise dispose of all or
substantially all of its properties, assets or revenues to a direct or
indirect Subsidiary of the Standby Purchaser in cases when the Standby
Purchaser is the surviving entity in such transaction and such transaction
would not have a material adverse effect on the Standby Purchaser and its
Subsidiaries taken as a whole, it being understood that if the Standby
Purchaser is not the surviving entity, the Standby Purchaser shall be
required to comply with the requirements set forth in the previous
paragraph; or
(B) any direct or indirect Subsidiary of the Standby Purchaser may
merge or consolidate with or into, or convey, transfer, lease or otherwise
dispose of assets to, any person (other than the Standby Purchaser or any
of its Subsidiaries or Affiliates) in cases when such transaction would not
have a material adverse effect on the Standby Purchaser and its
Subsidiaries taken as a whole; or
(C) any direct or indirect Subsidiary of the Standby Purchaser may
merge or consolidate with or into, or convey, transfer, lease or otherwise
dispose of assets to, any direct or indirect Subsidiary of the Standby
Purchaser; or
(D) any direct or indirect Subsidiary of the Standby Purchaser may
liquidate or dissolve if the Standby Purchaser determines in good faith
that such liquidation or dissolution is in the best interests of the
Standby Purchaser, and would not result in a material adverse effect on the
Standby Purchaser and its Subsidiaries taken as a whole and if such
liquidation or dissolution is part of a corporate reorganization of the
Standby Purchaser.
(h) Negative Pledge. So long as any Note remains outstanding, the
Standby Purchaser will not create or permit any Lien, other than a Permitted
Lien, on any of the Standby Purchaser's assets to secure (i) any of the Standby
Purchaser's Indebtedness or (ii) the Indebtedness of any other person, unless
the Standby Purchaser contemporaneously creates or permits such Lien to secure
equally and ratably the Standby Purchaser's obligations under this Agreement or
the Standby Purchaser provides such other security for the Notes as is duly
approved by the Trustee, at the direction of the Noteholders, in accordance with
the Indenture. In addition, the Standby Purchaser will not allow any of the
Standby Purchaser's Subsidiaries to create or permit any Lien, other than a
Permitted Lien, on any of the Standby Purchaser's assets to secure (i) any of
the Standby Purchaser's Indebtedness, (ii) any of the Indebtedness of the
Standby Purchaser's Subsidiaries or (iii) the Indebtedness of any other person,
unless it
21
contemporaneously creates or permits the Lien to secure equally and ratably the
Standby Purchaser's obligations under this Agreement or the Standby Purchaser or
such Subsidiary provides such other security for the Notes as is duly approved
by the Trustee, at the direction of the Noteholders, in accordance with the
Indenture.
(i) Provision of Financial Statements and Reports. (i) The Standby
Purchaser will provide to the Trustee, in English or accompanied by a
certified English translation thereof, (A) within 90 calendar days after
the end of each fiscal quarter (other than the fourth quarter), its
unaudited and consolidated balance sheet and statement of income calculated
in accordance with U.S. GAAP, (B) within 120 calendar days after the end of
each fiscal year, its audited and consolidated balance sheet and statement
of income calculated in accordance with U.S. GAAP and (C) such other
financial data as the trustee may reasonably request.
(ii) The Standby Purchaser will provide, together with each of the
financial statements delivered pursuant to Sections 9(p)(i)(A) and (B), an
Officers' Certificate stating that a review of the activities of the
Standby Purchaser and the Issuer has been made during the period covered by
such financial statements with a view to determining whether the Standby
Purchaser and the Issuer have kept, observed, performed and fulfilled their
covenants and agreements under this Agreement and the Indenture, as
applicable, and 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 Default or Event of Default.
(iii) The Standby Purchaser shall, whether or not it is required to
file reports with the SEC, file with the SEC and deliver to the Trustee
(for redelivery to all Noteholders) all reports and other information as it
would be required to file with the SEC under the Exchange Act if it were
subject to those regulations; provided, however, that if the SEC does not
permit the filing described in the first sentence of this Section
9(q)(iii), the Standby Purchaser will provide annual and interim reports
and other information to the Trustee within the same time periods that
would be applicable if the Standby Purchaser were required and permitted to
file these reports with the SEC.
SECTION 10. Amendments, Etc. No amendment or waiver of any provision
of this Agreement and no consent to any departure by the Standby Purchaser
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Trustee and the Standby Purchaser, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 11. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy)
and mailed, telecopied or delivered by hand, if to the Standby Purchaser,
addressed to it at Avenida Republica do Chile, 65, 20035-900 Rio de Janeiro -
RJ, Brazil, Telephone: (55-21) 534-4477, Telecopier: (55-21) 534-4278,
Attention: Wilson de Oliveira Senna, Financings, Leasing and Corporate Loans
Manager, if to the Trustee, at 4 New York Plaza, 15th floor, New York, New York
10004, Telephone: (212) 623-5162, Telecopier: (212) 623-6207, Attention:
Institutional Trust Services or, as to any party, at such other address as shall
be designated by such party in a written notice to each other party. All such
notices and other communications shall, when telecopied, be
22
effective when transmitted. Delivery by telecopier of an executed counterpart of
a signature page to any amendment or waiver of any provision of this Agreement
shall be effective as delivery of an original executed counterpart thereof.
(b) All payments made by the Standby Purchaser to the Trustee
hereunder shall be made to the Payment Account (as defined in the Indenture),
except to the extent otherwise specified in a Partial Non-Payment Notice or
Total Non-Payment Notice.
SECTION 12. No Waiver; Remedies. No failure on the part of the Trustee
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 13. Indemnification. (a) Without limitation on any other
obligations of the Standby Purchaser or remedies of the Trustee under this
Agreement, the Standby Purchaser shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Trustee and its officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party in connection with or as a result of any failure of any
Purchase Obligation to be the legal, valid and binding obligations of the
Standby Purchaser enforceable against it in accordance with their terms.
(b) The Standby Purchaser hereby also agrees that none of the
Indemnified Parties shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to the Standby Purchaser or any of its Affiliates
or any of their respective officers, directors, employees, agents and advisors,
and the Standby Purchaser hereby agrees not to assert any claim against any
Indemnified Party on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(c) Without prejudice to the survival of any of the other agreements
of the Standby Purchaser under this Agreement or any of the other Transaction
Documents, the agreements and obligations of the Standby Purchaser contained in
Sections 2 and 3 (with respect to the payment of all other amounts owed under
the Indenture), this Section 13 shall survive the payment in full of the
Purchase Obligations and all of the other amounts payable under this
agreement.
SECTION 14. Subordination. To the extent that the Standby Purchaser is
required to make any payment hereunder, the Standby Purchaser hereby
subordinates any and all debts, liabilities and other obligations owed by the
Issuer to the Standby Purchaser (the "Subordinated Obligations") to the Purchase
Obligations and agrees that it shall not require the Issuer to make any payments
in respect thereof to the extent and in the manner hereinafter set forth in this
Section 14:
23
(a) Prohibited Payments, Etc. Except during the continuance of a
Default or Event of Default (including the commencement and continuation of any
proceeding under any applicable bankruptcy, insolvency, receivership or similar
law now or hereafter in effect relating to the Issuer (each such law, a
"Bankruptcy Law")), the Standby Purchaser may receive any payments from the
Issuer on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to the Issuer),
however, unless the Trustee otherwise agrees, the Standby Purchaser shall not
demand, accept or take any action to collect any payment on account of the
Subordinated Obligations.
(b) Prior Payment of Purchase Obligations. In any proceeding under any
Bankruptcy Law relating to the Issuer, the Standby Purchaser agrees that the
Trustee, on behalf of the Noteholders, shall be entitled to receive payment in
full in cash of all Purchase Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Standby Purchaser receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to the Issuer), the Standby Purchaser shall, if the
Trustee, on behalf of the Noteholders, so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the Trustee
and deliver such payments to the Trustee, on behalf of the Noteholders, on
account of the Purchase Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of the Standby
Purchaser under the other provisions of this Agreement.
(d) Trustee Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any of the Issuer, any Material
Subsidiary thereof or any Material Subsidiary of the Standby Purchaser), the
Trustee, at the direction of the Noteholders or otherwise, is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in the
name of the Standby Purchaser, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Purchase Obligations (including any and all Post Petition Interest), and
(ii) to require the Standby Purchaser (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Trustee for application to the Purchase
Obligations (including any and all Post Petition Interest).
SECTION 15. Continuing Agreement; Assignment of Rights Under the
Indenture and the Notes. This Agreement is a continuing Purchase Obligation and
shall (a) remain in full force and effect until the later of (i) the repayment
in full by the Issuer of all amounts due and owing under the Indenture with
respect to the Notes and (ii) the repayment in full of all Purchase Obligations
and all other amounts payable under this Agreement, (b) be binding upon the
Standby Purchaser, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Trustee, on behalf of Noteholders, and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Noteholder may
24
assign or otherwise transfer all or any portion of its rights and obligations
under the Indenture (including, without limitation, the Note or Notes held by
it) to any other person or entity (subject to the rights of the Standby
Purchaser hereunder in respect of any Partial Non-Payment Amount With Interest
or Total Non-Payment Amount With Interest as provided herein), and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to such Noteholder herein or otherwise, in each case as and to
the extent provided in the Indenture. The Standby Purchaser shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all of the Noteholders.
SECTION 16. Currency Rate Indemnity. (a) The Standby Purchaser shall
(to the extent lawful) indemnify the Trustee and the Noteholders and keep them
indemnified against:
(i) in the case of nonpayment by the Standby Purchaser of any amount
due to the Trustee, on behalf of the Noteholders, under this Agreement 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 Standby Purchaser; and
(ii) any deficiency arising or resulting from any variation in rates
of exchange between (a) the date as of which the local currency equivalent
of the amounts due or contingently due under this Agreement or in respect
of the Notes is calculated for the purposes of any bankruptcy, insolvency
or liquidation of the Standby Purchaser, and (b) 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 Standby Purchaser agrees that, if a judgment or order given or
made by any court for the payment of any amount in respect of its Purchase
Obligation 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 Standby Purchaser from its obligations hereunder, 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 Standby Purchaser for a liquidated
sum or sums in respect of amounts due under this Agreement, or under the
Indenture or the Notes or under any judgment or order.
SECTION 17. Governing Law; Jurisdiction; Waiver of Immunity, Etc. (a)
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York.
25
(b) The Standby Purchaser hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any of the other
Transaction Documents to which it is or is to be a party, or for recognition or
enforcement of any judgment, and the Standby Purchaser hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The Standby Purchaser agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Transaction
Document shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any other Transaction
Document in the courts of any jurisdiction.
(c) The Standby Purchaser hereby irrevocably appoints and empowers the
New York office of Petroleo Brasileiro S.A., located at 570 Lexington Avenue,
43rd Floor, New York, New York 10022 as its authorized agent (the "Process
Agent") to 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 suit, action or proceedings in any New York
State court or United States federal court sitting in the State of New York in
the Borough of Manhattan and any appellate court from any thereof, which service
may be made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts. The Standby Purchaser will take any and
all action necessary to continue such designation in full force and effect and
to advise the Trustee of any change of address of such Process Agent and should
such Process Agent become unavailable for this purpose for any reason, the
Standby Purchaser will promptly and irrevocably designate a new Process Agent
within New York, New York, which will agree to act as such, with the powers and
for the purposes specified in this subsection (c). The Standby Purchaser
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents out 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 11 or to any other address of which it shall have given notice pursuant
to Section 11 or to its Process Agent. Service upon the Standby Purchaser or the
Process Agent as provided for herein will, to the fullest extent permitted by
law, constitute valid and effective personal service upon it and the failure of
the Process Agent to give any notice of such service to the Standby Purchaser
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
(d) The Standby Purchaser irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other
Transaction Documents to which it is or is to be a party in any New York State
or federal court. The Standby Purchaser hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
(e) THE STANDBY PURCHASER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
26
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY
OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(f) This Agreement and any other documents delivered pursuant hereto,
and any actions taken hereunder, constitute commercial acts by the Standby
Purchaser. The Standby Purchaser irrevocably and unconditionally and to the
fullest extent permitted by law, waives, and agrees not to plead or claim, any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) for itself, the Issuer or any of their
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 document delivered pursuant hereto, in each case for the
benefit of each assigns, it being intended that the foregoing waiver and
agreement will be effective, irrevocable and not subject to withdrawal in any
and all jurisdictions, and, without limiting the generality of the foregoing,
agrees that the waivers set forth in this subsection (f) shall have the fullest
scope permitted under the United States Foreign Sovereign Immunities Act of 1976
and are intended to be irrevocable for the purposes of such act.
SECTION 18. Execution in Counterparts. This Agreement and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of an original executed counterpart of this Agreement.
SECTION 19. Pledge of Interests. (a) The Standby Purchaser hereby
pledges to the Trustee (for the benefit of the Noteholders) and grants a
continuing security interest in, all of its interest (if any) in (a) the Payment
Account, (b) all funds from time to time on deposit in the Payment Account, (c)
all interest, dividends, distributions, cash, instruments and other property
from time to time received, receivable or on deposit in the Payment Account, and
(d) all proceeds of any of the foregoing (together, the "Collateral"). The
Standby Purchaser agrees to take all such action as is required by applicable
Law or as the Trustee may require, including delivering Opinions of Counsel in
form and substance acceptable to the Trustee, as to the grant and perfection of
the foregoing security interests.
(b) The security interest granted in the Collateral, shall secure the
payment of all obligations of the Standby Purchaser now or hereafter existing
under the Transaction Documents, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations, interest,
fees, premiums, penalties, indemnifications, contract causes of action, costs,
expenses or otherwise. The Standby Purchaser represents and warrants that it has
not heretofore pledged, conveyed, granted a lien on, or security interest in, or
otherwise encumbered any of the Collateral in favor of any Person under U.S.,
Cayman, Brazilian or other Law.
27
SECTION 20. Entire Agreement. This Agreement, together with the
Indenture and the Notes, sets forth the entire agreement of the parties hereto
with respect to the subject matter hereof.
28
IN WITNESS WHEREOF, the Standby Purchaser has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
PETROLEO BRASILEIRO S.A.--PETROBRAS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WITNESSES:
1.
-------------------------------------
Name:
2.
-------------------------------------
Name:
Standby Purchase Agreement
1
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this [____] day of [____________], before me personally came
[___________], to me known, who, being by me duly sworn, did depose and say that
he is the [___________] of Petroleo Brasileiro S.A. - Petrobras, a corporation
described in and which executed the foregoing instrument and acknowledges said
instrument to be the free act and deed of said entity.
On this [____] day of [_____________], before me personally came
[______________] and [____________] to me personally known, who being by me
sworn, did depose and say that they signed their names to the foregoing
instrument as witnesses.
[Notarial Seal]
----------------------------------------
Notary Public
COMMISSION EXPIRES
2
ACKNOWLEDGED:
THE BANK OF NEW YORK, as Trustee and not
in its individual capacity
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WITNESSES:
1.
----------------------------------
Name:
2.
----------------------------------
Name:
3
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this [____] day of [_________], before me personally came [_________],
to me known, who, being by me duly sworn, did depose and say that she is the
[__________] of THE BANK OF NEW YORK described in and which executed the
foregoing instrument and acknowledges said instrument to be the free act and
deed of said entity.
On this [_____] day of [__________], before me personally came [__________]
and [__________] to me personally known, who being by me sworn, did depose and
say that they signed their names to the foregoing instrument as witnesses.
[Notarial Seal]
----------------------------------------
Notary Public
COMMISSION EXPIRES
4
EXHIBIT A
FORM OF PARTIAL NON-PAYMENT NOTICE
--------------------------------
[Date]
VIA FACSIMILE
Petroleo Brasileiro S.A. - Petrobras
Avenida Republica do Chile, 65
20035-900 Rio de Janeiro
Brazil
Attention : Servio Tulio Tinoco
Head of Trade Finance & Foreign Exchange
Petrobras International Finance Company
U.S.$[_______] Global Notes due [______]
Dear Ladies and Gentlemen:
Reference is made to that certain indenture dated as of December 15,
2006 (the "Original Indenture") between Petrobras International Finance Company
("PIFCo") and The Bank of New York, a New York banking corporation (the
"Trustee"), as supplemented by the [______] supplemental indenture among the
Issuer, Petroleo Brasileiro, S.A. - Petrobras ("Petrobras") and the Trustee
dated as of [______] (the "[______] Supplemental Indenture"). The Original
Indenture, as supplemented by the [______] Supplemental Indenture, and as
amended or supplemented from time to time, with respect to the Notes is
hereinafter referred to as the "Indenture." Reference is also made to that
certain Standby Purchase Agreement (as amended or supplemented from time to
time, the "Standby Purchase Agreement") dated as of [ ] between the Trustee and
Petrobras pursuant to which Petrobras has undertaken to purchase from the
holders of PIFCo's [______] Global Notes due [______] (the "Notes") such
holders' right to receive unpaid amounts due and owing on such Notes.
Capitalized terms not defined herein shall have the meanings set forth in the
Standby Purchase Agreement.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], PIFCo was obligated to make a payment of [principal]
[interest] [Additional Amounts] [other amounts under the
Indenture] in an amount equal to U.S.$_________ in respect of
[principal] [interest] [Additional Amounts] [other amounts due
under the Indenture] (the "Overdue Amount"). This notice
constitutes a Partial Non-Payment Notice as contemplated in the
Standby Purchase Agreement.
A-1
2. Pursuant to the Standby Purchase Agreement, you are obligated to
purchase from the holders of the Notes their right to receive the
Overdue Amount.
3. Pursuant to the Standby Purchase Agreement, you are hereby
directed to purchase the right of the holders of the Notes to
receive the Overdue Amount and to make a payment to the Trustee,
on behalf of the holders of the Notes, in partial satisfaction of
your obligation to purchase the right to Overdue Amount.
4. You are hereby directed to pay immediately the Overdue Amount to
the Payment Account referenced in the Standby Purchase Agreement
(Account No. ______) together with interest on such Overdue
Amount, at the rates specified in the Standby Purchase Agreement,
from the date PIFCo was itself obligated to pay the Overdue
Amount (the "Liability Date"), through and including the date
that payment by you is actually made.
5. Petrobras is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
of the same to the Issuer at the address provided in the Standby
Purchase Agreement with a copy by facsimile to the Trustee at
fax: (212) 623-6207 (Attention: Institutional Trust Services).
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGED & AGREED
PETROLEO BRASILEIRO S.A.--PETROBRAS
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
A-2
EXHIBIT B
FORM OF TOTAL NON-PAYMENT NOTICE
--------------------------------
[Date]
VIA FACSIMILE
Petroleo Brasileiro S.A. - Petrobras
Avenida Republica do Chile, 65
20035-900 Rio de Janeiro
Brazil
Attention : Servio Tulio Tinoco
Head of Trade Finance & Foreign Exchange
Petrobras International Finance Company
U.S.$[______] Global Notes due [______]
Dear Sirs:
Reference is made to that certain indenture dated as of December 15,
2006 (the "Original Indenture") between Petrobras International Finance Company
("PIFCo") and The Bank of New York, a New York banking corporation (the
"Trustee"), as supplemented by the [______] supplemental indenture among the
Issuer, Petroleo Brasileiro, S.A. - Petrobras ("Petrobras") and the Trustee
dated as of [______] (the "[______] Supplemental Indenture"). The Original
Indenture, as supplemented by the [______] Supplemental Indenture, and as
amended or supplemented from time to time with respect to the Notes, is
hereinafter referred to as the "Indenture." Reference is also made to that
certain Standby Purchase Agreement (as amended or supplemented from time to
time, the "Standby Purchase Agreement") dated as of [_____] between the Trustee
and Petroleo Brasileiro, S.A. - Petrobras ("Petrobras") pursuant to which
Petrobras has undertaken to purchase from the holders of PIFCo's [______] Global
Notes due [______] (the "Notes") such holders' right to receive unpaid amounts
due and owing on such Notes. Capitalized terms not defined herein shall have the
meanings set forth in the Standby Purchase Agreement.
By this notice, the undersigned, acting on behalf of the holders of
the Notes, hereby advises you as follows:
1. On [date], PIFCo was obligated to make a payment of [principal]
[interest] [Additional Amounts] [other amounts under the
Indenture] in an amount equal to U.S.$___________ in respect of
[principal] [interest] [Additional Amounts] [other amounts due
under the Indenture] (the "Overdue
B-1
Amount"). This notice constitutes a Total Non-Payment Notice as
contemplated in the Standby Purchase Agreement.
2. Pursuant to the Standby Purchase Agreement, you are obligated to
purchase from the holders of the Notes their right to receive the
Overdue Amount.
3. Pursuant to the Standby Purchase Agreement, you are hereby
directed to purchase the right of the holders of the Notes to
receive the Overdue Amount and to make a payment to the Trustee,
on behalf of the holders of the Notes, in partial satisfaction of
your obligation to purchase the right to Overdue Amount.
4. You are hereby directed to pay immediately the Overdue Amount to
the Payment Account referenced in the Standby Purchase Agreement
(Account No. ______) together with interest on such Overdue
Amount, at the rates specified in the Standby Purchase Agreement,
from the date PIFCo was itself obligated to pay the Overdue
Amount through and including the date that payment by you is
actually made.
5. Petrobras is requested to acknowledge receipt of this notice by
countersigning in the space provided below and returning a copy
of the same to the Issuer at the address provided in the Standby
Purchase Agreement with a copy by facsimile to the Trustee at
fax: (212) 623-6207 (Attention: Institutional Trust Services).
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGED & AGREED
PETROLEO BRASILEIRO S.A.--PETROBRAS
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
B-2