UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16 UNDER

THE SECURITIES EXCHANGE ACT OF 1934

For the month of February 2012

 

 

 

Commission File Number 001-15106    Commission File Number 001-33121

 

 

 

PETRÓLEO
BRASILEIRO S.A. —
PETROBRAS

(Exact name of registrant as specified in its charter)

  

PETROBRAS
INTERNATIONAL
FINANCE COMPANY

(Exact name of registrant as specified in its charter)

BRAZILIAN PETROLEUM CORPORATION — PETROBRAS

(Translation of registrant’s name into English)

  

Not Applicable

(Translation of registrant’s name into English)

 

 

 

Avenida República do Chile, 65

20035-900 — Rio de Janeiro — RJ,

Brazil

(55-21) 3224-4477

(Address of principal executive offices)

  

4th Floor, Harbour Place

103 South Church Street

P.O. Box 1034GT — BWI

George Town, Grand Cayman

Cayman Islands

   (Address of principal executive offices)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F     þ Form 40-F     ¨

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):            

Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.    Yes   ¨     No   þ

If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-                    .

 

 

 


This report on Form 6-K is incorporated by reference in the Registration Statement on Form of F-3 of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”) (No. 333-163665) and Petrobras International Finance Company (“PifCo”) (No. 333-163665-01) and its accompanying prospectus supplement dated as of February 1, 2012.

Exhibits

 

Exhibit 1.1 —  Underwriting Agreement

Exhibit 4.1 —  Amended and Restated Guaranty for the 2021 Notes

Exhibit 4.2 —  Amended and Restated Sixth Supplemental Indenture

Exhibit 4.3 —  Form of 5.375% Global Notes due 2021 (included in Exhibit 4.2)

Exhibit 4.4 —  Amended and Restated Guaranty for the 2041 Notes

Exhibit 4.5 —  Amended and Restated Seventh Supplemental Indenture

Exhibit 4.6 —  Form of 6.750% Global Notes due 2041 (included in Exhibit 4.5)

Exhibit 4.7 —  Guaranty for the 2015 Notes

Exhibit 4.8 —  Eleventh Supplemental Indenture

Exhibit 4.9 —  Form of 2.875% Global Notes due 2015 (included in Exhibit 4.8)

Exhibit 4.10 —  Guaranty for the 2017 Notes

Exhibit 4.11 —  Twelfth Supplemental Indenture

Exhibit 4.12 —  Form of 3.500% Global Notes due 2017 (included in Exhibit 4.11)

Exhibit 5.1 —  Opinion of internal counsel to Petrobras

Exhibit 5.2 —  Opinion of Walkers, Cayman Islands counsel to PifCo and Petrobras

Exhibit 5.3 —  Opinion of Cleary Gottlieb Steen & Hamilton LLP, U.S. counsel to PifCo and Petrobras

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

        PETROLEO BRASILEIRO S.A. — PETROBRAS
    By:  

/s/ Gustavo Tardin Barbosa

     

Gustavo Tardin Barbosa

     

Executive Manager of Corporate Finance

    PETROBRAS INTERNATIONAL FINANCE COMPANY
    By:  

/s/ Sérvio Túlio da R. Tinoco

     

Sérvio Túlio da R. Tinoco

Date: February 6, 2012

     

Corporate Finance Manager

 

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Exhibit 1.1

 

 

 

UNDERWRITING AGREEMENT

among

PETROBRAS INTERNATIONAL FINANCE COMPANY,

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

And

BB SECURITIES LTD.

CITIGROUP GLOBAL MARKETS INC.

ITAU BBA USA SECURITIES, INC.

J.P. MORGAN SECURITIES LLC

MORGAN STANLEY & CO. LLC

SANTANDER INVESTMENT SECURITIES INC.

BANCO VOTORANTIM NASSAU BRANCH

MITSUBISHI UFJ SECURITIES (USA), INC.

relating to

PIFCO’s

U.S.$1,250,000,000 2.875% Global Notes Due 2015

U.S.$1,750,000,000 3.50% Global Notes Due 2017

U.S.$2,750,000,000 5.375% Global Notes Due 2021

U.S.$1,250,000,000 6.750% Global Notes Due 2041

February 1, 2012

 

 

 


TABLE OF CONTENTS

 

          Page  

SECTION 1.

  

Representations and Warranties

     4   

SECTION 2.

  

Purchase and Sale

     18   

SECTION 3.

  

Delivery and Payment

     18   

SECTION 4.

  

Offering by Underwriters

     19   

SECTION 5.

  

Covenants

     19   

SECTION 6.

  

Conditions to the Obligations of the Underwriters

     24   

SECTION 7.

  

Reimbursement of Expenses

     30   

SECTION 8.

  

Indemnification and Contribution

     30   

SECTION 9.

  

Termination

     33   

SECTION 10.

  

Representations, Covenants and Indemnities to Survive

     33   

SECTION 11.

  

Notices

     34   

SECTION 12.

  

Successors

     34   

SECTION 13.

  

Jurisdiction

     35   

SECTION 14.

  

Governing Law

     35   

SECTION 15.

  

Currency

     35   

SECTION 16.

  

Waiver of Immunity

     36   

SECTION 17.

  

Waiver of Right to Trial by Jury

     36   

SECTION 18.

  

Counterparts

     36   

SECTION 19.

  

Entire Agreement

     36   

SECTION 20.

  

Headings

     36   

SECTION 21.

  

No Fiduciary Relationship

     37   

Underwriting Agreement February 2012


PETROBRAS INTERNATIONAL FINANCE COMPANY

U.S.$1,250,000,000 2.875% Global Notes Due 2015

U.S.$1,750,000,000 3.50% Global Notes Due 2017

U.S.$2,750,000,000 5.375% Global Notes Due 2021

U.S.$1,250,000,000 6.750% Global Notes Due 2041

Underwriting Agreement

February 1, 2012

BB Securities Ltd.

4th Floor, Pinners Hall

105-108 Old Broad Street

EC2N 1ER – London, United Kingdom

Citigroup Global Markets Inc.

388 Greenwich Street, 1st Floor

New York, NY 10013

Itau BBA USA Securities, Inc.

767 5th Avenue, 50th Floor

New York, NY 10153

J.P. Morgan Securities LLC

383 Madison Avenue

New York, NY 10179

Morgan Stanley & Co. LLC

1585 Broadway

New York, NY 10036

Santander Investment Securities Inc.

45 East 53rd Street

New York, NY 10022

 

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Banco Votorantim Nassau Branch

Centre of Commerce Building (Hilton Building), Suite 401, 4th Floor

Bay Street, P.O. Box N-951

Nassau, New Providence, Bahamas

Mitsubishi UFJ Securities (USA), Inc.

1633 Broadway, 29th Floor

New York, NY 10019-6708

Ladies and Gentlemen:

Petrobras International Finance Company, a corporation organized under the laws of the Cayman Islands (“ PifCo ”) and a wholly-owned subsidiary of Petróleo Brasileiro S.A. – Petrobras, a sociedade de economia mista (“ Petrobras ”, each of Petrobras and PifCo a “ Company ” and, collectively, the “ Companies ”) organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), proposes to issue and sell to BB Securities Ltd., Citigroup Global Markets Inc., Itau BBA USA Securities, Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, Santander Investment Securities Inc., Banco Votorantim Nassau Branch and Mitsubishi UFJ Securities (USA), Inc. (each, an “ Underwriter ” and collectively, the “ Underwriters ”) 2,750,000,000 aggregate principal amount of its 5.375% Global Notes Due 2021 payable in U.S. Dollars, representing an additional issuance of the PifCo’s outstanding 5.375% Notes due 2021 which will be treated as a single class with the U.S.$2,500,000,000 aggregate principal amount of the Issuer’s 5.375% Global Notes due 2021 issued on January 27, 2011 (the “ Series 1 Notes ”), U.S.$1,250,000,000 aggregate principal amount of its 6.750% Global Notes Due 2041 payable in U.S. Dollars, representing an additional issuance of the PifCo’s outstanding 6.750% Notes due 2041 which will be treated as a single class with the U.S.$1,000,000,000 aggregate principal amount of the Issuer’s 6.750% Global Notes due 2041 issued on January 27, 2011 (the “ Series 2 Notes ”), U.S.$1,250,000,000 aggregate principal amount of its 2.875% Global Notes Due 2015 payable in U.S. Dollars (the “ Series 3 Notes ”) and U.S. $1,750,000,000 aggregate principal amount of its 3.50% Global Notes Due 2017 payable in U.S. Dollars (the “ Series 4 Notes , and together with the Series 1 Notes, the Series 2 Notes and the Series 3 Notes, the “ Notes ”). The Series 1 Notes are to be issued under the indenture dated as of December 15, 2006 (the “ Original Indenture ”) between PifCo and The Bank of New York Mellon, as trustee (the “ Trustee ”), as supplemented by an Amended and Restated Sixth Supplemental Indenture (the “ Amended and Restated Sixth Supplemental Indenture ,” and together with the Original Indenture, the “ Series 1 Indenture ”) to be dated the Closing Date (as defined herein) between PifCo and the Trustee. The Series 2 Notes are to be issued under the Original Indenture, as supplemented by the Amended and Restated Seventh Supplemental Indenture (the “ Amended and Restated Seventh Supplemental Indenture ,” and together with the Original Indenture, the “ Series 2 Indenture ”) to be dated the Closing Date (as defined herein) between PifCo and the Trustee. The Series 3 Notes are to be issued under the Original Indenture, as supplemented by the Eleventh Supplemental Indenture (the “ Eleventh Supplemental Indenture ,” and together with the Original Indenture, the “ Series 3 Indenture ”) to be dated the Closing Date (as defined herein) between PifCo and the Trustee. The Series 4 Notes are to be issued under the Original Indenture, as supplemented by the Twelfth Supplemental Indenture (the “ Twelfth Supplemental Indenture ,” and together with the Original Indenture, the

 

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Series 4 Indenture ”) to be dated the Closing Date (as defined herein) between PifCo and the Trustee. The Series 1 Indenture, the Series 2 Indenture, the Series 3 Indenture and the Series 4 Indenture are collectively referred to herein as the “ Indenture .” The Series 1 Notes will be unconditionally and irrevocably guaranteed by Petrobras pursuant to a Guaranty to be dated the Closing Date (the “ Series 1 Guaranty ”). The Series 2 Notes will be unconditionally and irrevocably guaranteed by Petrobras pursuant to a Guaranty to be dated the Closing Date (the “ Series 2 Guaranty ”). The Series 3 Notes will be unconditionally and irrevocably guaranteed by Petrobras pursuant to a Guaranty to be dated the Closing Date (the “ Series 3 Guaranty ”). The Series 4 Notes will be unconditionally and irrevocably guaranteed by Petrobras pursuant to a Guaranty to be dated the Closing Date (the “ Series 4 Guaranty ”). The Series 1 Guaranty, the Series 2 Guaranty, the Series 3 Guaranty and the Series 4 Guaranty are collectively referred to herein as the “ Guaranties .” The Notes to be issued by PifCo will be evidenced initially by one or more Registered Global Notes (each a “ Global Note ”) representing the Notes sold or resold pursuant to a registration statement on Form F-3 under the Securities Act of 1933, as amended (the “ Securities Act ”), dated December 11, 2009, filed with the Securities and Exchange Commission (the “ Commission ”) (File No. 333-163665-01) covering the registration of one or more series of notes, including the Notes, under the Securities Act and including the related base prospectus in the Form F-3 dated December 11, 2009 at the time such registration statement became effective (the “ Base Prospectus ”).

Except where the context otherwise requires, “ Registration Statement ,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Securities Act, as such section applies to the respective Underwriters (the “ Effective Time ”), including (i) all documents filed as a part thereof or incorporated or deemed incorporated by reference therein and (ii) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Securities Act, to be part of the Registration Statement at the Effective Time.

The Companies have furnished to you, for use by the Underwriters and by dealers in connection with the offering of the Notes, copies of one or more “preliminary prospectus supplements” relating to the Notes. Except where the context otherwise requires, “ Pre-Pricing Prospectus ,” as used herein, means each such preliminary prospectus supplement, in the form so furnished, as may be amended or supplemented, including the Base Prospectus, and the documents incorporated by reference therein.

Except where the context otherwise requires, “ Prospectus Supplement ,” as used herein, means the final prospectus supplement relating to the Notes (including all documents incorporated by reference therein), to be filed by the Companies with the Commission pursuant to Rule 424(b) under the Securities Act on or before the second business day after the date hereof (or such earlier time as may be required under the Securities Act), in the form furnished by the Companies to you for use by the Underwriters and by dealers in connection with the offering of the Notes.

 

3


Except where the context otherwise requires, (i) “ Final Offering Document ,” as used herein, means the Prospectus Supplement together with the Base Prospectus attached to or used with the Prospectus Supplement, (ii) “ Permitted Free Writing Prospectuses ,” as used herein, means the documents listed on Schedule A attached hereto and the “road show” (as defined in Rule 433 under the Securities Act), listed on Schedule A attached hereto related to the offering of the Notes contemplated hereby (the “ Road Show ”) and (iii) “ Disclosure Package ,” as used herein, means any Pre-Pricing Prospectus (including all documents incorporated by reference therein) together with any combination of one or more of the Permitted Free Writing Prospectuses, if any.

Any reference herein to the Registration Statement, any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectuses shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “ Incorporated Documents ”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “ amend ,” “ amendment ” or “ supplement ” with respect to the Registration Statement, any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “ Exchange Act ”) on or after the initial effective date of the Registration Statement, or the date of such Base Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectuses, as the case may be, and deemed to be incorporated by reference.

Terms not otherwise defined herein are used as defined in the Indenture.

SECTION 1. Representations and Warranties . Each of the Companies jointly and severally represents and warrants to the Underwriters as set forth below:

(a) The Companies and the transactions contemplated in this Underwriting Agreement in connection with the offer and sale of the Notes meet the requirements set forth in Form F-3 under the Securities Act for use of the Registration Statement in connection with the offering of the Notes that are the subject of this Underwriting Agreement.

 

4


(b) The Registration Statement complied at the Effective Time and complies as of the date hereof in all material respects, with the requirements of the Securities Act; the conditions to the use of Form F-3 in connection with the offering and sale of the Notes as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Notes as contemplated hereby complies with, the requirements of Rule 415 under the Securities Act including, without limitation, Rule 415(a)(5); the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Securities Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the Commission and ends at the Closing Date did or will any Pre-Pricing Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Final Offering Document will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement and the Closing Date, in all material respects, with the requirements of the Securities Act (in the case of the Final Offering document, including, without limitation, Section 10(a) of the Securities Act); at no time during the period that begins on the earlier of the date of the Final Offering Document and the date the Final Offering Document is filed with the Commission and ends at the Closing Date did or will the Final Offering Document, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date hereof and ends at the Closing Date did or will the Disclosure Package include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Companies make no representation or warranty with respect to any statement contained in the Registration Statement, any Pre-Pricing Prospectus, the Final Offering Document or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter to the Companies expressly for use in the Registration Statement, such Pre-Pricing Prospectus, the Final Offering Document or such Permitted Free Writing Prospectus which shall consist solely of the sixth, seventh, ninth and tenth paragraphs under the caption “Plan of Distribution” in the Prospectus Supplement.

 

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(c) The Companies have filed the Registration Statement with the Commission, the Registration Statement has become effective under the Securities Act, no stop order preventing or suspending the use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Final Offering Document or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement has been issued, and no proceedings for such purposes have been instituted or, to the Companies’ knowledge, threatened by the Commission. Neither Company has received from the Commission any notice pursuant to Rule 401(g)(2) objecting to its use of the automatic shelf registration form.

(d) The Companies confirm their intention to file a Pre-Pricing Prospectus and Prospectus Supplement with the Commission pursuant to Rule 424(b) under the Securities Act.

(e) Each of the Companies has filed all the documents required to be filed by it with the Commission pursuant to the Exchange Act, including but not limited to the annual reports on Form 20-F for the year ended December 31, 2010 and Forms 6-K in connection with their respective financial statements for the nine-month period ended September 30, 2011. Each document filed or to be filed by the Companies under the Exchange Act complied and will comply when so filed in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission and the documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Final Offering Document, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder.

(f) The Original Indenture has been, and the form of Amended and Restated Sixth Supplemental Indenture, Amended and Restated Seventh Supplemental Indenture, Eleventh Supplemental Indenture, Twelfth Supplemental Indenture, and the form of Guaranties, as of the Closing Date, will be, qualified under the Trust Indenture Act of 1939, as amended (the “ TIA ”), and all filings and other actions required under the TIA to permit the use of the Indenture, the issuance of the Notes thereunder and the execution by Petrobras and the Trustee of the Guaranties have been made and taken prior to the date hereof.

(g) Prior to the termination of the offering of the Notes, neither Petrobras nor PifCo has filed any amendment to the Registration Statement or supplement to the Final Offering Document which shall not have previously been furnished to the Underwriters or of which the Underwriters shall not previously have been advised or to which any Underwriter shall have reasonably objected in writing.

 

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(h) Prior to the execution of this Underwriting Agreement, neither Petrobras nor PifCo has, directly or indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning of the Securities Act) or used any “prospectus” (within the meaning of the Securities Act) in connection with the offer or sale of the Notes, in each case other than the Pre-Pricing Prospectuses and the Permitted Free Writing Prospectuses, if any; neither Petrobras nor PifCo has, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectuses except in compliance with Rule 163 or with Rules 164 and 433 under the Securities Act; assuming that such Permitted Free Writing Prospectus is so sent or given after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Securities Act, filed with the Commission, the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the Registration Statement, as initially filed with the Commission, includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Securities Act, satisfies the requirements of Section 10 of the Securities Act; neither the Companies nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with the offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; neither Petrobras nor PifCo is an “ineligible issuer” (as defined in Rule 405 under the Securities Act) as of the eligibility determination date for purposes of Rule 164 and 433 under the Securities Act with respect to the offering of the Notes contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all Road Shows related to the offering of the Notes contemplated hereby is solely the property of the Companies.

(i) Neither of the Companies is, or after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Registration Statement and the Final Offering Document will be, required to register as an “investment company” under the United States Investment Company Act of 1940, as amended (the “ Investment Company Act ”).

(j) Neither of the Companies, nor any of their affiliates, nor any person acting on their behalf (other than the Underwriters, as to which the Companies make no representation or warranty), has, directly or indirectly, taken any action designed to cause or which has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of either of the Companies to facilitate the initial sale or resale of the Notes under the Exchange Act, or otherwise.

 

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(k) PifCo has been duly incorporated and is validly existing as a limited liability company in good standing under the laws of the Cayman Islands. Each of PifCo’s subsidiaries has been duly incorporated and is validly existing as a corporation in good standing (to the extent that good standing is applicable under applicable law) under the laws of the jurisdiction in which it was chartered or organized. Each of PifCo and its subsidiaries has the full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document. PifCo has the full corporate power and authority to file the Registration Statement and to enter into and perform its obligations under this Underwriting Agreement, the Indenture, the Notes and the Guaranties (collectively, the “ Transaction Documents ”) and is duly qualified to do business as a foreign corporation under the laws of each jurisdiction which requires such qualification except where the failure to be so qualified will not have a Material Adverse Effect. For the purposes of this Underwriting Agreement, (i) the term “ Material Adverse Effect ” shall mean (A) any material adverse effect on the condition (financial or otherwise), business, properties, earnings or prospects of either of the Companies, together with their respective consolidated subsidiaries, (B) any material adverse effect on the ability of PifCo, Petrobras or any other person to perform their respective obligations under any of the Transaction Documents, or (C) any material adverse effect on the rights of the Trustee, acting on behalf of the holders of the Notes, or such holders, under any of the Transaction Documents, and (ii) the term “ subsidiary ” shall mean any entity of which either Company directly or indirectly owns a majority of the outstanding voting shares and which such Company otherwise has the ability to elect a majority of the members of the board of directors or the governing body.

(l) Petrobras has been duly organized and is validly existing as a sociedade de economia mista (mixed-capital company) in good standing (to the extent that good standing is applicable under applicable law) under the laws of Brazil. Each of Petrobras’ Material Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing (to the extent relevant) under the laws of the jurisdiction in which it is chartered or organized. Each of Petrobras and its Material Subsidiaries is licensed (if and to the extent required by law) and has the full corporate power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document and to enter into and perform its obligations under this Underwriting Agreement and the other Transaction Documents to which it is a party, and is duly qualified or licensed as a foreign corporation in good standing in each jurisdiction which requires such qualification, except, in the case of its Material Subsidiaries other than PifCo, where the failure to be so qualified will not have a Material Adverse Effect. Except as disclosed in the Registration Statement and the documents incorporated by reference therein (including the annual report on Form 20-F of Petrobras and PifCo for the year ended December 31, 2010), Petrobras owns, directly or indirectly, all of the outstanding equity interests of PifCo and its other Material Subsidiaries. For the purposes of this Underwriting Agreement, the term “ Material Subsidiary ” shall mean, as to any person, any subsidiary of such person which, on any given date of determination, accounts for more than 10% of such person’s total assets, as such total assets are set forth on the most recent consolidated financial statements of such person prepared in

 

8


accordance with U.S. generally accepted accounting principles (or if any such person does not prepare financial statements in U.S. generally accepted accounting principles, consolidated financial statements prepared in accordance with such other generally accepted accounting principles then applicable to such person).

(m) All the outstanding shares of capital stock, if any, of each subsidiary of the Companies have been duly and validly authorized and issued and are fully paid and nonassessable except, in the case of the subsidiaries (other than PifCo), as would not have a Material Adverse Effect, and all outstanding shares of capital stock of the subsidiaries are owned by the Companies, as the case may be, either directly or through wholly-owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances.

(n) The Companies’ respective capitalizations are as set forth in the Pre-Pricing Prospectus and the Final Offering Document as of the dates specified therein.

(o) This Underwriting Agreement has been duly authorized, executed and delivered by each of the Companies; each of the Indenture, the Guaranties and each other document executed and delivered in connection therewith to which either of the Companies is party has been duly authorized and, assuming due authorization, execution and delivery thereof by each other party to those Transaction Documents (other than the Companies), when executed and delivered by the Companies, will constitute a legal, valid and binding agreement of the Companies, as the case may be, enforceable against each of the Companies in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); and the descriptions of the Transaction Documents in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document fairly summarize the rights and obligations of the parties thereto.

(p) The Notes have been duly authorized, and, when issued under the Indenture, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Underwriting Agreement, will have been duly executed, issued and delivered and will constitute legal, valid and binding obligations of PifCo, enforceable in accordance with their terms, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, or other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity and will be entitled to the benefits provided by the Indenture as described in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document.

 

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(q) The Notes will constitute the general unsecured and unsubordinated obligations of PifCo and will rank pari passu in priority of payment and in right of seniority with all other unsecured and unsubordinated obligations of PifCo that are not, by their terms, expressly subordinated in right of payment to the Notes except for statutory liens and preferences. The obligations of Petrobras under the Guaranties will constitute the general unsecured and unsubordinated obligations of Petrobras and will rank pari passu in priority of payment and in right of seniority with all other unsecured and unsubordinated obligations of Petrobras that are not, by their terms, expressly subordinated in right of payment to the rights of the Trustee under the Guaranties, except for statutory liens and preferences.

(r) No consent, approval, authorization, filing with or order of any court or governmental agency or other regulatory authority or body having jurisdiction over either of the Companies or any of their respective properties or assets in Brazil, the Cayman Islands or elsewhere (“ Government Authorities ”) is required for (i) the filing of the Registration Statement or the valid authorization, issuance, sale and delivery of the Notes, or (ii) the execution, delivery or performance by the Companies of any of their respective obligations under any of the Transaction Documents in the manner contemplated in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document, including, without limitation, making any of the applicable payments required to be made after the date hereof under or in respect of any of the Transaction Documents, except for (i) the filing of the Prospectus Supplement pursuant to Rule 424(b) under the Securities Act, (ii) such consents as may be required under state or foreign securities or blue sky laws and (iii) such filings or consents as may be required by the by-laws and rules of the Financial Industry Regulatory Authority Inc. (“ FINRA ”) in connection with the use of the Base Prospectus for issuances of securities by the Companies and the purchase and distribution of the Notes by the Underwriters and the confirmation by FINRA that it has no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements, each of which has, to the best knowledge of the Companies, been obtained and is in full force and effect.

(s) Neither of the Companies is currently in violation of its charter, by-laws or comparable organizational documents; neither the issuance and sale of the Notes, the execution and delivery of any of the Transaction Documents nor the consummation of any of the transactions described or contemplated therein, nor the fulfillment of the terms thereof will conflict with, or give rise to any right to accelerate the maturity or require the prepayment, repurchase or redemption of any indebtedness under, or result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Companies or any of their subsidiaries pursuant to, (i) the charter, by-laws or comparable organizational documents of either of the Companies or any of their Material Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which either of the Companies or any of their subsidiaries is a party or is bound or to which any of their property or assets is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to either of the Companies or any of their subsidiaries, except in the case of clauses (ii) or (iii) such as could not reasonably be expected to have a Material Adverse Effect.

 

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(t) The consolidated historical financial statements of the Companies and their consolidated subsidiaries included, or incorporated by reference, in the Pre-Pricing Prospectus and the Final Offering Document, together with the related notes, have been prepared in accordance with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein) and present fairly in all material respects the financial condition, results of operations and cash flows of the Companies as of the dates and for the periods indicated; the selected financial information set forth under the captions “Selected Financial Data” in the annual report on Form 20-F of Petrobras and PifCo for the year ended December 31, 2010 incorporated by reference in the Pre-Pricing Prospectus and the Final Offering Document fairly presents, on the basis stated in the Pre-Pricing Prospectus and the Final Offering Document, the information included therein. Except as disclosed in the Pre-Pricing Prospectus and the Final Offering Document, there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of either of the Companies and their consolidated subsidiaries, taken as a whole, since December 31, 2010. The segment data and other financial and statistical information incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements that are incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document and the books and records of the respective entities presented therein.

(u) There are no pro forma or consolidated financial statements or other financial statements or data which are or were required to be included or incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document in accordance with Regulation S-X under the Securities Act which have not been included as so required.

(v) The statistical, industry-related and market-related data included, or incorporated by reference, in the Pre-Pricing Prospectus and the Final Offering Document are based on or derived from sources which the Companies reasonably and in good faith believe are reliable and accurate, and such data agree with the sources from which they are derived.

(w) Except as set forth or contemplated in the Pre-Pricing Prospectus and the Final Offering Document, no action, suit or proceeding by or before any Governmental Authority involving the Companies or any of their subsidiaries or their property or assets is pending or, to the best knowledge of the Companies, threatened, involving or in any way relating to (i) this Underwriting Agreement, any of the other Transaction Documents or the transactions contemplated herein or therein or (ii) any other matter, except for (in the event of (i) and (ii)) actions, suits and proceedings that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. Neither the Companies nor any of their subsidiaries is in violation of or in default with respect to any applicable statute, rule, writ, injunction, decree, order or regulation of any Governmental Authority having jurisdiction over such Person which is reasonably likely to have a Material Adverse Effect.

 

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(x) Each of the Companies and each of their respective subsidiaries has good and marketable title to all of their properties and assets and owns or leases all such properties and assets as are necessary to the conduct of its operations as presently conducted free and clear of any liens, charges, security interests or other encumbrances except such as (i) do not materially interfere with the intended use thereof and (ii) could not reasonably be expected to have a Material Adverse Effect. All leases and subleases material to the business of each of the Companies under which either of the Companies holds properties are in full force and effect; and neither of the Companies has had any notice that any material claim of any sort has been asserted by anyone adverse to the Companies’ rights under any leases or subleases mentioned above, or affecting or questioning the rights thereof to the continued possession of the leased or subleased premises under any such lease or sublease, except as would not result in a Material Adverse Effect.

(y) KPMG Auditores Independentes (who have certified the financial statements of the Companies and supporting schedules and information of the Companies and their consolidated subsidiaries and delivered their reports with respect to the audited and unaudited consolidated financial statements and other financial information included in the Pre-Pricing Prospectus and the Final Offering Document relating to the Companies and their consolidated subsidiaries) are independent public accountants within the meaning of the applicable requirements of Regulation S-X under the Securities Act, the Exchange Act, and the Public Company Accounting Oversight Board (United States) and were certified public accountants with respect to the Companies under the standards established by the local authorities in the Cayman Islands and Brazil during the period they acted as accountants of the Companies.

(z) Each of the Companies and their respective subsidiaries has filed or caused to be filed all material tax returns which to the knowledge of the Companies are required to be filed, and has paid all taxes shown to be due and payable on said returns or on any assessments made against such person or any of its respective properties and all other taxes, assessments, fees or other charges imposed on such person or any of its respective properties by, any Governmental Authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with generally accepted accounting principles have been provided on the books of such person); and no material tax liens or material liens with respect to any assessments, fees or other charges have been filed and, to the knowledge of such person, no material claims are being asserted with respect to any such taxes, assessments, fees or other charges.

(aa) The Companies and each of their respective subsidiaries are insured by insurers that the Companies reasonably believe to be financially sound against such losses and risks and in such amounts as are prudent and customary in the businesses and in the geographical regions in which they are engaged, except when the failure to do so would not have a Material Adverse Effect; and neither of the Companies nor any subsidiary thereof has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

 

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(bb) The Companies and their subsidiaries possess all material licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither of the Companies nor any of their subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could have a Material Adverse Effect.

(cc) To ensure the legality, validity, enforceability or admissibility into evidence of any of the Transaction Documents, it is not necessary that any such other document be filed or recorded with any court or other authority in Brazil or the Cayman Islands (other than such authorizations or filings that have already been obtained or made, as applicable), or that any stamp or similar tax be paid in either Brazil or the Cayman Islands on or in respect of any such document, except as provided in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document. It is not necessary under the laws of Brazil or the Cayman Islands that any of the holders of the Notes be licensed, qualified or entitled to carry on business in either Brazil or the Cayman Islands by reason of the execution, delivery, performance or enforcement of any of the Transaction Documents.

(dd) The Companies and each of their respective Material Subsidiaries each maintain a system of internal accounting and other controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since December 31, 2010, (i) neither Company is aware of any material weakness in the Companies’ internal control over financial reporting (whether or not remediated) and (ii) there has been no change in the Companies’ internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companies’ internal control over financial reporting.

(ee) Each Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act) and has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. Such disclosure controls and procedures are effective to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the applicable rules and forms, and that it is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

 

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(ff) The Companies and their respective subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under the applicable Environmental Laws to conduct their respective businesses and (iii) except as described in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document, have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except in the case of clauses (i), (ii) and (iii) above where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document, neither of the Companies nor any of their subsidiaries has been named as a “potentially responsible party” under the United States Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, nor has the Company or any such subsidiary been identified as the party responsible or potentially responsible for any breach or violation of any other similar Environmental Law.

(gg) In the ordinary course of its business, the Companies periodically review the effect of Environmental Laws on the business, operations and properties of the Companies and their Material Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Companies have reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect.

(hh) The information set forth in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document relating to oil and gas reserves, oil and gas wells and any other oil and gas related information required to be disclosed in such Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document has been prepared by the Companies in all material respects on the basis disclosed in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document and conforms in all material respects to the requirements of the Securities Act and the Exchange Act, as the case may be.

 

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(ii) The Companies are subject to civil and commercial law in respect of their obligations hereunder and the Companies are not, nor are any of their properties, assets or revenues subject to any right of immunity under Cayman Islands, Brazilian or New York law, from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Cayman Islands, Brazilian, New York or U.S. federal court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with respect to its obligations, liabilities or any other matter under or arising out of or in connection herewith; and, to the extent that the Companies or any of their properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated hereby, may at any time be commenced, the Companies have waived or will waive such right to the extent permitted by law and have consented to such relief and enforcement as provided herein.

(jj) The submission of the Companies to the non-exclusive jurisdiction of the courts of the Supreme Court of the State of New York, County of New York, and the United States District Court for the Southern District of New York in Section 13 hereof and under each of the Transaction Documents, as applicable, is legal, valid and binding under the laws of Brazil and the Cayman Islands; the appointment of Petrobras’ New York office located at 570 Lexington Avenue, 43rd Floor, New York, New York 10022 as its authorized agent for the purpose described in Section 13 below and under each of the other Transaction Documents, as applicable, is legal, valid and binding under the laws of Brazil and the Cayman Islands; and the choice of law provision set forth in Section 14 below and in each Transaction Document, as applicable, is legal, valid and binding under the laws of Brazil and the Cayman Islands.

(kk) Any final judgment for any amount payable by the Companies rendered by any court of the State of New York or of the United States located in the State of New York having jurisdiction under its own domestic laws in respect of any suit, action or proceeding against the Companies based upon any Transaction Document would be declared enforceable against the Companies by the courts of the Cayman Islands or Brazil, as applicable, without re-examination, review of the merits of the cause of action in respect of which the original judgment was given or relitigation of the matters adjudicated upon or payment of any stamp, registration or similar tax or duty, as provided in the provisions for enforcement of foreign judgments set forth in the Pre-Pricing Prospectus and the Final Offering Document.

(ll) No part of the proceeds of the sale of the Notes will be used for any purpose that violates the provisions of any of Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.

 

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(mm) Both presently and immediately after giving effect to the transactions contemplated hereunder, each of the Companies (i) is and will be able to pay its debts as they become due and (ii) is not insolvent as defined under applicable Brazilian bankruptcy, insolvency or similar law or Cayman Islands bankruptcy, insolvency or similar law.

(nn) No holder of the Notes, the Underwriters or the Trustee will be deemed resident, domiciled, carrying on business or subject to taxation in Brazil or the Cayman Islands solely by the execution, delivery, performance or enforcement of any of the Transaction Documents or by virtue of the ownership or transfer of a Note or the receipt of payment thereon assuming that such person is not a resident of Brazil or the Cayman Islands and does not have a permanent establishment or a fixed base in Brazil or the Cayman Islands.

(oo) There are no Cayman Islands taxes payable on or by virtue of the execution or delivery of this Underwriting Agreement, the Indenture, the Notes or any of the other Transaction Documents or any other document to be furnished hereunder or thereunder. Payments to be made by the Companies or any other party to any of the Transaction Documents pursuant to the Transaction Documents will not be subject to Cayman Islands taxes. Provided the documents are not executed in or brought within the jurisdiction of the Cayman Islands, there are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of any of the Transaction Documents or the consummation of any of the other transactions described therein or the issuance and sale by PifCo of the Notes.

(pp) There is no tax, levy, impost, deduction, charge or withholding imposed, levied or made by or in Brazil or any political subdivision or taxing authority thereof or therein either (i) on or by virtue of the execution or delivery of this Underwriting Agreement or any of the other Transaction Documents or (ii) on any payment to be made by Petrobras to the Trustee or the holders of the Notes pursuant to the Guaranties, except with respect to: (i) IOF/Exchange (tax on exchange operations) levied on exchange transactions carried on in Brazil and (ii) any payment of interest, fees or other income made to a party hereto or thereto outside of Brazil from funds of Petrobras each of which currently would be subject to a withholding tax which, as of the date hereof, is levied at the rate of 15%, 25% if the beneficiary is domiciled in a tax haven jurisdiction, or such other lower rate, as it may be contemplated in a bilateral treaty aimed at avoiding double taxation between Brazil and such other country where the recipient of the payment has its domicile. Petrobras is permitted to make all payments pursuant to the Guaranties free and clear of all taxes, levies, imposts, deductions, charges or withholdings imposed, levied or made by or in Brazil or any political subdivision or taxing authority thereof or therein, and no such payment in the hands of the Trustee will be subject to any tax, levy, impost, deduction, charge or withholding imposed, levied or made by or in Brazil or any political subdivision or taxing authority therein or thereof, in each case except as provided in the immediately preceding sentence. Petrobras intends to make all payments pursuant to this Underwriting Agreement from funds offshore Brazil. To ensure the legality, validity, enforceability or admissibility in evidence of the Transaction Documents in Brazil, it is not necessary that the Transaction Documents or any other

 

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document be filed or recorded with any court or other authority in Brazil, other than the notarization of the signatures of the parties signing outside Brazil, the subsequent consularization (authentication) of the signature of such a notary by a Brazilian consulate official and the subsequent translation of the relevant Transaction Document into Portuguese by a sworn translator.

(qq) Neither of the Companies nor any of their subsidiaries, nor any director or executive officer of the Companies or any of their subsidiaries, nor, to the best knowledge of the Companies, any agent, employee or other person associated with or acting on behalf of the Companies or any of their subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

(rr) The operations of the Companies and their subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Companies or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Companies, threatened.

(ss) Neither of the Companies, nor any of their subsidiaries nor, nor any director or executive officer of the Companies or any of their subsidiaries, nor, to the best knowledge of the Companies, any agent, employee or affiliate of the Companies or any of their subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”); and the Companies will not knowingly directly or indirectly use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

(tt) Except as set forth in the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document, there are no labor disturbances or disputes existing, or to the knowledge of the Company, threatened, that could result in a Material Adverse Effect.

Any certificate signed by any officer or representative of any of the Companies and delivered to you or your counsel in connection with the offering of the Notes shall be deemed a representation and warranty by the respective Company to each Underwriter as to the matters covered thereby on the date of such certificate.

 

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SECTION 2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, PifCo agrees to sell the Series 1 Notes with an aggregate principal amount of U.S.$2,750,000,000, the Series 2 Notes with an aggregate principal amount of U.S.$1,250,000,000, the Series 3 Notes with an aggregate principal amount of U.S.$1,250,000,000and the Series 4 Notes with an aggregate principal amount of U.S.$1,750,000,000 to the Underwriters, and each of the Underwriters severally agrees to purchase from PifCo, the aggregate principal amount of the Notes listed on Schedule B attached hereto at a purchase price of 103.881% of the aggregate principal amount of the Series 1 Notes, plus accrued interest in the amount of U.S.$3,695,312.50, 110.858% of the aggregate principal amount of the Series 2 Notes, plus accrued interest in the amount of U.S.$2,109,375.00, 99.249% of the aggregate principal amount of the Series 3 Notes and 99.169% of the aggregate principal amount of the Series 4 Notes (together, the “ Purchase Price ”).

SECTION 3. Delivery and Payment. (a) Delivery of and payment for the Notes shall be made at the offices of Shearman & Sterling LLP in New York or such other place as shall be agreed upon by the parties hereto at 10:00 A.M., New York City time, on February 6, 2012, or at such time on such later date as the Underwriters shall designate, which date and time may be postponed by agreement between the Underwriters and PifCo (such date and time of delivery and payment for the Notes being herein called the “ Closing Date ”). Delivery of the Notes shall be made to the Underwriters against payment by the Underwriters of U.S.$7,224,327,187.50 (the “ Net Proceeds ”) to or upon the order of PifCo by wire transfer payable in immediately available funds to the account specified in writing by PifCo not less than three Business Days prior to the Closing Date. The Net Proceeds represent an amount equal to (i) 104.181% of the aggregate principal amount of the Series 1 Notes, plus accrued interest in the amount of U.S.$3,695,312.50, 111.208% of the aggregate principal amount of the Series 2 Notes, plus accrued interest in the amount of U.S.$2,109,375.00, 99.499% of the aggregate principal amount of the Series 3 Notes and 99.419% of the aggregate principal amount of the Series 4 Notes less (ii) U.S.$8,250,000, representing 0.30% of the aggregate principal amount of the Series 1 Notes to be issued on the Closing Date, U.S.$4,375,000, representing 0.35% of the aggregate principal amount of the Series 2 Notes to be issued on the Closing Date, U.S.$3,125,000, representing 0.25% of the aggregate principal amount of the Series 3 Notes to be issued on the Closing Date and U.S.$4,375,000, representing 0.25% of the aggregate principal amount of the Series 4 Notes to be issued on the Closing Date(the “ Selling Commission ”). Delivery of the Notes shall be made through the facilities of The Depository Trust Company (“ DTC ”) unless the Underwriters shall otherwise instruct.

(b) For the purposes of this Underwriting Agreement, the term “ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the City of New York are authorized or obligated by law, executive order or regulation to close.

 

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SECTION 4. Offering by Underwriters. Each Underwriter represents and warrants to and agrees as to itself with the Companies that:

(a) Except as set forth in the Pre-Pricing Prospectus and the Final Offering Document, such Underwriter will not engage in any activity that reasonably can be expected to cause or result, under the Exchange Act, in stabilization or manipulation of the price of any security of PifCo or Petrobras to facilitate the sale or resale of the Notes.

(b) Such Underwriter shall offer the Notes for sale to the public upon the terms and conditions set forth in the “Plan of Distribution” sections in the Pre-Pricing Prospectus and the Final Offering Document.

(c) Unless such Underwriter obtains the prior consent of the Companies, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Companies with the Commission or retained by the Companies under Rule 433 under the Securities Act. The Companies agree that (x) they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) the Companies have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

SECTION 5. Covenants. The Companies jointly and severally agree with the Underwriters that:

(a) The Companies will furnish to the Underwriters and to counsel for the Underwriters, without charge, during the period referred to in paragraph (d) below, as many copies of the Registration Statement, the Pre-Pricing Prospectus and the Final Offering Document and any amendments and supplements thereto (in each case including all exhibits filed therewith and all documents incorporated therein not previously furnished to the Underwriters) as any Underwriter may reasonably request, including the delivery of copies of the Prospectus Supplement to the Underwriters, one of which shall be signed by a duly authorized officer of the Companies.

(b) The Companies will not amend or supplement, during the period specified in (d) below, the Registration Statement, the Pre-Pricing Prospectus or the Final Offering Document without the prior written consent of the Underwriters, which consent will not be unreasonably withheld.

 

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(c) The Companies will notify the Underwriters in writing immediately (i) of any request by the Commission for any amendment of or supplement to the Registration Statement, the Pre-Pricing Prospectus or the Final Offering Document or for any additional information, (ii) of the Companies’ intention to file or prepare any supplement or amendment to the Registration Statement, the Pre-Pricing Prospectus or the Final Offering Document, (iii) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement, the Pre-Pricing Prospectus or the Final Offering Document, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the initiation, or the threatening, of any proceedings therefor, (v) of the receipt of any comments from the Commission, and (vi) of the receipt by the Companies of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Companies will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the prompt lifting of such order.

(d) If, during such period after the commencement of the offering of the Notes any Underwriter or any dealer is required by law to deliver a prospectus, any event occurs as a result of which the Final Offering Document, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Offering Document to comply with applicable law, the Companies promptly (i) will notify such Underwriter of any such event, (ii) subject to the requirements of paragraph (b) of this Section 5, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance and (iii) will supply any supplemented or amended Final Offering Document to such Underwriter and counsel for such Underwriter, without charge, in such quantities as such Underwriter may reasonably request.

(e) PifCo will (i) prepare the Prospectus Supplement in form reasonably satisfactory to the Underwriters, (ii) file the Prospectus Supplement with the Commission pursuant to Rule 424(b) within 2 Business Days of the date hereof and (iii) advise the Underwriters promptly of the filing of the Prospectus Supplement pursuant to Rule 424(b) or otherwise and of any amendment or supplement to the Final Offering Document or Registration Statement or of official notice of institution of proceeding for, or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be issued, make every reasonable effort to obtain the prompt lifting thereof.

(f) The Companies will promptly deliver to Shearman & Sterling LLP a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Companies’ files manually signed copies of such documents for at least five years after the date of filing.

 

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(g) PifCo will arrange, if necessary, for the qualification of the Notes for sale by each Underwriter under the laws of such jurisdictions as such Underwriter may designate and will maintain such qualifications in effect so long as required for the completion of the distribution of the Notes; provided , however , that in no event shall the Companies be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject. The Companies will promptly inform the Underwriters, and shall confirm such information in writing, of the receipt by either of the Companies of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Companies will file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified or registered as provided above.

(h) Prior to the completion of the distribution of the Notes by the Underwriters (as determined by the Underwriters), the Companies will not, and will not permit any of their affiliates to, acquire any Notes.

(i) The Companies will cooperate with the Underwriters and will take all such action as is necessary to permit the Notes to be eligible for clearance and settlement through DTC.

(j) The Companies will prepare a final term sheet for each of the Series 1 Notes, the Series 2 Notes, the Series 3 Notes and the Series 4 Notes containing only a description of the Series 1 Notes, Series 2 Notes, Series 3 Notes or Series 4 Notes, respectively, and will file such term sheets pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “ Final Term Sheets ”). Any such Final Term Sheet is a Permitted Free Writing Prospectus for purposes of this agreement. Forms of the Final Term Sheets for the Series 1 Notes, the Series 2 Notes, the Series 3 Notes and the Series 4 Notes are attached hereto as Schedule C , Schedule D, Schedule E and Schedule F , respectively.

(k) Neither of the Companies will, for so long as the Notes are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and will not be or become, or be or become owned by a closed-end investment company required to be registered but not registered thereunder.

 

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(l) The Companies will not for a period of 45 days following the date hereof, without the prior written consent of the Underwriters, offer, sell or contract to sell, or otherwise dispose of or enter into any transaction which is designed to, or could reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Companies or any of their affiliates or any person in privity with the Companies or any of their affiliates, directly or indirectly, or announce the offering of, or file a registration statement for, any securities substantially similar to the Notes issued or guaranteed by the Companies (other than the Notes, any export credit agency loans and trade-related facilities).

(m) The Companies will not and will request their affiliates not to offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) the offering of which security could be integrated with the sale of the Notes.

(n) The Companies will not take, directly or indirectly, any action designed to or which has constituted or which could reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of PifCo or Petrobras to facilitate the sale or resale of the Notes.

(o) PifCo will use the net proceeds received by it from the sale of the Notes in the manner specified in the Prospectus Supplement under the caption “Use of Proceeds.”

(p) Prior to the Closing Date, neither of the Companies nor their affiliates will issue any press release or other communications directly or indirectly or hold any press conference relating to the Notes, without each Underwriter’s prior written consent (which shall not be unreasonably withheld), unless in the judgment of either of the Companies and its counsel, and after notification to each Underwriter, such press release or communication is required by law or except as issued or held, as the case may be, in accordance with the applicable regulations promulgated under the Securities Act.

 

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(q) The Companies will pay any stamp, issue, registration, transaction or similar documentary taxes and duties, including interest and penalties, payable on or in connection with the creation, issue and offering of the Notes, or the execution or delivery of the Transaction Documents or the enforcement by the Underwriters of this Underwriting Agreement against the Companies or any transaction carried out pursuant to this Underwriting Agreement; and, in addition to any amount payable by it under this Underwriting Agreement, any value-added, turnover or similar tax payable in respect of that amount (and references in this Underwriting Agreement to such amount shall be deemed to include any such taxes so payable in addition to it and express mention of such payment of any taxes (if applicable) in any provisions hereof shall not be construed as excluding such payment of any taxes in those provisions hereof where such express mention is not made); the Companies will indemnify each Underwriter against any loss, liability, cost, claim, action, demand or expense (including, but not limited to, reasonable legal fees) which such Underwriter may incur or which may be made against such Underwriter arising out of or in relation to or in connection with any failure to pay or delay in paying any such taxes.

(r) Neither the sale of the Notes nor the use of the proceeds thereof will violate any regulation of the United States Treasury Department contained in 31 C.F.R., Chapter V Subpart B, as amended, or the International Money Laundering Statement and Financial Anti-Terrorism Act of 2001.

(s) The Companies will furnish a copy of each amendment of the Transaction Documents to each Underwriter at such Underwriter’s address set forth in Section 11 hereof.

(t) The Companies agree to pay all costs and expenses relating to the offering of Notes, including, without limitation, (i) the fees and expenses of the Companies’ accountants and counsel (including Brazilian, Cayman Islands and United States counsel), (ii) the preparation, printing or reproduction of the Final Offering Documents and all amendments or supplements to either of them and all expenses in connection with the filing of the Final Offering Documents and any and all amendments and supplements thereto with the Commission, (iii) the filing fees incident to, and reasonable and duly documented fees and disbursements of counsel for the Underwriters in connection with, securing any required review by FINRA of the terms of the offering of the Notes, if any (iv) the fees and expenses of the Trustee and any registrars and paying agent contemplated in the Indenture, (v) the transportation and other expenses incurred by or on behalf of Companies’ personnel in connection with “road show” presentations to prospective purchasers of the Notes, (vi) the costs of delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Final Offering Document, and all amendments or supplements thereto, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Notes, (vii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp, transfer or other similar taxes in connection with the original issuance and sale of the Notes, (viii) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the

 

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Notes, (ix) any registration or qualification of the Notes for offer and sale under the securities or blue sky laws of the several states (including filing fees but not including the fees and expenses of counsel for the Underwriters relating to such registration and qualification) and (x) all costs and expenses in connection with the listing of the Notes on the New York Stock Exchange and (xi) all other costs and expenses incident to the performance by PifCo and Petrobras of their obligations hereunder and under any of the various transaction documents entered into in connection with the Notes; it being understood and agreed that all amounts payable hereunder shall be paid in U.S. dollars and free and clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied in any jurisdiction from or through which payment is made, unless such deduction or withholding is required by applicable law, in which event the Companies will pay additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received but for such deduction or withholding.

(u) The Companies consent to the use by any Underwriter of any Permitted Free Writing Prospectus.

(v) PifCo will use its reasonable best efforts to cause the Notes to be listed on the New York Stock Exchange as promptly as possible after the Closing Date.

SECTION 6. Conditions to the Obligations of the Underwriters. The obligations of each Underwriter to purchase the Notes shall be subject to the following conditions:

(a) The Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect on the Closing Date and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Closing Date.

(b) PifCo and Petrobras shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) within two Business Days of the date hereof and all documents incorporated therein by reference shall have been filed with the Commission prior to the date of such filing, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act.

(c) On or prior to the Closing Date (i) a certified copy of the Original Indenture and (ii) a certified copy of a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith shall have been delivered to the Underwriters.

 

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(d) On or prior to the Closing Date, the following shall have been executed and delivered to the Underwriters, each dated the Closing Date:

(i) the Original Indenture, as supplemented by each of the Amended and Restated Sixth Supplemental Indenture, the Amended and Restated Seventh Supplemental Indenture, the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture, duly executed and delivered by PifCo and the Trustee in form and substance reasonably acceptable to such Underwriter; and

(ii) the Guaranties duly executed and delivered by Petrobras and the Trustee in form and substance reasonably acceptable to the Underwriters.

(e) All of the applicable taxes, fees and other charges due and owing in connection with the execution and delivery of the Transaction Documents shall have been paid.

(f) The representations and warranties of the Companies in this Underwriting Agreement and in any of the other Transaction Documents to which the Companies are parties shall be true and correct on the date hereof and as of the Closing Date with the same effect as if made on the Closing Date.

(g) The Underwriters shall have received from KPMG Auditores Independentes (x) on the date hereof, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, concerning the financial statements and certain information with respect to the Companies set forth in the Final Offering Document (including the documents incorporated by reference therein) and (y) on the Closing Date, a “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.

(h) The Financial Industry Regulatory Authority shall have approved the underwriting arrangements contemplated herein and the Notes shall be eligible for clearance and settlement through DTC.

(i) PifCo shall have furnished to the Underwriters a certificate of PifCo, signed by an authorized officer of PifCo acceptable to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters certifying:

(i) that the conditions set forth in subsections (a), (b) and (c) of this Section 6 have been satisfied;

(ii) that no stop order suspending the effectiveness of the Registration Statement, the Final Offering Document or any amendment thereto has been issued and no proceedings therefor have been initiated or threatened by the Commission;

 

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(iii) that the representations and warranties of PifCo in this Underwriting Agreement and in any of the other Transaction Documents to which PifCo is a party are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and PifCo has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;

(iv) that since the date of the most recent financial statements included in the Final Offering Document (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of PifCo and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto);

(v) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) under the Notes or the Indenture has occurred and is continuing as of the Closing Date;

(vi) as to the incumbency of the officers or representatives of PifCo signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of PifCo and containing specimen signatures thereof;

(vii) that the Memorandum and Articles of Association of PifCo have not been amended and is in full force and effect, copies of which shall be attached to such certificate; and

(viii) that the copy of the Original Indenture attached to the certificate is a true and correct copy thereof.

(j) Petrobras shall have furnished to the Underwriters a certificate, signed by an authorized officer of Petrobras acceptable to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters, certifying:

(i) that the representations and warranties of Petrobras in this Underwriting Agreement and any of the other Transaction Documents to which it is a party are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and Petrobras has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;

 

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(ii) that since the date of the most recent financial statements included in the Final Offering Document (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of Petrobras and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto);

(iii) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) has occurred and is continuing as of the Closing Date under the Notes or the Indenture;

(iv) as to the incumbency of the officers or representatives of Petrobras signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of Petrobras and containing specimen signatures thereof; and

(v) that the Estatuto Social of Petrobras has not been amended and is in full force and effect, copies of which shall be attached to such certificate.

(k) The Trustee shall have furnished to the Underwriters a certificate of the Trustee, signed by an authorized officer of the Trustee acceptable to the Underwriters, dated the Closing Date, (i) stating that the Trustee is a banking corporation organized and validly existing under the laws of the State of New York and that its principal office and place of business is not located in the Cayman Islands or Brazil, (ii) regarding the authority of the Trustee to enter into the Transaction Documents to which it is a party and to execute all documents related thereto and (iii) regarding the incumbency of its officers executing such documents.

(l) Subsequent to the date hereof and on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as defined for the purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of such possible change, or any withdrawal of any such rating.

(m) Subsequent to the date hereof and on or prior to the closing of the issuance of the Notes, no legislation shall have been enacted by either house of the United States or Brazilian congress or any national legislative body in the Cayman Islands or by any state legislature, no other action shall have been taken by any Governmental Authority, whether by order, regulation, rule, ruling or otherwise, and no decision shall have been rendered by any court of competent jurisdiction in the United States, Brazil, the Cayman Islands or any other country, which would have a Material Adverse Effect.

 

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(n) On the Closing Date, none of the events listed below shall have occurred and be continuing:

(i) a default in the performance or observance by the Companies of any covenant or agreement made by it under this Underwriting Agreement or any other Transaction Document to which they are a party; or

(ii) proceedings shall have been commenced against either of the Companies or the Trustee under any Brazilian, United States, Cayman Islands or other bankruptcy act or other foreign, federal or state law relating to bankruptcy or insolvency or laws relating to the relief of debtors, readjustments of indebtedness, reorganizations, arrangements, compositions or extensions, or appointing a receiver or decreeing or ordering the winding up or liquidation of the affairs of either Company or the Trustee or similar proceedings for any relief which includes or might result in, any material modification of the obligations of either Company or the Trustee hereunder or under the applicable Transaction Documents; or

(iii) either Company or the Trustee shall have instituted proceedings to be adjudicated insolvent or a bankrupt or shall have consented to the institution of bankruptcy or insolvency proceedings against it or shall have filed a petition or answer or consent seeking reorganization or relief under any Brazilian, United States, Cayman Islands or other bankruptcy act or any other federal or state law relating to bankruptcy or insolvency or shall have consented to the appointment of a receiver or shall have made an assignment for the benefit of creditors or shall have admitted in writing its inability to pay its debts.

(o) Subsequent to the date hereof and on or prior to the Closing Date or, if earlier, the dates as of which information is given in the Final Offering Document (exclusive of any amendment or supplement thereto), there shall not have been (i) any material change or decrease in any of the financial line items specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Companies and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Final Offering Document (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to market the Notes as contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto).

(p) The Underwriters shall have received from Cleary Gottlieb Steen & Hamilton LLP, special United States counsel to the Companies, an opinion (including a disclosure letter covering the Final Offering Document), dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters.

 

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(q) The Underwriters shall have received from Walkers, Cayman Islands counsel to the Companies, an opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters.

(r) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) of internal counsel to Petrobras, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters.

(s) The Underwriters shall have received an opinion of Pryor Cashman LLP, external New York counsel to the Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters.

(t) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) of Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados, special Brazilian counsel for the Underwriters, in form and substance reasonably acceptable to the Underwriters (it being understood that the Companies shall have furnished to such counsel such documents as they request for the purposes of enabling them to pass on such matters).

(u) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) from Shearman & Sterling LLP, special United States counsel to the Underwriters, in form and substance reasonably acceptable to the Underwriters, dated the Closing Date and addressed to the Underwriters, and the Companies shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

(v) Prior to the Closing Date, the Companies shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.

(w) None of the events contemplated in Section 9 of this Underwriting Agreement shall have occurred.

If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Underwriting Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to PifCo in writing or by telephone or facsimile confirmed in writing.

The documents required to be delivered by this Section 6 will be delivered at the office of Shearman & Sterling LLP, at 599 Lexington Avenue, New York, N.Y. 10022, on the Closing Date.

 

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SECTION 7. Reimbursement of Expenses. If the sale of the Notes provided for herein is not consummated because any condition to the obligations of each Underwriter set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or because of any refusal, inability or failure on the part of either of the Companies to perform any agreement herein or comply with any provision hereof other than by reason of a default by any Underwriter, the Companies will reimburse the Underwriters on demand for all properly documented out-of-pocket expenses (including the fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Notes; provided, however that if any Underwriter resigns without having good commercial reasons for resigning (having regard to good international capital markets practice), then the Companies shall be under no obligation to reimburse such expenses. The Companies’ liability to the Underwriters under this Section 7 is joint and several.

SECTION 8. Indemnification and Contribution. (a) The Companies jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, and the directors, officers, employees and agents of each Underwriter and its affiliates and each person who controls any of the Underwriters within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration Statement at the effective date thereof and as of the date of any amendment thereof or supplement thereto or (B) the Disclosure Package as of the date thereof, the Closing Date (including, for this purpose, documents incorporated by reference therein), the date of any amendment thereof or supplement thereto and as of any date delivery thereof is required under applicable law, or (C) the Final Offering Document, or in any amendment thereof or supplement thereto, in each case as of the date thereof, the Closing Date (including, for this purpose, documents incorporated by reference therein), the date of any amendment thereof or supplement thereto and as of any date delivery thereof is required under applicable law or (D) any issuer free writing prospectus as defined in Rule 433 (h) under the Securities Act or (ii) the omission or alleged omission to state in the documents described in this Section 8(a)(i) a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any properly documented legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Companies will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Disclosure Package and the Final Offering Document, or in any amendment thereof or supplement thereto, in reliance upon and in conformity with written information furnished to the Companies by or on behalf of any Underwriter specifically for inclusion therein (which shall consist solely of the sixth, seventh, ninth and tenth paragraphs under the caption “Plan of Distribution” in the Prospectus Supplement). This indemnity agreement will be in addition to any liability which the Companies may otherwise have.

 

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(b) Each Underwriter agrees severally and not jointly to indemnify and hold harmless the Companies, each of their directors, officers, employees and agents, and each person who controls the Companies within the meaning of either the Securities Act or the Exchange Act, to the same extent (subject to the proviso set forth below) as the foregoing indemnity from the Companies to the Underwriters, but only with reference to written information furnished to the Companies by or on behalf of such Underwriter specifically for inclusion in the Disclosure Package and the Final Offering Document (or in any amendment or supplement thereto) (which shall consist of solely the information in the sixth, seventh, ninth and tenth under the caption “Plan of Distribution” in the Prospectus Supplement) provided that the Underwriters’ aggregate liability to the parties set forth above shall in no event exceed the amount of the Selling Commission (net of taxes). This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.

(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless (x) such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or any failure to act, by or on behalf of the indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.

 

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(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Companies and each Underwriter agrees to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “ Losses ”) to which the Companies and the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Companies (on the one hand) and by the Underwriters (on the other) from the offering of the Notes. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Companies and each Underwriter shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Companies (on the one hand) and each of the Underwriters (on the other) in connection with the statements or omissions which resulted in such Losses, as well as any other equitable considerations. Benefits received by the Companies shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by PifCo, and benefits received by the Underwriters shall be deemed to be equal to the total amount of the Underwriters’ Selling Commission. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Companies (on the one hand) or any Underwriter (on the other), the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. Each of the Companies and the Underwriters agrees that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (c) above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls the Underwriters within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of any Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls either of the Companies within the meaning of either the Securities Act or the Exchange Act and each officer and director of either of the Companies shall have the same rights to contribution as the Companies, subject in each case to the applicable terms and conditions of this paragraph (d). Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which such Underwriter’s total Selling Commission exceeds the amount of any damage which such Underwriter has otherwise been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8(d) are several in proportion to the respective number of Notes they have purchased hereunder, and not joint.

(e) The liability of each of the Companies under this Section 8 is joint and several.

 

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SECTION 9. Termination. This Underwriting Agreement shall be subject to termination in the absolute discretion of the Underwriters, by notice given to the Companies prior to delivery of and payment for the Notes, if at any time prior to such time (i) trading in any of the Companies’ securities shall have been suspended by the São Paulo Stock Exchange or trading in securities generally on the New York Stock Exchange or the São Paulo Stock Exchange shall have been suspended or limited or minimum prices shall have been established on either such exchanges, or (ii) a banking moratorium shall have been declared either by U.S. Federal or New York State authorities or by the relevant banking authorities in Brazil or the Cayman Islands or if any material disruption in commercial banking or securities settlement or clearance services shall have occurred, or (iii) any downgrading shall have occurred in either of the Companies’ corporate credit rating or the rating accorded either of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or if any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companies debt securities, or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States or Brazil of a national emergency or war or other calamity (including any terrorist act) or any crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Underwriters, impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes as contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto).

SECTION 10. Representations, Covenants and Indemnities to Survive. The respective agreements, representations, covenants, warranties, indemnities and other statements of each of the Companies or their officers and of the Underwriters set forth in or made pursuant to this Underwriting Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Companies or any of the officers, directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Underwriting Agreement.

 

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SECTION 11. Notices. All communications hereunder will be in writing and effective only on receipt, and shall be sent, mailed, delivered or telefaxed as follows:

(a) BB Securities Ltd. : 4th Floor, Pinners Hall, 105-108 Old Broad Street, EC2N 1ER, London, United Kingdom, Fax: +(44) 207 796 0836, Attn.: Operations Dept.

(b) Citigroup Global Markets Inc .: 388 Greenwich Street, New York, NY 10013, United States of America, Fax: (212) 816-7912, Attn: General Counsel.

(c) Itau BBA USA Securities, Inc. : 767 5th Avenue, 50th floor, New York, NY 10153, United States of America, Fax: (212) 207-9076, Attn: Steven Hurwitz.

(d) J.P. Morgan Securities LLC : 383 Madison Avenue, New York, NY 10179, Fax: (212) 834-6681, Attn: Latin American Syndicate Desk.

(e) Morgan Stanley & Co. LLC : 1585 Broadway, New York, NY 10036, Fax: (212) 507-8999, Attn.: Investment Banking Division.

(f) Santander Investment Securities Inc. : 45 East 53rd Street, New York, NY 10022, United States of America, Fax: (212) 582-4652, Fax (212) 350-0680, Attn.: DCM Americas.

(g) Banco Votorantim Nassau Branch : Centre of Commerce Building (Hilton Building), Suite 401, 4th Floor, Bay Street, P.O. Box N-951, Nassau, New Providence, Bahamas, Fax: (242) 328-0983, Attn.: Mr. Mario Pavan.

(h) Mitsubishi UFJ Securities (USA), Inc. : 1633 Broadway, 29th Floor, New York, NY 10019-6708, United States of America, Attention: Capital Markets Group.

(i) Petrobras International Finance Company : Petróleo Brasileiro S.A., Av. República do Chile 65, 3 rd Floor, 20031-912 Rio de Janeiro – RJ, Brazil, Fax: +55-21-3224-1410, Attn: Sérvio Túlio Tinoco, Finance Department, Corporate Finance Manager.

(j) Petróleo Brasileiro S.A .: Av. República do Chile 65, 3 rd Floor, 20031-912 Rio de Janeiro – RJ, Brazil, Fax: +55-21-3224-1410, Attn: Sérvio Túlio Tinoco, Finance Department, Corporate Finance Manager.

SECTION 12. Successors. This Underwriting Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no other person will have any right or obligation hereunder.

 

34


SECTION 13. Jurisdiction. Each of PifCo, Petrobras and the Underwriters agrees that any suit, action or proceeding against them, arising out of or based upon this Underwriting Agreement or the transactions contemplated hereby, may be instituted in any State or federal court in the Borough of Manhattan, City of New York, New York, or in the competent courts of their own corporate domiciles with respect to actions brought against any of them as a defendant, and waive any objection which they may now or hereafter have to the laying of venue of any such proceeding and any right to which any of them may be entitled on account of places of residence or domicile, and irrevocably submit to the jurisdiction of such courts in any suit, action or proceeding. The Companies have appointed the New York office of Petrobras, located at 570 Lexington Avenue, 43rd Floor, New York, New York 10022 as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Underwriting Agreement or the transactions contemplated herein which may be instituted in any State or federal court in the City of New York, New York, by any Underwriter, the directors, officers, employees and agents of any Underwriter, or by any person who controls any Underwriter, and expressly accepts the jurisdiction of any such court in respect of any such suit, action or proceeding. The Companies hereby jointly and severally represent and warrant that the Authorized Agent has accepted such appointments and has agreed to act as said agent for service of process, and the Companies agree to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Subject to applicable law, service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon each of the Companies.

SECTION 14. Governing Law. This Underwriting Agreement will be governed by and construed in accordance with the laws of the State of New York.

SECTION 15. Currency. Each reference in this Underwriting Agreement to U.S. dollars is of the essence. To the fullest extent permitted by law, the obligation of PifCo in respect of any amount due under this Underwriting Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in U.S. dollars that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in U.S. dollars that may be so purchased for any reason falls short of the amount originally due, the applicable Company will pay such additional amounts, in U.S. dollars, as may be necessary to compensate for the shortfall. Any obligation of the Companies not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.

 

35


SECTION 16. Waiver of Immunity. This Underwriting Agreement, the other Transaction Documents and any other documents delivered pursuant hereto or thereto, and any actions taken hereunder or thereunder, constitute commercial acts by each of the Companies. Each of the Companies irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself of any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Underwriting Agreement, the other Transaction Documents, or any document delivered pursuant hereto or thereunder, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdiction, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 16 shall have the fullest scope permitted under the United States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act.

SECTION 17. Waiver of Right to Trial by Jury . EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OF THE PARTIES WITH RESPECT TO THIS AGREEMENT WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH OF THE PARTIES AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY OF THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 17 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

SECTION 18. Counterparts. This Underwriting Agreement may be executed in one or more counterparts (including via telecopier), each of which shall constitute an original and all of which together shall constitute one and the same instrument.

SECTION 19. Entire Agreement. This Underwriting Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

SECTION 20. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.

 

36


SECTION 21. No Fiduciary Relationship. The Companies hereby acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase and sale of the PifCo securities. The Companies further acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely by this agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Companies, their respective management, stockholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Companies’ securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Companies, either in connection with the transactions contemplated by this Underwriting Agreement or any matters leading up to such transactions, and the Companies hereby confirm their understanding and agreement to that effect. The Companies and the Underwriters agree that they are responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Underwriters to the Companies regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the Companies’ securities, do not constitute advice or recommendations to the Companies. The Companies hereby waive, to the fullest extent permitted by law, any claims that they may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to either of the Companies in connection with the transactions contemplated by this Underwriting Agreement or any matters leading up to such transactions. Any review by the Underwriters of the Companies and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters, as the case may be, and shall not be on behalf of the Companies.

[ Remainder of page intentionally left blank ]

 

37


If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Underwriting Agreement and your acceptance shall represent a binding agreement among PifCo, Petrobras and the Underwriters.

 

Very truly yours,
PETROBRAS INTERNATIONAL FINANCE COMPANY
By:  

/s/ Sérvio Túlio da R. Tinoco

  Name: Sérvio Túlio da R. Tinoco
  Title:   Chief Financial Officer
PETRÓLEO BRASILEIRO S.A. –PETROBRAS
By:  

/s/ Gustavo Tardin Barbosa

  Name: Gustavo Tardin Barbosa
  Title:   Executive Manager of Corporate Finance

 

  WITNESSES:
  1.  

/s/ Maurício Piragibe C. Faria

    Name: Maurício Piragibe C. Faria
  2.  

/s/ Gustavo Luchese Unfer

    Name: Gustavo Luchese Unfer

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

BB Securities Ltd.
By:  

/s/ Eduardo C. do Nascimento

  Name: Eduardo C. do Nascimento
  Title:   Managing Director

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Citigroup Global Markets Inc.
By:  

/s/ Adrian Guzzoni

  Name: Adrian Guzzoni
  Title:   Director

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Itau BBA USA Securities, Inc.
By:  

/s/ Jake Shaeffer

  Name: Jake Shaeffer
  Title:   Chief Financial Officer
By:  

/s/ Nadine Cavusoglu

  Name: Nadine Cavusoglu
  Title: Managing Director

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

J.P. Morgan Securities LLC
By:  

/s/ Carlos Aspillaga

  Name: Carlos Aspillaga
  Title: Executive Director

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Morgan Stanley & Co. LLC
By:  

/s/ Yurij Slyz

  Name: Yurij Slyz
  Title: Executive Director

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Santander Investment Securities Inc.
By:  

/s/ Javier Warra

  Name: Javier Warra
  Title:   Sr. Vice President
By:  

/s/ Richard Zobkiw

  Name: Richard Zobkiw
  Title:   Vice President

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Banco Votorantim Nassau Branch
By:  

/s/ Abraham Weintraub

  Name: Abraham Weintraub
  Title: Executive Officer
By:  

/s/ Pedro Paulo Molho

  Name: Pedro Paulo Molho
  Title: Executive Officer

 

Underwriting Agreement


The foregoing Underwriting Agreement is hereby

confirmed and accepted as of the

date first above written.

 

Mitsubishi UFJ Securities (USA), Inc.
By:  

/s/ Spenser Huston

  Name: Spenser Huston
  Title:   Managing Director

 

Underwriting Agreement


Schedule A

Permitted Free Writing Prospectuses

 

   

The Final Term Sheets, as defined in Section 5(j) herein, for the Notes

 

   

Electronic (Netroadshow) road show of PifCo relating to the offering of the Notes dated January 2012

 

A-1


Schedule B

Aggregate Principal Amount of Series 1 Notes, Series 2 Notes, Series 3 Notes and Series 4

Notes

 

Underwriter   

Aggregate Principal
Amount of Series 1

Notes

    

Aggregate Principal
Amount of Series 2

Note

    

Aggregate Principal
Amount of Series 3

Notes

    

Aggregate Principal
Amount of Series 4

Notes

 

BB Securities Ltd.

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

Citigroup Global Markets Inc.

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

Itau BBA USA Securities, Inc.

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

J.P. Morgan Securities LLC

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

Morgan Stanley & Co. LLC

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

Santander Investment Securities Inc.

   U.S.$ 440,000,000       U.S.$ 200,000,000       U.S.$ 200,000,000       U.S.$ 280,000,000   

Banco Votorantim Nassau Branch

   U.S.$ 55,000,000       U.S.$ 25,000,000       U.S.$ 25,000,000       U.S.$ 35,000,000   

Mitsubishi UFJ Securities (USA), Inc.

   U.S.$ 55,000,000       U.S.$ 25,000,000       U.S.$ 25,000,000       U.S.$ 35,000,000   

TOTAL :

   U.S.$ 2,750,000,000       U.S.$ 1,250,000,000       U.S.$ 1,250,000,000       U.S.$ 1,750,000,000   

 

B-1


Schedule C

Series 1 Notes Form of Final Term Sheet

Reopening of 5.375% Global Notes due 2021

Filed pursuant to Rule 433

Registration Statements Nos. 333-163665 and 333-163665-01

Relating to Preliminary Prospectus Supplement dated

January 31, 2012

Pricing Term Sheet

A preliminary prospectus supplement of Petrobras International Finance Company accompanies this free writing prospectus and is available from the SEC’s website at www.sec.gov.

 

Issuer:   Petrobras International Finance Company
Guarantor:   Unconditionally and irrevocably guaranteed by Petróleo Brasileiro S.A. - Petrobras
Form:   Senior Unsecured Notes
Offering:   SEC-Registered
Currency:   U.S. Dollars
Principal Amount:   $2,750,000,000
Maturity:   January 27, 2021
Coupon Rate:   5.375%
Interest Basis:   Payable semi-annually in arrears
Day Count:   30/360
Interest Payment Dates:   January 27 and July 27
First Interest Payment Date:   July 27, 2012
Re-opening Price (%):   104.181%
Gross Proceeds, Excluding Accrued Interest:   $2,864,977,500.00
Days of Accrued Interest:   9 days
Accrued Interest:   $3,695,312.50
Gross Proceeds, Including Accrued Interest:   $2,868,672,812.50
Benchmark Treasury:   UST 2.00% due 11/12/21

 

C-1


Benchmark Treasury Spot and Yield:   101-12, 1.846%
Spread to Benchmark Treasury:   295 bps
Yield to Investors:   4.796%
Make-Whole Call Spread:   30 bps
Pricing Date:   February 1, 2012
Settlement Date:   February 6, 2012 (T+3)
Listing:   New York Stock Exchange
Denominations:   $2,000 and integral multiples of $1,000 in excess thereof
CUSIP:   71645WAR2
ISIN:   US71645WAR25
Joint Bookrunners:  

BB Securities Ltd.

Citigroup Global Markets Inc.

Itau BBA USA Securities, Inc.

J.P. Morgan Securities LLC

Morgan Stanley & Co. LLC

Santander Investment Securities Inc.

Co-Managers:  

Banco Votorantim Nassau Branch

Mitsubishi UFJ Securities (USA), Inc.

The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus or any prospectus supplement for this offering if you request it by calling BB Securities Ltd. collect at 44-20-7367-5800, Citigroup Global Markets Inc. collect at 1-212-723-5427, Itau BBA USA Securities, Inc. toll free in the United States at 1-888-770-4828, J.P. Morgan Securities LLC toll free in the United States at 1-866-846-2874, Morgan Stanley & Co. toll free at 1-866-718-1649 and Santander Investment Securities Inc. collect at 1-212-407-0995.

 

C-2


Schedule D

Series 2 Notes Form of Final Term Sheet

Reopening of 6.750% Global Notes due 2041

Filed pursuant to Rule 433

Registration Statements Nos. 333-163665 and 333-163665-01

Relating to Preliminary Prospectus Supplement dated

January 31, 2012

Pricing Term Sheet

A preliminary prospectus supplement of Petrobras International Finance Company accompanies this free writing prospectus and is available from the SEC’s website at www.sec.gov .

 

Issuer:    Petrobras International Finance Company
Guarantor:    Unconditionally and irrevocably guaranteed by Petróleo Brasileiro S.A. - Petrobras
Form:    Senior Unsecured Notes
Offering:    SEC-Registered
Currency:    U.S. Dollars
Principal Amount:    $1,250,000,000
Maturity:    January 27, 2041
Coupon Rate:    6.750%
Interest Basis:    Payable semi-annually in arrears
Day Count:    30/360
Interest Payment Dates:    January 27 and July 27
First Interest Payment Date:    July 27, 2012
Re-opening Price (%):    111.208%
Gross Proceeds, Excluding Accrued Interest:    $1,390,100,000
Days of Accrued Interest:    9 days
Accrued Interest:    $2,109,375
Gross Proceeds, Including Accrued Interest:    $1,392,209,375
Benchmark Treasury:    UST 3.750% due August 15, 2041

 

D-1


Benchmark Treasury Spot and Yield:    114-30+, 2.985%
Spread to Benchmark Treasury:    295 bps
Yield to Investors:    5.935%
Make-Whole Call Spread:    35 bps
Pricing Date:    February 1, 2012
Settlement Date:    February 6, 2012 (T+3)
Listing:    New York Stock Exchange
Denominations:    $2,000 and integral multiples of $1,000 in excess thereof
CUSIP:    71645WAS0
ISIN:    US71645WAS08
Joint Bookrunners:   

BB Securities Ltd.

Citigroup Global Markets Inc.

Itau BBA USA Securities, Inc.

J.P. Morgan Securities LLC

Morgan Stanley & Co. LLC

Santander Investment Securities Inc.

Co-Managers:   

Banco Votorantim Nassau Branch

Mitsubishi UFJ Securities (USA), Inc.

The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus or any prospectus supplement for this offering if you request it by calling BB Securities Ltd. collect at 44-20-7367-5800, Citigroup Global Markets Inc. collect at 1-212-723-5427, Itau BBA USA Securities, Inc. toll free in the United States at 1-888-770-4828, J.P. Morgan Securities LLC toll free in the United States at 1-866-846-2874, Morgan Stanley & Co. toll free at 1-866-718-1649 and Santander Investment Securities Inc. collect at 1-212-407-0995.

 

D-2


Schedule E

Series 3 Notes Form of Final Term Sheet

Filed pursuant to Rule 433

Registration Statements Nos. 333-163665 and 333-163665-01

Relating to Preliminary Prospectus Supplement dated

January 31, 2012

Pricing Term Sheet

A preliminary prospectus supplement of Petrobras International Finance Company accompanies this free writing prospectus and is available from the SEC’s website at www.sec.gov.

 

Issuer:    Petrobras International Finance Company
Guarantor:    Unconditionally and irrevocably guaranteed by Petróleo Brasileiro S.A. - Petrobras
Form:    Senior Unsecured Notes
Offering:    SEC-Registered
Currency:    U.S. Dollars
Principal Amount:    $1,250,000,000
Maturity:    February 6, 2015
Coupon Rate:    2.875%
Interest Basis:    Payable semi-annually in arrears
Day Count:    30/360
Interest Payment Dates:    February 6 and August 6
First Interest Payment Date:    August 6, 2012
Gross Proceeds:    $1,243,737,500
Issue Price:    99.499%
Benchmark Treasury:    UST 0.25% due January 15, 2015
Benchmark Treasury Spot and Yield:    99-271/4, 0.301%
Spread to Benchmark Treasury:    275 bps
Yield to Investors:    3.051%
Make-Whole Call Spread:    35 bps

 

E-1


Pricing Date:    February 1, 2012
Settlement Date:    February 6, 2012 (T+3)
Listing:    New York Stock Exchange
Denominations:    $2,000 and integral multiples of $1,000 in excess thereof
CUSIP:    71645W AV3
ISIN:    US71645WAV37
Common Code:    TBD
Joint Bookrunners:   

BB Securities Ltd.

Citigroup Global Markets Inc.

Itau BBA USA Securities, Inc.

J.P. Morgan Securities LLC

Morgan Stanley & Co. LLC

Santander Investment Securities Inc.

Co-Managers:   

Banco Votorantim Nassau Branch

Mitsubishi UFJ Securities (USA), Inc.

The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus or any prospectus supplement for this offering if you request it by calling BB Securities Ltd. collect at 44-20-7367-5800, Citigroup Global Markets Inc. collect at 1-212-723-5427, Itau BBA USA Securities, Inc. toll free in the United States at 1-888-770-4828, J.P. Morgan Securities LLC toll free in the United States at 1-866-846-2874, Morgan Stanley & Co. toll free at 1-866-718-1649 and Santander Investment Securities Inc. collect at 1-212-407-0995.

 

E-2


Schedule F

Series 4 Notes Form of Final Term Sheet

Filed pursuant to Rule 433

Registration Statements Nos. 333-163665 and 333-163665-01

Relating to Preliminary Prospectus Supplement dated

January 31, 2012

Pricing Term Sheet

A preliminary prospectus supplement of Petrobras International Finance Company accompanies this free writing prospectus and is available from the SEC’s website at www.sec.gov.

 

Issuer:    Petrobras International Finance Company
Guarantor:    Unconditionally and irrevocably guaranteed by Petróleo Brasileiro S.A. - Petrobras
Form:    Senior Unsecured Notes
Offering:    SEC-Registered
Currency:    U.S. Dollars
Principal Amount:    $1,750,000,000
Maturity:    February 6, 2017
Coupon Rate:    3.500%
Interest Basis:    Payable semi-annually in arrears
Day Count:    30/360
Interest Payment Dates:    February 6 and August 6
First Interest Payment Date:    August 6, 2012
Gross Proceeds:    $1,739,832,500
Issue Price:    99.419%
Benchmark Treasury:    UST 0.875% due January 31, 2017
Benchmark Treasury Spot and Yield:    100-23, 0.728%
Spread to Benchmark Treasury:    290 bps
Yield to Investors:    3.628%
Make-Whole Call Spread:    35 bps

 

F-1


Pricing Date:    February 1, 2012
Settlement Date:    February 6, 2012 (T+3)
Listing:    New York Stock Exchange
Denominations:    $2,000 and integral multiples of $1,000 in excess thereof
CUSIP:    71645W AU5
ISIN:    US71645WAU53
Common Code:    TBD
Joint Bookrunners:   

BB Securities Ltd.

Citigroup Global Markets Inc.

Itau BBA USA Securities, Inc.

J.P. Morgan Securities LLC

Morgan Stanley & Co. LLC

Santander Investment Securities Inc.

Co-Managers:   

Banco Votorantim Nassau Branch

Mitsubishi UFJ Securities (USA), Inc.

The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus or any prospectus supplement for this offering if you request it by calling BB Securities Ltd. collect at 44-20-7367-5800, Citigroup Global Markets Inc. collect at 1-212-723-5427, Itau BBA USA Securities, Inc. toll free in the United States at 1-888-770-4828, J.P. Morgan Securities LLC toll free in the United States at 1-866-846-2874, Morgan Stanley & Co. toll free at 1-866-718-1649 and Santander Investment Securities Inc. collect at 1-212-407-0995.

 

F-2

Exhibit 4.1

AMENDED AND RESTATED GUARANTY

Dated as of February 6, 2012

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON, as

Trustee for the Noteholders

Referred to Herein


Table of Contents

 

         Page  

SECTION 1.

 

Definitions

     2   

SECTION 2.

 

Guaranty

     6   

SECTION 3.

 

Guaranty Absolute

     7   

SECTION 4.

 

Independent Obligation

     8   

SECTION 5.

 

Waivers and Acknowledgments

     8   

SECTION 6.

 

Claims Against the Issuer

     10   

SECTION 7.

 

Covenants

     10   

SECTION 8.

 

Amendments, Etc.

     14   

SECTION 9.

 

Indemnity

     14   

SECTION 10.

 

Notices, Etc.

     14   

SECTION 11.

 

Survival

     15   

SECTION 12.

 

No Waiver; Remedies

     15   

SECTION 13.

 

Continuing Agreement; Assignment of Rights Under the Indenture and the 2021 Notes

     15   

SECTION 14.

 

Currency Rate Indemnity

     15   

SECTION 15.

 

Governing Law; Jurisdiction; Waiver of Immunity, Etc.

     16   

SECTION 16.

 

Execution in Counterparts

     18   

SECTION 17.

 

Entire Agreement

     18   

SECTION 18.

 

The Trustee

     18   

 

i


AMENDED AND RESTATED GUARANTY

AMENDED AND RESTATED GUARANTY (this “ Amended and Restated Guaranty ”), dated as of February 6, 2012, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2021 Notes (as defined below) issued pursuant to the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras International Finance Company, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of December 15, 2006 (the “ Original Indenture ”) with the Trustee, as supplemented by the Amended and Restated Sixth Supplemental Indenture among the Issuer, the Guarantor and the Trustee dated as of the date hereof (the “ Amended and Restated Sixth Supplemental Indenture ”). The Original Indenture, as supplemented by the Amended and Restated Sixth Supplemental Indenture and as amended or supplemented from time to time with respect to the 2021 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.$2,750,000,000 aggregate principal amount of its 5.375% Global Notes due 2021 under the Indenture (the “ Reopening Notes ”);

WHEREAS, the Issuer, the Guarantor and the Trustee intend the Reopening Notes to be consolidated, form a single series and be fully fungible with the Company’s outstanding 5.375% Global Notes due 2021 originally issued on January 27, 2011 under the Original Indenture as supplemented by the Sixth Supplemental Indenture dated as of January 27, 2011, by and among the Issuer, the Guarantor and the Trustee, in the aggregate principal amount of $2,500,000,000 (the “ Original Notes ” and, together with the Reopening Notes, the “ 2021 Notes ”);

WHEREAS, the Guarantor is willing to enter into this Amended and Restated Guaranty in order to provide the holders of the 2021 Notes (the “ Noteholders ”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the 2021 Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;

WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the 2021 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2021 Notes that the Guarantor shall have executed this Amended and Restated Guaranty.


WHEREAS, each of the parties hereto is entering into this Amended and Restated Guaranty for the benefit of the other party and for the equal and ratable benefit of the Noteholders.

NOW, THEREFORE, the Guarantor and the Trustee hereby agree as follows:

SECTION 1. Definitions . (a) All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Original Indenture, as supplemented and amended by the Amended and Restated Sixth Supplemental Indenture. All such definitions shall be read in a manner consistent with the terms of this Amended and Restated Guaranty.

(b) 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.

Authorized Representative ” of the Guarantor 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.

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 .

Denomination Currency ” has the meaning specified in Section 14(b).

Guaranteed Obligations ” has the meaning specified in Section 2.

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).

Judgment Currency ” has the meaning specified in Section 14(b).

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 Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or

 

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enforceability of this Amended and Restated Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Amended and Restated Guaranty 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 Amended and Restated Guaranty 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 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

Officer’s Certificate ” means a certificate of an Authorized Representative of the Guarantor.

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 Guarantor, whether or not such counsel is an employee of the Guarantor.

Permitted Lien ” means a:

(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government 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 Guarantor’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 Guarantor’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 Guarantor’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 Guarantor 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;

 

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(vi) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Guarantor or another Wholly-Owned Subsidiary;

(vii) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Guarantor 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

(ix) Lien existing as of the date of the Amended and Restated Sixth Supplemental 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 Guarantor, 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 (vii), 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor 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 Guarantor’s Permitted Liens pursuant to clauses (i) through (xii) of this definition, does not exceed 15% of the Guarantor’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.

Process Agent has the meaning specified in Section 15(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

 

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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.

Qualifying Asset ” in relation to any Project Financing means:

(i) any concession, authorization or other legal right granted by any Governmental Authority to the Guarantor or any of the Guarantor’s Subsidiaries, or any consortium or other venture in which the Guarantor 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

(v) shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor 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.

Reporting GAAP ” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (IFRS) as adopted by the International Accounting Standards Board (IASB) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

SEC ” means the United States Securities and Exchange Commission.

Successor Company ” has the meaning specified in Section 7(f)(A).

 

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Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2021 Notes and this Amended and Restated Guaranty.

(c) Construction . The parties agree that items (1) through (5) of Section 1.01 of the Original Indenture shall apply to this Amended and Restated Guaranty, except as otherwise expressly provided or unless the context otherwise requires.

SECTION 2. Guaranty . (a) The Guarantor hereby unconditionally and irrevocably guarantees the full and punctual payment when due, as a guaranty of payment and not of collection, whether at the Stated Maturity, or earlier or later by acceleration or otherwise, of all obligations of the Issuer now or hereafter existing under the Indenture and the 2021 Notes, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and the Guarantor agrees to pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Trustee or any Noteholder in enforcing any rights under this Amended and Restated Guaranty with respect to such Guaranteed Obligations. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Issuer to the Trustee or any Noteholder under the Indenture and the 2021 Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar proceeding involving the Issuer.

(b) In the event that the Issuer does not make payments to the Trustee of all or any portion of the Guaranteed Obligations, upon receipt of notice of such non-payment from the Trustee, the Guarantor will make immediate payment to the Trustee of any such amount or portion of the Guaranteed Obligations owing or payable under the Indenture and the 2021 Notes. Such notice shall specify the amount or amounts under the Indenture and the 2021 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2021 Notes.

(c) The obligation of the Guarantor under this Amended and Restated Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the 2021 Notes and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.

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 Amended and Restated Guaranty, to have been received by the Trustee on the next succeeding Business Day.

 

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SECTION 3. Guaranty Absolute . (a) The Guarantor’s obligations under this Amended and Restated Guaranty 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 2021 Notes or the Indenture. The obligations of the Guarantor under or in respect of this Amended and Restated Guaranty are independent of the Guaranteed Obligations or any other obligations of the Issuer, the Issuer’s Subsidiaries or the Guarantor’s Subsidiaries under or in respect of the Indenture and the 2021 Notes or any other document or agreement, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Amended and Restated Guaranty, 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 Guarantor under this Amended and Restated Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(i) any lack of validity or enforceability of any of the Transaction Documents;

(ii) any provision of applicable Law or regulation purporting to prohibit the payment by the Issuer of any amount payable by it under the Indenture and the 2021 Notes;

(iii) any provision of applicable Law or regulation purporting to prohibit the payment by the Guarantor of any amount payable by it under this Amended and Restated Guaranty;

(iv) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed 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 2021 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2021 Notes of the Indenture or otherwise;

(v) any taking, release or amendment or waiver of, or consent to departure from, any other guaranty or agreement similar in function to this Amended and Restated Guaranty, for all or any of the obligations of the Issuer under the Indenture or the 2021 Notes;

(vi) any manner of sale or other disposition of any assets of any Noteholder;

(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor 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 Guarantor;

(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);

 

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(ix) the failure of any other person or entity to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Indenture;

(x) 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 Guarantor or any other party; or

(xi) any claim of set-off or other right which the Guarantor may have at any time against the Issuer or the Trustee, whether in connection with this transaction or with any unrelated transaction.

(b) This Amended and Restated Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed 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 Guarantor or otherwise, all as though such payment had not been made.

SECTION 4. Independent Obligation . The obligations of the Guarantor hereunder are independent of the Issuer’s obligations under the 2021 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2021 Notes, without in any way affecting or impairing the liability of the Guarantor 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 before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 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 Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.

SECTION 5. Waivers and Acknowledgments . (a) The Guarantor 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 Guaranteed Obligations and this Amended and Restated Guaranty 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 Guarantor hereby unconditionally and irrevocably waives any right to revoke this Amended and Restated Guaranty and acknowledges that this Amended and Restated Guaranty is continuing in nature and applies to the Guaranteed Obligations, whether the same are existing now or in the future.

 

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(c) The Guarantor 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 Guarantor or other rights of the Guarantor 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 Guaranteed Obligations of the Guarantor hereunder.

(d) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Trustee or any Noteholder to disclose to the Guarantor any 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 Guarantor 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 5 are knowingly made in contemplation of such benefits.

(f) The recitals contained in this Amended and Restated Guaranty shall be taken as the statements of the Issuer and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Amended and Restated Guaranty, of any offering materials, the Indenture or of the 2021 Notes.

(g) The Guarantor unconditionally and irrevocably waives, to the fullest extent permitted under Brazilian law, any benefit it may be entitled to under Articles 827, 834, 835, 838 and 839 of the Brazilian Civil Code, and under Article 595, caput, of the Brazilian Civil Procedure Code.

 

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SECTION 6. Claims Against the Issuer . The Guarantor 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 Guarantor’s obligations under or in respect of this Amended and Restated Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, 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 Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty shall have been paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty and (b) the date on which all of the obligations of the Issuer under the Indenture and the 2021 Notes have been discharged in full (the later of such dates being the “ Termination Date ”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor 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 Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty, whether matured or unmatured, in accordance with the terms of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty 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 Guarantor’s written request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Amended and Restated Guaranty.

SECTION 7. Covenants . For so long as the 2021 Notes remain outstanding or any amount remains unpaid on the 2021 Notes and the Indenture, the Guarantor will, and will cause each of its Subsidiaries, as applicable, to comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Amended and Restated Guaranty as provided herein):

(a) Performance of Obligations . The Guarantor shall pay all amounts owed by it and comply with all its other obligations under the terms of this Amended and Restated Guaranty and the Indenture in accordance with the terms thereof.

(b) Maintenance of Corporate Existence . The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7 (f) 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

 

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business, activities or operations; provided, however, that this Section 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.

(c) Maintenance of Office or Agency . So long as any of the 2021 Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor in respect of this Amended and Restated Guaranty may be served, and the Guarantor will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d) Ranking . The Guarantor will ensure at all times that its obligations under this Amended and Restated Guaranty will constitute the general senior unsecured and unsubordinated obligations of the Guarantor and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (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 Guarantor under this Amended and Restated Guaranty.

(e) Notice of Defaults . The Guarantor will give written notice to the Trustee, as soon as is practicable and in any event within ten calendar days after the Guarantor becomes aware, or should reasonably become aware, of the occurrence of any Default or Event of Default, accompanied by a certificate of an officer of the Guarantor setting forth the details thereof and stating what action the Guarantor proposes to take with respect thereto.

(f) Limitation on Consolidation, Merger, Sale or Conveyance . (i) The Guarantor 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 Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:

(A) either the Guarantor is the continuing entity or the person (the “ Successor Company ”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Amended and Restated Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Amended and Restated Guaranty;

(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor 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 2021 Notes pursuant to this Amended and Restated Guaranty;

 

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(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and

(D) the Guarantor 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 Amended and Restated Guaranty comply with the terms of this Amended and Restated Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.

(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 Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):

(A) the Guarantor 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 Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or

(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or

(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or

(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.

(g) Negative Pledge . So long as any 2021 Note remains outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Amended and Restated Guaranty or the Guarantor provides such other security for the 2021 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other

 

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than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Amended and Restated Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2021 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture.

(h) Provision of Financial Statements and Reports . (i) The Guarantor 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 Reporting 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 Reporting GAAP and (C) such other financial data as the Trustee may reasonably request.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(h)(i)(A) and (B), an Officer’s Certificate stating that a review of the activities of the Guarantor and the Issuer has been made during the period covered by such financial statements with a view to determining whether the Guarantor and the Issuer have kept, observed, performed and fulfilled their covenants and agreements under this Amended and Restated Guaranty 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 Guarantor 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 7(h)(iii), the Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.

(iv) Upon written request of any Holder or The Depository Trust Company (DTC), the reports and other information provided for in this paragraph (h) shall be delivered to DTC representing the Noteholders, at 55 Water Street, 25th Floor, New York, NY, 10041, Attention: Proxy Department, or such other address as DTC may provide to the Trustee in writing.

(v) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

 

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SECTION 8. Amendments, Etc. No amendment or waiver of any provision of this Amended and Restated Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Amended and Restated Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the 2021 Notes required to approve the amendment.

SECTION 9. Indemnity . The Guarantor agrees to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damages, claims or expense arising out of or in connection with the performance of its duties under this Amended and Restated Guaranty, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith.

SECTION 10. 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 Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro—RJ, Brazil, Telephone: (55-21) 3224-4079, Telecopier: (55-21) 3224-6197, Attention: Sonia Tereza Terra Figueiredo Vasconcellos, Corporate Finance & Treasury/Debt Control, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 4E, New York, New York, 10286, USA, Telephone: (1-212) 815-4259, Telecopier: (1-212) 815-5603, Attention: Corporate Trust Department 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 effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Amended and Restated Guaranty shall be effective as delivery of an original executed counterpart thereof.

(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).

 

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SECTION 11. Survival . Without prejudice to the survival of any of the other agreements of the Guarantor under this Amended and Restated Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Amended and Restated Guaranty, the termination of this Amended and Restated Guaranty and/or the resignation or removal of the Trustee.

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. Continuing Agreement; Assignment of Rights Under the Indenture and the 2021 Notes . This Amended and Restated Guaranty is a continuing guaranty 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 2021 Notes and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty, (b) be binding upon the Guarantor, 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 assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the 2021 Notes held by it) to any other person or entity, 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 Guarantor 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 14. Currency Rate Indemnity . (a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:

(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Amended and Restated Guaranty 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 Guarantor; 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 Amended and Restated Guaranty or in respect of the 2021 Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, 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.

 

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(b) The Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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 Guarantor 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 Guarantor for a liquidated sum or sums in respect of amounts due under this Amended and Restated Guaranty, or under the Indenture or the 2021 Notes or under any judgment or order.

SECTION 15. Governing Law; Jurisdiction; Waiver of Immunity, Etc.

(a) This Amended and Restated Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) The Guarantor 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 sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Amended and Restated Guaranty 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 Guarantor 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 Guarantor 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 Amended and Restated Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Amended and Restated Guaranty or any other Transaction Document in the courts of any jurisdiction.

(c) The Guarantor hereby irrevocably appoints and empowers the New York office of Petróleo 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

 

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Guarantor 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 Guarantor 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 Guarantor 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 10 or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent. Service upon the Guarantor 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 Guarantor 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 Guarantor 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 Amended and Restated Guaranty 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 Guarantor 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 GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(f) This Amended and Restated Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor 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 Amended and Restated Guaranty, any of the Transaction Documents 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.

 

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SECTION 16. Execution in Counterparts . This Amended and Restated Guaranty 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 Amended and Restated Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Amended and Restated Guaranty.

SECTION 17. Entire Agreement .

This Amended and Restated Guaranty, together with the Indenture and the 2021 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

SECTION 18. The Trustee . In the performance of its obligations hereunder, the Trustee shall be entitled to all the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

[ Signature page follows ]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Amended and Restated Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

PETRÓLEO BRASILEIRO S.A.—PETROBRAS
By:  

/s/ Arthur Costa da Silva

  Name:   Arthur Costa da Silva
  Title:   International Capital Markets Coordinator
      WITNESSES:
      1.  

/s/ Maurício Piragibe C. Faria

        Name: Maurício Piragibe C. Faria
      2.  

/s/ Gustavo Luchese Unfer

        Name: Gustavo Luchese Unfer


ACKNOWLEDGED:

THE BANK OF NEW YORK MELLON, as Trustee and not in its individual capacity

  By:  

/s/ John T. Needham, Jr.

    Name:   John T. Needham, Jr.
    Title:   Vice President
  WITNESSES:
  1.  

/s/ Karon Greene

    Name: Karon Greene
  2.  

/s/ Catherine F. Donohue

    Name: Catherine F. Donohue


STATE OF NEW YORK    )   
   )   

ss:

COUNTY OF NEW YORK    )   

On this      day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that      is a                      of The Bank of New York Mellon, one of the persons 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 February 2012, before me personally came                      and                      to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public
COMMISSION EXPIRES

Exhibit 4.2

AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE

AMENDED AND RESTATED SIXTH SUPPLEMENTAL INDENTURE, dated as of February 6, 2012, by and among PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company incorporated with limited liability under the laws of the Cayman Islands, having its principal office at 4 th Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman, Cayman Islands (the “ Company ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), and PETRÓLEO BRASILEIRO S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil, having its principal office at Avenida República do Chile, 65, 20035-900 Rio de Janeiro – RJ, Brazil (“ Petrobras ”).

W I T N E S S E T H:

WHEREAS , the Company and the Trustee previously have entered into an indenture, dated as of December 15, 2006 (the “ Original Indenture ”), as supplemented by the Sixth Supplemental Indenture, dated as of January 27, 2011 (the “ Sixth Supplemental Indenture ”) providing for the issuance of U.S.$ 2,500,000,000 of the Company’s 5.375% Global Notes due 2021 (the “ Original Notes ”);

WHEREAS , the Company, Petrobras and the Trustee have agreed to amend and restate the Original Indenture as supplemented by the Sixth Supplemental Indenture by this Amended and Restated Sixth Supplemental Indenture dated as of February 6, 2012 (the “ Amended and Restated Sixth Supplemental Indenture ”, and together with the Original Indenture and the Sixth Supplemental Indenture, the “ Indenture ”) to provide for the issuance of an additional U.S.$2,750,000,000 of the Company’s 5.375% Global Notes due 2021 constituting Add On Notes (as defined in the Original Indenture but referred to herein as the “ Reopening Notes ” and together with the Original Notes, being collectively referred to herein as the “ Notes ”) pursuant to its Registration Statement on Form F-3 (File No. 333-163665-01) (the “ Registration Statement ”), dated December 11, 2009, the Prospectus Supplement dated February 1, 2012 and related Base Prospectus dated December 11, 2009 (collectively, the “ Offering Document ”);

WHEREAS , as contemplated in the Offering Document, the parties hereto intend the Reopening Notes to be consolidated, form a single series and be treated as a single class for all purposes under the Indenture and be fully fungible with the Original Notes all of which shall have the terms and conditions contemplated in the Indenture and the form of Notes attached as Exhibit A hereto;

WHEREAS , as contemplated in the Offering Document, Petrobras and the Trustee intend, in connection with the issuance of the Notes, to enter into an amended and restated guaranty, dated as of the date hereof in the form attached as Exhibit B hereto (the “ Amended and Restated Guaranty ”), to provide for an unconditional and irrevocable guaranty of the Notes by Petrobras;


WHEREAS , Section 9.01 of the Original Indenture provides that, subsequent to the execution of the Original Indenture and subject to satisfaction of certain conditions, the Company and the Trustee may enter into one or more indentures supplemental to the Original Indenture without the consent of any Holder of any series of Securities (as defined in the Original Indenture) to add to, change or eliminate any of the provisions of the Original Indenture, provided that such action shall not adversely affect the interests of the Holder of Securities in any material respect;

WHEREAS , the Trustee has provided to the Company and Petrobras Statements of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to each of the Companies which have been filed as exhibits to the Registration Statement;

WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Amended and Restated Sixth Supplemental Indenture a valid, binding, and legal instrument in accordance with the terms of the Indenture have been performed and fulfilled and the execution and delivery of this Amended and Restated Sixth Supplemental Indenture has been in all respects duly authorized;

WHEREAS , pursuant to Section 9.01 of the Original Indenture, the Trustee is authorized to execute and deliver this Amended and Restated Sixth Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Amended and Restated Sixth Supplemental Indenture;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras and the Trustee hereby agree, for the equal and ratable benefit of all Holders, as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Defined Terms . All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby. All definitions in the Original Indenture shall be read in a manner consistent with the terms of this Amended and Restated Sixth Supplemental Indenture.

Section 1.02. Additional Definitions . (a) For the benefit of the Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by adding the following new definitions:

“Closing Date” means January 27, 2011 (in respect of the Original Notes), and February 6, 2012 (in respect of the Reopening Notes).

 

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“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Default Rate” has the meaning set forth in Section 2.01(f) herein.

“Denomination Currency” has the meaning set forth in Section 2.03(c) herein.

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

“Interest Period” means the period beginning on an Interest Payment Date and ending on the day before the next Interest Payment Date, except that the first Interest Period shall be the period beginning on the Closing Date and ending on the day before the next Interest Payment Date.

“Judgment Currency” has the meaning set forth in Section 2.03(c) herein.

“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.

“Make Whole Amount” has the meaning set forth in Section 2.01(l) herein.

“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

“Offering Document” shall have the meaning set forth in the recitals to this Amended and Restated Sixth Supplemental Indenture.

“Payment Account” has the meaning set forth in Section 2.01(h) herein.

 

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“Permitted Lien” means a:

(a) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Company’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;

(b) Lien arising from the Company’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Company’s past practice;

(c) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;

(d) Lien granted upon or with respect to any assets hereafter acquired by the Company or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;

(e) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned Subsidiary;

(f) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Company or any Subsidiary as long as such Lien is not created in anticipation of such acquisition;

(g) Lien existing as of the date of this Amended and Restated Indenture;

(h) Lien resulting from the Indenture or the Guaranty;

(i) Lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by the Company, on amounts of cash or cash equivalents on deposit in any reserve or similar account to pay interest on such securities for a period of up to 24 months as required by any Rating Agency as a condition to such Rating Agency rating such securities investment grade or as is otherwise consistent with market conditions at such time, as such conditions are satisfactorily demonstrated to the Trustee;

 

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(j) Lien granted or incurred to secure any extension, renewal, refinancing, refunding or exchange (or successive extensions, renewals, refinancings, refundings or exchanges), in whole or in part, of or for any Indebtedness secured by Lien referred to in paragraphs (a) through (i) above (but not paragraph (c)), provided that such Lien does not extend to any other property, the principal amount of the Indebtedness secured by such Lien is not increased, and in the case of paragraphs (a), (b) and (f) the obligees meet the requirements of such paragraphs; and

(k) Lien in respect of Indebtedness the principal amount of which in the aggregate, together with all Liens not otherwise qualifying as the Company’s Permitted Liens pursuant to clauses (a) through (j) of this definition, does not exceed 15% of the Company’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Company’s balance sheet is prepared and published in accordance with applicable Law.

“Reference Treasury Dealer” means each of Citigroup Global Markets, Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC or, in each case, their affiliates which are primary United States government securities dealers and two other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 pm New York time on the third business day preceding such redemption date.

“Regular Record Date” means one Business Day prior to any Interest Payment Date.

“Reporting GAAP” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (“ IFRS ”) as adopted by the International Accounting Standards Board (“IASB”) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

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ARTICLE 2

TERMS OF THE NOTES

Section 2.01. General . In accordance with Section 3.01 of the Original Indenture, the following terms relating to the Notes are hereby established:

(a) Title : The Notes shall constitute a series of Securities having the title “5.375% Global Notes due 2021.”

(b) Aggregate Amount : The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Amended and Restated Sixth Supplemental Indenture is U.S.$ 2,750,000,000 for a total principal amount of Notes of U.S.$5,250,000,000. As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue Add On Notes having identical terms (including CUSIP, ISSN and other relevant identifying characteristics as the Notes), so long as, on the date of issuance of such Add On Notes: (i) no Default or Event of Default shall have occurred and then be continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras. All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of the Indenture.

(c) Ranking : The Notes (including any Add On Notes) shall be general senior unsecured and unsubordinated obligations of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsecured and unsubordinated obligations from time to time outstanding that are not, by their terms, expressly subordinated in right of payment to the Notes (other than obligations preferred by statute or by operation of law).

(d) Maturity : The entire outstanding principal of the Notes shall be payable in a single installment on January 27, 2021 (the “ Stated Maturity ”). No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

 

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(e) Interest: Interest shall accrue on the Reopening Notes from January 27, 2012 or in the case of the Original Notes the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 5.375% per annum until all required amounts due in respect of the Notes have been paid. All interest shall be paid by the Company to the Trustee and distributed by the Trustee in accordance with this Amended and Restated Indenture semiannually in arrears on January 27 and July 27 of each year (or, as provided in the Original Indenture, if such date is not a Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on July 27, 2011 for Original Notes and July 27, 2012 for Reopening Notes, to the Person in whose name a Note is registered at the close of business on the preceding Regular Record Date (which shall mean, with respect to any payment to be made on an Interest Payment Date, the Business Day preceding the relevant Interest Payment Date.) As provided in the Original Indenture, (i) interest shall be calculated based on a 360-day year of twelve 30-day months, (ii) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Trustee in New York City, or such other paying agent office in the United States as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (iii) all such payments to the Trustee shall be made by the Company by depositing immediately available funds in U.S. dollars one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iv) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in New York City.

(f) Default Rate : Upon the occurrence and during the continuation of an Event of Default, (i) interest on the outstanding principal amount of the Notes shall accrue on the Notes at a rate equal to 0.5% per annum above the interest rate on the Notes at that time (the “ Default Rate ”) and (ii) to the fullest extent permitted by law, interest shall accrue on the amount of any interest, fee, Additional Amounts, or other amount payable under the Indenture and the Notes that is not paid when due, from the date such amount was due until such amount shall be paid in full, excluding the date of such payment, at the Default Rate.

(g) Payment Account : On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Amended and Restated Sixth Supplemental Indenture (the “ Payment Account ”) into which all payments required to be made by the Company under or with respect to the Notes shall be deposited. The Company agrees that the Payment Account shall be maintained in the name of the Trustee and under its sole dominion and control (acting on behalf of the Holders of the Notes) and used solely to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Notes. No funds contained in the Payment Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Company or any other Person have an interest therein or amounts on deposit therein. All amounts on deposit in the Payment Account on any Interest Payment Date after the Trustee has paid all amounts due and owing to the holders of the Notes as of such Interest Payment Date shall be retained in the Payment Account and used by the Trustee to pay any amounts due and owing to the Holders of the Notes on the next succeeding Interest Payment Date.

 

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(h) Form and Denomination : The Notes shall be issuable in whole in the registered form of one or more Global Notes (without coupons), in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof, and shall be transferable in integral multiples of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof and the Depository for such Global Notes shall be The Depository Trust Company, New York, New York.

(i) Guaranty : The Notes shall have the benefit of the Guaranty in the manner provided in Article 3 of this Amended and Restated Sixth Supplemental Indenture.

(j) Rating : The Notes can be issued without the requirement that they have any rating from a nationally recognized statistical rating organization.

(k) Optional Early Redemption . The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at, in each case, the Treasury Rate plus 30 basis points (the “ Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

(l) Early Redemption Solely for Tax Reasons . Pursuant to Section 11.08 of the Original Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if as a result of any change in or amendment to the laws or regulations or ruling promulgated thereunder of the jurisdiction in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application of or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date hereof (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Section 8.01 and 8.02 of the Original Indenture), the Company would be required to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture. For purposes of Section 11.08 of the Original Indenture, the reincorporation of the Company shall be treated as the adoption of a successor entity, provided, however, that redemption under Section 11.08 of the Original Indenture shall not be available if the reincorporation was performed in anticipation of a change in, execution of or amendment to any laws or treaties or the official application or interpretation of any laws or treaties of such new jurisdiction of incorporation that would result in an obligation to pay Additional Amounts.

(m) Conversion : The Notes will not be convertible into, or exchangeable for, any other securities.

 

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Section 2.02. Amendments to Article Five Relating to Events of Default. (a)  Restated Events of Default : As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to read in its entirety as follows:

“Section 5.01 Events of Default

“Event of Default,” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

1. The Company shall fail to make any payment in respect of principal on any of the Notes whether on the Stated Maturity, upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such three calendar day period;

2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Notes (including Additional Amounts, if any) in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such 30 calendar day period;

3. The Company or Petrobras shall fail to perform, or breach, any term, covenant, agreement or obligation contained in this Indenture or the Guaranty and such failure (other than any failure to make any payment under the Guaranty, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days (inclusive of any time frame contained in any such term, covenant, agreement or obligation for compliance thereunder) after there has been received by the Company or Petrobras from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

4. The maturity of any Indebtedness of the Company, Petrobras or any Material Subsidiary in a total aggregate principal amount of U.S.$100,000,000 or more is accelerated in accordance with the terms of that Indebtedness, it being understood that prepayment or redemption by the Company, Petrobras or the relevant Material Subsidiary of any Indebtedness is not acceleration for this purpose;

 

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5. One or more final and non-appealable judgments or final decrees is entered against the Company, Petrobras or any Material Subsidiary thereof involving in the aggregate a liability (not theretofore paid or covered by insurance) of U.S.$100,000,000 (or its equivalent in another currency) or more, and all such judgments or final decrees shall not have been vacated, discharged or stayed within 120 calendar days after the rendering thereof;

6. The Company, Petrobras or any Material Subsidiary thereof stops payment of, or is generally unable to pay, its debts as and when they become due except (i) as is otherwise expressly provided under this Indenture or the Guaranty, or (ii) in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, merger, conveyance or transfer, the terms of which shall have been approved by a resolution of a meeting of the Holders;

7. Proceedings are initiated against the Company, Petrobras or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 90 days after the entering of such proceeding, or an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company, Petrobras or any Material Subsidiary thereof and is not discharged or removed within 90 days;

8. The Company, Petrobras or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Indebtedness or any part of it;

9. An effective resolution is passed for, or any authorized action is taken by any court of competent jurisdiction, directing the winding-up, dissolution or liquidation of the Company, Petrobras or any Material Subsidiary thereof (other than in any of the circumstances referred to as exceptions in paragraph (6) above);

10. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (6), (7), (8) or (9) of this Section 5.01;

 

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11. This Indenture, the Notes, the Guaranty or any part thereof shall cease to be in full force and effect or binding and enforceable against the Company or Petrobras, it becomes unlawful for the Company or Petrobras to perform any material obligation under this Indenture, the Notes or the Guaranty, or the Company or Petrobras shall contest the enforceability of this Indenture, the Notes or the Guaranty or deny that it has liability under this Indenture, the Notes or the Guaranty;

12. Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in the Company.”

Section 2.03 . Amendments to Article 10 Relating to Covenants.

(a) Statement of Officers as to Default and Notices of Events of Default : As it applies to the Notes, Section 10.05 of the Original Indenture shall be amended by deleting the second sentence in its entirety and replacing it with the following:

“Within 10 calendar days (or promptly with respect to Events of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7), 5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than 10 calendar days) after the Company becomes aware or should reasonably become aware of the occurrence of an Event of Default pursuant to Section 5.01 hereunder, the Company shall provide notice to the Trustee of such occurrence, accompanied by an Officer’s Certificate of the Company setting forth the details thereof.”

(b) Maintenance of Corporate Existence : As it applies to the Notes, Section 10.02 of the Original Indenture shall be replaced with the following:

“The Company will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article VIII and (ii) take all reasonable 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 10.02 shall not require the Company to maintain any such right, privilege, title to property or franchise, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.”

(c) Additional Covenants Applicable to the Notes : As it applies to the Notes, Article 10 of the Original Indenture shall be amended to include the following:

“Section 10.11 Use of Proceeds .

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally for general corporate purposes and to finance Petrobras’ planned capital expenditure under its 2010-2014 Business Plan while maintaining an adequate capital structure and staying within Petrobras’ targeted financial leverage ratios in accordance with its 2010-2014 Business Plan.

 

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Section 10.12 Negative Pledge

So long as any Note remains Outstanding, the Company will not create or permit any Lien, other than a Permitted Lien, on any of the Company’s assets to secure (a) any of the Company’s Indebtedness or (b) the Indebtedness of any other Person, unless the Company contemporaneously creates or permits such Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with this Indenture. In addition, the Company will not allow any of the Company’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (a) any of the Company’s Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness of any other Person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with the Indenture.

Section 10.13 Currency Rate Indemnity . (a) The Company shall (to the extent lawful) indemnify the Trustee and the Holders of the Notes and keep them indemnified against:

(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of the Notes, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and

(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of the Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.

(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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.

 

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(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Notes.”

Section 2.04 . Application of the Article of the Indenture Regarding Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and 14.03 of the Original Indenture shall apply to the Notes.

ARTICLE 3

GUARANTY

Section 3.01. Execution . The Trustee is hereby authorized and directed to acknowledge the Guaranty and to perform all of its duties and obligations thereunder.

Section 3.02. Enforcement. The Trustee shall enforce the provisions of the Guaranty against Petrobras in accordance with the terms thereof and the terms of the Indenture and Petrobras, by execution of this Amended and Restated Sixth Supplemental Indenture, and by so agreeing to become a party to the Indenture, agrees that each Holder of the Notes shall have direct rights under the Guaranty as if it were a party thereto.

Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound by the provisions of Section 1.08 of the Original Indenture and (ii) confirms that (A) its obligations under the Guaranty shall be issued pursuant to the Indenture and (B) it intends for the Holders of the Notes, in addition to those rights under the Guaranty as provided therein, to be entitled to the benefits of the Indenture with respect to their rights against Petrobras under the Guaranty.

Section 3.04. Definition of the Term “Securities.” For all purposes relating to the Notes, the term “Securities” in Section 1.01 of the Original Indenture shall be amended by inserting the following at the end thereof: “All references herein to any Securities shall be deemed to include the rights of the Holder thereof under any guaranty arrangement entered into by Petrobras with the Trustee in connection with the issuance of such Securities pursuant to Section 3.14 hereof, which are an integral part of such Securities.”

Section 3.05. Taxes; Additional Amounts . For the avoidance of doubt, the Company’s obligations to pay any indemnity with respect to taxes, including the obligation to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture, shall extend to any payments made by Petrobras pursuant to the Guaranty.

 

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ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the Amended and Restated Sixth Supplemental Indenture. This Amended and Restated Sixth Supplemental Indenture supplements the Indenture and shall be a part, and subject to all the terms, thereof. The Original Indenture, as supplemented and amended by this Amended and Restated this Sixth Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this Amended and Restated Sixth Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Amended and Restated Sixth Supplemental Indenture supersede any conflicting provisions included in the Original Indenture unless not permitted by law. The provisions of this Amended and Restated Sixth Supplemental Indenture are intended to apply solely to the Notes and the Holders thereof and shall not apply to any future issuance of securities by the Company (other than any Add On Notes as provided herein) and all references to provisions of the Original Indenture herein amended and restated or otherwise modified shall have effect solely with respect to the Notes contemplated in this Amended and Restated Sixth Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this Amended and Restated Sixth Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this Amended and Restated Sixth Supplemental Indenture.

Section 4.02. Governing Law . This Amended and Restated Sixth Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 4.03. Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Amended and Restated Sixth Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and Petrobras.

Section 4.04. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction of this Amended and Restated Sixth Supplemental Indenture.

Section 4.05. Counterparts. The parties may sign any number of copies of this Amended and Restated Sixth Supplemental Indenture. Each signed copy shall be an original, but all of them shall represent the same agreement.

Section 4.06. Additional Trustee Provisions.

(a) The permissive rights of the Trustee enumerated herein shall not be construed as duties.

(b) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(c) Notwithstanding anything herein to the contrary neither the Trustee nor any of its the agents shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or its respective agent, as applicable, (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, fire, riot, strikes or work stoppages for any reason, embargos, government action or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

Section 4.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

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IN WITNESS WHEREOF, the parties have caused this Amended and Restated Sixth Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By:  

/s/ Sérvio Túlio da R. Tinoco

Name:   Sérvio Túlio da R. Tinoco
Title:   Chief Financial Officer
PETRÓLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Gustavo Tardin Barbosa

Name:   Gustavo Tardin Barbosa
Title:   Executive Manager of Corporate Finance
WITNESSES:
1.  

/s/ Maurício Piragibe C. Faria

  Name: Maurício Piragibe C. Faria
2.  

/s/ Gustavo Luchese Unfer

  Name: Gustavo Luchese Unfer


THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ John T. Needham, Jr.

  Name: John T. Needham, Jr.
  Title: Vice President
WITNESSES:
1.  

/s/ Karon Greene

  Name: Karon Greene
2.  

/s/ Catherine F. Donohue

  Name: Catherine F. Donohue


STATE OF NEW YORK    )   
   )    ss:
COUNTY OF NEW YORK    )   

On this 6 th day of February 2012, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 6 th day of February 2012, before me personally came Karon Greene and Catherine F. Donohue to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Danny Lee

Notary Public

COMMISSION EXPIRES


Exhibit A

Form of 5.375% Global Note due 2021

GLOBAL NOTE

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


PETROBRAS INTERNATIONAL FINANCE COMPANY

5.375% GLOBAL NOTES DUE 2021

No.

CUSIP No.: 71645WAR2

ISIN No.: US71645WAR25

Common Code: 058524484

Principal Amount: U.S.$                        

Initial Issuance Date of the Original Notes: January 27, 2011

Initial Issuance Date of the Reopening Notes: February 6, 2012

This Note is one of a duly authorized issue of notes of PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company with limited liability organized under the laws of the Cayman Islands (the “ Issuer ”), designated as its 5.375% Global Notes Due 2021 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$                         under the Amended and Restated Sixth Supplemental Indenture (the “ Amended and Restated Sixth Supplemental Indenture ”), effective as of February 6, 2012, by and among the Issuer, The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “ Trustee ”), and Petróleo Brasileiro S.A. - Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), to the Indenture, dated as of December 15, 2006 (the “ Original Indenture ”, and as supplemented by the Amended and Restated Sixth Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The aggregate principal amount of the Original Notes and Reopened notes issued under the Amended and Restated Sixth Supplemental Indenture totals U.S.$5,250,000,000.

The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“ DTC ”) and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on January 27, 2021 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.

As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from January 27, 2012, or from the most recent payment date to which interest has been paid or duly provided for, semiannually on January 27 and July 27 of each year (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing                  (each such date, an “ Interest Payment Date ”), at a rate equal to 5.375 % per annum. Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment.


Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.

The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.

This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.

If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes may become or may be declared due and payable in the manner and with the effect provided in the Indenture.

Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.

The Notes shall be issued only in fully registered form, without coupons. Notes shall be issued in the form of beneficial interests in one or more global securities in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.

Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By  

 

Name:  
Title:  
WITNESSES:
1.  

 

  Name:
2.  

 

  Name:

 


STATE OF NEW YORK   )   
  )    ss:
COUNTY OF NEW YORK   )   

On this      day of             , before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that              is the Attorney-in-Fact of Petrobras International Finance Company, 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 duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public

COMMISSION EXPIRES


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

Dated:

 

The Bank of New York Mellon

As Trustee

By:  

 

Name:  
Title:   Authorized Officer


ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

(Please print or type name and address,

including zip code, of assignee:)

the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.

 

Date:                                             Your Signature:

 

(Sign exactly as your name
appears on the face of this Note)


Exhibit B

[Form of Guaranty]

Exhibit 4.4

AMENDED AND RESTATED GUARANTY

Dated as of February 6, 2012

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON, as

Trustee for the Noteholders

Referred to Herein


TABLE OF CONTENTS

 

         Page  

SECTION 1.

 

Definitions

     2   

SECTION 2.

 

Guaranty

     6   

SECTION 3.

 

Guaranty Absolute

     7   

SECTION 4.

 

Independent Obligation

     8   

SECTION 5.

 

Waivers and Acknowledgments

     9   

SECTION 6.

 

Claims Against the Issuer

     10   

SECTION 7.

 

Covenants

     10   

SECTION 8.

 

Amendments, Etc.

     14   

SECTION 9.

 

Indemnity

     14   

SECTION 10.

 

Notices, Etc.

     15   

SECTION 11.

 

Survival

     15   

SECTION 12.

 

No Waiver; Remedies

     15   

SECTION 13.

 

Continuing Agreement; Assignment of Rights Under the Indenture and the 2041 Notes

     16   

SECTION 14.

 

Currency Rate Indemnity

     16   

SECTION 15.

 

Governing Law; Jurisdiction; Waiver of Immunity, Etc.

     17   

SECTION 16.

 

Execution in Counterparts

     18   

SECTION 17.

 

Entire Agreement

     18   

SECTION 18.

 

The Trustee

     19   

 

-i-


AMENDED AND RESTATED GUARANTY

AMENDED AND RESTATED GUARANTY (this “ Amended and Restated Guaranty ”), dated as of February 6, 2012, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2041 Notes (as defined below) issued pursuant to the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras International Finance Company, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of December 15, 2006 (the “ Original Indenture ”) with the Trustee, as supplemented by the Amended and Restated Seventh Supplemental Indenture among the Issuer, the Guarantor and the Trustee dated as of the date hereof (the “ Amended and Restated Seventh Supplemental Indenture ”). The Original Indenture, as supplemented by the Amended and Restated Seventh Supplemental Indenture and as amended or supplemented from time to time with respect to the 2041 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.$1,250,000,00 aggregate principal amount of its 6.750% Global Notes due 2041 under the Indenture (the “ Reopening Notes ”);

WHEREAS, the Issuer, the Guarantor and the Trustee intend the Reopening Notes to be consolidated, form a single series and be fully fungible with the Company’s outstanding 6.750% Global Notes due 2041 originally issued on January 27, 2011 under the Original Indenture as supplemented by the Seventh Supplemental Indenture dated as of January 27, 2011, by and among the Issuer, the Guarantor and the Trustee, in the aggregate principal amount of $1,000,000,000 (the “ Original Notes ” and, together with the Reopening Notes, the “ 2041 Notes ”);

WHEREAS, the Guarantor is willing to enter into this Amended and Restated Guaranty in order to provide the holders of the 2041 Notes (the “ Noteholders ”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the 2041 Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;

WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the 2041 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2041 Notes that the Guarantor shall have executed this Amended and Restated Guaranty.


WHEREAS, each of the parties hereto is entering into this Amended and Restated Guaranty for the benefit of the other party and for the equal and ratable benefit of the Noteholders.

NOW, THEREFORE, the Guarantor and the Trustee hereby agree as follows:

SECTION 1. Definitions. (a) All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Original Indenture, as supplemented and amended by the Amended and Restated Seventh Supplemental Indenture. All such definitions shall be read in a manner consistent with the terms of this Amended and Restated Guaranty.

(b) 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.

Authorized Representative ” of the Guarantor 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.

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 .

Denomination Currency ” has the meaning specified in Section 14(b).

Guaranteed Obligations ” has the meaning specified in Section 2.

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).

Judgment Currency ” has the meaning specified in Section 14(b).

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

 

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Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or enforceability of this Amended and Restated Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Amended and Restated Guaranty 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 Amended and Restated Guaranty 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 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

Officer’s Certificate ” means a certificate of an Authorized Representative of the Guarantor.

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 Guarantor, whether or not such counsel is an employee of the Guarantor.

Permitted Lien ” means a:

(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government 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 Guarantor’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 Guarantor’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 Guarantor’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 Guarantor or any Subsidiary to secure the acquisition costs of such assets or to secure

 

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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 Guarantor or another Wholly-Owned Subsidiary;

(vii) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Guarantor 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

(ix) Lien existing as of the date of the Amended and Restated Seventh Supplemental 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 Guarantor, 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 (vii), 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor 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 Guarantor’s Permitted Liens

 

4


pursuant to clauses (i) through (xii) of this definition, does not exceed 15% of the Guarantor’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.

Process Agent has the meaning specified in Section 15(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.

Qualifying Asset ” in relation to any Project Financing means:

(i) any concession, authorization or other legal right granted by any Governmental Authority to the Guarantor or any of the Guarantor’s Subsidiaries, or any consortium or other venture in which the Guarantor 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

(v) shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor 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.

 

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Reporting GAAP ” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (IFRS) as adopted by the International Accounting Standards Board (IASB) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

SEC ” means the United States Securities and Exchange Commission.

Successor Company ” has the meaning specified in Section 7(f)(A).

Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2041 Notes and this Amended and Restated Guaranty.

(c) Construction . The parties agree that items (1) through (5) of Section 1.01 of the Original Indenture shall apply to this Amended and Restated Guaranty, except as otherwise expressly provided or unless the context otherwise requires.

SECTION 2. Guaranty . (a) The Guarantor hereby unconditionally and irrevocably guarantees the full and punctual payment when due, as a guaranty of payment and not of collection, whether at the Stated Maturity, or earlier or later by acceleration or otherwise, of all obligations of the Issuer now or hereafter existing under the Indenture and the 2041 Notes, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and the Guarantor agrees to pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Trustee or any Noteholder in enforcing any rights under this Amended and Restated Guaranty with respect to such Guaranteed Obligations. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Issuer to the Trustee or any Noteholder under the Indenture and the 2041 Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar proceeding involving the Issuer.

(b) In the event that the Issuer does not make payments to the Trustee of all or any portion of the Guaranteed Obligations, upon receipt of notice of such non-payment from the Trustee, the Guarantor will make immediate payment to the Trustee of any such amount or portion of the Guaranteed Obligations owing or payable under the Indenture and the 2041 Notes. Such notice shall specify the amount or amounts under the Indenture and the 2041 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2041 Notes.

(c) The obligation of the Guarantor under this Amended and Restated Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein

 

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absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the 2041 Notes and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.

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 Amended and Restated Guaranty, to have been received by the Trustee on the next succeeding Business Day.

SECTION 3. Guaranty Absolute. (a) The Guarantor’s obligations under this Amended and Restated Guaranty 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 2041 Notes or the Indenture. The obligations of the Guarantor under or in respect of this Amended and Restated Guaranty are independent of the Guaranteed Obligations or any other obligations of the Issuer, the Issuer’s Subsidiaries or the Guarantor’s Subsidiaries under or in respect of the Indenture and the 2041 Notes or any other document or agreement, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Amended and Restated Guaranty, 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 Guarantor under this Amended and Restated Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(i) any lack of validity or enforceability of any of the Transaction Documents;

(ii) any provision of applicable Law or regulation purporting to prohibit the payment by the Issuer of any amount payable by it under the Indenture and the 2041 Notes;

(iii) any provision of applicable Law or regulation purporting to prohibit the payment by the Guarantor of any amount payable by it under this Amended and Restated Guaranty;

(iv) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed 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 2041 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2041 Notes of the Indenture or otherwise;

 

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(v) any taking, release or amendment or waiver of, or consent to departure from, any other guaranty or agreement similar in function to this Amended and Restated Guaranty, for all or any of the obligations of the Issuer under the Indenture or the 2041 Notes;

(vi) any manner of sale or other disposition of any assets of any Noteholder;

(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor 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 Guarantor;

(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);

(ix) the failure of any other person or entity to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Indenture;

(x) 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 Guarantor or any other party; or

(xi) any claim of set-off or other right which the Guarantor may have at any time against the Issuer or the Trustee, whether in connection with this transaction or with any unrelated transaction.

(b) This Amended and Restated Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed 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 Guarantor or otherwise, all as though such payment had not been made.

SECTION 4. Independent Obligation. The obligations of the Guarantor hereunder are independent of the Issuer’s obligations under the 2041 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2041 Notes, without in any way affecting or impairing the liability of the

 

8


Guarantor 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 before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 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 Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.

SECTION 5. Waivers and Acknowledgments. (a) The Guarantor 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 Guaranteed Obligations and this Amended and Restated Guaranty 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 Guarantor hereby unconditionally and irrevocably waives any right to revoke this Amended and Restated Guaranty and acknowledges that this Amended and Restated Guaranty is continuing in nature and applies to the Guaranteed Obligations, whether the same are existing now or in the future.

(c) The Guarantor 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 Guarantor or other rights of the Guarantor 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 Guaranteed Obligations of the Guarantor hereunder.

(d) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Trustee or any Noteholder to disclose to the Guarantor any 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 Guarantor 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 5 are knowingly made in contemplation of such benefits.

(f) The recitals contained in this Amended and Restated Guaranty shall be taken as the statements of the Issuer and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Amended and Restated Guaranty, of any offering materials, the Indenture or of the 2041 Notes.

 

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(g) The Guarantor unconditionally and irrevocably waives, to the fullest extent permitted under Brazilian law, any benefit it may be entitled to under Articles 827, 834, 835, 838 and 839 of the Brazilian Civil Code, and under Article 595, caput, of the Brazilian Civil Procedure Code.

SECTION 6. Claims Against the Issuer. The Guarantor 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 Guarantor’s obligations under or in respect of this Amended and Restated Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, 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 Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty shall have been paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty and (b) the date on which all of the obligations of the Issuer under the Indenture and the 2041 Notes have been discharged in full (the later of such dates being the “ Termination Date ”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor 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 Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty, whether matured or unmatured, in accordance with the terms of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty 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 Guarantor’s written request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Amended and Restated Guaranty.

SECTION 7. Covenants. For so long as the 2041 Notes remain outstanding or any amount remains unpaid on the 2041 Notes and the Indenture, the Guarantor will, and will cause each of its Subsidiaries, as applicable, to comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Amended and Restated Guaranty as provided herein):

(a) Performance of Obligations . The Guarantor shall pay all amounts owed by it and comply with all its other obligations under the terms of this Amended and Restated Guaranty and the Indenture in accordance with the terms thereof.

 

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(b) Maintenance of Corporate Existence . The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7 (f) 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 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.

(c) Maintenance of Office or Agency . So long as any of the 2041 Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor in respect of this Amended and Restated Guaranty may be served, and the Guarantor will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d) Ranking . The Guarantor will ensure at all times that its obligations under this Amended and Restated Guaranty will constitute the general senior unsecured and unsubordinated obligations of the Guarantor and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (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 Guarantor under this Amended and Restated Guaranty.

(e) Notice of Defaults . The Guarantor will give written notice to the Trustee, as soon as is practicable and in any event within ten calendar days after the Guarantor becomes aware, or should reasonably become aware, of the occurrence of any Default or Event of Default, accompanied by a certificate of an officer of the Guarantor setting forth the details thereof and stating what action the Guarantor proposes to take with respect thereto.

(f) Limitation on Consolidation, Merger, Sale or Conveyance . (i) The Guarantor 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 Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:

(A) either the Guarantor is the continuing entity or the person (the “ Successor Company ”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Amended and Restated Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Amended and Restated Guaranty;

 

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(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor 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 2041 Notes pursuant to this Amended and Restated Guaranty;

(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and

(D) the Guarantor 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 Amended and Restated Guaranty comply with the terms of this Amended and Restated Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.

(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 Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):

(A) the Guarantor 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 Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or

(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or

(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or

(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.

 

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(g) Negative Pledge . So long as any 2041 Note remains outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Amended and Restated Guaranty or the Guarantor provides such other security for the 2041 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Amended and Restated Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2041 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture.

(h) Provision of Financial Statements and Reports . (i) The Guarantor 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 Reporting 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 Reporting GAAP and (C) such other financial data as the Trustee may reasonably request.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(h)(i)(A) and (B), an Officer’s Certificate stating that a review of the activities of the Guarantor and the Issuer has been made during the period covered by such financial statements with a view to determining whether the Guarantor and the Issuer have kept, observed, performed and fulfilled their covenants and agreements under this Amended and Restated Guaranty 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 Guarantor 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 7(h)(iii), the Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.

 

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(iv) Upon written request of any Holder or The Depository Trust Company (DTC), the reports and other information provided for in this paragraph (h) shall be delivered to DTC representing the Noteholders, at 55 Water Street, 25th Floor, New York, NY, 10041, Attention: Proxy Department, or such other address as DTC may provide to the Trustee in writing.

(v) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

SECTION 8. Amendments, Etc . No amendment or waiver of any provision of this Amended and Restated Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Amended and Restated Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the 2041 Notes required to approve the amendment.

SECTION 9. Indemnity. The Guarantor agrees to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damages, claims or expense arising out of or in connection with the performance of its duties under this Amended and Restated Guaranty, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith.

 

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SECTION 10. 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 Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro—RJ, Brazil, Telephone: (55-21) 3224-4079, Telecopier: (55-21) 3224-6197, Attention: Sonia Tereza Terra Figueiredo Vasconcellos, Corporate Finance & Treasury/Debt Control, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 4E, New York, New York, 10286, USA, Telephone: (1-212) 815-4259, Telecopier: (1-212) 815-5603, Attention: Corporate Trust Department 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 effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Amended and Restated Guaranty shall be effective as delivery of an original executed counterpart thereof.

(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).

SECTION 11. Survival. Without prejudice to the survival of any of the other agreements of the Guarantor under this Amended and Restated Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Amended and Restated Guaranty, the termination of this Amended and Restated Guaranty and/or the resignation or removal of the Trustee.

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.

 

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SECTION 13. Continuing Agreement; Assignment of Rights Under the Indenture and the 2041 Notes . This Amended and Restated Guaranty is a continuing guaranty 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 2041 Notes and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Amended and Restated Guaranty, (b) be binding upon the Guarantor, 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 assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the 2041 Notes held by it) to any other person or entity, 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 Guarantor 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 14. Currency Rate Indemnity (a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:

(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Amended and Restated Guaranty 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 Guarantor; 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 Amended and Restated Guaranty or in respect of the 2041 Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, 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 Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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 Guarantor 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

 

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or proofs in any bankruptcy, insolvency or liquidation of the Guarantor for a liquidated sum or sums in respect of amounts due under this Amended and Restated Guaranty, or under the Indenture or the 2041 Notes or under any judgment or order.

SECTION 15. Governing Law; Jurisdiction; Waiver of Immunity, Etc.

(a) This Amended and Restated Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) The Guarantor 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 sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Amended and Restated Guaranty 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 Guarantor 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 Guarantor 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 Amended and Restated Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Amended and Restated Guaranty or any other Transaction Document in the courts of any jurisdiction.

(c) The Guarantor hereby irrevocably appoints and empowers the New York office of Petróleo 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 Guarantor 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 Guarantor 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 Guarantor 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 10 or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent. Service upon the Guarantor 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 Guarantor shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.

 

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(d) The Guarantor 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 Amended and Restated Guaranty 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 Guarantor 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 GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(f) This Amended and Restated Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor 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 Amended and Restated Guaranty, any of the Transaction Documents 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 16. Execution in Counterparts. This Amended and Restated Guaranty 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 Amended and Restated Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Amended and Restated Guaranty.

SECTION 17. Entire Agreement. This Amended and Restated Guaranty, together with the Indenture and the 2041 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

 

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SECTION 18. The Trustee. In the performance of its obligations hereunder, the Trustee shall be entitled to all the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

[ Signature page follows ]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Amended and Restated Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

PETRÓLEO BRASILEIRO S.A.—PETROBRAS
By:  

/s/ Arthur Costa da Silva

  Name:   Arthur Costa da Silva
  Title:   International Capital Markets Coordinator
      WITNESSES:
      1.  

/s/ Maurício Piragibe C. Faria

        Name: Maurício Piragibe C. Faria
      2.  

/s/ Gustavo Luchese Unfer

        Name: Gustavo Luchese Unfer


ACKNOWLEDGED:

THE BANK OF NEW YORK MELLON, as Trustee and not in its individual capacity

  By:  

/s/ John T. Needham, Jr.

    Name:   John T. Needham, Jr.
    Title:   Vice President
  WITNESSES:
  1.  

/s/ Karon Greene

    Name: Karon Greene
  2.  

/s/ Catherine F. Donohue

    Name: Catherine F. Donohue


 

STATE OF NEW YORK    )   
   )   

ss:

COUNTY OF NEW YORK    )   

On this      day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that      is a                      of The Bank of New York Mellon, one of the persons 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 February 2012, before me personally came                      and                      to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public

COMMISSION EXPIRES

Exhibit 4.5

AMENDED AND RESTATED SEVENTH SUPPLEMENTAL INDENTURE

AMENDED AND RESTATED SEVENTH SUPPLEMENTAL INDENTURE, dated as of February 6, 2012, by and among PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company incorporated with limited liability under the laws of the Cayman Islands, having its principal office at 4 th Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman, Cayman Islands (the “ Company ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), and PETRÓLEO BRASILEIRO S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil, having its principal office at Avenida República do Chile, 65, 20035-900 Rio de Janeiro – RJ, Brazil (“ Petrobras ”).

W I T N E S S E T H:

WHEREAS , the Company and the Trustee previously have entered into an indenture, dated as of December 15, 2006 (the “ Original Indenture ”), as supplemented by the Seventh Supplemental Indenture, dated as of January 27, 2011 (the “ Seventh Supplemental Indenture ”) providing for the issuance of U.S.$1,000,000,000 of the Company’s 6.750% Global Notes due 2041 (the “ Original Notes ”);

WHEREAS , the Company, Petrobras and the Trustee have agreed to amend and restate the Original Indenture as supplemented by the Seventh Supplemental Indenture by this Amended and Restated Seventh Supplemental Indenture dated as of February 6, 2012 (the “ Amended and Restated Seventh Supplemental Indenture ”, and together with the Original Indenture and the Seventh Supplemental Indenture, the “ Indenture ”) to provide for the issuance of an additional U.S.$1,250,000,000 of the Company’s 6.750% Global Notes due 2041 constituting Add On Notes (as defined in the Original Indenture but referred to herein as the “ Reopening Notes ” and together with the Original Notes, being collectively referred to herein as the “ Notes ”) pursuant to its Registration Statement on Form F-3 (File No. 333-163665-01) (the “ Registration Statement ”), dated December 11, 2009, the Prospectus Supplement dated February 1, 2012 and related Base Prospectus dated December 11, 2009 (collectively, the “ Offering Document ”);

WHEREAS , as contemplated in the Offering Document, the parties hereto intend the Reopening Notes to be consolidated, form a single series and be treated as a single class for all purposes under the Indenture and be fully fungible with the Original Notes all of which shall have the terms and conditions contemplated in the Indenture and the form of Notes attached as Exhibit A hereto;

WHEREAS , as contemplated in the Offering Document, Petrobras and the Trustee intend, in connection with the issuance of the Notes, to enter into an amended and restated guaranty, dated as of the date hereof in the form attached as Exhibit B hereto (the “ Amended and Restated Guaranty ”), to provide for an unconditional and irrevocable guaranty of the Notes by Petrobras;


WHEREAS , Section 9.01 of the Original Indenture provides that, subsequent to the execution of the Original Indenture and subject to satisfaction of certain conditions, the Company and the Trustee may enter into one or more indentures supplemental to the Original Indenture without the consent of any Holder of any series of Securities (as defined in the Original Indenture) to add to, change or eliminate any of the provisions of the Original Indenture, provided that such action shall not adversely affect the interests of the Holder of Securities in any material respect;

WHEREAS , the Trustee has provided to the Company and Petrobras Statements of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to each of the Companies which have been filed as exhibits to the Registration Statement;

WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Amended and Restated Seventh Supplemental Indenture a valid, binding, and legal instrument in accordance with the terms of the Indenture have been performed and fulfilled and the execution and delivery of this Amended and Restated Seventh Supplemental Indenture has been in all respects duly authorized;

WHEREAS , pursuant to Section 9.01 of the Original Indenture, the Trustee is authorized to execute and deliver this Amended and Restated Seventh Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Amended and Restated Seventh Supplemental Indenture;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras and the Trustee hereby agree, for the equal and ratable benefit of all Holders, as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Defined Terms . All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby. All definitions in the Original Indenture shall be read in a manner consistent with the terms of this Amended and Restated Seventh Supplemental Indenture.

Section 1.02. Additional Definitions . (a) For the benefit of the Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by adding the following new definitions:

“Closing Date” means January 27, 2011 (in respect of the Original Notes), and February 6, 2012 (in respect of the Reopening Notes).

 

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“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Default Rate” has the meaning set forth in Section 2.01(f) herein.

“Denomination Currency” has the meaning set forth in Section 2.03(c) herein.

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

“Interest Period” means the period beginning on an Interest Payment Date and ending on the day before the next Interest Payment Date, except that the first Interest Period shall be the period beginning on the Closing Date and ending on the day before the next Interest Payment Date.

“Judgment Currency” has the meaning set forth in Section 2.03(c) herein.

“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.

“Make Whole Amount” has the meaning set forth in Section 2.01(l) herein.

“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

“Offering Document” shall have the meaning set forth in the recitals to this Amended and Restated Seventh Supplemental Indenture.

“Payment Account” has the meaning set forth in Section 2.01(h) herein.

 

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“Permitted Lien” means a:

(a) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Company’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;

(b) Lien arising from the Company’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Company’s past practice;

(c) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;

(d) Lien granted upon or with respect to any assets hereafter acquired by the Company or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;

(e) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned Subsidiary;

(f) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Company or any Subsidiary as long as such Lien is not created in anticipation of such acquisition;

(g) Lien existing as of the date of this Amended and Restated Indenture;

(h) Lien resulting from the Indenture or the Guaranty;

(i) Lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by the Company, on amounts of cash or cash equivalents on deposit in any reserve or similar account to pay interest on such securities for a period of up to 24 months as required by any Rating Agency as a condition to such Rating Agency rating such securities investment grade or as is otherwise consistent with market conditions at such time, as such conditions are satisfactorily demonstrated to the Trustee;

 

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(j) Lien granted or incurred to secure any extension, renewal, refinancing, refunding or exchange (or successive extensions, renewals, refinancings, refundings or exchanges), in whole or in part, of or for any Indebtedness secured by Lien referred to in paragraphs (a) through (i) above (but not paragraph (c)), provided that such Lien does not extend to any other property, the principal amount of the Indebtedness secured by such Lien is not increased, and in the case of paragraphs (a), (b) and (f) the obligees meet the requirements of such paragraphs; and

(k) Lien in respect of Indebtedness the principal amount of which in the aggregate, together with all Liens not otherwise qualifying as the Company’s Permitted Liens pursuant to clauses (a) through (j) of this definition, does not exceed 15% of the Company’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Company’s balance sheet is prepared and published in accordance with applicable Law.

“Reference Treasury Dealer” means each of Citigroup Global Markets, Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC or, in each case, their affiliates which are primary United States government securities dealers and two other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 pm New York time on the third business day preceding such redemption date.

“Regular Record Date” means one Business Day prior to any Interest Payment Date.

“Reporting GAAP” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (“ IFRS ”) as adopted by the International Accounting Standards Board (“IASB”) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

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ARTICLE 2

TERMS OF THE NOTES

Section 2.01. General . In accordance with Section 3.01 of the Original Indenture, the following terms relating to the Notes are hereby established:

(a) Title : The Notes shall constitute a series of Securities having the title “6.750% Global Notes due 2041.”

(b) Aggregate Amount : The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Amended and Restated Seventh Supplemental Indenture is U.S.$ 1,250,000,000 for a total principal amount of Notes of U.S.$2,250,000,000. As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue Add On Notes having identical terms (including CUSIP, ISSN and other relevant identifying characteristics as the Notes), so long as, on the date of issuance of such Add On Notes: (i) no Default or Event of Default shall have occurred and then be continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras. All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

(c) Ranking : The Notes (including any Add On Notes) shall be general senior unsecured and unsubordinated obligations of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsecured and unsubordinated obligations from time to time outstanding that are not, by their terms, expressly subordinated in right of payment to the Notes (other than obligations preferred by statute or by operation of law).

(d) Maturity : The entire outstanding principal of the Notes shall be payable in a single installment on January 27, 2041 (the “ Stated Maturity ”). No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

 

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(e) Interest: Interest shall accrue on the Reopening Notes from January 27, 2012 or in the case of the Original Notes the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 6.750% per annum until all required amounts due in respect of the Notes have been paid. All interest shall be paid by the Company to the Trustee and distributed by the Trustee in accordance with this Amended and Restated Indenture semiannually in arrears on January 27 and July 27 of each year (or, as provided in the Original Indenture, if such date is not a Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on July 27, 2011 for Original Notes and July 27, 2012 for Reopening Notes to the Person in whose name a Note is registered at the close of business on the preceding Regular Record Date (which shall mean, with respect to any payment to be made on an Interest Payment Date, the Business Day preceding the relevant Interest Payment Date.) As provided in the Original Indenture, (i) interest shall be calculated based on a 360-day year of twelve 30-day months, (ii) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Trustee in New York City, or such other paying agent office in the United States as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (iii) all such payments to the Trustee shall be made by the Company by depositing immediately available funds in U.S. dollars one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iv) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in New York City.

(f) Default Rate : Upon the occurrence and during the continuation of an Event of Default, (i) interest on the outstanding principal amount of the Notes shall accrue on the Notes at a rate equal to 0.5% per annum above the interest rate on the Notes at that time (the “ Default Rate ”) and (ii) to the fullest extent permitted by law, interest shall accrue on the amount of any interest, fee, Additional Amounts, or other amount payable under the Indenture and the Notes that is not paid when due, from the date such amount was due until such amount shall be paid in full, excluding the date of such payment, at the Default Rate.

(g) Payment Account : On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Amended and Restated Seventh Supplemental Indenture (the “ Payment Account ”) into which all payments required to be made by the Company under or with respect to the Notes shall be deposited. The Company agrees that the Payment Account shall be maintained in the name of the Trustee and under its sole dominion and control (acting on behalf of the Holders of the Notes) and used solely to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Notes. No funds contained in the Payment Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Company or any other Person have an interest therein or amounts on deposit therein. All amounts on deposit in the Payment Account on any Interest Payment Date after the Trustee has paid all amounts due and owing to the holders of the Notes as of such Interest Payment Date shall be retained in the Payment Account and used by the Trustee to pay any amounts due and owing to the Holders of the Notes on the next succeeding Interest Payment Date.

 

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(h) Form and Denomination : The Notes shall be issuable in whole in the registered form of one or more Global Notes (without coupons), in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof, and shall be transferable in integral multiples of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof and the Depository for such Global Notes shall be The Depository Trust Company, New York, New York.

(i) Guaranty : The Notes shall have the benefit of the Guaranty in the manner provided in Article 3 of this Amended and Restated Seventh Supplemental Indenture.

(j) Rating : The Notes can be issued without the requirement that they have any rating from a nationally recognized statistical rating organization.

(k) Optional Early Redemption . The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at, in each case, the Treasury Rate plus 30 basis points (the “ Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

(l) Early Redemption Solely for Tax Reasons . Pursuant to Section 11.08 of the Original Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if as a result of any change in or amendment to the laws or regulations or ruling promulgated thereunder of the jurisdiction in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application of or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date hereof (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Section 8.01 and 8.02 of the Original Indenture), the Company would be required to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture. For purposes of Section 11.08 of the Original Indenture, the reincorporation of the Company shall be treated as the adoption of a successor entity, provided, however, that redemption under Section 11.08 of the Original Indenture shall not be available if the reincorporation was performed in anticipation of a change in, execution of or amendment to any laws or treaties or the official application or interpretation of any laws or treaties of such new jurisdiction of incorporation that would result in an obligation to pay Additional Amounts.

(m) Conversion : The Notes will not be convertible into, or exchangeable for, any other securities.

 

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Section 2.02. Amendments to Article Five Relating to Events of Default. (a)  Restated Events of Default : As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to read in its entirety as follows:

“Section 5.01 Events of Default

“Event of Default,” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

1. The Company shall fail to make any payment in respect of principal on any of the Notes whether on the Stated Maturity, upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such three calendar day period;

2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Notes (including Additional Amounts, if any) in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such 30 calendar day period;

3. The Company or Petrobras shall fail to perform, or breach, any term, covenant, agreement or obligation contained in this Indenture or the Guaranty and such failure (other than any failure to make any payment under the Guaranty, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days (inclusive of any time frame contained in any such term, covenant, agreement or obligation for compliance thereunder) after there has been received by the Company or Petrobras from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

4. The maturity of any Indebtedness of the Company, Petrobras or any Material Subsidiary in a total aggregate principal amount of U.S.$100,000,000 or more is accelerated in accordance with the terms of that Indebtedness, it being understood that prepayment or redemption by the Company, Petrobras or the relevant Material Subsidiary of any Indebtedness is not acceleration for this purpose;

 

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5. One or more final and non-appealable judgments or final decrees is entered against the Company, Petrobras or any Material Subsidiary thereof involving in the aggregate a liability (not theretofore paid or covered by insurance) of U.S.$100,000,000 (or its equivalent in another currency) or more, and all such judgments or final decrees shall not have been vacated, discharged or stayed within 120 calendar days after the rendering thereof;

6. The Company, Petrobras or any Material Subsidiary thereof stops payment of, or is generally unable to pay, its debts as and when they become due except (i) as is otherwise expressly provided under this Indenture or the Guaranty, or (ii) in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, merger, conveyance or transfer, the terms of which shall have been approved by a resolution of a meeting of the Holders;

7. Proceedings are initiated against the Company, Petrobras or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 90 days after the entering of such proceeding, or an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company, Petrobras or any Material Subsidiary thereof and is not discharged or removed within 90 days;

8. The Company, Petrobras or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Indebtedness or any part of it;

9. An effective resolution is passed for, or any authorized action is taken by any court of competent jurisdiction, directing the winding-up, dissolution or liquidation of the Company, Petrobras or any Material Subsidiary thereof (other than in any of the circumstances referred to as exceptions in paragraph (6) above);

10. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (6), (7), (8) or (9) of this Section 5.01;

 

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11. This Indenture, the Notes, the Guaranty or any part thereof shall cease to be in full force and effect or binding and enforceable against the Company or Petrobras, it becomes unlawful for the Company or Petrobras to perform any material obligation under this Indenture, the Notes or the Guaranty, or the Company or Petrobras shall contest the enforceability of this Indenture, the Notes or the Guaranty or deny that it has liability under this Indenture, the Notes or the Guaranty;

12. Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in the Company.”

Section 2.03 . Amendments to Article 10 Relating to Covenants.

(a) Statement of Officers as to Default and Notices of Events of Default : As it applies to the Notes, Section 10.05 of the Original Indenture shall be amended by deleting the second sentence in its entirety and replacing it with the following:

“Within 10 calendar days (or promptly with respect to Events of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7), 5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than 10 calendar days) after the Company becomes aware or should reasonably become aware of the occurrence of an Event of Default pursuant to Section 5.01 hereunder, the Company shall provide notice to the Trustee of such occurrence, accompanied by an Officer’s Certificate of the Company setting forth the details thereof.”

(b) Maintenance of Corporate Existence : As it applies to the Notes, Section 10.02 of the Original Indenture shall be replaced with the following:

“The Company will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article VIII and (ii) take all reasonable 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 10.02 shall not require the Company to maintain any such right, privilege, title to property or franchise, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.”

(c) Additional Covenants Applicable to the Notes : As it applies to the Notes, Article 10 of the Original Indenture shall be amended to include the following:

“Section 10.11 Use of Proceeds .

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally for general corporate purposes and to finance Petrobras’ planned capital expenditure under its 2010-2014 Business Plan while maintaining an adequate capital structure and staying within Petrobras’ targeted financial leverage ratios in accordance with its 2010-2014 Business Plan.

 

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Section 10.12 Negative Pledge

So long as any Note remains Outstanding, the Company will not create or permit any Lien, other than a Permitted Lien, on any of the Company’s assets to secure (a) any of the Company’s Indebtedness or (b) the Indebtedness of any other Person, unless the Company contemporaneously creates or permits such Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with this Indenture. In addition, the Company will not allow any of the Company’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (a) any of the Company’s Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness of any other Person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with the Indenture.

Section 10.13 Currency Rate Indemnity . (a) The Company shall (to the extent lawful) indemnify the Trustee and the Holders of the Notes and keep them indemnified against:

(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of the Notes, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and

(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of the Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.

(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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.

 

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(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Notes.”

Section 2.04 . Application of the Article of the Indenture Regarding Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and 14.03 of the Original Indenture shall apply to the Notes.

ARTICLE 3

GUARANTY

Section 3.01. Execution . The Trustee is hereby authorized and directed to acknowledge the Guaranty and to perform all of its duties and obligations thereunder.

Section 3.02. Enforcement. The Trustee shall enforce the provisions of the Guaranty against Petrobras in accordance with the terms thereof and the terms of the Indenture and Petrobras, by execution of this Amended and Restated Seventh Supplemental Indenture, and by so agreeing to become a party to the Indenture, agrees that each Holder of the Notes shall have direct rights under the Guaranty as if it were a party thereto.

Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound by the provisions of Section 1.08 of the Original Indenture and (ii) confirms that (A) its obligations under the Guaranty shall be issued pursuant to the Indenture and (B) it intends for the Holders of the Notes, in addition to those rights under the Guaranty as provided therein, to be entitled to the benefits of the Indenture with respect to their rights against Petrobras under the Guaranty.

Section 3.04. Definition of the Term “Securities.” For all purposes relating to the Notes, the term “Securities” in Section 1.01 of the Original Indenture shall be amended by inserting the following at the end thereof: “All references herein to any Securities shall be deemed to include the rights of the Holder thereof under any guaranty arrangement entered into by Petrobras with the Trustee in connection with the issuance of such Securities pursuant to Section 3.14 hereof, which are an integral part of such Securities.”

Section 3.05. Taxes; Additional Amounts . For the avoidance of doubt, the Company’s obligations to pay any indemnity with respect to taxes, including the obligation to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture, shall extend to any payments made by Petrobras pursuant to the Guaranty.

 

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ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the Amended and Restated Seventh Supplemental Indenture. This Amended and Restated Seventh Supplemental Indenture supplements the Indenture and shall be a part, and subject to all the terms, thereof. The Original Indenture, as supplemented and amended by this Amended and Restated this Seventh Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this Amended and Restated Seventh Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Amended and Restated Seventh Supplemental Indenture supersede any conflicting provisions included in the Original Indenture unless not permitted by law. The provisions of this Amended and Restated Seventh Supplemental Indenture are intended to apply solely to the Notes and the Holders thereof and shall not apply to any future issuance of securities by the Company (other than any Add On Notes as provided herein) and all references to provisions of the Original Indenture herein amended and restated or otherwise modified shall have effect solely with respect to the Notes contemplated in this Amended and Restated Seventh Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this Amended and Restated Seventh Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this Amended and Restated Seventh Supplemental Indenture.

Section 4.02. Governing Law . This Amended and Restated Seventh Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 4.03. Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Amended and Restated Seventh Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and Petrobras.

Section 4.04. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction of this Amended and Restated Seventh Supplemental Indenture.

Section 4.05. Counterparts. The parties may sign any number of copies of this Amended and Restated Seventh Supplemental Indenture. Each signed copy shall be an original, but all of them shall represent the same agreement.

Section 4.06. Additional Trustee Provisions .

(a) The permissive rights of the Trustee enumerated herein shall not be construed as duties.

(b) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(c) Notwithstanding anything herein to the contrary neither the Trustee nor any of its the agents shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or its respective agent, as applicable, (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, fire, riot, strikes or work stoppages for any reason, embargos, government action or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

Section 4.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

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IN WITNESS WHEREOF, the parties have caused this Amended and Restated Seventh Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By:  

/s/ Sérvio Túlio da R. Tinoco

Name:   Sérvio Túlio da R. Tinoco
Title:   Corporate Finance Manager
PETRÓLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Arthur Costa da Silva

Name:   Arthur Costa da Silva
Title:   International Capital Markets Coordinator
WITNESSES:
1.  

/s/ Maurício Piragibe C. Faria

  Name: Maurício Piragibe C. Faria
2.  

/s/ Gustavo Luchese Unfer

  Name: Gustavo Luchese Unfer


THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ John T. Needham, Jr.

  Name: John T. Needham, Jr.
  Title: Vice President
WITNESSES:
1.  

/s/ Karon Greene

  Name: Karon Greene
2.  

/s/ Catherine F. Donohue

  Name: Catherine F. Donohue


 

STATE OF NEW YORK    )     
   )      ss:
COUNTY OF NEW YORK    )     

On this 6 th day of February 2012, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 6 th day of February 2012, before me personally came Karon Greene and Catherine F. Donohue to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Danny Lee

Notary Public
COMMISSION EXPIRES


Exhibit A

Form of 6.750% Global Note due 2041

GLOBAL NOTE

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


PETROBRAS INTERNATIONAL FINANCE COMPANY

6.750% GLOBAL NOTES DUE 2041

No.

CUSIP No.: 71645W AS0

ISIN No.: US71645WAS08

Common Code: 058524689

Principal Amount: U.S.$                      

Initial Issuance Date of the Original Notes: January 27, 2011

Initial Issuance Date of the Reopening Notes: February 6, 2012

This Note is one of a duly authorized issue of notes of PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company with limited liability organized under the laws of the Cayman Islands (the “ Issuer ”), designated as its 6.750% Global Notes Due 2041 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$                 under the Amended and Restated Seventh Supplemental Indenture (the “ Amended and Restated Seventh Supplemental Indenture ”), effective as of February 6, 2012, by and among the Issuer, The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “ Trustee ”), and Petróleo Brasileiro S.A. - Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), to the Indenture, dated as of December 15, 2006 (the “ Original Indenture ”, and as supplemented by the Amended and Restated Seventh Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The aggregate principal amount of the Original Notes and Reopened notes issued under the Amended and Restated Seventh Supplemental Indenture totals U.S.$2,250,000,000.

The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“ DTC ”) and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on January 27, 2041 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.

As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from January 27, 2012, or from the most recent payment date to which interest has been paid or duly provided for, semiannually on January 27 and July 27 of each year (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing                      (each such date, an “ Interest Payment Date ”), at a rate equal to 6.750% per annum. Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment.


Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.

The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.

This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.

If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes may become or may be declared due and payable in the manner and with the effect provided in the Indenture.

Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.

The Notes shall be issued only in fully registered form, without coupons. Notes shall be issued in the form of beneficial interests in one or more global securities in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.

Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By  

 

Name:  
Title:  
WITNESSES:
1.  

 

  Name:
2.  

 

  Name:


STATE OF NEW YORK    )     
   )      ss:
COUNTY OF NEW YORK    )     

On this      day of             , before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that          is the Attorney-in-Fact of Petrobras International Finance Company, 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 duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public
COMMISSION EXPIRES


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

Dated:

 

The Bank of New York Mellon

As Trustee

By:  

 

Name:  
Title:   Authorized Officer


ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

(Please print or type name and address,

including zip code, of assignee:)

the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.

 

Date:   Your Signature:

 

(Sign exactly as your name
appears on the face of this Note)


Exhibit B

[Form of Guaranty]

Exhibit 4.7

GUARANTY

Dated as of February 6, 2012

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON, as

Trustee for the Noteholders

Referred to Herein


TABLE OF CONTENTS

 

         Page  

SECTION 1.

  Definitions      2   

SECTION 2.

  Guaranty      6   

SECTION 3.

  Guaranty Absolute      7   

SECTION 4.

  Independent Obligation      9   

SECTION 5.

  Waivers and Acknowledgments      9   

SECTION 6.

  Claims Against the Issuer      10   

SECTION 7.

  Covenants      10   

SECTION 8.

  Amendments, Etc.      14   

SECTION 9.

  Indemnity      14   

SECTION 10.

  Notices, Etc.      14   

SECTION 11.

  Survival      15   

SECTION 12.

  No Waiver; Remedies      15   

SECTION 13.

  Continuing Agreement; Assignment of Rights Under the Indenture and the 2015 Notes      15   

SECTION 14.

  Currency Rate Indemnity      16   

SECTION 15.

  Governing Law; Jurisdiction; Waiver of Immunity, Etc.      16   

SECTION 16.

  Execution in Counterparts      18   

SECTION 17.

  Entire Agreement      18   

SECTION 18.

  The Trustee      18   

 

-i-


GUARANTY

GUARANTY (this “ Guaranty ”), dated as of February 6, 2012, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2015 Notes (as defined below) issued pursuant to the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras International Finance Company, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of December 15, 2006 (the “ Original Indenture ”) with the Trustee, as supplemented by the Eleventh Supplemental Indenture among the Issuer, the Guarantor and the Trustee dated as of the date hereof (the “ Eleventh Supplemental Indenture ”). The Original Indenture, as supplemented by the Eleventh Supplemental Indenture and as amended or supplemented from time to time with respect to the 2015 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.$1,250,000,000 aggregate principal amount of its 2.875% Global Notes due 2015 under the Indenture (the “ 2015 Notes ”);

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 2015 Notes (the “ Noteholders ”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the 2015 Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;

WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the 2015 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2015 Notes that the Guarantor shall have executed this Guaranty.

WHEREAS, each of the parties hereto is entering into this Guaranty for the benefit of the other party and for the equal and ratable benefit of the Noteholders.


NOW, THEREFORE, the Guarantor and the Trustee hereby agree as follows:

SECTION 1. Definitions . (a) All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Original Indenture, as supplemented and amended by the Eleventh Supplemental Indenture. All such definitions shall be read in a manner consistent with the terms of this Guaranty.

(b) 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.

Authorized Representative ” of the Guarantor 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.

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 .

Denomination Currency ” has the meaning specified in Section 14(b).

Guaranteed Obligations ” has the meaning specified in Section 2.

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).

Judgment Currency ” has the meaning specified in Section 14(b).

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

 

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Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty 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 Guaranty 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 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

Officer’s Certificate ” means a certificate of an Authorized Representative of the Guarantor.

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 Guarantor, whether or not such counsel is an employee of the Guarantor.

Permitted Lien ” means a:

(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government 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 Guarantor’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 Guarantor’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 Guarantor’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 Guarantor 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

 

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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 Guarantor or another Wholly-Owned Subsidiary;

(vii) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Guarantor 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

(ix) Lien existing as of the date of the Eleventh Supplemental 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 Guarantor, 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 (vii), 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor 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 Guarantor’s Permitted Liens pursuant to clauses (i) through (xii) of this definition, does not exceed 15% of the Guarantor’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.

Process Agent has the meaning specified in Section 15(c).

 

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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.

Qualifying Asset ” in relation to any Project Financing means:

(i) any concession, authorization or other legal right granted by any Governmental Authority to the Guarantor or any of the Guarantor’s Subsidiaries, or any consortium or other venture in which the Guarantor 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

(v) shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor 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.

Reporting GAAP ” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting

 

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Standards (IFRS) as adopted by the International Accounting Standards Board (IASB) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

SEC ” means the United States Securities and Exchange Commission.

Successor Company ” has the meaning specified in Section 7(f)(A).

Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2015 Notes and this Guaranty.

(c) Construction . The parties agree that items (1) through (5) of Section 1.01 of the Original Indenture shall apply to this Guaranty, except as otherwise expressly provided or unless the context otherwise requires.

SECTION 2. Guaranty . (a) The Guarantor hereby unconditionally and irrevocably guarantees the full and punctual payment when due, as a guaranty of payment and not of collection, whether at the Stated Maturity, or earlier or later by acceleration or otherwise, of all obligations of the Issuer now or hereafter existing under the Indenture and the 2015 Notes, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and the Guarantor agrees to pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Trustee or any Noteholder in enforcing any rights under this Guaranty with respect to such Guaranteed Obligations. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Issuer to the Trustee or any Noteholder under the Indenture and the 2015 Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar proceeding involving the Issuer.

(b) In the event that the Issuer does not make payments to the Trustee of all or any portion of the Guaranteed Obligations, upon receipt of notice of such non-payment from the Trustee, the Guarantor will make immediate payment to the Trustee of any such amount or portion of the Guaranteed Obligations owing or payable under the Indenture and the 2015 Notes. Such notice shall specify the amount or amounts under the Indenture and the 2015 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2015 Notes.

(c) The obligation of the Guarantor under this Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any

 

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Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the 2015 Notes and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.

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 Guaranty, to have been received by the Trustee on the next succeeding Business Day.

SECTION 3. Guaranty Absolute. (a) The Guarantor’s obligations under this Guaranty 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 2015 Notes or the Indenture. The obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of the Issuer, the Issuer’s Subsidiaries or the Guarantor’s Subsidiaries under or in respect of the Indenture and the 2015 Notes or any other document or agreement, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, 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 Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(i) any lack of validity or enforceability of any of the Transaction Documents;

(ii) any provision of applicable Law or regulation purporting to prohibit the payment by the Issuer of any amount payable by it under the Indenture and the 2015 Notes;

(iii) any provision of applicable Law or regulation purporting to prohibit the payment by the Guarantor of any amount payable by it under this Guaranty;

(iv) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed 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 2015 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2015 Notes of the Indenture or otherwise;

(v) any taking, release or amendment or waiver of, or consent to departure from, any other guaranty or agreement similar in function to this Guaranty, for all or any of the obligations of the Issuer under the Indenture or the 2015 Notes;

(vi) any manner of sale or other disposition of any assets of any Noteholder;

 

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(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor 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 Guarantor;

(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);

(ix) the failure of any other person or entity to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Indenture;

(x) 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 Guarantor or any other party; or

(xi) any claim of set-off or other right which the Guarantor may have at any time against the Issuer or the Trustee, whether in connection with this transaction or with any unrelated transaction.

(b) This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed 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 Guarantor or otherwise, all as though such payment had not been made.

 

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SECTION 4. Independent Obligation. The obligations of the Guarantor hereunder are independent of the Issuer’s obligations under the 2015 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2015 Notes, without in any way affecting or impairing the liability of the Guarantor 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 before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 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 Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.

SECTION 5. Waivers and Acknowledgments. (a) The Guarantor 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 Guaranteed Obligations and this Guaranty 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 Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to the Guaranteed Obligations, whether the same are existing now or in the future.

(c) The Guarantor 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 Guarantor or other rights of the Guarantor 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 Guaranteed Obligations of the Guarantor hereunder.

(d) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Trustee or any Noteholder to disclose to the Guarantor any 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 Guarantor 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 5 are knowingly made in contemplation of such benefits.

(f) The recitals contained in this Guaranty shall be taken as the statements of the Issuer and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Guaranty, of any offering materials, the Indenture or of the 2015 Notes.

 

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(g) The Guarantor unconditionally and irrevocably waives, to the fullest extent permitted under Brazilian law, any benefit it may be entitled to under Articles 827, 834, 835, 838 and 839 of the Brazilian Civil Code, and under Article 595, caput, of the Brazilian Civil Procedure Code.

SECTION 6. Claims Against the Issuer. The Guarantor 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 Guarantor’s obligations under or in respect of this Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, 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 Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the date on which all of the obligations of the Issuer under the Indenture and the 2015 Notes have been discharged in full (the later of such dates being the “ Termination Date ”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor 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 Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty 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 Guarantor’s written request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.

SECTION 7. Covenants. For so long as the 2015 Notes remain outstanding or any amount remains unpaid on the 2015 Notes and the Indenture, the Guarantor will, and will cause each of its Subsidiaries, as applicable, to comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Guaranty as provided herein):

(a) Performance of Obligations . The Guarantor shall pay all amounts owed by it and comply with all its other obligations under the terms of this Guaranty and the Indenture in accordance with the terms thereof.

 

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(b) Maintenance of Corporate Existence . The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7 (f) 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 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.

(c) Maintenance of Office or Agency . So long as any of the 2015 Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor in respect of this Guaranty may be served, and the Guarantor will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d) Ranking . The Guarantor will ensure at all times that its obligations under this Guaranty will constitute the general senior unsecured and unsubordinated obligations of the Guarantor and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (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 Guarantor under this Guaranty.

(e) Notice of Defaults . The Guarantor will give written notice to the Trustee, as soon as is practicable and in any event within thirty calendar days after the Guarantor becomes aware, or should reasonably become aware, of the occurrence of any Default or Event of Default, accompanied by a certificate of an officer of the Guarantor setting forth the details thereof and stating what action the Guarantor proposes to take with respect thereto.

(f) Limitation on Consolidation, Merger, Sale or Conveyance . (i) The Guarantor 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 Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:

(A) either the Guarantor is the continuing entity or the person (the “ Successor Company ”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Guaranty;

 

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(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor 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 2015 Notes pursuant to this Guaranty;

(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and

(D) the Guarantor 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 Guaranty comply with the terms of this Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.

(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 Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):

(A) the Guarantor 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 Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or

(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or

 

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(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or

(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.

(g) Negative Pledge . So long as any 2015 Note remains outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor provides such other security for the 2015 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2015 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture.

(h) Provision of Financial Statements and Reports . (i) The Guarantor 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 Reporting 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 Reporting GAAP and (C) such other financial data as the Trustee may reasonably request.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(h)(i)(A) and (B), an Officer’s Certificate stating that a review of the activities of the Guarantor and the Issuer has been made during the period covered by such financial statements with a view to determining whether the Guarantor and the Issuer have kept, observed, performed and fulfilled their covenants and agreements under this Guaranty 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 Guarantor 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 7(h)(iii), the

 

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Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.

(iv) Upon written request of any Holder or The Depository Trust Company (DTC), the reports and other information provided for in this paragraph (h) shall be delivered to DTC representing the Noteholders, at 55 Water Street, 25th Floor, New York, NY, 10041, Attention: Proxy Department, or such other address as DTC may provide to the Trustee in writing.

(v) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

SECTION 8. Amendments, Etc . No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the 2015 Notes required to approve the amendment.

SECTION 9. Indemnity. The Guarantor agrees to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damages, claims or expense arising out of or in connection with the performance of its duties under this Guaranty, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith.

SECTION 10. 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 Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro—RJ, Brazil, Telephone: (55-21) 3224-4079, Telecopier: (55-21) 3224-6197, Attention: Sonia Tereza Terra Figueiredo Vasconcellos, Corporate Finance & Treasury/Debt Control, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 4E, New York, New York, 10286, USA, Telephone: (1-212) 815-4259, Telecopier: (1-212) 815-5603, Attention: Corporate Trust Department or, as to any party, at such other address as shall be

 

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designated by such party in a written notice to each other party. All such notices and other communications shall, when telecopied, be effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty shall be effective as delivery of an original executed counterpart thereof.

(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).

SECTION 11. Survival. Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty, the termination of this Guaranty and/or the resignation or removal of the Trustee.

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. Continuing Agreement; Assignment of Rights Under the Indenture and the 2015 Notes . This Guaranty is a continuing guaranty 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 2015 Notes and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Guaranty, (b) be binding upon the Guarantor, 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 assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the 2015 Note held by it) to any other person or entity, 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 Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Noteholders.

 

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SECTION 14. Currency Rate Indemnity . (a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:

(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Guaranty 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 Guarantor; 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 Guaranty or in respect of the 2015 Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, 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 Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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 Guarantor 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 Guarantor for a liquidated sum or sums in respect of amounts due under this Guaranty, or under the Indenture or the 2015 Notes or under any judgment or order.

SECTION 15. Governing Law; Jurisdiction; Waiver of Immunity, Etc.

(a) This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) The Guarantor 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 sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty 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 Guarantor 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

 

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the extent permitted by law, in such federal court. The Guarantor 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 Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Guaranty or any other Transaction Document in the courts of any jurisdiction.

(c) The Guarantor hereby irrevocably appoints and empowers the New York office of Petróleo 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 Guarantor 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 Guarantor 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 Guarantor 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 10 or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent. Service upon the Guarantor 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 Guarantor 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 Guarantor 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 Guaranty 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 Guarantor 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 GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(f) This Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not

 

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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 Guaranty, any of the Transaction Documents 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 16. Execution in Counterparts. This Guaranty 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 Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.

SECTION 17. Entire Agreement. This Guaranty, together with the Indenture and the 2015 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

SECTION 18. The Trustee. In the performance of its obligations hereunder, the Trustee shall be entitled to all the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

[ Signature page follows ]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

PETRÓLEO BRASILEIRO S.A.—PETROBRAS
By:  

/s/ Gustavo Tardin Barbosa

  Name:   Gustavo Tardin Barbosa
  Title:   Executive Manager of Corporate Finance
      WITNESSES:
      1.  

/s/ Maurício Piragibe C. Faria

        Name: Maurício Piragibe C. Faria
      2.  

/s/ Gustavo Luchese Unfer

        Name: Gustavo Luchese Unfer


ACKNOWLEDGED:

THE BANK OF NEW YORK MELLON, as Trustee and not in its individual capacity

  By:  

/s/ John T. Needham, Jr.

    Name:   John T. Needham, Jr.
    Title:   Vice President
  WITNESSES:
  1.  

/s/ Karon Greene

    Name: Karon Greene
  2.  

/s/ Catherine F. Donohue

    Name: Catherine F. Donohue


STATE OF NEW YORK    )   
   )   

ss:

COUNTY OF NEW YORK    )   

On this      day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that      is a                      of The Bank of New York Mellon, one of the persons 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 February 2012, before me personally came                      and                      to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public
COMMISSION EXPIRES

Exhibit 4.8

ELEVENTH SUPPLEMENTAL INDENTURE

ELEVENTH SUPPLEMENTAL INDENTURE, effective as of February 6, 2012, by and among PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company incorporated with limited liability under the laws of the Cayman Islands, having its principal office at 4 th Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman, Cayman Islands (the “ Company ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), and PETRÓLEO BRASILEIRO S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil, having its principal office at Avenida República do Chile, 65, 20035-900 Rio de Janeiro – RJ, Brazil (“ Petrobras ”).

W I T N E S S E T H:

WHEREAS , the Company and the Trustee previously have entered into an indenture, dated as of December 15, 2006 (the “ Original Indenture ”), as supplemented by this Eleventh Supplemental Indenture, dated as of February 6, 2012 (the “Eleventh Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

WHEREAS , Section 9.01 of the Original Indenture provides that, subsequent to the execution of the Original Indenture and subject to satisfaction of certain conditions, the Company and the Trustee may enter into one or more indentures supplemental to the Original Indenture to add to, change or eliminate any of the provisions of the Original Indenture in respect of one or more series of Securities (as defined in the Original Indenture);

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-163665-01) (the “ Registration Statement ”), dated December 11, 2009, the Prospectus Supplement dated February 1, 2012 and related Base Prospectus dated December 11, 2009 (collectively, the “ Offering Document ”) and the Indenture, U.S.$1,250,000,000 of its 2.875% Global Notes due 2015, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Eleventh Supplemental Indenture;

WHEREAS , as contemplated in the Offering Document, Petrobras and the Trustee intend, in connection with the issuance of the Notes, to enter into a guaranty, dated as of the date hereof in the form attached as Exhibit B hereto (the “ Guaranty ”), to provide for an unconditional and irrevocable guaranty of the Notes by Petrobras;

WHEREAS , the Trustee has provided to the Company and Petrobras Statements of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to each of the Companies which have been filed as exhibits to the Registration Statement;


WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Eleventh Supplemental Indenture a valid, binding, and legal instrument in accordance with the terms of the Indenture have been performed and fulfilled and the execution and delivery of this Eleventh Supplemental Indenture has been in all respects duly authorized;

WHEREAS , pursuant to Section 9.01 of the Original Indenture, the Trustee is authorized to execute and deliver this Eleventh Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Eleventh Supplemental Indenture;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras and the Trustee hereby agree, for the equal and ratable benefit of all Holders, as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Defined Terms . All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby. All definitions in the Original Indenture shall be read in a manner consistent with the terms of this Eleventh Supplemental Indenture.

Section 1.02. Additional Definitions . (a) For the benefit of the Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by adding the following new definitions:

“Closing Date” means February 6, 2012.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Default Rate” has the meaning set forth in Section 2.01(f) herein.

“Denomination Currency” has the meaning set forth in Section 2.03(c) herein.

 

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“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

“Interest Period” means the period beginning on an Interest Payment Date and ending on the day before the next Interest Payment Date, except that the first Interest Period shall be the period beginning on the Closing Date and ending on the day before the next Interest Payment Date.

“Judgment Currency” has the meaning set forth in Section 2.03(c) herein.

“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.

“Make Whole Amount” has the meaning set forth in Section 2.01(l) herein.

“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

“Offering Document” shall have the meaning set forth in the recitals to this Eleventh Supplemental Indenture.

“Payment Account” has the meaning set forth in Section 2.01(h) herein.

“Permitted Lien” means a:

(a) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Company’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;

(b) Lien arising from the Company’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Company’s past practice;

(c) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;

 

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(d) Lien granted upon or with respect to any assets hereafter acquired by the Company or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;

(e) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned Subsidiary;

(f) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Company or any Subsidiary as long as such Lien is not created in anticipation of such acquisition;

(g) Lien existing as of the date of this Eleventh Supplemental Indenture;

(h) Lien resulting from the Indenture or the Guaranty;

(i) Lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by the Company, on amounts of cash or cash equivalents on deposit in any reserve or similar account to pay interest on such securities for a period of up to 24 months as required by any Rating Agency as a condition to such Rating Agency rating such securities investment grade or as is otherwise consistent with market conditions at such time, as such conditions are satisfactorily demonstrated to the Trustee;

(j) Lien granted or incurred to secure any extension, renewal, refinancing, refunding or exchange (or successive extensions, renewals, refinancings, refundings or exchanges), in whole or in part, of or for any Indebtedness secured by Lien referred to in paragraphs (a) through (i) above (but not paragraph (c)), provided that such Lien does not extend to any other property, the principal amount of the Indebtedness secured by such Lien is not increased, and in the case of paragraphs (a), (b) and (f) the obligees meet the requirements of such paragraphs; and

(k) Lien in respect of Indebtedness the principal amount of which in the aggregate, together with all Liens not otherwise qualifying as the Company’s Permitted Liens pursuant to clauses (a) through (j) of this definition, does not exceed 15% of the Company’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Company’s balance sheet is prepared and published in accordance with applicable Law.

 

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“Reference Treasury Dealer” means each of Citigroup Global Markets, Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC or, in each case, their affiliates, which are primary United States government securities dealers and two other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “ Primary Treasury Dealer ”), the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 pm New York time on the third business day preceding such redemption date.

“Regular Record Date” means one Business Day prior to any Interest Payment Date.

“Reporting GAAP” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (“ IFRS ”) as adopted by the International Accounting Standards Board (“IASB”) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

ARTICLE 2

TERMS OF THE NOTES

Section 2.01. General . In accordance with Section 3.01 of the Original Indenture, the following terms relating to the Notes are hereby established:

(a) Title : The Notes shall constitute a series of Securities having the title “2.875% Global Notes due 2015.”

 

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(b) Aggregate Amount : The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Eleventh Supplemental Indenture shall be U.S.$1,250,000,000. As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue Add On Notes having identical terms (including CUSIP, ISSN and other relevant identifying characteristics as the Notes), so long as, on the date of issuance of such Add On Notes: (i) no Default or Event of Default shall have occurred and then be continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras. All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

(c) Ranking : The Notes (including any Add On Notes) shall be general senior unsecured and unsubordinated obligations of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsecured and unsubordinated obligations from time to time outstanding that are not, by their terms, expressly subordinated in right of payment to the Notes (other than obligations preferred by statute or by operation of law).

(d) Maturity : The entire outstanding principal of the Notes shall be payable in a single installment on February 6, 2015 (the “ Stated Maturity ”). No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

 

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(e) Interest: Interest shall accrue on the Notes at the rate of 2.875% per annum until all required amounts due in respect of the Notes have been paid. All interest shall be paid by the Company to the Trustee and distributed by the Trustee in accordance with this Indenture semiannually in arrears on February 6 and August 6 of each year (or, as provided in the Original Indenture, if such date is not a Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on August 6, 2012, to the Person in whose name a Note is registered at the close of business on the preceding Regular Record Date (which shall mean, with respect to any payment to be made on an Interest Payment Date, the Business Day preceding the relevant Interest Payment Date.) As provided in the Original Indenture, (i) interest shall be calculated based on a 360-day year of twelve 30-day months, (ii) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Trustee in New York City, or such other paying agent office in the United States as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (iii) all such payments to the Trustee shall be made by the Company by depositing immediately available funds in U.S. dollars one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iv) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in New York City.

(f) Default Rate : Upon the occurrence and during the continuation of an Event of Default, (i) interest on the outstanding principal amount of the Notes shall accrue on the Notes at a rate equal to 0.5% per annum above the interest rate on the Notes at that time (the “ Default Rate ”) and (ii) to the fullest extent permitted by law, interest shall accrue on the amount of any interest, fee, Additional Amounts, or other amount payable under the Indenture and the Notes that is not paid when due, from the date such amount was due until such amount shall be paid in full, excluding the date of such payment, at the Default Rate.

(g) Payment Account : On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Eleventh Supplemental Indenture (the “ Payment Account ”) into which all payments required to be made by the Company under or with respect to the Notes shall be deposited. The Company agrees that the Payment Account shall be maintained in the name of the Trustee and under its sole dominion and control (acting on behalf of the Holders of the Notes) and used solely to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Notes. No funds contained in the Payment Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Company or any other Person have an interest therein or amounts on deposit therein. All amounts on deposit in the Payment Account on any Interest Payment Date after the Trustee has paid all amounts due and owing to the holders of the Notes as of such Interest Payment Date shall be retained in the Payment Account and used by the Trustee to pay any amounts due and owing to the Holders of the Notes on the next succeeding Interest Payment Date.

 

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(h) Form and Denomination : The Notes shall be issuable in whole in the registered form of one or more Global Notes (without coupons), in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof, and shall be transferable in integral multiples of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof and the Depository for such Global Notes shall be The Depository Trust Company, New York, New York.

(i) Guaranty : The Notes shall have the benefit of the Guaranty in the manner provided in Article 3 of this Eleventh Supplemental Indenture.

(j) Rating : The Notes can be issued without the requirement that they have any rating from a nationally recognized statistical rating organization.

(k) Optional Early Redemption . The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at, in each case, the Treasury Rate plus 35 basis points (the “ Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

(l) Early Redemption Solely for Tax Reasons . Pursuant to Section 11.08 of the Original Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if as a result of any change in or amendment to the laws or regulations or ruling promulgated thereunder of the jurisdiction in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application of or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date hereof (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Section 8.01 and 8.02 of the Original Indenture), the Company would be required to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture. For purposes of Section 11.08 of the Original Indenture, the reincorporation of the Company shall be treated as the adoption of a successor entity, provided, however, that redemption under Section 11.08 of the Original Indenture shall not be available if the reincorporation was performed in anticipation of a change in, execution of or amendment to any laws or treaties or the official application or interpretation of any laws or treaties of such new jurisdiction of incorporation that would result in an obligation to pay Additional Amounts.

(m) Conversion : The Notes will not be convertible into, or exchangeable for, any other securities.

 

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Section 2.02. Amendments to Article Five Relating to Events of Default. (a)  Restated Events of Default : As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to read in its entirety as follows:

“Section 5.01 Events of Default

“Event of Default,” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

1. The Company shall fail to make any payment in respect of principal on any of the Notes whether on the Stated Maturity, upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such three calendar day period;

2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Notes (including Additional Amounts, if any) in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such 30 calendar day period;

3. The Company or Petrobras shall fail to perform, or breach, any term, covenant, agreement or obligation contained in this Indenture or the Guaranty and such failure (other than any failure to make any payment under the Guaranty, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days (inclusive of any time frame contained in any such term, covenant, agreement or obligation for compliance thereunder) after there has been received by the Company or Petrobras from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

4. The maturity of any Indebtedness of the Company, Petrobras or any Material Subsidiary in a total aggregate principal amount of U.S.$150,000,000 (or its equivalent in another currency), or more is accelerated in accordance with the terms of that Indebtedness, it being understood that prepayment or redemption by the Company, Petrobras or the relevant Material Subsidiary of any Indebtedness is not acceleration for this purpose;

 

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5. One or more final and non-appealable judgments or final decrees is entered against the Company, Petrobras or any Material Subsidiary thereof involving in the aggregate a liability (not theretofore paid or covered by insurance) of U.S.$150,000,000 (or its equivalent in another currency) or more, and all such judgments or final decrees shall not have been vacated, discharged or stayed within 120 calendar days after the rendering thereof;

6. The Company, Petrobras or any Material Subsidiary thereof stops payment of, or is generally unable to pay, its debts as and when they become due except (i) as is otherwise expressly provided under this Indenture or the Guaranty, or (ii) in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, merger, conveyance or transfer, the terms of which shall have been approved by a resolution of a meeting of the Holders;

7. Proceedings are initiated against the Company, Petrobras or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 90 days after the entering of such proceeding, or an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company, Petrobras or any Material Subsidiary thereof and is not discharged or removed within 90 days;

8. The Company, Petrobras or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, concordata or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Indebtedness or any part of it;

9. An effective resolution is passed for, or any authorized action is taken by any court of competent jurisdiction, directing the winding-up, dissolution or liquidation of the Company, Petrobras or any Material Subsidiary thereof (other than in any of the circumstances referred to as exceptions in paragraph (6) above);

10. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (6), (7), (8) or (9) of this Section 5.01;

 

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11. This Indenture, the Notes, the Guaranty or any part thereof shall cease to be in full force and effect or binding and enforceable against the Company or Petrobras, it becomes unlawful for the Company or Petrobras to perform any material obligation under this Indenture, the Notes or the Guaranty, or the Company or Petrobras shall contest the enforceability of this Indenture, the Notes or the Guaranty or deny that it has liability under this Indenture, the Notes or the Guaranty;

12. Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in the Company.”

Section 2.03 . Amendments to Article 10 Relating to Covenants.

(a) Statement of Officers as to Default and Notices of Events of Default : As it applies to the Notes, Section 10.05 of the Original Indenture shall be amended by deleting the second sentence in its entirety and replacing it with the following:

“Within 30 calendar days (or promptly with respect to Events of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7), 5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than 30 calendar days) after the Company becomes aware or should reasonably become aware of the occurrence of an Event of Default pursuant to Section 5.01 hereunder, the Company shall provide notice to the Trustee of such occurrence, accompanied by an Officer’s Certificate of the Company setting forth the details thereof.”

(b) Maintenance of Corporate Existence : As it applies to the Notes, Section 10.02 of the Original Indenture shall be replaced with the following:

“The Company will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article VIII and (ii) take all reasonable 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 10.02 shall not require the Company to maintain any such right, privilege, title to property or franchise, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.”

(c) Additional Covenants Applicable to the Notes : As it applies to the Notes, Article 10 of the Original Indenture shall be amended to include the following:

“Section 10.11 Use of Proceeds .

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally for general corporate purposes.

 

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Section 10.12 Negative Pledge

So long as any Note remains Outstanding, the Company will not create or permit any Lien, other than a Permitted Lien, on any of the Company’s assets to secure (a) any of the Company’s Indebtedness or (b) the Indebtedness of any other Person, unless the Company contemporaneously creates or permits such Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with this Indenture. In addition, the Company will not allow any of the Company’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (a) any of the Company’s Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness of any other Person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with the Indenture.

Section 10.13 Currency Rate Indemnity . (a) The Company shall (to the extent lawful) indemnify the Trustee and the Holders of the Notes and keep them indemnified against:

(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of the Notes, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and

(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of the Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.

(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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.

 

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(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Notes.”

Section 2.04 . Application of the Article of the Indenture Regarding Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and 14.03 of the Original Indenture shall apply to the Notes.

ARTICLE 3

GUARANTY

Section 3.01. Execution . The Trustee is hereby authorized and directed to acknowledge the Guaranty and to perform all of its duties and obligations thereunder.

Section 3.02. Enforcement. The Trustee shall enforce the provisions of the Guaranty against Petrobras in accordance with the terms thereof and the terms of the Indenture and Petrobras, by execution of this Eleventh Supplemental Indenture, and by so agreeing to become a party to the Indenture, agrees that each Holder of the Notes shall have direct rights under the Guaranty as if it were a party thereto.

Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound by the provisions of Section 1.08 of the Original Indenture and (ii) confirms that (A) its obligations under the Guaranty shall be issued pursuant to the Indenture and (B) it intends for the Holders of the Notes, in addition to those rights under the Guaranty as provided therein, to be entitled to the benefits of the Indenture with respect to their rights against Petrobras under the Guaranty.

Section 3.04. Definition of the Term “Securities.” For all purposes relating to the Notes, the term “Securities” in Section 1.01 of the Original Indenture shall be amended by inserting the following at the end thereof: “All references herein to any Securities shall be deemed to include the rights of the Holder thereof under any guaranty arrangement entered into by Petrobras with the Trustee in connection with the issuance of such Securities pursuant to Section 3.14 hereof, which are an integral part of such Securities.”

Section 3.05. Taxes; Additional Amounts . For the avoidance of doubt, the Company’s obligations to pay any indemnity with respect to taxes, including the obligation to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture, shall extend to any payments made by Petrobras pursuant to the Guaranty.

 

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ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the Eleventh Supplemental Indenture. This Eleventh Supplemental Indenture supplements the Indenture and shall be a part, and subject to all the terms, thereof. The Original Indenture, as supplemented and amended by this Eleventh Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this Eleventh Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Eleventh Supplemental Indenture supersede any conflicting provisions included in the Original Indenture unless not permitted by law. The provisions of this Eleventh Supplemental Indenture are intended to apply solely to the Notes and the Holders thereof and shall not apply to any future issuance of securities by the Company (other than any Add On Notes as provided herein) and all references to provisions of the Original Indenture herein amended and restated or otherwise modified shall have effect solely with respect to the Notes contemplated in this Eleventh Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this Eleventh Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this Eleventh Supplemental Indenture.

Section 4.02. Governing Law . This Eleventh Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 4.03. Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Eleventh Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and Petrobras.

Section 4.04. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction of this Eleventh Supplemental Indenture.

Section 4.05. Counterparts. The parties may sign any number of copies of this Eleventh Supplemental Indenture. Each signed copy shall be an original, but all of them shall represent the same agreement.

Section 4.06. Additional Trustee Provisions.

(a) The permissive rights of the Trustee enumerated herein shall not be construed as duties.

(b) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(c) Notwithstanding anything herein to the contrary neither the Trustee nor any of its the agents shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or its respective agent, as applicable, (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, fire, riot, strikes or work stoppages for any reason, embargos, government action or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

Section 4.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

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IN WITNESS WHEREOF, the parties have caused this Eleventh Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By:  

/s/ Sérvio Túlio da R. Tinoco

Name:   Sérvio Túlio da R. Tinoco
Title:   Chief Financial Officer
PETRÓLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Gustavo Tardin Barbosa

Name:   Gustavo Tardin Barbosa
Title:   Executive Manager of Corporate Finance

 

WITNESSES:
1.  

/s/ Maurício Piragibe C. Faria

  Name: Maurício Piragibe C. Faria
2.  

/s/ Gustavo Luchese Unfer

  Name: Gustavo Luchese Unfer


THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ John T. Needham, Jr.

  Name: John T. Needham, Jr.
  Title: Vice President
WITNESSES:
1.  

/s/ Karon Greene

  Name: Karon Greene
2.  

/s/ Catherine F. Donohue

  Name: Catherine F. Donohue


STATE OF NEW YORK

     )           
     )           ss:      

COUNTY OF NEW YORK

     )           

On this 6 th day of February 2012, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 6 th day of February 2012, before me personally came Karon Greene and Catherine F. Donohue to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Danny Lee

Notary Public
COMMISSION EXPIRES


Exhibit A

Form of 2.875% Global Note due 2015

GLOBAL NOTE

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


PETROBRAS INTERNATIONAL FINANCE COMPANY

2.875% GLOBAL NOTES DUE 2015

No.

CUSIP No.: 71645W AV3

ISIN No.: US71645WAV37

Common Code: 074413536

Principal Amount: U.S.$1,250,000,000

Initial Issuance Date: February 6, 2012

This Note is one of a duly authorized issue of notes of PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company with limited liability organized under the laws of the Cayman Islands (the “ Issuer ”), designated as its 2.875% Global Notes Due 2015 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$1,250,000,000 under the Eleventh Supplemental Indenture (the “ Eleventh Supplemental Indenture ”), effective as of February 6, 2012, by and among the Issuer, The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “ Trustee ”), and Petróleo Brasileiro S.A. - Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), to the Indenture, dated as of December 15, 2006 (the “ Original Indenture ”, and as supplemented by the Eleventh Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.

The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“ DTC ”) and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on February 6, 2015 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.

As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from the Closing Date, semiannually on February 6 and August 6 of each year (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing August 6, 2012 (each such date, an “ Interest Payment Date ”), at a rate equal to 2.875% per annum. Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment.


Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.

The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.

This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.

If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes may become or may be declared due and payable in the manner and with the effect provided in the Indenture.

Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.

The Notes shall be issued only in fully registered form, without coupons. Notes shall be issued in the form of beneficial interests in one or more global securities in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.

Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By  

 

Name:  
Title:  
WITNESSES:
1.  

 

  Name:
2.  

 

  Name:


STATE OF NEW YORK

     )           
     )           ss:      

COUNTY OF NEW YORK

     )           

On this     day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that                     is the Attorney-in-Fact of Petrobras International Finance Company, 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 February 2012, before me personally came                     and                     to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public
COMMISSION EXPIRES


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

Dated: February     , 2012

 

The Bank of New York Mellon

As Trustee

By:  

 

Name:  
Title:   Authorized Officer


ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

(Please print or type name and address,

including zip code, of assignee:)

the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.

 

Date:   Your Signature:  

 

(Sign exactly as your name
appears on the face of this Note)


Exhibit B

[Form of Guaranty]

Exhibit 4.10

GUARANTY

Dated as of February 6, 2012

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON, as

Trustee for the Noteholders

Referred to Herein


TABLE OF CONTENTS

 

         Page  

SECTION 1.

 

Definitions

     2   

SECTION 2.

 

Guaranty

     6   

SECTION 3.

 

Guaranty Absolute

     7   

SECTION 4.

 

Independent Obligation

     9   

SECTION 5.

 

Waivers and Acknowledgments

     9   

SECTION 6.

 

Claims Against the Issuer

     10   

SECTION 7.

 

Covenants

     10   

SECTION 8.

 

Amendments, Etc.

     14   

SECTION 9.

 

Indemnity

     14   

SECTION 10.

 

Notices, Etc.

     14   

SECTION 11.

 

Survival

     15   

SECTION 12.

 

No Waiver; Remedies

     15   

SECTION 13.

 

Continuing Agreement; Assignment of Rights Under the Indenture and the 2017 Notes

     15   

SECTION 14.

 

Currency Rate Indemnity

     16   

SECTION 15.

 

Governing Law; Jurisdiction; Waiver of Immunity, Etc.

     16   

SECTION 16.

 

Execution in Counterparts

     18   

SECTION 17.

 

Entire Agreement

     18   

SECTION 18.

 

The Trustee

     18   

 

-i-


GUARANTY

GUARANTY (this “ Guaranty ”), dated as of February 6, 2012, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2017 Notes (as defined below) issued pursuant to the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras International Finance Company, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of December 15, 2006 (the “ Original Indenture ”) with the Trustee, as supplemented by the Twelfth Supplemental Indenture among the Issuer, the Guarantor and the Trustee dated as of the date hereof (the “ Twelfth Supplemental Indenture ”). The Original Indenture, as supplemented by the Twelfth Supplemental Indenture and as amended or supplemented from time to time with respect to the 2017 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.$1,750,000,000 aggregate principal amount of its 3.500% Global Notes due 2017 under the Indenture (the “ 2017 Notes ”);

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 2017 Notes (the “ Noteholders ”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the 2017 Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;

WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the 2017 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2017 Notes that the Guarantor shall have executed this Guaranty.

WHEREAS, each of the parties hereto is entering into this Guaranty for the benefit of the other party and for the equal and ratable benefit of the Noteholders.


NOW, THEREFORE, the Guarantor and the Trustee hereby agree as follows:

SECTION 1. Definitions. (a) All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Original Indenture, as supplemented and amended by the Twelfth Supplemental Indenture. All such definitions shall be read in a manner consistent with the terms of this Guaranty.

(b) 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.

Authorized Representative ” of the Guarantor 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.

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 .

Denomination Currency ” has the meaning specified in Section 14(b).

Guaranteed Obligations ” has the meaning specified in Section 2.

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).

Judgment Currency ” has the meaning specified in Section 14(b).

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

 

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Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty 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 Guaranty 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 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

Officer’s Certificate ” means a certificate of an Authorized Representative of the Guarantor.

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 Guarantor, whether or not such counsel is an employee of the Guarantor.

Permitted Lien ” means a:

(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government 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 Guarantor’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 Guarantor’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 Guarantor’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 Guarantor 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

 

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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 Guarantor or another Wholly-Owned Subsidiary;

(vii) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Guarantor 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

(ix) Lien existing as of the date of the Twelfth Supplemental 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 Guarantor, 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 (vii), 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 Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor 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 Guarantor’s Permitted Liens pursuant to clauses (i) through (xii) of this definition, does not exceed 15% of the Guarantor’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.

Process Agent has the meaning specified in Section 15(c).

 

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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.

Qualifying Asset ” in relation to any Project Financing means:

(i) any concession, authorization or other legal right granted by any Governmental Authority to the Guarantor or any of the Guarantor’s Subsidiaries, or any consortium or other venture in which the Guarantor 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

(v) shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor 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.

 

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Reporting GAAP ” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (IFRS) as adopted by the International Accounting Standards Board (IASB) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

SEC ” means the United States Securities and Exchange Commission.

Successor Company ” has the meaning specified in Section 7(f)(A).

Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2017 Notes and this Guaranty.

(c) Construction . The parties agree that items (1) through (5) of Section 1.01 of the Original Indenture shall apply to this Guaranty, except as otherwise expressly provided or unless the context otherwise requires.

SECTION 2. Guaranty . (a) The Guarantor hereby unconditionally and irrevocably guarantees the full and punctual payment when due, as a guaranty of payment and not of collection, whether at the Stated Maturity, or earlier or later by acceleration or otherwise, of all obligations of the Issuer now or hereafter existing under the Indenture and the 2017 Notes, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and the Guarantor agrees to pay any and all expenses (including reasonable and documented counsel fees and expenses) incurred by the Trustee or any Noteholder in enforcing any rights under this Guaranty with respect to such Guaranteed Obligations. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Issuer to the Trustee or any Noteholder under the Indenture and the 2017 Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar proceeding involving the Issuer.

(b) In the event that the Issuer does not make payments to the Trustee of all or any portion of the Guaranteed Obligations, upon receipt of notice of such non-payment from the Trustee, the Guarantor will make immediate payment to the Trustee of any such amount or portion of the Guaranteed Obligations owing or payable under the Indenture and the 2017 Notes. Such notice shall specify the amount or amounts under the Indenture and the 2017 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2017 Notes.

 

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(c) The obligation of the Guarantor under this Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the 2017 Notes and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.

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 Guaranty, to have been received by the Trustee on the next succeeding Business Day.

SECTION 3. Guaranty Absolute. (a) The Guarantor’s obligations under this Guaranty 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 2017 Notes or the Indenture. The obligations of the Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of the Issuer, the Issuer’s Subsidiaries or the Guarantor’s Subsidiaries under or in respect of the Indenture and the 2017 Notes or any other document or agreement, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, 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 Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(i) any lack of validity or enforceability of any of the Transaction Documents;

(ii) any provision of applicable Law or regulation purporting to prohibit the payment by the Issuer of any amount payable by it under the Indenture and the 2017 Notes;

(iii) any provision of applicable Law or regulation purporting to prohibit the payment by the Guarantor of any amount payable by it under this Guaranty;

(iv) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed 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 2017 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2017 Notes of the Indenture or otherwise;

 

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(v) any taking, release or amendment or waiver of, or consent to departure from, any other guaranty or agreement similar in function to this Guaranty, for all or any of the obligations of the Issuer under the Indenture or the 2017 Notes;

(vi) any manner of sale or other disposition of any assets of any Noteholder;

(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor 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 Guarantor;

(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);

(ix) the failure of any other person or entity to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Indenture;

(x) 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 Guarantor or any other party; or

(xi) any claim of set-off or other right which the Guarantor may have at any time against the Issuer or the Trustee, whether in connection with this transaction or with any unrelated transaction.

(b) This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed 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 Guarantor or otherwise, all as though such payment had not been made.

 

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SECTION 4. Independent Obligation. The obligations of the Guarantor hereunder are independent of the Issuer’s obligations under the 2017 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2017 Notes, without in any way affecting or impairing the liability of the Guarantor 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 before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 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 Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.

SECTION 5. Waivers and Acknowledgments. (a) The Guarantor 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 Guaranteed Obligations and this Guaranty 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 Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to the Guaranteed Obligations, whether the same are existing now or in the future.

(c) The Guarantor 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 Guarantor or other rights of the Guarantor 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 Guaranteed Obligations of the Guarantor hereunder.

(d) The Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Trustee or any Noteholder to disclose to the Guarantor any 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 Guarantor 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 5 are knowingly made in contemplation of such benefits.

(f) The recitals contained in this Guaranty shall be taken as the statements of the Issuer and the Guarantor, as applicable, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Guaranty, of any offering materials, the Indenture or of the 2017 Notes.

 

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(g) The Guarantor unconditionally and irrevocably waives, to the fullest extent permitted under Brazilian law, any benefit it may be entitled to under Articles 827, 834, 835, 838 and 839 of the Brazilian Civil Code, and under Article 595, caput, of the Brazilian Civil Procedure Code.

SECTION 6. Claims Against the Issuer. The Guarantor 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 Guarantor’s obligations under or in respect of this Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, 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 Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the date on which all of the obligations of the Issuer under the Indenture and the 2017 Notes have been discharged in full (the later of such dates being the “ Termination Date ”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor 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 Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty 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 Guarantor’s written request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.

SECTION 7. Covenants. For so long as the 2017 Notes remain outstanding or any amount remains unpaid on the 2017 Notes and the Indenture, the Guarantor will, and will cause each of its Subsidiaries, as applicable, to comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Guaranty as provided herein):

(a) Performance of Obligations . The Guarantor shall pay all amounts owed by it and comply with all its other obligations under the terms of this Guaranty and the Indenture in accordance with the terms thereof.

 

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(b) Maintenance of Corporate Existence . The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7 (f) 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 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.

(c) Maintenance of Office or Agency . So long as any of the 2017 Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor in respect of this Guaranty may be served, and the Guarantor will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d) Ranking . The Guarantor will ensure at all times that its obligations under this Guaranty will constitute the general senior unsecured and unsubordinated obligations of the Guarantor and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (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 Guarantor under this Guaranty.

(e) Notice of Defaults . The Guarantor will give written notice to the Trustee, as soon as is practicable and in any event within thirty calendar days after the Guarantor becomes aware, or should reasonably become aware, of the occurrence of any Default or Event of Default, accompanied by a certificate of an officer of the Guarantor setting forth the details thereof and stating what action the Guarantor proposes to take with respect thereto.

(f) Limitation on Consolidation, Merger, Sale or Conveyance . (i) The Guarantor 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 Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:

(A) either the Guarantor is the continuing entity or the person (the “ Successor Company ”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Guaranty;

 

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(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor 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 2017 Notes pursuant to this Guaranty;

(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and

(D) the Guarantor 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 Guaranty comply with the terms of this Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.

(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 Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):

(A) the Guarantor 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 Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or

(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or

 

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(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or

(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.

(g) Negative Pledge . So long as any 2017 Note remains outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor provides such other security for the 2017 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2017 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture.

(h) Provision of Financial Statements and Reports . (i) The Guarantor 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 Reporting 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 Reporting GAAP and (C) such other financial data as the Trustee may reasonably request.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(h)(i)(A) and (B), an Officer’s Certificate stating that a review of the activities of the Guarantor and the Issuer has been made during the period covered by such financial statements with a view to determining whether the Guarantor and the Issuer have kept, observed, performed and fulfilled their covenants and agreements under this Guaranty 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 Guarantor 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 7(h)(iii), the

 

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Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.

(iv) Upon written request of any Holder or The Depository Trust Company (DTC), the reports and other information provided for in this paragraph (h) shall be delivered to DTC representing the Noteholders, at 55 Water Street, 25th Floor, New York, NY, 10041, Attention: Proxy Department, or such other address as DTC may provide to the Trustee in writing.

(v) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

SECTION 8. Amendments, Etc . No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the 2017 Notes required to approve the amendment.

SECTION 9. Indemnity. The Guarantor agrees to fully indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any and all loss, liability, damages, claims or expense arising out of or in connection with the performance of its duties under this Guaranty, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder except to the extent that any such loss, liability or expense may be attributable to its negligence or bad faith.

SECTION 10. 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 Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro—RJ, Brazil, Telephone: (55-21) 3224-4079, Telecopier: (55-21) 3224-6197, Attention: Sonia Tereza Terra Figueiredo Vasconcellos, Corporate Finance & Treasury/Debt Control, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 4E, New York, New York, 10286, USA, Telephone: (1-212) 815-4259, Telecopier: (1-212) 815-5603, Attention: Corporate Trust Department or, as to any party, at such other address as shall be

 

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designated by such party in a written notice to each other party. All such notices and other communications shall, when telecopied, be effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty shall be effective as delivery of an original executed counterpart thereof.

(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).

SECTION 11. Survival. Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty, the termination of this Guaranty and/or the resignation or removal of the Trustee.

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. Continuing Agreement; Assignment of Rights Under the Indenture and the 2017 Notes . This Guaranty is a continuing guaranty 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 2017 Notes and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Guaranty, (b) be binding upon the Guarantor, 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 assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the 2017 Note held by it) to any other person or entity, 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 Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Noteholders.

 

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SECTION 14. Currency Rate Indemnity . (a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:

(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Guaranty 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 Guarantor; 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 Guaranty or in respect of the 2017 Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, 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 Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee 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 Guarantor 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 Guarantor for a liquidated sum or sums in respect of amounts due under this Guaranty, or under the Indenture or the 2017 Notes or under any judgment or order.

SECTION 15. Governing Law; Jurisdiction; Waiver of Immunity, Etc.

(a) This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b) The Guarantor 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 sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty 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 Guarantor 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

 

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the extent permitted by law, in such federal court. The Guarantor 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 Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Guaranty or any other Transaction Document in the courts of any jurisdiction.

(c) The Guarantor hereby irrevocably appoints and empowers the New York office of Petróleo 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 Guarantor 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 Guarantor 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 Guarantor 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 10 or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent. Service upon the Guarantor 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 Guarantor 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 Guarantor 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 Guaranty 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 Guarantor 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 GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

(f) This Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not

 

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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 Guaranty, any of the Transaction Documents 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 16. Execution in Counterparts. This Guaranty 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 Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.

SECTION 17. Entire Agreement. This Guaranty, together with the Indenture and the 2017 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

SECTION 18. The Trustee . In the performance of its obligations hereunder, the Trustee shall be entitled to all the rights, benefits, protections, indemnities and immunities afforded to it under the Indenture.

[ Signature page follows ]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.

 

PETRÓLEO BRASILEIRO S.A.—PETROBRAS
By:  

/s/ Gustavo Tardin Barbosa

  Name:   Gustavo Tardin Barbosa
  Title:   Executive Manager of Corporate Finance
      WITNESSES:
      1.  

/s/ Maurício Piragibe C. Faria

        Name: Maurício Piragibe C. Faria
      2.  

/s/ Gustavo Luchese Unfer

        Name: Gustavo Luchese Unfer


ACKNOWLEDGED:

THE BANK OF NEW YORK MELLON, as Trustee and not in its individual capacity

  By:  

/s/ John T. Needham, Jr.

    Name:   John T. Needham, Jr.
    Title:   Vice President
  WITNESSES:
  1.  

/s/ Karon Greene

    Name: Karon Greene
  2.  

/s/ Catherine F. Donohue

    Name: Catherine F. Donohue


STATE OF NEW YORK    )   
   )   

ss:

COUNTY OF NEW YORK    )   

On this      day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that      is a                      of The Bank of New York Mellon, one of the persons 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 February 2012, before me personally came                      and                      to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public
COMMISSION EXPIRES

Exhibit 4.11

TWELFTH SUPPLEMENTAL INDENTURE

TWELFTH SUPPLEMENTAL INDENTURE, effective as of February 6, 2012, by and among PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company incorporated with limited liability under the laws of the Cayman Islands, having its principal office at 4 th Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman, Cayman Islands (the “ Company ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), and PETRÓLEO BRASILEIRO S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil, having its principal office at Avenida República do Chile, 65, 20035-900 Rio de Janeiro – RJ, Brazil (“ Petrobras ”).

W I T N E S S E T H:

WHEREAS , the Company and the Trustee previously have entered into an indenture, dated as of December 15, 2006 (the “ Original Indenture ”), as supplemented by this Twelfth Supplemental Indenture, dated as of February 6, 2012 (the “ Twelfth Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

WHEREAS , Section 9.01 of the Original Indenture provides that, subsequent to the execution of the Original Indenture and subject to satisfaction of certain conditions, the Company and the Trustee may enter into one or more indentures supplemental to the Original Indenture to add to, change or eliminate any of the provisions of the Original Indenture in respect of one or more series of Securities (as defined in the Original Indenture);

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-163665-01) (the “ Registration Statement ”), dated December 11, 2009, the Prospectus Supplement dated February 1, 2012 and related Base Prospectus dated December 11, 2009 (collectively, the “ Offering Document ”) and the Indenture, U.S.$1,750,000,000 of its 3.500% Global Notes due 2017, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Twelfth Supplemental Indenture;

WHEREAS , as contemplated in the Offering Document, Petrobras and the Trustee intend, in connection with the issuance of the Notes, to enter into a guaranty, dated as of the date hereof in the form attached as Exhibit B hereto (the “ Guaranty ”), to provide for an unconditional and irrevocable guaranty of the Notes by Petrobras;

WHEREAS , the Trustee has provided to the Company and Petrobras Statements of Eligibility under the Trust Indenture Act of 1939, as amended, with respect to each of the Companies which have been filed as exhibits to the Registration Statement;


WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Twelfth Supplemental Indenture a valid, binding, and legal instrument in accordance with the terms of the Indenture have been performed and fulfilled and the execution and delivery of this Twelfth Supplemental Indenture has been in all respects duly authorized;

WHEREAS , pursuant to Section 9.01 of the Original Indenture, the Trustee is authorized to execute and deliver this Twelfth Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Twelfth Supplemental Indenture;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras and the Trustee hereby agree, for the equal and ratable benefit of all Holders, as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Defined Terms . All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby. All definitions in the Original Indenture shall be read in a manner consistent with the terms of this Twelfth Supplemental Indenture.

Section 1.02. Additional Definitions . (a) For the benefit of the Holders of the Notes, Section 1.01 of the Original Indenture shall be amended by adding the following new definitions:

“Closing Date” means February 6, 2012.

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Default Rate” has the meaning set forth in Section 2.01(f) herein.

“Denomination Currency” has the meaning set forth in Section 2.03(c) herein.

 

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“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

“Interest Period” means the period beginning on an Interest Payment Date and ending on the day before the next Interest Payment Date, except that the first Interest Period shall be the period beginning on the Closing Date and ending on the day before the next Interest Payment Date.

“Judgment Currency” has the meaning set forth in Section 2.03(c) herein.

“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.

“Make Whole Amount” has the meaning set forth in Section 2.01(l) herein.

“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 10% 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 Reporting GAAP (or if Petrobras does not prepare financial statements in Reporting GAAP, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).

“Offering Document” shall have the meaning set forth in the recitals to this Twelfth Supplemental Indenture.

“Payment Account” has the meaning set forth in Section 2.01(h) herein.

“Permitted Lien” means a:

(a) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Company’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;

(b) Lien arising from the Company’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Company’s past practice;

(c) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;

 

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(d) Lien granted upon or with respect to any assets hereafter acquired by the Company or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;

(e) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Company or another Wholly-Owned Subsidiary;

(f) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Company or any Subsidiary as long as such Lien is not created in anticipation of such acquisition;

(g) Lien existing as of the date of this Twelfth Supplemental Indenture;

(h) Lien resulting from the Indenture or the Guaranty;

(i) Lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by the Company, on amounts of cash or cash equivalents on deposit in any reserve or similar account to pay interest on such securities for a period of up to 24 months as required by any Rating Agency as a condition to such Rating Agency rating such securities investment grade or as is otherwise consistent with market conditions at such time, as such conditions are satisfactorily demonstrated to the Trustee;

(j) Lien granted or incurred to secure any extension, renewal, refinancing, refunding or exchange (or successive extensions, renewals, refinancings, refundings or exchanges), in whole or in part, of or for any Indebtedness secured by Lien referred to in paragraphs (a) through (i) above (but not paragraph (c)), provided that such Lien does not extend to any other property, the principal amount of the Indebtedness secured by such Lien is not increased, and in the case of paragraphs (a), (b) and (f) the obligees meet the requirements of such paragraphs; and

(k) Lien in respect of Indebtedness the principal amount of which in the aggregate, together with all Liens not otherwise qualifying as the Company’s Permitted Liens pursuant to clauses (a) through (j) of this definition, does not exceed 15% of the Company’s consolidated total assets (as determined in accordance with Reporting GAAP) at any date as at which the Company’s balance sheet is prepared and published in accordance with applicable Law.

 

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“Reference Treasury Dealer” means each of Citigroup Global Markets, Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC or, in each case, their affiliates, which are primary United States government securities dealers and two other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “ Primary Treasury Dealer ”), the Company shall substitute therefor another Primary Treasury Dealer.

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 pm New York time on the third business day preceding such redemption date.

“Regular Record Date” means one Business Day prior to any Interest Payment Date.

“Reporting GAAP” means (i) generally accepted accounting principles in effect in the United States of America applied on a basis consistent with the principles, methods, procedures and practices in effect from time to time or (ii) International Financial Reporting Standards (“ IFRS ”) as adopted by the International Accounting Standards Board (“IASB”) as from the date the Guarantor adopts IFRS as its primary reporting or accounting standard in its reports filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

ARTICLE 2

TERMS OF THE NOTES

Section 2.01. General . In accordance with Section 3.01 of the Original Indenture, the following terms relating to the Notes are hereby established:

(a) Title : The Notes shall constitute a series of Securities having the title “3.500% Global Notes due 2017.”

(b) Aggregate Amount : The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Twelfth Supplemental Indenture shall be U.S.$1,750,000,000. As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue Add On Notes having identical terms (including CUSIP, ISSN and other relevant identifying characteristics as the Notes), so long as, on the date of issuance of such Add On Notes: (i) no Default or Event of Default shall have occurred and then be continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms,

 

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conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras. All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

(c) Ranking : The Notes (including any Add On Notes) shall be general senior unsecured and unsubordinated obligations of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsecured and unsubordinated obligations from time to time outstanding that are not, by their terms, expressly subordinated in right of payment to the Notes (other than obligations preferred by statute or by operation of law).

(d) Maturity : The entire outstanding principal of the Notes shall be payable in a single installment on February 6, 2017 (the “ Stated Maturity ”). No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

(e) Interest: Interest shall accrue on the Notes at the rate of 3.500% per annum until all required amounts due in respect of the Notes have been paid. All interest shall be paid by the Company to the Trustee and distributed by the Trustee in accordance with this Indenture semiannually in arrears on February 6 and August 6 of each year (or, as provided in the Original Indenture, if such date is not a Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on August 6, 2012, to the Person in whose name a Note is registered at the close of business on the preceding Regular Record Date (which shall mean, with respect to any payment to be made on an Interest Payment Date, the Business Day preceding the relevant Interest Payment Date.) As provided in the Original Indenture, (i) interest shall be calculated based on a 360-day year of twelve 30-day months, (ii) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Trustee in New York City, or such other paying agent office in the United States as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (iii) all such payments to the Trustee shall be made by the Company by depositing immediately available funds in U.S. dollars one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iv) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in New York City.

 

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(f) Default Rate : Upon the occurrence and during the continuation of an Event of Default, (i) interest on the outstanding principal amount of the Notes shall accrue on the Notes at a rate equal to 0.5% per annum above the interest rate on the Notes at that time (the “ Default Rate ”) and (ii) to the fullest extent permitted by law, interest shall accrue on the amount of any interest, fee, Additional Amounts, or other amount payable under the Indenture and the Notes that is not paid when due, from the date such amount was due until such amount shall be paid in full, excluding the date of such payment, at the Default Rate.

(g) Payment Account : On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Twelfth Supplemental Indenture (the “ Payment Account ”) into which all payments required to be made by the Company under or with respect to the Notes shall be deposited. The Company agrees that the Payment Account shall be maintained in the name of the Trustee and under its sole dominion and control (acting on behalf of the Holders of the Notes) and used solely to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Notes. No funds contained in the Payment Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Company or any other Person have an interest therein or amounts on deposit therein. All amounts on deposit in the Payment Account on any Interest Payment Date after the Trustee has paid all amounts due and owing to the holders of the Notes as of such Interest Payment Date shall be retained in the Payment Account and used by the Trustee to pay any amounts due and owing to the Holders of the Notes on the next succeeding Interest Payment Date.

(h) Form and Denomination : The Notes shall be issuable in whole in the registered form of one or more Global Notes (without coupons), in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof, and shall be transferable in integral multiples of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof and the Depository for such Global Notes shall be The Depository Trust Company, New York, New York.

(i) Guaranty : The Notes shall have the benefit of the Guaranty in the manner provided in Article 3 of this Twelfth Supplemental Indenture.

(j) Rating : The Notes can be issued without the requirement that they have any rating from a nationally recognized statistical rating organization.

 

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(k) Optional Early Redemption . The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at, in each case, the Treasury Rate plus 35 basis points (the “ Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

(l) Early Redemption Solely for Tax Reasons . Pursuant to Section 11.08 of the Original Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if as a result of any change in or amendment to the laws or regulations or ruling promulgated thereunder of the jurisdiction in which the Company is incorporated (or, in the case of a successor Person to the Company, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application of or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date hereof (or in the case of a successor Person to the Company, the date on which such successor Person became such pursuant to Section 8.01 and 8.02 of the Original Indenture), the Company would be required to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture. For purposes of Section 11.08 of the Original Indenture, the reincorporation of the Company shall be treated as the adoption of a successor entity, provided, however, that redemption under Section 11.08 of the Original Indenture shall not be available if the reincorporation was performed in anticipation of a change in, execution of or amendment to any laws or treaties or the official application or interpretation of any laws or treaties of such new jurisdiction of incorporation that would result in an obligation to pay Additional Amounts.

(m) Conversion : The Notes will not be convertible into, or exchangeable for, any other securities.

Section 2.02. Amendments to Article Five Relating to Events of Default. (a)  Restated Events of Default : As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to read in its entirety as follows:

“Section 5.01 Events of Default

“Event of Default,” wherever used herein with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

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1. The Company shall fail to make any payment in respect of principal on any of the Notes whether on the Stated Maturity, upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of three calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such three calendar day period;

2. The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Notes (including Additional Amounts, if any) in accordance with the terms of the Notes and this Indenture, non-payment of which shall continue for a period of 30 calendar days and the Trustee shall not have otherwise received such amounts from Petrobras under the Guaranty, or otherwise by the end of such 30 calendar day period;

3. The Company or Petrobras shall fail to perform, or breach, any term, covenant, agreement or obligation contained in this Indenture or the Guaranty and such failure (other than any failure to make any payment under the Guaranty, for which there is no cure) is either incapable of remedy or continues for a period of 60 calendar days (inclusive of any time frame contained in any such term, covenant, agreement or obligation for compliance thereunder) after there has been received by the Company or Petrobras from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

4. The maturity of any Indebtedness of the Company, Petrobras or any Material Subsidiary in a total aggregate principal amount of U.S.$150,000,000 (or its equivalent in another currency), or more is accelerated in accordance with the terms of that Indebtedness, it being understood that prepayment or redemption by the Company, Petrobras or the relevant Material Subsidiary of any Indebtedness is not acceleration for this purpose;

5. One or more final and non-appealable judgments or final decrees is entered against the Company, Petrobras or any Material Subsidiary thereof involving in the aggregate a liability (not theretofore paid or covered by insurance) of U.S.$150,000,000 (or its equivalent in another currency) or more, and all such judgments or final decrees shall not have been vacated, discharged or stayed within 120 calendar days after the rendering thereof;

6. The Company, Petrobras or any Material Subsidiary thereof stops payment of, or is generally unable to pay, its debts as and when they become due except (i) as is otherwise expressly provided under this Indenture or the Guaranty, or (ii) in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, merger, conveyance or transfer, the terms of which shall have been approved by a resolution of a meeting of the Holders;

 

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7. Proceedings are initiated against the Company, Petrobras or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 90 days after the entering of such proceeding, or an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) is appointed to take possession or control of, or a distress, execution, attachment or sequestration or other process is levied, enforced upon, sued out or put in force against, all or any material part of the undertaking, property, assets or revenues of the Company, Petrobras or any Material Subsidiary thereof and is not discharged or removed within 90 days;

8. The Company, Petrobras or any Material Subsidiary thereof commences voluntarily or consents to judicial, administrative or other proceedings relating to it under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, concordata or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrator, receiver, trustee, manager, fiduciary, statutory manager, intervener or assignee for the benefit of creditors (or other similar official) to take possession or control of the whole or any material part of its undertaking, property, assets or revenues, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Indebtedness or any part of it;

9. An effective resolution is passed for, or any authorized action is taken by any court of competent jurisdiction, directing the winding-up, dissolution or liquidation of the Company, Petrobras or any Material Subsidiary thereof (other than in any of the circumstances referred to as exceptions in paragraph (6) above);

10. Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (6), (7), (8) or (9) of this Section 5.01;

11. This Indenture, the Notes, the Guaranty or any part thereof shall cease to be in full force and effect or binding and enforceable against the Company or Petrobras, it becomes unlawful for the Company or Petrobras to perform any material obligation under this Indenture, the Notes or the Guaranty, or the Company or Petrobras shall contest the enforceability of this Indenture, the Notes or the Guaranty or deny that it has liability under this Indenture, the Notes or the Guaranty;

12. Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in the Company.”

 

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Section 2.03 . Amendments to Article 10 Relating to Covenants.

(a) Statement of Officers as to Default and Notices of Events of Default : As it applies to the Notes, Section 10.05 of the Original Indenture shall be amended by deleting the second sentence in its entirety and replacing it with the following:

“Within 30 calendar days (or promptly with respect to Events of Default pursuant to Sections 5.01(4), 5.01(5), 5.01(6), 5.01(7), 5.01(8), 5.01(9) and 5.01(10) hereunder and in any event no later than 30 calendar days) after the Company becomes aware or should reasonably become aware of the occurrence of an Event of Default pursuant to Section 5.01 hereunder, the Company shall provide notice to the Trustee of such occurrence, accompanied by an Officer’s Certificate of the Company setting forth the details thereof.”

(b) Maintenance of Corporate Existence : As it applies to the Notes, Section 10.02 of the Original Indenture shall be replaced with the following:

“The Company will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article VIII and (ii) take all reasonable 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 10.02 shall not require the Company to maintain any such right, privilege, title to property or franchise, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.”

(c) Additional Covenants Applicable to the Notes : As it applies to the Notes, Article 10 of the Original Indenture shall be amended to include the following:

“Section 10.11 Use of Proceeds .

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally for general corporate purposes.

Section 10.12 Negative Pledge

So long as any Note remains Outstanding, the Company will not create or permit any Lien, other than a Permitted Lien, on any of the Company’s assets to secure (a) any of the Company’s Indebtedness or (b) the Indebtedness of any other Person, unless the Company contemporaneously creates or permits such Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with this Indenture. In addition, the Company will not allow any of the Company’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (a) any of the Company’s Indebtedness, (b) any of its own Indebtedness or (c) the Indebtedness of any other Person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Company’s obligations under the Notes and this Indenture or the Company provides such other security for the Notes as is duly approved by a resolution of the Holders of the Notes in accordance with the Indenture.

 

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Section 10.13 Currency Rate Indemnity . (a) The Company shall (to the extent lawful) indemnify the Trustee and the Holders of the Notes and keep them indemnified against:

(i) in the case of nonpayment by the Company of any amount due to the Trustee, on behalf of the Holders of the Notes, under the Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and

(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under the Indenture or in respect of the Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.

(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “ Judgment Currency ”) other than U.S. dollars (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.

(c) The above indemnities shall constitute separate and independent obligations of the Company from its obligations under the Indenture, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Company for a liquidated sum or sums in respect of amounts due under the Indenture or the Notes.”

Section 2.04 . Application of the Article of the Indenture Regarding Defeasance and Covenant Defeasance. The provisions of Sections 14.01, 14.02 and 14.03 of the Original Indenture shall apply to the Notes.

 

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ARTICLE 3

GUARANTY

Section 3.01. Execution . The Trustee is hereby authorized and directed to acknowledge the Guaranty and to perform all of its duties and obligations thereunder.

Section 3.02. Enforcement. The Trustee shall enforce the provisions of the Guaranty against Petrobras in accordance with the terms thereof and the terms of the Indenture and Petrobras, by execution of this Twelfth Supplemental Indenture, and by so agreeing to become a party to the Indenture, agrees that each Holder of the Notes shall have direct rights under the Guaranty as if it were a party thereto.

Section 3.03. Petrobras hereby (i) acknowledges and agrees to be bound by the provisions of Section 1.08 of the Original Indenture and (ii) confirms that (A) its obligations under the Guaranty shall be issued pursuant to the Indenture and (B) it intends for the Holders of the Notes, in addition to those rights under the Guaranty as provided therein, to be entitled to the benefits of the Indenture with respect to their rights against Petrobras under the Guaranty.

Section 3.04. Definition of the Term “Securities.” For all purposes relating to the Notes, the term “Securities” in Section 1.01 of the Original Indenture shall be amended by inserting the following at the end thereof: “All references herein to any Securities shall be deemed to include the rights of the Holder thereof under any guaranty arrangement entered into by Petrobras with the Trustee in connection with the issuance of such Securities pursuant to Section 3.14 hereof, which are an integral part of such Securities.”

Section 3.05. Taxes; Additional Amounts . For the avoidance of doubt, the Company’s obligations to pay any indemnity with respect to taxes, including the obligation to pay Additional Amounts pursuant to Section 10.10 of the Original Indenture, shall extend to any payments made by Petrobras pursuant to the Guaranty.

 

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ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the Twelfth Supplemental Indenture. This Twelfth Supplemental Indenture supplements the Indenture and shall be a part, and subject to all the terms, thereof. The Original Indenture, as supplemented and amended by this Twelfth Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this Twelfth Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Twelfth Supplemental Indenture supersede any conflicting provisions included in the Original Indenture unless not permitted by law. The provisions of this Twelfth Supplemental Indenture are intended to apply solely to the Notes and the Holders thereof and shall not apply to any future issuance of securities by the Company (other than any Add On Notes as provided herein) and all references to provisions of the Original Indenture herein amended and restated or otherwise modified shall have effect solely with respect to the Notes contemplated in this Twelfth Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this Twelfth Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this Twelfth Supplemental Indenture.

Section 4.02. Governing Law . This Twelfth Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 4.03. Trustee Makes No Representation. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Twelfth Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and Petrobras.

Section 4.04. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction of this Twelfth Supplemental Indenture.

Section 4.05. Counterparts. The parties may sign any number of copies of this Twelfth Supplemental Indenture. Each signed copy shall be an original, but all of them shall represent the same agreement.

Section 4.06. Additional Trustee Provisions.

(a) The permissive rights of the Trustee enumerated herein shall not be construed as duties.

(b) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

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(c) Notwithstanding anything herein to the contrary neither the Trustee nor any of its the agents shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or its respective agent, as applicable, (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, fire, riot, strikes or work stoppages for any reason, embargos, government action or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

Section 4.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

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IN WITNESS WHEREOF, the parties have caused this Twelfth Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By:  

/s/ Sérvio Túlio da R. Tinoco

Name:   Sérvio Túlio da R. Tinoco
Title:   Corporate Finance Manager

 

PETRÓLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Arthur Costa da Silva

Name:   Arthur Costa da Silva
Title:   International Capital Markets Coordinator

 

WITNESSES:
1.   

/s/ Maurício Piragibe C. Faria

   Name: Maurício Piragibe C. Faria
2.   

/s/ Gustavo Luchese Unfer

  

Name: Gustavo Luchese Unfer


THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ John T. Needham, Jr.

  Name: John T. Needham, Jr.
  Title: Vice President
WITNESSES:
1.  

/s/ Karon Greene

  Name: Karon Greene
2.  

/s/ Catherine F. Donohue

  Name: Catherine F. Donohue


STATE OF NEW YORK    )        
   )      ss:   
COUNTY OF NEW YORK    )        

On this 6 th day of February 2012, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 6 th day of February 2012, before me personally came Karon Greene and Catherine F. Donohue to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Danny Lee

Notary Public
COMMISSION EXPIRES


Exhibit A

Form of 3.500% Global Note due 2017

GLOBAL NOTE

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


PETROBRAS INTERNATIONAL FINANCE COMPANY

3.500% GLOBAL NOTES DUE 2017

No.

CUSIP No71645W AU5

ISIN No.: US71645WAU53

Common Code: 074413633

Principal Amount: U.S.$1,750,000,000

Initial Issuance Date: February 6, 2012

This Note is one of a duly authorized issue of notes of PETROBRAS INTERNATIONAL FINANCE COMPANY, an exempted company with limited liability organized under the laws of the Cayman Islands (the “ Issuer ”), designated as its 3.500% Global Notes Due 2017 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$1,750,000,000 under the Twelfth Supplemental Indenture (the “ Twelfth Supplemental Indenture ”), effective as of February 6, 2012, by and among the Issuer, The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation, as Trustee (the “ Trustee ”), and Petróleo Brasileiro S.A. - Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), to the Indenture, dated as of December 15, 2006 (the “ Original Indenture ”, and as supplemented by the Twelfth Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.

The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“ DTC ”) and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on February 6, 2017 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.

As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from the Closing Date, semiannually on February 6 and August 6 of each year (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing August 6, 2012 (each such date, an “ Interest Payment Date ”), at a rate equal to 3.500% per annum. Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment.


Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.

The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.

This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.

If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes may become or may be declared due and payable in the manner and with the effect provided in the Indenture.

Modifications of the Indenture may be made by the Issuer and the Trustee only to the extent and in the circumstances permitted by the Indenture.

The Notes shall be issued only in fully registered form, without coupons. Notes shall be issued in the form of beneficial interests in one or more global securities in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.

Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.

IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

 

PETROBRAS INTERNATIONAL FINANCE COMPANY
By  

 

Name:  
Title:  
WITNESSES:
1.  

 

  Name:
2.  

 

  Name:


STATE OF NEW YORK    )        
   )      ss:   
COUNTY OF NEW YORK    )        

On this      day of February 2012, before me, a notary public within and for said county, personally appeared                     , to me personally known, who being duly sworn, did say that      is the Attorney-in-Fact of Petrobras International Finance Company, 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 February 2012, before me personally came                      and                      to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

 

Notary Public

COMMISSION EXPIRES


CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

Dated: February     , 2012

 

The Bank of New York Mellon

As Trustee

By:  

 

Name:  
Title:   Authorized Officer


ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

(Please print or type name and address,

including zip code, of assignee:)

the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.

 

Date:                                                         

  

Your Signature:

 

(Sign exactly as your name
appears on the face of this Note)


Exhibit B

[Form of Guaranty]

Exhibit 5.1

 

LOGO

February 6, 2012

Petróleo Brasileiro S.A.— Petrobras

Avenida República do Chile, 65

20031-912 Rio de Janeiro—RJ

Brazil

Petrobras International Finance Company

Harbour Place

103 South Church Street, 4th Floor

P.O. Box 1034GT-BWI

George Town, Grand Cayman

Cayman Islands

Ladies and Gentlemen:

I am the General Counsel of Petróleo Brasileiro S.A.— Petrobras (“ Petrobras ”), a sociedade de economia mista organized under the laws of the Federative Republic of Brazil (“Brazil”). This opinion is being furnished to you in connection with the Amended and Restated Guaranty for the 2021 Notes dated as of February 6, 2012 (the “ Amended and Restated Guaranty for the 2021 Notes ”), the Amended and Restated Guaranty for the 2041 Notes dated as of February 6, 2012 (the “ Amended and Restated Guaranty for the 2041 Notes ”), the Guaranty for the 2015 Notes dated as of February 6, 2012 (the “ Guaranty for the 2015 Notes ”) and the Guaranty for the 2017 Notes dated as of February 6, 2012 (the “ Guaranty for the 2017 Notes ” and, together with the Amended and Restated Guaranty for the 2021 Notes, the Amended and Restated Guaranty for the 2041 Notes and the Guaranty for the 2015 Notes, the “ Guaranties ”), by and among Petrobras, as the Guarantor, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”) under the Indenture (the “ Original Indenture ”) dated as of December 15, 2006, by and between Petrobras’ wholly-owned subsidiary, Petrobras International Finance Company (“ PifCo ”), and the Trustee. The Amended and Restated Guaranty for the 2021 Notes relates to the U.S.$2,750,000,000 5.375% Global Notes due 2021 (the “ 2021 Notes ”), representing a reopening of PifCo’s 5.375% Global Notes due 2021 issued on January 27, 2011, to be issued by PifCo, under the Amended and Restated Sixth Supplemental Indenture, dated as of February 6, 2012, by and among PifCo, the Trustee and Petrobras (the “ Amended and Restated Sixth Supplemental Indenture ”). The Amended and Restated Guaranty for the 2041 Notes relates to the U.S.$1,250,000,000 6.750% Global Notes due 2041 (the “ 2041 Notes ”), representing a reopening of PifCo’s 6.750% Global Notes due 2041 issued on January 27, 2011, to be issued by PifCo, under the Amended and Restated Seventh Supplemental Indenture, dated as of February 6, 2012, by and among PifCo, the Trustee and Petrobras (the “ Amended and Restated Seventh Supplemental Indenture ”). The Guaranty

 

1


for the 2015 Notes relates to the U.S.$1,250,000,000 2.875% Global Notes due 2015 (the “ 2015 Notes ”), to be issued by PifCo, under the Eleventh Supplemental Indenture, dated as of February 6, 2012, by and among PifCo, the Trustee and Petrobras (the “ Eleventh Supplemental Indenture ”). The Guaranty for the 2017 Notes relates to the U.S.$1,750,000,000 3.500% Global Notes due 2017 (the “ 2017 Notes ” and, together with the 2021 Notes, the 2041 Notes and the 2015 Notes, the “ Notes ”), to be issued by PifCo, under the Twelfth Supplemental Indenture, dated as of February 6, 2012, by and among PifCo, the Trustee and Petrobras (the “ Twelfth Supplemental Indenture ,” and the Original Indenture, as supplemented by the Amended and Restated Sixth Supplemental Indenture, the Amended and Restated Seventh Supplemental Indenture, the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture, as applicable, the “ Indenture ” and together with the Guaranties, the “ Transaction Documents ”).

For the purpose of rendering this opinion, I have examined the execution copies or copies certified to my satisfaction of the following documents:

 

  (i) the Original Indenture;

 

  (ii) a form of the Amended and Restated Sixth Supplemental Indenture;

 

  (iii) a form of the Amended and Restated Seventh Supplemental Indenture;

 

  (iv) a form of the Eleventh Supplemental Indenture;

 

  (v) a form of the Twelfth Supplemental Indenture;

 

  (vi) a form of the Amended and Restated Guaranty for the 2021 Notes;

 

  (vii) a form of the Amended and Restated Guaranty for the 2041 Notes;

 

  (viii) a form of the Guaranty for the 2015 Notes;

 

  (ix) a form of the Guaranty for the 2017 Notes;

 

  (x) the Estatuto Social of Petrobras;

 

  (xi) resolutions of the board of directors and board of executive officers of Petrobras authorizing the signing of each Transaction Document to which Petrobras is a party;

 

  (xii) a Secretary’s Certificate of Petrobras;

 

  (xiii) an Officer’s Certificate of Petrobras; and

 

  (xiv) such other documents, records and matters of law as I have deemed necessary.

 

2


In rendering the foregoing opinions, I have assumed the authenticity of all documents represented to me to be originals, the conformity to original documents of all copies of documents submitted to me, the accuracy and completeness of all corporate records made available to me and the genuineness of all signatures that purport to have been made in a corporate, governmental, fiduciary or other capacity, and that the persons who affixed such signatures had authority to do so.

Based on the foregoing and subject to the qualifications and limitations hereinafter specified, I am of the opinion that:

 

  (i) Petrobras has been duly incorporated and is validly existing as a corporation ( sociedade de economia mista ) under the laws of Brazil.

 

  (ii) Petrobras has all power and authority to enter into and perform its obligations under the Guaranties.

 

  (iii) The execution, delivery and performance of the Guaranties have been duly authorized by the board of executive officers of Petrobras.

I express no opinion as to any matter which may be, or which purports to be, governed by the laws of any jurisdiction other than the laws of Brazil.

This opinion is limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

I hereby consent to the use of my name in the prospectus constituting a part of the Registration Statement, and in any prospectus supplements related thereto, under the heading “Legal Matters” as counsel who has passed on certain matters of Brazilian law relating to the Notes, the Indenture and the Guaranties, and to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

/s/ Nilton Antonio de Almeida Maia

Nilton Antonio de Almeida Maia

General Counsel of Petróleo

Brasileiro S.A.— Petrobras

 

3

Exhibit 5.2

LOGO

 

6 February 2012   Our Ref: NEJP/dw/P135-110793

Petróleo Brasileiro S.A. – Petrobras

Avenida República do Chile, 65

20035-900 Rio de Janeiro - RJ, Brazil

Petrobras International Finance Company

4th Floor, Harbour Place

103 South Church Street

George Town, Grand Cayman,

Cayman Islands

Dear Sirs

US$2,750,000,000 5.375% GLOBAL NOTES DUE 2021

US$1,250,000,000 6.750% GLOBAL NOTES DUE 2041

US$1,250,000,000 2.875% GLOBAL NOTES DUE 2015

US$1,750,000,000 3.5% GLOBAL NOTES DUE 2017

We have acted as Cayman Islands counsel to Petrobras International Finance Company, a Cayman Islands company (the “Company”), in connection with the Company’s offering pursuant to registration statement on Form F-3 (No’s. 333-163665 and 333-163665-01) (the “Registration Statement”) of US$2,750,000,000 of its 5.375% Global Notes due 2021 (the “Series 1 Notes” ) pursuant to the Original Indenture (as defined in Schedule 1) as supplemented by the Amended and Restated Sixth Supplemental Indenture (as defined in Schedule 1), US$1,250,000,000 of its 6.750% Global Notes due 2041 (the “Series 2 Notes”) pursuant to the Original Indenture (as defined in Schedule 1) as supplemented by the Amended and Restated Seventh Supplemental Indenture (as defined in Schedule 1), US$1,250,000,000 of its 2.875% Global Notes due 2015 (the “Series 3 Notes”) pursuant to the Original Indenture (as defined in Schedule 1) as supplemented by the Eleventh Supplemental Indenture (as defined in Schedule 1) and US$1,750,000,000 of its 3.50% Global Notes due 2017 (the “Series 4 Notes”) pursuant to the Original Indenture (as defined in Schedule 1) as supplemented by the Twelfth Supplemental Indenture (as defined in Schedule 1). The Series 1 Notes, the Series 2 Notes, the Series 3 Notes and the Series 4 Notes will be unconditionally guaranteed by Petróleo Brasileiro S.A. – Petrobras (“Petrobras”) pursuant to a Guaranty in each case dated as of 6 February 2012. The Series 1 Notes, the Series 2 Notes, the Series 3 Notes and the Series 4 Notes are collectively referred to in this opinion as the “Notes” .

For the purposes of giving this opinion, we have examined and relied upon the originals, copies or certified translations of the documents listed in Schedule 1.

Walkers

Walker House, 87 Mary Street, George Town

Grand Cayman KY1-9001, Cayman Islands

T +1 345 949 0100 F +1 345 949 7886 www.walkersglobal.com


 

WALKERS    Page 2

 

In giving this opinion we have relied upon the assumptions set out in Schedule 2, which we have not independently verified.

We are Attorneys at Law in the Cayman Islands and express no opinion as to any laws other than the laws of the Cayman Islands in force and as interpreted at the date of this opinion. We have not, for the purposes of this opinion, made any investigation of the laws, rules or regulations of any other jurisdiction. Except as explicitly stated herein, we express no opinion in relation to any representation or warranty contained in the Documents nor upon the commercial terms of the transactions contemplated by the Documents.

Based upon the foregoing examinations and assumptions and upon such searches as we have conducted and having regard to legal considerations which we consider relevant, and subject to the qualifications set out in Schedule 3, and under the laws of the Cayman Islands, we give the following opinions in relation to the matters set out below.

 

1. The Company is an exempted company duly incorporated with limited liability and validly existing under the laws of the Cayman Islands and is in good standing with the Registrar of Companies in the Cayman Islands.

 

2. The Company has full corporate power, authority and legal right to execute and deliver the Documents and to perform its obligations under the Documents and the Notes.

 

3. The execution of the Documents and the issue of the Notes have been duly authorised by the Company. The Documents, when duly executed and delivered, and the Notes when duly executed, authenticated and delivered, will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their respective terms.

 

4. The execution, delivery and performance of the Documents and the Notes, the consummation of the transactions contemplated thereby and the compliance by the Company with the terms and provisions thereof do not:

 

  (a) contravene any law, public rule or regulation of the Cayman Islands applicable to the Company which is currently in force; or

 

  (b) contravene the Memorandum and Articles of Association of the Company.

 

5. The Company is subject to civil and commercial law with respect to its obligations under the Documents and the Notes and neither the Company nor any of its assets is entitled to immunity from suit or enforcement of a judgment on the grounds of sovereignty or otherwise in the courts of the Cayman Islands in proceedings against the Company in respect of any obligations under the Documents or the Notes, which obligations constitute private and commercial acts rather than governmental or public acts.


 

WALKERS    Page 3

 

This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. This opinion is given solely for your benefit and the benefit of your legal advisers acting in that capacity in relation to this transaction and may not be relied upon by any other person without our prior written consent.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement, and in the prospectus supplement related to the offering of the Notes, under the heading “Legal Matters” as counsel for the Company who have passed on the validity as to matters of Cayman Islands law of the Securities being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

This opinion shall be construed in accordance with the laws of the Cayman Islands.

Yours faithfully

/s/ Walkers                        

WALKERS


 

WALKERS    Page 4

 

SCHEDULE 1

LIST OF DOCUMENTS EXAMINED

 

1. The Certificate of Incorporation, the Certificate of Incorporation on Change of Name, the Memorandum and Articles of Association, the Register of Members, the Register of Directors, the Register of Officers, and the Register of Mortgages and Charges of the Company, copies of which have been provided to us by its registered office in the Cayman Islands.

 

2. The Register of Writs and other Originating Process of the Grand Court of the Cayman Islands kept at the Clerk of Courts Office, George Town, Grand Cayman as at 3 February 2012.

 

3. A Certificate of Good Standing dated 18 January 2012 in respect of the Company issued by the Registrar of Companies in the Cayman Islands.

 

4. A copy of executed minutes of a meeting of the Board of Directors of the Company dated 2 February 2012 (the “Resolutions” ).

 

5. A copy of the executed Power of Attorney given by the Company in favour of the attorneys named therein dated 2 February 2012 (the “Power of Attorney” ).

 

6. A conformed copy of the indenture dated as of 15 December 2006 between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) which was filed electronically on EDGAR and from which system such conformed copy inspected was obtained (the “Original Indenture” );

 

7. The Amended and Restated Sixth Supplemental Indenture to the Original Indenture dated 6 February 2012 and to be entered into between the Company, Petrobras and the Trustee (the “Amended and Restated Sixth Supplemental Indenture” ) and the Series 1 Notes to be issued thereunder;

 

8. The Amended and Restated Seventh Supplemental Indenture to the Original Indenture dated 6 February 2012 and to be entered into between the Company, Petrobras and the Trustee (the “Amended and Restated Seventh Supplemental Indenture” ) and the Series 2 Notes to be issued thereunder;

 

9. The Eleventh Supplemental Indenture to the Original Indenture dated 6 February 2012 and to be entered into between the Company, Petrobras and the Trustee (the “Eleventh Supplemental Indenture” ) and the Series 3 Notes to be issued thereunder;

 

10. The Twelfth Supplemental Indenture to the Original Indenture dated 6 February 2012 and to be entered into between the Company, Petrobras and the Trustee (the “Twelfth Supplemental Indenture” ) and the Series 4 Notes to be issued thereunder;


 

WALKERS    Page 5

 

11. The form of Global Notes to be issued under the Amended and Restated Sixth Supplemental Indenture;

 

12. The form of Global Notes to be issued under the Amended and Restated Seventh Supplemental Indenture;

 

13. The form of Global Notes to be issued under the Eleventh Supplemental Indenture;

 

14. The form of Global Notes to be issued under the Twelfth Supplemental Indenture;

 

15. The Guaranty dated 6 February 2012 between Petrobras and the Trustee in relation to the Series 1 Notes;

 

16. The Guaranty dated 6 February 2012 between Petrobras and the Trustee in relation to the Series 2 Notes;

 

17. The Guaranty dated 6 February 2012 between Petrobras and the Trustee in relation to the Series 3 Notes; and

 

18. The Guaranty dated 6 February 2012 between Petrobras and the Trustee in relation to the Series 4 Notes.

The documents listed in paragraphs 7 to 10 above inclusive are collectively referred to in this opinion as the “Documents” .


 

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SCHEDULE 2

ASSUMPTIONS

 

1. There are no provisions of the laws of any jurisdiction outside the Cayman Islands which would be contravened by the execution or delivery of the Documents or the Notes nor the offering of the Notes and, insofar as any obligation expressed to be incurred under the Documents or the Notes is to be performed in or is otherwise subject to the laws of any jurisdiction outside the Cayman Islands, its performance will not be illegal by virtue of the laws of that jurisdiction.

 

2. The Documents and the Notes are within the capacity, power, and legal right of, and have been or will be duly authorised, executed and delivered by, each of the parties thereto (other than the Company) and constitute or, when executed and delivered, will constitute the legal, valid and binding obligations of each of the parties thereto enforceable in accordance with their terms as a matter of the laws of all other relevant jurisdictions (other than the Cayman Islands).

 

3. The choice of the laws of the jurisdiction selected to govern each of the Documents and the Notes has been made in good faith and will be regarded as a valid and binding selection which will be upheld in the courts of that jurisdiction and all other relevant jurisdictions (other than the Cayman Islands).

 

4. All authorisations, approvals, consents, licences and exemptions required by, and all filings and other requirements of, each of the parties to the Documents and the Notes outside the Cayman Islands to ensure the legality, validity and enforceability of the Documents and the Notes have been or will be duly obtained, made or fulfilled and are and will remain in full force and effect and any conditions to which they are subject have been satisfied.

 

5. The Board of Directors of the Company considers the execution of the Documents and the transactions contemplated thereby to be in the best interests of the Company.

 

6. The Company was, or will be, on the date of execution of the Documents and the Notes to which it is a party able to pay its debts as they became due from its own moneys, and any disposition or settlement of property effected by any of the Documents or the Notes is made in good faith and for valuable consideration and at the time of each disposition of property by the Company pursuant to the Documents or the Notes the Company will be able to pay its debts as they become due from its own moneys.

 

7.

The originals of all documents examined in connection with this opinion are authentic, all seals thereon and the signatures and initials thereon are those of a person or persons authorised to execute the Documents under the Resolutions or the Power of Attorney and are genuine, all such documents purporting to be sealed have been so


 

WALKERS    Page 7

 

  sealed, all copies are complete and conform to their originals and the Documents conform in every material respect to the latest drafts of the same produced to us and, where provided in successive drafts, have been marked up to indicate all changes to such Documents.

 

8. The Memorandum and Articles of Association reviewed by us are the Memorandum and Articles of Association of the Company in force at the date hereof.

 

9. The copies of the Register of Members, Register of Directors, Register of Officers, Register of Mortgages and Charges, Certificate of Incorporation, the Certificate of Incorporation on Change of Name and the Memorandum and Articles of Association of the Company provided to us by its registered office are true and correct copies of the originals of the same and are complete and accurate and constitute a complete and accurate record of the business transacted by the Company and all matters required by law and the Memorandum and Articles of Association of the Company to be recorded therein are so recorded.

 

10. The Register of Writs and other Originating Process of the Grand Court of the Cayman Islands examined by us at the Clerk of Courts Office, George Town, Grand Cayman on 3 February 2012, covering the period six years prior to the date of search, constitutes a complete record of the proceedings before the Grand Court of the Cayman Islands.

 

11. The Resolutions were duly adopted at a duly convened meeting of the Board of Directors and such meeting was held and conducted in accordance with the Articles of Association of the Company.

 

12. The Resolutions and Power of Attorney remain in full force and effect and have not been revoked or varied.


 

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SCHEDULE 3

QUALIFICATIONS

 

1. The term “enforceable” and its cognates as used in this opinion means that the obligations assumed by the Company under the Documents or the Notes are of a type which the courts of the Cayman Islands enforce. This does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:

 

  (a) enforcement of obligations and the priority of obligations may be limited by bankruptcy, insolvency, liquidation, reorganisation, merger, consolidation, readjustment of debts or moratorium and other laws of general application relating to or affecting the rights of creditors or by prescription or lapse of time;

 

  (b) enforcement may be limited by general principles of equity and, in particular, the availability of certain equitable remedies such as injunction or specific performance of an obligation may be limited where the court considers damages to be an adequate remedy;

 

  (c) claims may become barred under statutes of limitation or may be or become subject to defences of set-off, counterclaim, estoppel and similar defences;

 

  (d) where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of, or contrary to the public policy of, that jurisdiction;

 

  (e) a judgment of a court of the Cayman Islands may be required to be made in Cayman Islands dollars;

 

  (f) to the extent that any provision of the Documents or the Notes is adjudicated to be penal in nature, it will not be enforceable in the courts of the Cayman Islands; in particular, the enforceability of any provision of the Documents which imposes additional obligations in the event of any breach or default, or of payment or prepayment being made other than on an agreed date, may be limited to the extent that it is subsequently adjudicated to be penal in nature and not an attempt to make a reasonable pre-estimate of loss;

 

  (g) to the extent that the performance of any obligation arising under the Documents or the Notes would be fraudulent or contrary to public policy, it will not be enforceable in the courts of the Cayman Islands;

 

  (h)

in the case of an insolvent liquidation of the Company, its liabilities are required to be translated into the functional currency of the Company (being


 

WALKERS    Page 9

 

  the currency of the primary economic environment in which it operated as at the commencement of the liquidation) at the exchange rates prevailing on the date of commencement of the voluntary liquidation or the day on which the winding up order is made (as the case may be);

 

  (i) a Cayman Islands court will not necessarily award costs in litigation in accordance with contractual provisions in this regard; and

 

  (j) the effectiveness of terms in the Documents or the Notes excusing any party from a liability or duty otherwise owed or indemnifying that party from the consequences of incurring such liability or breaching such duty shall be construed in accordance with, and shall be limited by, applicable law, including generally applicable rules and principles of common law and equity.

 

2. A certificate, determination, calculation or designation of any party to the Documents as to any matter provided therein might be held by a Cayman Islands court not to be conclusive, final and binding, notwithstanding any provision to that effect therein contained, for example if it could be shown to have an unreasonable, arbitrary or improper basis or in the event of manifest error.

 

3. If any provision of the Documents or the Notes is held to be illegal, invalid or unenforceable, severance of such provision from the remaining provisions will be subject to the discretion of the Cayman Islands courts notwithstanding any express provisions in this regard.

 

4. In principle, a person who claims to be entitled pursuant to a contract to recover the legal fees and expenses incurred in enforcing that contract shall be entitled to judgment for the amount of legal fees and expenses found due under the contract and such amount shall not be subject to taxation pursuant to the applicable rule of court.

 

5. We express no opinion upon the effectiveness of any clause of the Documents providing that the terms of such Document may only be amended in writing.

 

6. The obligations of the Company may be subject to restrictions pursuant to United Nations sanctions and/or measures adopted by the European Union Council for Common Foreign & Security Policy extended to the Cayman Islands by the Order of Her Majesty in Council.

 

7. Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing. The term “good standing” as used herein means that the Company is not currently in breach of its obligations to file the annual return, and pay the annual filing fees, due for the current calendar year, and having regard to any grace periods permitted under the Companies Law (as amended) of the Cayman Islands.

Exhibit 5.3

February 6, 2012

Petróleo Brasileiro S.A.—Petrobras

Avenida República do Chile, 65

20035-900 Rio de Janeiro—RJ

Brazil

Petrobras International Finance Company

Harbour Place

103 South Church Street, 4th Floor

P.O. Box 1034GT-BWI

George Town, Grand Cayman

Cayman Islands

Ladies and Gentlemen:

We have acted as special United States counsel to Petróleo Brasileiro S.A. – Petrobras, a Brazilian corporation ( sociedade de economia mista ) (“ Petrobras ”), and Petrobras International Finance Company, a Cayman Islands company (“ PifCo ”, and together with Petrobras, the “ Companies ”), in connection with PifCo’s offering pursuant to a registration statement on Form F-3 (No 333-163665-01) (the “ Registration Statement ”) of U.S.$2,750,000,000 aggregate principal amount of PifCo’s 5.375% Global Notes due 2021 (the “ 2021 Notes ”), representing a reopening of PifCo’s 5.375% Global Notes due 2021 issued on January 27, 2011, U.S.$1,250,000,000 aggregate principal amount of PifCo’s 6.750% Global Notes due 2041 (the “ 2041 Notes ”), representing a reopening of PifCo’s 6.750% Global Notes due 2041 issued on January 27, 2011, U.S.$1,250,000,000 aggregate principal amount of PifCo’s 2.875% Global Notes due 2015 (the “ 2015 Notes ”) and U.S.$1,750,000,000 aggregate principal amount of PifCo’s 3.500% Global Notes due 2017 (the “ 2017 Notes ” and, together with the 2021 Notes, the 2041 Notes and the 2015 Notes, the “ Notes ”). The Notes are to be issued under an indenture dated as of December 15, 2006 (the “ Original Indenture ”) between PifCo and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”), as supplemented by the Amended and Restated Sixth Supplemental Indenture dated as of February 6, 2012 (the “ Amended and Restated Sixth Supplemental Indenture ”) among PifCo, Petrobras and the Trustee, the Amended and Restated Seventh Supplemental Indenture dated as of February 6, 2012 (the “ Amended and Restated Seventh Supplemental Indenture ”) among PifCo, Petrobras and the Trustee, the Eleventh Supplemental Indenture dated as of February 6, 2012 (the “ Eleventh Supplemental Indenture ”) among PifCo, Petrobras and the Trustee and the Twelfth Supplemental Indenture dated as of February 6, 2012 among PifCo, Petrobras and the Trustee (the “ Twelfth Supplemental Indenture ,” and the Original Indenture as supplemented by each of the Amended and Restated Sixth Supplemental Indenture, the Amended and Restated Seventh Supplemental Indenture, the Eleventh Supplemental Indenture and the Twelfth Supplemental Indenture, the “ Indenture ”). The 2021 Notes will have the benefit of an Amended


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and Restated Guaranty, dated as of February 6, 2012 (the “ Amended and Restated Guaranty for the 2021 Notes ”) between Petrobras and the Trustee, the 2041 Notes will have the benefit of an Amended and Restated Guaranty, dated as of February 6, 2012 (the “ Amended and Restated Guaranty for the 2041 Notes ”) between Petrobras and the Trustee, the 2015 Notes will have the benefit of a Guaranty, dated as of February 6, 2012 (the “ Guaranty for the 2015 Notes ”) and the 2017 Notes will have the benefit of a Guaranty, dated as of February 6, 2012 (the “ Guaranty for the 2017 Notes ” and, together with the Amended and Restated Guaranty for the 2021 Notes, the Amended and Restated Guaranty for the 2041 Notes and the Guaranty for the 2015 Notes, the “ Guaranties ”) between Petrobras and the Trustee.

In arriving at the opinions expressed below, we have reviewed the following documents:

 

  (a) an executed copy of the Original Indenture;

 

  (b) a form of the Amended and Restated Sixth Supplemental Indenture, including forms of the global certificates representing the 2021 Notes as executed by PifCo (the “ 2021 Global Notes ”);

 

  (c) a form of the Amended and Restated Seventh Supplemental Indenture, including forms of the global certificates representing the 2041 Notes as executed by PifCo (the “ 2041 Global Notes ”);

 

  (d) a form of the Eleventh Supplemental Indenture, including forms of the global certificates representing the 2015 Notes as executed by PifCo (the “ 2015 Global Notes ”);

 

  (e) a form of the Twelfth Supplemental Indenture, including forms of the global certificates representing the 2017 Notes as executed by PifCo (the “ 2017 Global Notes ”);

 

  (f) a form of the Amended and Restated Guaranty for the 2021 Notes;

 

  (g) a form of the Amended and Restated Guaranty for the 2041 Notes;

 

  (h) a form of the Guaranty for the 2015 Notes; and

 

  (i) a form of the Guaranty for the 2017 Notes.

In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.


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In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.

Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that, when the Amended and Restated Sixth Supplemental Indenture, the Amended and Restated Seventh Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture, the Notes and the Guaranties have been executed and delivered by PifCo and Petrobras, as applicable, in the forms thereof that we have examined and the Global Notes have been duly authenticated in accordance with the terms of the Indenture, the Global Notes will be valid, binding and enforceable obligations of PifCo, entitled to the benefits of the Indenture, and the Guaranties will be valid, binding and enforceable obligations of Petrobras.

Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of PifCo or Petrobras, (a) we have assumed that each of Petrobras and PifCo and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to Petrobras and PifCo regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, and (c) such opinions are subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.

We express no opinion as to the subject matter jurisdiction of any U.S. federal court to adjudicate any action relating to the Indenture, the Guaranties or the Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.

In addition, we note that (a) the enforceability in the United States of the waiver by each of Petrobras and PifCo of its immunities from the jurisdiction of any court and from any legal process, as set forth in the Indenture or the Guaranties, as the case may be, is subject to the limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976, and (b) the designation in Section 1.15 of the Indenture or Section 15(b) of the Guaranties of the U.S. federal courts sitting in the Borough of Manhattan, City of New York, New York as the venue for actions or proceedings relating to the Indenture, the Notes and the Guaranties is (notwithstanding the waiver in Section 1.15 of the Indenture and Section 15(b) of the Guaranties) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such actions or proceedings.


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We express no opinion as to the enforceability of Section 14 of the Guaranties and Section 10.13 of the Indenture relating to currency indemnity.

In addition, we note that the waiver of defenses in Section 5 of the Guaranties may be ineffective to the extent that any such defense involves a matter of public policy in New York.

The foregoing opinions are limited to the federal law of the United States of America and the law of the State of New York.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement, and in the prospectus supplement related to the offering of the Notes, under the heading “Legal Matters” as counsel for Petrobras and PifCo who have passed on the validity of the Securities being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.

 

Very truly yours,

CLEARY GOTTLIEB STEEN & HAMILTON LLP

By   /s/    Francesca L. Odell
  Francesca L. Odell, a Partner