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 March 2019

Commission File Number 001-15106

 

 

PETRÓLEO BRASILEIRO S.A. - PETROBRAS

(Exact name of registrant as specified in its charter)

Brazilian Petroleum Corporation - PETROBRAS

(Translation of Registrant’s name into English)

 

 

Avenida República do Chile, 65

20031-912 - Rio de Janeiro, RJ

Federative Republic of Brazil

(Address of principal executive office)

 

 

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  ☒            Form 40-F  ☐

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  ☒

 

 

 


This report on Form 6-K shall be deemed to be incorporated by reference into the Registration Statement on Form F-3/A of Petróleo Brasileiro S.A. – Petrobras (No. 333-229096-01) and Petrobras Global Finance B.V. (No. 333-229096) and its accompanying prospectus supplement dated as of March 1, 2019.

Exhibits

 

Exhibit 4.1    -    Amended and Restated Guaranty for the 2029 Notes
Exhibit 4.2    -    Amended and Restated Twenty-Fifth Supplemental Indenture
Exhibit 4.3    -    Form of 5.750% Global Notes due 2029 (included in Exhibit 4.2)
Exhibit 4.4    -    Indenture, dated as of August 29, 2012, between PGF and The Bank of New York Mellon, as Trustee (previously filed as Exhibit 4.5 to the Registration Statement of Petrobras and PGF on Form F-3 (File Nos. 333-183618 and 333-183618-01), filed with the SEC on August 29, 2012 and incorporated by reference herein).
Exhibit 4.5    -    Guaranty for the 2049 Notes
Exhibit 4.6    -    First Supplemental Indenture
Exhibit 4.7    -    Form of 6.900% Global Notes due 2049 (included in Exhibit 4.6)
Exhibit 5.1    -    Opinion of internal counsel to Petrobras
Exhibit 5.2    -    Opinion of Cleary Gottlieb Steen & Hamilton LLP, U.S. counsel to PGF and Petrobras
Exhibit 5.3    -    Opinion of Hogan Lovells International LLP, Dutch counsel to PGF


SIGNATURE

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

 

    PETRÓLEO BRASILEIRO S.A.—PETROBRAS
    By:  

/s/ Larry Carris Cardoso

      Larry Carris Cardoso
     

Loans and Financing Administration General Manager

Date: March 19, 2019      

Exhibit 4.1

AMENDED AND RESTATED GUARANTY

Dated as of March 19, 2019

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

 

SECTION 1.

  Definitions      2  

SECTION 2.

  Guaranty      5  

SECTION 3.

  Guaranty Absolute      6  

SECTION 4.

  Independent Obligation      8  

SECTION 5.

  Waivers and Acknowledgments      8  

SECTION 6.

  Claims Against the Issuer      9  

SECTION 7.

  Covenants      9  

SECTION 8.

  Amendments, Etc.      13  

SECTION 9.

  Indemnity      13  

SECTION 10.

  Notices, Etc.      13  

SECTION 11.

  Survival      13  

SECTION 12.

  No Waiver; Remedies      13  

SECTION 13.

  Continuing Agreement; Assignment of Rights Under the Indenture and the Notes      14  

SECTION 14.

  Currency Rate Indemnity      14  

SECTION 15.

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

SECTION 16.

  Execution in Counterparts      16  

SECTION 17.

  Entire Agreement      16  

SECTION 18.

  The Trustee      16  


AMENDED AND RESTATED GUARANTY

AMENDED AND RESTATED GUARANTY (this “ Guaranty ”), dated as of March 19, 2019 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 under the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras Global Finance B.V., a private company incorporated with limited liability under the laws of The Netherlands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of August 29, 2012 (the “ Original Indenture ”) with the Trustee, as supplemented by the Amended and Restated Twenty-Fifth Supplemental Indenture among the Issuer, the Guarantor and the Trustee, dated as of the date hereof (the “ Amended and Restated Twenty-Fifth Supplemental Indenture ”). The Original Indenture, as supplemented by the Amended and Restated Twenty-Fifth Supplemental Indenture and as amended or supplemented from time to time with respect to the Notes, is hereinafter referred to as the “ Indenture ”;

WHEREAS, the Issuer has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with the Indenture and is, on the date hereof, issuing U.S.$750,000,000 aggregate principal amount of its 5.750% Global Notes due 2029 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 existing 5.750% Global Notes due 2029 originally issued on February 1, 2018 under the Original Indenture as supplemented by the Twenty-Fifth Supplemental Indenture, dated as of February 1, 2018, by and among the Issuer, the Guarantor and the Trustee (the “ Twenty-Fifth Supplemental Indenture ”), in the aggregate principal amount of U.S.$2,000,000,000 (the “ Original Notes ” and, together with the Reopening Notes, the “ Notes ”).

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 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 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 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the Reopening 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 Amended and Restated Twenty-Fifth 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 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.

 

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Material Subsidiary ” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of Petrobras’ total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of Petrobras prepared in accordance with 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;

(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;

 

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(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 Twenty-Fifth 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;

(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 20% 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;

 

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(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;

(iv) 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.

SEC ” means the United States Securities and Exchange Commission.

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

Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 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 Notes, whether for principal, interest, make-whole premium, Additional Amounts, fees, indemnities, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and the

 

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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 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 Notes. Such notice shall specify the amount or amounts under the Indenture and the Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 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 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 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 12:00 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 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 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;

 

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(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 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 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 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 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 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the Notes, without in any way affecting or impairing the liability of the 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.

 

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(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 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.

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 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 Notes remain outstanding or any amount remains unpaid on the 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):

 

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(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.

(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(e) 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 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 or agency 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) 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, spin-off 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;

(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 Notes pursuant to this 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 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, spin-off 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, spin-off 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, spin-off 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.

(f) Negative Pledge . So long as any 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 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

 

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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 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture.

(g) 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 and (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. For purposes of this Section 7(g), as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Guarantor’s obligation to deliver such statements and reports to the Trustee hereunder. The Guarantor shall provide the Trustee with prompt written notification at such time that the Guarantor ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Guarantor’s financial statements or reports are publicly available and accessible electronically.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(g)(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 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) 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 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 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, 13 th Floor, 20031-912 Rio de Janeiro—RJ, Brazil, Telephone: +55 (21) 3224-1510/3224-9947, Telecopier: +55 (21) 3224-1401, Attention: Larry Carris Cardoso, Finance Department, Loans and Financing Administration General Manager, if to the Trustee, at The Bank of New York Mellon, 240 Greenwich Street, Floor 7 East, 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 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.

 

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SECTION 13. Continuing Agreement; Assignment of Rights Under the Indenture and the 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 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 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.

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 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 Notes or under any judgment or order.

 

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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 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, Suite 2401, 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 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 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 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 day and year first above written.

 

PETRÒLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Bianca Nasser Patrocínio

  Name: Bianca Nasser Patrocínio
  Title: Attorney in Fact

 

WITNESSES:
1.  

/s/ Renan Feuchard Pinto

  Name: Renan Feuchard Pinto
2.  

/s/ Rodrigo Coimbra

  Name: Rodrigo Coimbra

 

 

[Signature Page – Amended and Restated Guaranty]


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

/s/ Teresa Wyszomierski

  Name: Teresa Wyszomierski
  Title: Vice President

 

WITNESSES:

1.

 

/s/ Wanda Camacho

 

Name: Wanda Camacho

2.

 

/s/ Elizabeth Stern

 

Name: Elizabeth Stern

 

 

[Signature Page – Amended and Restated Guaranty]


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

On this 18th day of March, 2019, before me, a notary public within and for said county, personally appeared Teresa H. Wyszomierski, to me personally known, who being duly sworn, did say that she 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 18th day of March, 2019, before me personally came Wanda Camacho and Elizabeth Stern to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Bret S. Derman

Notary Public
COMMISSION EXPIRES

Bret S. Derman

Notary Public State of New York

Kings County

LIC. # 02DE6196933

COMM EXP. 11/17/2020

 

 

[Signature Page – Amended and Restated Guaranty]

Exhibit 4.2

AMENDED AND RESTATED TWENTY-FIFTH SUPPLEMENTAL INDENTURE

AMENDED AND RESTATED TWENTY-FIFTH SUPPLEMENTAL INDENTURE, effective as of March 19, 2019, by and among PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “ Company ”), having its corporate seat at Rotterdam, The Netherlands and its principal office at Weena 762, 3014 DA Rotterdam, The Netherlands, 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 ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”).

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 August 29, 2012 (the “ Original Indenture ”), as supplemented by the Twenty-Fifth Supplemental Indenture, dated as of February 1, 2018 (the “ Twenty-Fifth Supplemental Indenture ”) providing for the issuance of U.S.$2,000,000,000 aggregate principal amount of the Company’s 5.750% Global Notes due 2029 (the “ Original Notes ”);

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 an additional U.S.$750,000,000 of its existing 5.750% Global Notes due 2029 consisting of 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 Registration Statements on Form F-3/A (File Nos. 333-229096 and 333-229096-01) (the “ Registration Statement ”), dated March 1, 2019, the Prospectus Supplement dated March 12, 2019 and related Base Prospectus dated March 1, 2019 (collectively, the “ Offering Document ”) and the Original Indenture as supplemented by this Amended and Restated Twenty-Fifth Supplemental Indenture (this “ Amended and Restated Twenty-Fifth Supplemental Indenture ” and, together with the Original Indenture and any further supplements thereto, the “ Indenture ”);

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

WHEREAS , as contemplated in the Offering Document, Petrobras and the Trustee intend, in connection with the issuance of the Reopening 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;

 

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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 Twenty-Fifth Supplemental Indenture (including the requirement of Section 2.01(b) of the Twenty-Fifth 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 Twenty-Fifth 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 Twenty-Fifth Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Amended and Restated Twenty-Fifth 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 Original 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 Twenty-Fifth 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 1, 2018, the closing date of the issuance of the Original Notes and deemed to be the effective closing date of the issuance of the Reopening Notes.

“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 the 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.

 

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“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 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 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(k) herein.

“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of Petrobras’ total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of Petrobras prepared in accordance with Reporting GAAP.

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

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

“Permitted Lien” means a:

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

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

 

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(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 the Twenty-Fifth Supplemental Indenture;

(h) Lien resulting from the Indenture or the Amended and Restated 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 20% 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 BNP Paribas Securities Corp., Citigroup Global Markets Inc., and Mizuho Securities USA LLC or, in each case, their respective 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 p.m. 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 “5.750% Global Notes due 2029”.

(b) Aggregate Amount : The aggregate principal amount of the Reopening Notes that may be authenticated and delivered under this Amended and Restated Twenty-Fifth Supplemental Indenture shall be U.S.$750,000,000, for an aggregate principal amount of the Notes of U.S.$2,750,000,000. As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue additional Add On Notes having identical terms (including CUSIP, ISIN 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

 

5


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 additional 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 1, 2029 (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 Section 2.01(k) and Section 2.01(l) hereof.

(e) Interest : Interest shall accrue on the Notes at the rate of 5.750% 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 Indenture semi-annually in arrears on February 1 and August 1 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on August 1, 2019, and will initially accrue from and including the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. Interest shall be paid 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 accrued with respect to the Notes 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

 

6


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 prior to 3:00 p.m., New York City Time, 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 : Until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall continue to maintain the special purpose non-interest bearing trust account established pursuant to the Twenty-Fifth 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 continue to 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) Amended and Restated Guaranty : The Notes shall have the benefit of the Amended and Restated Guaranty in the manner provided in Article 3 of this Amended and Restated Twenty-Fifth Supplemental Indenture.

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

 

7


(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 an annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 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. As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to include (i) the term “or any Material Subsidiary thereof” after “Petrobras” in items 4, 6, 7 and 8 and (ii) the term “or any Material Subsidiary thereof” after “Petrobras” in the first line of item 5.

Section 2.03. Amendment to Article 10 Relating to Payments and Paying Agents. As it applies to the Notes, Section 10.08 of the Original Indenture shall be amended to include the following paragraph after the first paragraph in this section:

 

8


“All payments will be subject in all cases to any applicable tax, fiscal or other laws and regulations in any jurisdictions, but without prejudice to the provisions of Section 10.10. For the purposes of the preceding sentence, the phrase “applicable tax, fiscal or other laws and regulations” will include any obligation on the Company to withhold or deduct from a payment pursuant to Section 1471(b) of the Internal Revenue Code of 1986, as amended, or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, any regulations thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto (collectively, “FATCA”).”

Section 2.04. Amendment to Article 10 Relating to Additional Amounts. As it applies to the Notes, Section 10.10 of the Original Indenture shall be amended (i) to include

“Financial Transactions Tax (“FTT”),” after “value added,” in item 5, (ii) to delete items 6 and 7, (iii) to revise item 9 to read “any combination of items (1), (2), (3), (4), (5) and (6) above.”, (iv) to renumber items 8 and 9 as items 6 and 7, respectively and (v) to replace the last sentence of the last paragraph in this section with “As provided in Section 10.08, all payments in respect of the Notes will be made subject to any withholding or deduction required pursuant to FATCA, and we will not be required to pay any Additional Amounts on account of any such deduction or withholding required pursuant to FATCA.”

Section 2.05. Amendments to Article 10 Relating to Covenants. 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 intends to use the net proceeds from the sale of the Notes to repay existing indebtedness and the remainder, if any, 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

 

9


addition, the Company will not allow any of the Company’s Material Subsidiaries, if any, 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 Material Subsidiary’s Indebtedness or (c) the Indebtedness of any other Person, unless it 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.

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.”

 

10


Section 2.06. 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

AMENDED AND RESTATED GUARANTY

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

Section 3.02. Enforcement. The Trustee shall enforce the provisions of the Amended and Restated Guaranty against Petrobras in accordance with the terms thereof and the terms of the Indenture, and Petrobras, by execution of this Amended and Restated Twenty-Fifth 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated Guaranty as provided therein, to be entitled to the benefits of the Indenture with respect to their rights against Petrobras under the Amended and Restated 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 Amended and Restated Guaranty.

ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the Amended and Restated Twenty-Fifth Supplemental Indenture. This Amended and Restated Twenty-Fifth 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 Twenty-Fifth Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this Amended and Restated Twenty-Fifth Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Amended and Restated Twenty-Fifth Supplemental Indenture supersede any conflicting provisions included in the Original Indenture

 

11


unless not permitted by law. The provisions of this Amended and Restated Twenty-Fifth 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 Twenty-Fifth Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this Amended and Restated Twenty-Fifth Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this Amended and Restated Twenty-Fifth Supplemental Indenture.

Section 4.02. Governing Law. This Amended and Restated Twenty-Fifth 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 Twenty-Fifth 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 Twenty-Fifth Supplemental Indenture.

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

Section 4.06. 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]

 

12


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

 

PETROBRAS GLOBAL FINANCE B.V.
By:  

/s/ Larry Carris Cardoso

Name: Larry Carris Cardoso
Title: Attorney in Fact
PETRÓLEO BRASILEIRO S.A. – PETROBRAS
By:  

/s/ Bianca Nasser Patrocínio

Name: Bianca Nasser Patrocínio
Title: Attorney in Fact
WITNESSES:
1.  

/s/ Renan Feuchard Pinto

Name: Renan Feuchard Pinto
2.  

/s/ Rodrigo Coimbra

Name: Rodrigo Coimbra

[ Signature Page - Twenty-Fifth Supplemental Indenture ]


THE BANK OF NEW YORK MELLON, as Trustee
By:  

/s/ Teresa Wyszomierski

Name: Teresa Wyszomierski
Title: Vice President
WITNESSES:
1.  

/s/ Wanda Camacho

Name: Wanda Camacho
2.  

/s/ Elizabeth Stern

Name: Elizabeth Stern

[ Signature Page - Twenty-Fifth Supplemental Indenture ]


STATE OF NEW YORK   )   
 

)

   ss:
COUNTY OF NEW YORK   )   

On this 18th day of March, 2019, before me, a notary public within and for said county, personally appeared Teresa H. Wyszomierski, to me personally known, who being duly sworn, did say that she 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 18th day of March, 2019, before me personally came Wanda Camacho and Elizabeth Stern to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

  

/s/ Bret S. Derman

   Notary Public
   COMMISSION EXPIRES
  

Bret S. Derman

Notary Public State of New York

Kings County

LIC. # 02DE6196933

COMM EXP. 11/17/2020


Form of 5.750% Global Note due 2029

GLOBAL NOTE

THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.


PETROBRAS GLOBAL FINANCE B.V.

5.750% Global Notes due 2029

No. __________________

CUSIP No.: 71647N AZ2

ISIN No.: US71647NAZ24

 

Principal Amount: U.S.$                                     
Initial Issuance Date:                                    

This Note is one of a duly authorized issue of notes of PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “ Issuer ”), designated as its 5.750% Global Notes due 2029 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$2,750,000,000 under the Amended and Restated Twenty-Fifth Supplemental Indenture (the “ Amended and Restated Twenty-Fifth Supplemental Indenture ”), effective as of March 19, 2019, by and among the Issuer, Petróleo Brasileiro S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), and The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), to the Indenture, dated as of August 29, 2012 (the “ Original Indenture ”, and as supplemented by the Amended and Restated Twenty-Fifth 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 1, 2029 (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, semi-annually in arrears on February 1 and August 1 of each year, (each such date, an “ Interest Payment Date ”), commencing August 1, 2019 at a rate equal to 5.750% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. 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 shall accrue on the Notes at the rate of 5.750% per annum until all required amounts due in respect of the Notes have been paid. 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.

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.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


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

 

PETROBRAS GLOBAL FINANCE B.V.
By:  

                                          

Name:
Title: Managing Director A
By:  

                                                  

Name:  
Title: Managing Director B
WITNESSES:
1.  

                                              

Name:
2.  

                                              

Name:


CERTIFICATE OF AUTHENTICATION

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

Dated: March 19, 2019

 

The Bank of New York Mellon,
as Trustee
By:  

                                  

Name:
Title:


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

Amended and Restated Guaranty

Exhibit 4.5

GUARANTY

Dated as of March 19, 2019

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

     3  

SECTION 2.

 

Guaranty

     7  

SECTION 3.

 

Guaranty Absolute

     8  

SECTION 4.

 

Independent Obligation

     10  

SECTION 5.

 

Waivers and Acknowledgments

     10  

SECTION 6.

 

Claims Against the Issuer

     11  

SECTION 7.

 

Covenants

     11  

SECTION 8.

 

Amendments, Etc.

     15  

SECTION 9.

 

Indemnity

     15  

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 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

     18  

 

2


GUARANTY

GUARANTY (this “ Guaranty ”), dated as of March 19, 2019 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 under the Indenture (as defined below) (the “ Trustee ”).

WITNESSETH:

WHEREAS, Petrobras Global Finance B.V., a private company incorporated with limited liability under the laws of The Netherlands and a wholly-owned Subsidiary of the Guarantor (the “ Issuer ”), has entered into an Indenture dated as of August 28, 2018 (the “ Original Indentur e”) with the Trustee, as supplemented by the First Supplemental Indenture among the Issuer, the Guarantor and the Trustee, dated as of March 19, 2019 (the “ First Supplemental Indenture ”). The Original Indenture, as supplemented by the First Supplemental Indenture and as amended or supplemented from time to time with respect to the Notes, is hereinafter referred to as the “ Indenture ”;

WHEREAS, the Issuer has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with the Indenture and is, on the date hereof, issuing U.S.$2,250,000,000 aggregate principal amount of its 6.900% Global Notes due 2049 under the Indenture (the “ Notes ”);

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 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 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 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 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 First 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:

 

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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.

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 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 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 15% of such Person’s total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of such Person prepared in accordance with IFRS.

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;

 

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(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 that 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 those assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of those assets, including any Lien existing at the time of the acquisition of those assets, so long as the maximum amount so secured will not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of those 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 so long as that Lien is not created in anticipation of that acquisition;

(viii) Lien over any Qualifying Asset relating to a project financed by, and securing Indebtedness incurred in connection with, the Project Financing of that 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 First 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;

(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

 

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does not extend to any other property, the principal amount of the Indebtedness secured by the Lien is not increased, and in the case of paragraphs (i), (ii), (iii) and (vii), the obligees meet the requirements of that paragraph, 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 interest; 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 of Permitted Liens, does not exceed 20% of the Guarantor’s consolidated total assets (as determined in accordance with IFRS) 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;

 

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(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.

SEC ” means the United States Securities and Exchange Commission.

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

Termination Date ” has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 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 Notes, whether for principal, interest, make-whole premium, Additional Amounts, 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 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 Notes. Such notice shall specify the amount or amounts under the Indenture and the Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 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 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 12:00 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 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 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 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 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 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 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 Notes and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the Notes, without in any way affecting or impairing the liability of the 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 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 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 Notes remain outstanding or any amount remains unpaid on the 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(e) 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 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 or agency 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) 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, spin-off 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;

(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 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

 

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(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, spin-off 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, spin-off 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, spin-off 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.

(f) Negative Pledge. So long as any Note remains outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of its 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 the lien to secure equally and ratably its obligations under the guaranties or the Guarantor provides other security for its obligations under this Guaranty and the Indenture as is duly approved by a resolution of the Noteholders in accordance with the Indenture. In addition, the Guarantor will not allow any of its Material Subsidiaries, if any, 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 Material Subsidiary’s Indebtedness or (iii) the Indebtedness of any other Person, unless the Guarantor contemporaneously creates or permits

 

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the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty and the Indenture or the Guarantor provides such other security for its obligations under this Guaranty and the Indenture as is duly approved by the Trustee, at the discretion of the Noteholders in accordance with the Indenture.

(g) 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 IFRS and (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 IFRS. For purposes of this Section 7(g), as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Guarantor’s obligation to deliver such statements and reports to the Trustee hereunder. The Guarantor shall provide the Trustee with prompt written notification at such time that the Guarantor ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Guarantor’s financial statements or reports are publicly available and accessible electronically.

(ii) The Guarantor will provide, together with each of the financial statements delivered pursuant to Sections 7(g)(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 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) 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 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 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 Republica de Chile 65, 13th Floor, 20031 912 Rio de Janeiro – RJ, Brazil, Telephone: +55 (21) 3224 1510/3224 9947, Telecopier: +55 (21) 3224 1401, Attention: Larry Carris Cardoso, Finance Department, Loans and Financing Administration General Manager, if to the Trustee, to The Bank of New York Mellon, at 240 Greenwich Street, Floor 7 East, 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 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.

 

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SECTION 13. Continuing Agreement; Assignment of Rights Under the Indenture and the 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 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 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.

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 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.

(a) 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.

(b) 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 Notes or under any judgment or order.

 

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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 state or Federal court in the Borough of Manhattan, The City of New York, State of New York, 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 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 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, Suite 2401, 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 state or Federal court in the Borough of Manhattan, The City of New York, State of New York, 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 Guaranty or any of the other Transaction Documents to which it is or is to be a party in any state or Federal court in the Borough of Manhattan, The City of New York, State of New York. 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 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 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.

 

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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/ Bianca Nasser Patrocínio

Name:   Bianca Nasser Patrocínio
Title:   Attorney in Fact

 

WITNESSES:
1.  

/s/ Renan Feuchard Pinto

Name:   Renan Feuchard Pinto
2.  

/s/ Rodrigo Coimbra

Name:   Rodrigo Coimbra

[Signature Page to Guaranty]

 

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

/s/ Teresa Wyszomierski

Name: Teresa Wyszomierski
Title: Vice President
WITNESSES:
1.  

/s/ Wanda Camacho

Name: Wanda Camacho
2.  

/s/ Elizabeth Stern

Name: Elizabeth Stern

[Signature Page to Guaranty]

 

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

On this 18th day of March, 2019, before me, a notary public within and for said county, personally appeared Teresa H. Wyszomierski, to me personally known, who being duly sworn, did say that she 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 18th day of March, 2019, before me personally came Wanda Camacho and Elizabeth Stern to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

/s/ Bret S. Berman

Notary Public

Bret S. Derman

Notary Public State of New York

Kings County

LIC. # 02DE6196933

COMM EXP. 11/17/2020

[Signature Page to Guaranty]

 

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Exhibit 4.6

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE, effective as of March 19, 2019, by and among PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “ Company ”), having its corporate seat at Rotterdam, The Netherlands and its principal office at Weena 762, 3014 DA Rotterdam, The Netherlands, 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 ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”).

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 August 28, 2018 (the “ Original Indenture ”), as supplemented by this First Supplemental Indenture, dated as of March 19, 2019 (the “ First 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 Registration Statements on Form F-3/A (File Nos. 333-229096 and 333-229096-01) (the “ Registration Statement ”), dated March 1, 2019, the Prospectus Supplement dated March 12, 2019 and related Base Prospectus dated March 1, 2019 (collectively, the “ Offering Document ”) and the Indenture, U.S.$2,250,000,000 of its 6.900% Global Notes due 2049, in the form attached hereto as Exhibit A (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture as supplemented by this First 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 Annex D to the Original Indenture (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 First 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 First Supplemental Indenture has been in all respects duly authorized;

 

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

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this First 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 Original Indenture, as supplemented and amended hereby. All definitions in the Original Indenture shall be read in a manner consistent with the terms of this First 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 March 19, 2019.

“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 the 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.

“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.

 

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

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

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

“Reference Treasury Dealer” means each of (i) BNP Paribas Securities Corp., (ii) Citigroup Global Markets Inc., (iii) Goldman Sachs & Co. LLC, (iv) HSBC Securities (USA) Inc. and (iv) a primary United States government securities dealer selected by Santander Investment Securities Inc., or, in each case, their respective 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 p.m. New York time on the third Business Day preceding such redemption date.

“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 “6.900% Global Notes due 2049”.

(b) Aggregate Amount : The aggregate principal amount of the Notes that may be authenticated and delivered under this First Supplemental Indenture shall be 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, ISIN 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

 

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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 additional 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 March 19, 2049 (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 Section 2.01(k) and Section 2.01(l) hereof.

(e) Interest : Interest shall accrue on the Notes at the rate of 6.900% 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 semi-annually in arrears on March 19 and September 19 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on September 19, 2019, and will initially accrue from and including the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. Interest shall be paid 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 accrued with respect to the Notes 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

 

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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 prior to 3:00 p.m., New York City Time, 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 the First 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 First Supplemental Indenture.

 

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(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 15 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 an annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 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. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and it may be rescinded or the applicable redemption date delayed in the event that any or all such conditions shall not have been satisfied by the applicable redemption date. Any conditions precedent shall be described in such notice.

(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.

(n) Except as described in Section 2.03, the Notes will be subject to the covenants provided in Article 10 of the Original Indenture.

 

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Section 2.02. Amendment to Article 10 Relating to Additional Amounts. As it applies to the Notes, Section 10.10(3) of the Original Indenture shall be amended and replaced to include the following:

“such Holder fails to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if (x) such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge, (y) such Holder is able to comply with such requirements without undue hardship and (z) at least 30 calendar days prior to the first payment date with respect to which such requirements under the applicable law, regulation, administrative practice or treaty will apply, the Company has notified all Holders that they will be required to comply with such requirements;”

Section 2.03. Amendments to Article 10 Relating to Covenants. As it applies to the Notes, Section 10 of the Original Indenture shall be amended to include or replace, as applicable, the following:

“Section 10.11 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, if any, 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 Material Subsidiary’s Indebtedness or (c) the Indebtedness of any other Person, unless it 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.”

“Section 10.13 Use of Proceeds

 

7


The Company intends to use the net proceeds from the sale of the Notes to repay existing indebtedness and the remainder, if any, for general corporate purposes.”

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 First 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. 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.

ARTICLE 4

MISCELLANEOUS

Section 4.01. Effect of the First Supplemental Indenture. This First 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 First Supplemental Indenture, is in all respects ratified and confirmed, and the Original Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this First Supplemental Indenture supersede any conflicting provisions included in the Original Indenture unless not permitted by law. The provisions of this First 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 First Supplemental Indenture. The Trustee accepts the trusts created by the Original Indenture, as supplemented by this First Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Original Indenture, as supplemented by this First Supplemental Indenture.

 

8


Section 4.02. Governing Law. This First 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 First 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 First Supplemental Indenture.

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

Section 4.06. 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]

 

9


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

 

PETROBRAS GLOBAL FINANCE B.V.

By:  

/s/ Larry Carris Cardoso

Name: Larry Carris Cardoso

Title: Attorney in Fact

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

By:  

/s/ Bianca Nasser Patrocínio

Name: Bianca Nasser Patrocínio

Title: Attorney in Fact

WITNESSES:

1.  

/s/ Renan Feuchard Pinto

Name:Renan Feuchard Pinto

2.  

/s/ Rodrigo Coimbra

Name:Rodrigo Coimbra

[ Signature Page - First Supplemental Indenture ]


THE BANK OF NEW YORK MELLON, as Trustee

By:

 

/s/ Teresa Wyszomierski

Name: Teresa Wyszomierski

Title: Vice President

WITNESSES:

1.

 

/s/ Wanda Camacho

Name: Wanda Camacho

2.

 

/s/ Elizabeth Stern

Name: Elizabeth Stern

[ Signature Page - First Supplemental Indenture ]


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

On this 18th day of March, 2019, before me, a notary public within and for said county, personally appeared Teresa H. Wyszomierski, to me personally known, who being duly sworn, did say that she 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 18th day of March, 2019, before me personally came Wanda Camacho and Elizabeth Stern to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

 

  

/s/ Bret S. Derman

   Notary Public
   COMMISSION EXPIRES
  

Bret S. Derman

Notary Public State of New York

Kings County

LIC. # 02DE6196933

COMM EXP. 11/17/2020


Form of 6.900% Global Note due 2049

GLOBAL NOTE

THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE NOTES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.


PETROBRAS GLOBAL FINANCE B.V.

6.900% Global Notes due 2049

No. __________________

CUSIP No.: 71647N BD0

ISIN No.: US71647NBD03

 

Principal Amount: U.S.$                                     
Initial Issuance Date:                                        

This Note is one of a duly authorized issue of notes of PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “ Issuer ”), designated as its 6.900% Global Notes due 2049 (the “ Notes ”), issued in an initial aggregate principal amount of U.S.$2,250,000,000 under the First Supplemental Indenture (the “ First Supplemental Indenture ”), effective as of March 19, 2019, by and among the Issuer, Petróleo Brasileiro S.A. – Petrobras, a mixed capital company ( sociedade de economia mista ) organized under the laws of Brazil (“ Petrobras ”), and The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), to the Indenture, dated as of August 28, 2018 (the “ Original Indenture ”, and as supplemented by the First 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 March 19, 2049 (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 March 19, 2019, semi-annually in arrears on March 19 and September 19 of each year, (each such date, an “ Interest Payment Date ”), commencing September 19, 2019 at a rate equal to 6.900% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. 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 Note 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 shall accrue on the Notes at the rate of 6.900% per annum until all required amounts due in respect of the Notes have been paid. 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.

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.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


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

 

PETROBRAS GLOBAL FINANCE B.V.
By:  

                                              

Name:
Title: Managing Director A
By:  

                                              

Name:
Title: Managing Director B
WITNESSES:
1.  

                                                      

Name:
2.  

                              

Name:

 


CERTIFICATE OF AUTHENTICATION

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

Dated: March 19, 2019

 

The Bank of New York Mellon,
as Trustee
By:  

                                        

Name:
Title:


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 5.1

LOGO

March 19, 2019

Petróleo Brasileiro S.A.— Petrobras

Avenida República do Chile, 65

20031-912 Rio de Janeiro—RJ

Brazil

Petrobras Global Finance B.V.

Weena 762

3014 DA Rotterdam

The Netherlands

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 (the “ Guaranty for the 2029 Notes ”) dated as of March 19, 2019 for the U.S.$750,000,000 aggregate principal amount of 5.750% Global Notes due 2029 (the “ 2029 Notes ”) by and between Petrobras, as the guarantor, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”) under the indenture (the “ 2012 Base Indenture ”) dated as of August 29, 2012, by and between Petrobras’s wholly-owned subsidiary, Petrobras Global Finance B.V. (“ PGF ”), and the Trustee as supplemented pursuant to the Amended and Restated Twenty-Fifth Supplemental Indenture, dated as of March 19, 2019 (the “ Amended and Restated Twenty-Fifth Supplemental Indenture ” and, together with the 2012 Base Indenture, the “ 2029 Indenture ”) by and among PGF, Petrobras and the Trustee. This opinion is also being furnished to you in connection with the guaranty (the “ Guaranty for the 2049 Notes ” and, together with the Guaranty for the 2029 Notes, the “ Guaranties ”) dated as of March 19, 2019 for the U.S.$2,250,000,000 aggregate principal amount of 6.900% Global Notes due 2049 (the “ 2049 Notes ” and, together with the 2029 Notes, the “ Notes ”), by and between Petrobras, as the guarantor, and the Trustee, under the indenture (the “ 2018 Base Indenture ”) dated as of August 28, 2018, by and between PGF and the Trustee, as supplemented pursuant to the First Supplemental Indenture, dated as of March 19, 2019 (the “ First Supplemental Indenture ” and, together with the 2018 Base Indenture, the “ 2049 Indenture ” and, together with the 2029 Indenture and the Guaranties, the “ Transaction Documents ”), by and among PGF, Petrobras and the Trustee.

 

1


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 2012 Base Indenture;

 

  (ii)

the 2018 Base Indenture;

 

  (iii)

a form of the Amended and Restated Twenty Fifth Supplemental Indenture;

 

  (iv)

a form of the First Supplemental Indenture;

 

  (v)

a form of the Guaranty for the 2029 Notes;

 

  (vi)

a form of the Guaranty for the 2049 Notes;

 

  (vii)

the Estatuto Social of Petrobras;

 

  (viii)

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;

 

  (ix)

a Secretary’s Certificate of Petrobras;

 

  (x)

an Officer’s Certificate of Petrobras; and

 

  (xi)

such other documents, records and matters of law as I have deemed necessary;

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 directors and 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.

 

2


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 specific opinions based on Brazilian law and relating to the Notes, the 2029 Indenture, the 2049 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 U.S. Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.

 

Very truly yours,

/s/ Taísa Oliveira Maciel

Taísa Oliveira Maciel
General Counsel of Petrobras

 

3

Exhibit 5.2

March 19, 2019                        

 

Petróleo Brasileiro S.A.—Petrobras

Avenida República do Chile, 65

20035-900 Rio de Janeiro – RJ

Brazil

 

Petrobras Global Finance B.V.

Weena 762

3014 DA Rotterdam

The Netherlands

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 Global Finance B.V., a Dutch private company (“ PGF ” and, together with Petrobras, the “ Companies ”), in connection with PGF’s offering pursuant to a registration statement on Form F-3/A (Nos. 333-229096 and 333-229096-01) of U.S.$750,000,000 aggregate principal amount of PGF’s 5.750% Global Notes due 2029 (the “ 2029 Notes ”) and U.S.$2,250,000,000 aggregate principal amount of PGF’s 6.900% Global Notes due 2049 (the “ 2049 Notes ” and, together with the 2029 Notes, the “ Notes ”). The 2029 Notes are to be issued under an indenture dated as of August 29, 2012 (the “ 2012 Base Indenture ”) between PGF and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”), as supplemented by the amended and restated twenty-fifth supplemental indenture thereto dated as of March 19, 2019 (the “ Amended and Restated Twenty-Fifth Supplemental Indenture ” and, together with the 2012 Base Indenture, the “ 2029 Indenture ”) among PGF, Petrobras and the Trustee. The 2049 Notes are to be issued under an indenture dated as of August 28, 2018 (the “ 2018 Base Indenture ”) between PGF and the Trustee, as supplemented by the first supplemental indenture thereto dated as of March 19, 2019 (the “ First Supplemental Indenture ” and, together with the 2018 Base Indenture, the “ 2049 Indenture ” and, together with the 2029 Indenture, the “ Indentures ”) among PGF, Petrobras and the Trustee.

The 2029 Notes will have the benefit of an amended and restated guaranty dated as of March 19, 2019 (the “ Guaranty for the 2029 Notes ”) and the 2049 Notes will have the benefit of a guaranty dated as of March 19, 2019 (the “ Guaranty for the 2049 Notes ” and, together with the Guaranty for the 2029 Notes, the “ Guaranties ” and, together with the Notes, the “ Securities ”), in each case between Petrobras and the Trustee. Such registration statement, as amended as of its most recent effective date (March 12, 2019), insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “ Securities Act ”)), but excluding the documents incorporated by reference therein, is herein called the “ Registration Statement .”


Petróleo Brasileiro S.A. – Petrobras

Petrobras Global Finance B.V., p. 2

In arriving at the opinions expressed below, we have reviewed the following documents:

 

  (a)

an executed copy of the 2012 Base Indenture;

 

  (b)

an executed copy of the 2018 Base Indenture;

 

  (c)

a form of the Amended and Restated Twenty-Fifth Supplemental Indenture, including forms of global certificates representing the 2029 Notes;

 

  (d)

a form of the First Supplemental Indenture, including forms of global certificates representing the 2049 Notes;

 

  (e)

a form of the Guaranty for the 2029 Notes; and

 

  (f)

a form of the Guaranty for the 2049 Notes.

In addition, we have reviewed 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.

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 Twenty-Fifth Supplemental Indenture, the First Supplemental Indenture and each of the Guaranties have been duly executed and delivered by PGF and Petrobras, as applicable, in the forms thereof that we have examined, and the Notes have been duly delivered to and paid for by the purchasers thereof in the manner described in the Registration Statement and executed and authenticated, in the form thereof that we have examined, in accordance with the terms of the Indentures, the Notes will be valid, binding and enforceable obligations of PGF, entitled to the benefits of the respective Indentures, and each of 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 PGF or Petrobras, (a) we have assumed that each of Petrobras and PGF 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 PGF 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 in relation to transactions of the type contemplated in the Indentures and the Notes), (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.

 


Petróleo Brasileiro S.A. – Petrobras

Petrobras Global Finance B.V., p. 3

We note that the enforceability of the waiver in Section 15 of the Guaranties and Section 1.15 of the 2012 Base Indenture and the 2018 Base Indenture by each of Petrobras and PGF, as applicable, of any immunities from court jurisdiction and from legal process is subject to the limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976.

We note that the designation in Section 15 of the Guaranties and Section 1.15 of the 2012 Base Indenture and the 2018 Base Indenture of any federal court in the Borough of Manhattan, the City of New York, State of New York, as the venue for actions or proceedings relating to the Guaranties, the Indentures and the Notes, are (notwithstanding the waiver in Section 15 of the Guaranties and Section 1.15 of the 2012 Base Indenture and the 2018 Base Indenture) 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.

We express no opinion as to the subject matter jurisdiction of any U.S. federal court to adjudicate any action relating to the Guaranties, the Indentures or the Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.

We express no opinion as to the enforceability of Section 14 of the Guaranties, Section 10.13 of the Amended and Restated Twenty-Fifth Supplemental Indenture and Section 10.12 of the 2018 Base Indenture relating to currency indemnity.

We note that the waiver of defenses in Sections 3 and 5 of the Guaranties may be ineffective to the extent that any such defense involves a matter of public policy in the State of 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 under the heading “Validity of Securities” and in the prospectus supplement related thereto under the heading “Legal Matters” as counsel for Petrobras and PGF 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.


Petróleo Brasileiro S.A. – Petrobras

Petrobras Global Finance B.V., p. 4

 

Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
By:  

/s/ Francesca L. Odell

  Francesca L. Odell, a Partner

Exhibit 5.3

 

  

Hogan Lovells International LLP

Atrium – North Tower

Strawinskylaan 4129

1077 ZX Amsterdam

PO Box 545

1000 AM Amsterdam

T +31 20 55 33 600

F +31 20 55 33 777

www.hoganlovells.com

 

Trade Register number 34360441

VAT number NL8100.60.255.B.01

The Issuer and the Guarantor

(as defined in this letter)

(the “ Addressees ” and each an “ Addressee ”)

  

Our ref 024989.900071/2521608

 

 

19 M ARCH 2019

Dear Sirs,

D UTCH LEGAL OPINION AS TO THE ISSUE OF U.S.$750,000,000 5.750% G LOBAL N OTES , D UE 2029 AND THE ISSUE OF AN ADDITIONAL U.S.$2,250,000,000 6.900% G LOBAL N OTES DUE 2049 BY P ETROBRAS G LOBAL F INANCE B.V.

 

1.

I NTRODUCTION

 

1.1

General

We have acted as Dutch special legal adviser ( advocaat ) to Petrobras Global Finance B.V., for the sole purpose of rendering this opinion letter (“ this letter ”) on certain matters of the laws of The Netherlands in connection with the issuance of U.S.$750,000,000 aggregate principal amount of notes of the Issuer’s 5.750% Global Notes due 2029 (the “ 2029 Notes ” and the issuance of an additional U.S.$2,250,000,000 aggregate principal amount of notes of the Issuer’s 6.900% Global Notes due 2049 (the “ 2049 Notes ” and together with the 2029 Notes, the “ Notes ”) by Petrobras Global Finance B.V., registered as a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of The Netherlands, having its statutory seat ( statutaire zetel ) in Rotterdam, The Netherlands, and having its principal place of business at Weena 762 9th floor, room A, 3014 DA Rotterdam, The Netherlands and registered with the Commercial Register ( Handelsregister ) of the Chamber of Commerce ( Kamer van Koophandel ) (the “ Commercial Register ”) under number 55810322 (the “ Issuer ”).

 

1.2

Scope

This letter is issued only with respect to the laws of The Netherlands in force at the date of this letter as applied by the Dutch Courts (but excluding unpublished case law).

No opinion is expressed or implied as to Out of Scope Matters.

Hogan Lovells International LLP is a limited liability partnership registered in England and Wales with registered number OC323639. Registered office and principal place of business: Atlantic House, Holborn Viaduct, London EC1A 2FG.

“Hogan Lovells” is an international legal practice that includes Hogan Lovells International LLP and Hogan Lovells US LLP, with offices in: Alicante Amsterdam Baltimore Beijing Birmingham Boston Brussels Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Minneapolis Monterrey Moscow Munich New York Northern Virginia Paris Perth Philadelphia Rio de Janeiro Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Shanghai FTZ Ulaanbaatar Zagreb. Business Service Centers: Johannesburg Louisville.

The word “partner” is used to describe a partner or member of Hogan Lovells International LLP, Hogan Lovells US LLP or any of their affiliated entities or any employee or consultant with equivalent standing. Certain individuals, who are designated as partners, but who are not members of Hogan Lovells International LLP, do not hold qualifications equivalent to members. For more information about Hogan Lovells, the partners and their qualifications, see www.hoganlovells.com.

Advocaten Notarissen Belastingadviseurs Solicitors Rechtsanwälte Avocats Lawyers(USA) Avvocati Abogados

 

AMSLIB01/VOERMANY/2521608.4

   Hogan Lovells


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1.3

Defined terms

Capitalised words and expressions used in this letter have, unless stated otherwise in this letter, the respective meanings given to them in Appendix 1 and Appendix 4 or (if not defined in Appendix 1, Appendix 4 or elsewhere in this letter or its other Appendices) the meanings given to them in the Underwriting Agreement.

Where reference is made to “ Dutch Courts ” this is a reference to the civil and commercial court departments ( civiele - en handelskamers ) of the Dutch district courts ( rechtbanken ), the Dutch courts of appeal ( gerechtshoven ) and the Dutch Supreme Court ( Hoge Raad der Nederlanden ) (specially excluding departments dealing with criminal, governmental, administrative and tax matters) and “ Dutch Court ” will have to be construed accordingly.

 

2.

D OCUMENTS EXAMINED AND RELIED ON

 

2.1

Documents examined and relied on

For the purposes of this letter, we have only examined and relied solely on the Documents listed in Appendix 1.

 

2.2

Documents excluded from our examination

Except for the Documents, we have not, for the purposes of this opinion, examined any contracts or other documents entered into by, or affecting, the Issuer or any corporate records of the Issuer.

 

2.3

Adequacy of documentation

As Dutch special legal adviser ( advocaat ) we have been solely involved for the purpose of attributing suggestions to the Documents for references to the laws of The Netherlands in order to issue this letter. Accordingly, we assume no responsibility for the adequacy of the Documents.

3. S EARCHES

 

3.1

Enquiry Commercial Register

We made a telephone enquiry with the Commercial Register today at approximately 09:42 hours (CET) and were informed that the Extract has not changed since its date.

 

3.2

Enquiry Bankruptcy Registry

We made a telephone enquiry with the Bankruptcy Registry ( faillissementsgriffie ) of the district court ( rechtbank ) of Rotterdam, The Netherlands today at approximately 09:50 hours (CET) and were informed as to the Issuer that:

 

  (a)

it has not been declared bankrupt ( failliet ); and

 

  (b)

it has not been granted a provisional or final moratorium of payments ( surseance van betaling ),

(the “ Dutch Insolvency Proceedings ”).

 

3.3

Central Insolvency Register

We made an online enquiry with the Central Insolvency Register ( Centraal Insolventieregister ) today at approximately 09:43 hours (CET) whilst searching against the Commercial Register number of the Issuer which resulted in the search outcome: ‘no results’, meaning that the Issuer is not registered in such register as being subject to any of the insolvency proceedings listed in annex A of the Insolvency Regulation.

 


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3.4

Insolvency Confirmations

The confirmations under paragraph 3.2 and 3.3 above will together be referred to as the “ Insolvency Confirmations ”.

4. S COPE OF OPINION

 

4.1

Matters not investigated

We have not investigated:

 

  (a)

the financial affairs of the Issuer or any other person or the financial or regulatory position or status of the Issuer or any other person or the ability of the Issuer or any other person to comply with its financial or other obligations under the Documents; and

 

  (b)

any of the assets sold, transferred, issued, assigned or encumbered under or pursuant to the Documents,

and no opinion is expressed or implied in respect of any of the foregoing.

 

4.2

Financial merits and feasibility

This letter does not discuss or confirm in any way the financial merits or financial feasibility of the Documents or the transactions envisaged by them.

 

4.3

Foreign jurisdictions

The Opinion Agreements and the Notes are expressed to be governed by or assumed to be governed by the laws of the State of New York (the “ Foreign Jurisdiction ”).

As Dutch lawyers we are not qualified to assess the meaning and consequences of the terms of the Opinion Agreements and the Notes. In particular, we have made no investigation into the laws of the Foreign Jurisdiction as a basis for this letter and we do not express or imply an opinion thereon.

Our review of the Opinion Agreements and the Notes has been limited to the terms of the Opinion Agreements and the Notes as they appear on the face thereof without reference to (i) the general body of law incorporated into or made applicable to such documents by the choice of law contained therein or (ii) any other laws (other than Dutch law), rules or regulations which may apply thereto by incorporation, reference or operation of law.

 

4.4

Out of Scope Matters

We neither express nor imply any opinion (or, where this would prove to be relevant, their impact on this letter) with regard to:

 

  (a)

the laws of any other territory than the European part of The Netherlands, anti-trust law, data protection law and competition law;

 

  (b)

European Union law, except in as far as it affects Dutch law;

 

  (c)

tax law, IP ( intellectueel eigendom ) and tort ( onrechtmatige daad );

 

  (d)

any matter of trust;

 

  (e)

any matter of priority, ranking or subordination;

 

  (f)

any matter of possession, title or title transfer;

 


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  (g)

any person other than the Issuer;

 

  (h)

any listing or admittance to trading of the Notes or an intention to do so; or

 

  (i)

any matter of fact or any commercial, accounting, capital adequacy or other non-legal matter,

together referred to as “ Out of Scope Matters ”.

 

4.5

Express opinion only

 

  (a)

Our opinions are strictly limited to those expressly set out in paragraph 6 ( Opinion ) below, and no opinions or views are implied or may be implied from or deduced or concluded over or beyond those expressly set out in paragraph 6 ( Opinion ).

 

  (b)

We do not express any opinion on and no opinion may be assumed to be implied in this letter in respect of any notes other than the Notes.

5. A SSUMPTIONS

This letter is based on the assumptions set out in Appendix 2 ( Assumptions ) to this letter (“ Appendix 2 ”).

6. O PINION

Based upon and subject to (i) the foregoing, (ii) the observations, qualifications, reservations and other matters set out in this letter (or its Appendices) and (iii) any matters not disclosed to us or not specifically listed as being taken into account, we express the opinions set out hereafter in this paragraph 6 ( Opinion ) as a matter of Dutch law:

 

6.1

Corporate status

The Issuer has been incorporated and is existing as a legal entity ( rechtspersoon ) in the form of a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) under Dutch law.

 

6.2

Power and capacity; corporate action; due execution

The Issuer has:

 

  (a)

the corporate power to enter into and perform the Opinion Agreements and to issue and perform its obligations under the Notes;

 

  (b)

taken all necessary corporate action to authorize its entry into and performance of the Opinion Agreements and the issue of and the performance of its obligations under the Notes; and

 

  (c)

validly entered into the Opinion Agreements and has validly authorised the issue of the Notes.

 

6.3

No immunity

The Issuer is not entitled to claim immunity from suit, execution, attachment or other legal process in The Netherlands, provided however, that to the extent that any asset owned by the Issuer has a public utility function, seizure of these assets is prohibited by virtue of sections 436 and 703 of the DCCP. Also, no attachment may be made on books and records required for the Issuer’s business.

 


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7.

Q UALIFICATIONS

This letter is subject to the qualifications as set out in Appendix 3 ( Qualifications and Reservation ) (“ Appendix  3 ”), paragraph 1 ( Qualifications ).

 

8.

R ESERVATION

We also make the reservation as set out in Appendix 3, paragraph 2 ( Reservation ).

 

9.

I NTERPRETATION

 

9.1

This letter is addressed to the Addressees.

 

9.2

In this letter Dutch concepts and legal terms are expressed and described in English terms, not in the original Dutch terms. These Dutch concepts and terms may not be identical to the concepts described by the equivalent English concepts and terms as they exist in the laws of other jurisdictions. Where reference is made in this letter to terms or concepts of the laws of The Netherlands, the meaning of the terms and concepts in the Dutch language or under the laws of The Netherlands shall take precedence over their meaning in English and under foreign laws respectively.

 

9.3

This letter speaks as of its date as to the Documents as they currently stand. No undertaking or obligation is assumed on our part to revise, update or amend this letter in connection with, or to notify or inform the Addressees or other person, of, any developments and/or changes under the laws of The Netherlands subsequent to its date that might render its contents untrue or inaccurate in whole or in part at such time.

 

9.4

This letter is given on the basis that it is to be governed by and construed in accordance with Dutch law and that we do not owe a duty of care to any other person than our client, no client attorney relationship exists between us and any other person than our client and that any issues of interpretation or liability arising under this letter will be governed by the laws of The Netherlands and be brought before a Dutch Court.

 

9.5

Only Hogan Lovells International LLP may be held liable in respect of this letter (and not its members, partners or employees or other staff) and such liability in respect of this letter is limited to the assets of Hogan Lovells International LLP (including insurances but excluding the private assets of members, partners or employees or other staff).

 

10.

B ENEFIT AND FILING OF OPINION

 

10.1

This letter is addressed to each of the Addressees.

 

10.2

We hereby consent to the filing of this letter as Exhibit 5.3 to the Registration Statement and to the reference to Hogan Lovells International LLP in the prospectus constituting a part of the Registration Statement under the heading “Validity of Securities” and in any amendments or prospectus supplements related thereto as special counsel for the Issuer who has advised on certain matters of Dutch law relating to the Notes 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.

 

Yours faithfully,

/s/ Hogan Lovells International LLP

H OGAN L OVELLS I NTERNATIONAL LLP

 


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A PPENDIX 1

(D OCUMENTS )

 

1.

The Notes

An electronic copy of signed registered global notes for both the 2029 Notes and the 2049 Notes, dated 19 March 2019, where we assume for the purpose of this letter that these global notes:

 

  (a)

will be subject to the 2012 Base Indenture or the 2018 Base Indenture (as defined below), as applicable; and

 

  (b)

will be governed by the laws of the Foreign Jurisdiction,

such global notes: the “ Global Notes ” (whereas opinions on execution of the Notes are opinions on the execution of the Global Notes representing them).

 

2.

Opinion Agreements

 

  (a)

An electronic copy of the executed underwriting agreement dated 12 March 2019 made among the Issuer, Petróleo Brasileiro S.A. — Petrobras (“ Petrobras ” or “ Guarantor ”), Banco Bradesco BBI S.A., BNP Paribas Securities Corp., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc.,Santander Investment Securities Inc., ABN AMRO Securities (USA) LLC, BBVA Securities Inc. and Commerz Markets LLC (the “ Underwriting Agreement ”), which is expressed to be governed by the laws of the Foreign Jurisdiction;

 

  (b)

an electronic copy of the signed first supplemental indenture dated 19 March 2019 to the 2018 Base Indenture among the Issuer, Petrobras and the Bank of New York Mellon (the “ Trustee ”) (the “ First Supplemental Indenture ”) to the original indenture between the Trustee and the Issuer dated 28 August 2018 (as supplemented from time to time) (the ‘ ‘2018 Base Indenture ’’), which is expressed to be governed by the laws of the Foreign Jurisdiction; and

 

  (c)

an electronic copy of the signed amended and restated twenty-fifth supplemental indenture dated 19 March 2019 to the 2012 Base Indenture among the Issuer, Petrobras and the Trustee (the “ Amended and Restated Twenty-Fifth Supplemental Indenture ”) to the original indenture between the Trustee and the Issuer dated 29 August 2012 (as supplemented from time to time) (the “ 2012 Base Indenture ’’), which is expressed to be governed by the laws of the Foreign Jurisdiction,

the Underwriting Agreement, the First Supplemental Indenture and the Amended and Restated Twenty-Fifth Supplemental Indenture are also collectively referred to as the “ Opinion Agreements ” and each an “ Opinion Agreement ”.

 

3.

Prospectus Supplement

A copy of (i) the prospectus supplement dated 12 March 2019 (the “ Prospectus Supplement ”), but excluding the documents incorporated by reference therein, and (ii) the base prospectus dated 1 March 2019 (the “ Base Prospectus ”) as included in the registration statement which we understand the Issuer has filed with the US Securities and Exchange Commission (‘’ SEC ’’) (the “ Registration Statement ”), but excluding the documents incorporated by reference therein (the Prospectus Supplement and the Base Prospectus, together: the “ Prospectus ”).

 


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4.

C ORPORATE DOCUMENTS

The Documents listed in this paragraph 4 of Appendix 1 will be referred to as the “ Corporate Documents ” and each a “ Corporate Document ”.

 

  (a)

Extract as to the Issuer

An electronic copy of a digitally certified excerpt from the Commercial Register, dated 27 February 2019, in respect of the Issuer (the “ Extract ”).

 

  (b)

Deed of Incorporation of the Issuer

A photocopy of the deed of incorporation ( akte van oprichting ) of the Issuer, executed on 2 August 2012 (the “ Deed of Incorporation ”).

 

  (c)

Articles of Association of the Issuer

A photocopy of the articles of association ( statuten ) of the Issuer as contained in the Deed of Incorporation, being the most recent articles of association of the Issuer according to the Extract (the “ Articles ”).

 

  (d)

Corporate Resolutions - board of managing directors of the Issuer

An electronic copy of the executed written resolutions of the board of managing directors ( bestuur ) of the Issuer dated 1 March 2019 (the “ Board Resolutions ”).

 

  (e)

Corporate Resolutions - general meeting of the Issuer

An electronic copy of the executed written resolutions of the general meeting ( algemene vergadering ) of the Issuer dated 1 March 2019 (the “ Shareholder Resolutions ”).

 

  (f)

Corporate Powers of Attorney

An electronic copy of the executed power of attorney dated 1 March 2019 of the Issuer pursuant to which Bianca Nasser Patrocinio, Larry Carris Cardoso, Guilherme Rajime Takahashi Saraiva, Renan Feuchard Pinto and Isabela Souza Niedzielski Machado Andrea are appointed as attorneys of the Issuer.

 

5.

T RANSACTION D OCUMENTS ; D OCUMENTS

 

5.1

Transaction Documents

The Notes, the Opinion Agreements and the Prospectus are together referred to as the “ Transaction Documents ” and each a “ Transaction Document ”.

 

5.2

Documents

All documents listed in paragraphs 1 up to and including 4 of Appendix 1 are collectively referred to as the “ Documents ” and each a “ Document ”.

 


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A PPENDIX 2

(A SSUMPTIONS )

In this letter, we have assumed that:

 

1.

D OCUMENTS

 

1.1

All Documents submitted to us as originals are authentic and complete and all signatures are genuine.

 

1.2

All Documents submitted to us as photocopies or facsimile or electronically transmitted copies or other copies conform to the originals.

 

1.3

All certified copies and all other Documents on which we have relied, as well as any statements, resolutions and confirmations as contained therein were and remain, where relevant, accurate, complete and in full force and effect both (i) when the Documents were entered into and (ii) at the date of this letter, also in retrospect.

 

1.4

The Documents contain all relevant information which is material for the purposes of our opinion and accurately record all terms and conditions agreed between the parties and there is no other agreement, undertaking, representation or warranty (oral or written) and no other arrangement between all or any of the parties or any other matter which renders such information inaccurate, incomplete or misleading or which affects the conclusions stated in this letter, the Documents have not been terminated or varied, no obligation under any Document has been waived and there are no other terms and conditions that would render any of the opinions stated in this letter inaccurate or wrong.

 

1.5

Each Opinion Agreement (other than the Underwriting Agreement) and each Global Note has been executed on behalf of the Issuer by Larry Carris Cardoso acting in his capacity as authorized Attorney under the PoA. The Underwriting Agreement has been executed on behalf of the Issuer by Bianca Nasser Patrocinio acting in her capacity as authorized Attorney under the PoA.

 

2.

F ILINGS WITH D UTCH PUBLIC RECORD

 

2.1

The content of the Extract is true and accurate at the date of this letter.

 

2.2

All documents, forms and notices which should have been delivered to the Commercial Register on behalf of, or relating to, the Issuer have been so delivered and the files of records maintained at the Commercial Register concerning the Issuer, and reproduced for public inspection, were complete, accurate and up-to-date at the time of the Extract and at the time of the searches referred to in paragraphs 3.1, 3.2 and 3.3 of this letter.

 

3.

C ORPORATE BENEFIT , VOIDABLE PREFERENCE AND ARM S LENGTH ; CONFLICTS

 

3.1

The Issuer as relevant:

 

  (a)

has entered or will enter into the Opinion Agreements; and

 

  (b)

has executed or will execute and issue the Notes,

in good faith for the purposes of its business.

3.2 As to each of the transactions contemplated in the Opinion Agreements and the application of proceeds of the Notes, the following applies:

 

  (a)

such transactions will benefit the Issuer;

 

  (b)

such transactions are entered into on at arm’s length terms; and

 

  (c)

such transactions will not be ultra vires ; and

 


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  (d)

such transactions will not prejudice ( benadelen ) its creditors (present or future).

 

3.3

No member of the Issuer’s board ( bestuur ) has a personal interest in the transactions contemplated by the Documents which is in conflict with the interest of the Issuer or its business.

 

4.

C ORPORATE D OCUMENTS : C ORPORATE AUTHORITY AND ACTION

 

4.1

The Issuer does not have a (central or European) works council ( (centrale of Europese) ondernemingsraad ) with jurisdiction over the matters contemplated by the Documents nor is the Issuer under any obligation to constitute a works council under or pursuant to the WOR.

 

4.2

No proceedings have been instituted or injunction has been granted against the Issuer to restrain it from:

 

  (a)

entering into the Opinion Agreements;

 

  (b)

executing or issuing any Note; or

 

  (c)

performing any of its obligations under the Opinion Agreements, any Note or any other Document to which it is a party or by which it is bound.

 

4.3

No resolution has been adopted by the Issuer or any of its corporate bodies concerning:

 

  (a)

the conversion ( omzetting ), statutory merger ( juridische fusie ) or demerger ( splitsing ) of the Issuer, in both cases involving the Issuer as disappearing entity;

 

  (b)

the (voluntary) winding-up ( ontbinding ) of the Issuer; and

 

  (c)

the application of any of the proceedings listed in annex A of the Insolvency Regulation.

 

4.4

No proceedings have been instituted or steps have been taken for the bankruptcy ( faillissement ), dissolution ( ontbinding en vereffening ) or moratorium of payments ( surseance van betaling ) of the Issuer (any of the proceedings listed in this assumption 4.4 together with any proceedings listed in assumption 4.3(c), each an “ Insolvency Proceeding ”).

 

4.5

The Issuer is not subject to any Insolvency Proceeding and the assets of the Issuer are not intended for public use ( openbare dienst ).

 

4.6

None of the members of the board of managing directors ( bestuur ) of the Issuer is subject to a civil law director disqualification ( civielrechtelijk bestuursverbod ) imposed by a Dutch Court under articles 106a to 106e of the Bankruptcy Code (as amended by the Directors disqualification act ( Wet civielrechtelijk bestuursverbod )).

 

4.7

No notice from the Chamber of Commerce ( Kamer van Koophandel ) has been received by the Issuer or issued in respect of the Issuer concerning its dissolution under section 2:19a DCC.

 

4.8

The Corporate Documents are and will remain in full force and effect and have not been rescinded, revoked, superseded or amended in any way.

 

4.9

The Board Resolutions have been executed after the Shareholder Resolutions have been executed.

 

5.

F OREIGN LAW

 

5.1

As a matter of the Foreign Jurisdiction (by which the Transaction Documents are expressed and assumed to be governed) and all other relevant jurisdictions, the

 


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obligations of each party under each Transaction Document constitute valid and legally binding obligations of each such party enforceable in accordance with its terms (other than in respect of the Issuer as a matter of Dutch law in relation to the matters on which we render an express opinion).

 

5.2

No law affects any of the conclusions stated in this letter (other than as a matter of Dutch law in relation to the matters on which we render an express opinion).

 

6.

U NLAWFUL ACTIVITIES AND SANCTIONS

None of the Transaction Documents has been entered into or will be entered into or (as to the Notes) purchased, subscribed or acquired otherwise by any party in connection with money laundering or any other unlawful activity and no party to any Transaction Document or entitled to any Note is resident in or connected with a territory which is subject to any embargo, sanction or similar restriction imposed by the United Nations, the Council of the European Union or The Netherlands, any other governmental body or organisation or otherwise, or any person or body to whom their powers are delegated.

 

7.

O THER PARTIES CAPACITY , POWER AND AUTHORITY

Each of the parties involved in the Documents has full corporate capacity, power, and authority to enter into and perform its obligations under the Documents (whether as a direct party, or as addressee/beneficiary) and has taken all corporate action in connection therewith and the same does not violate any provision of its corporate law or constitutive documents and the Documents have been duly accepted, authorised, executed and delivered by all parties as a matter of all relevant jurisdictions. This assumption does not apply to the Issuer in respect of Dutch law in relation to the matters on which we render an express opinion.

 

8.

R EGULATORY

The Issuer will comply and has at all times complied with relevant market abuse rules, insider trading rules and requirements; the same applies to relevant persons related to the Issuer.

 

9.

O FFERS , ADVERTISEMENTS ANNOUNCEMENTS , ISSUES , SALES AND TRANSFERS OF THE N OTES

 

9.1

All parties to the Transaction Documents will comply and have at all times complied with the DFSA in respect of its dealings and activities.

 

9.2

The Notes will at all times be offered, advertised, announced, issued, sold and transferred:

 

  (a)

in accordance with the selling restrictions resulting from, inter alia :

 

  (i)

the DFSA; and

 

  (ii)

the Plan of Distribution under the Base Prospectus and Underwriting under the Prospectus Supplement; and

 

  (b)

otherwise in accordance with their terms.

 

9.3

With respect to the offering of the Notes:

 

  (a)

the Base Prospectus, and any amendment thereto (including any post-effective amendment) have been filed with the SEC and will have become effective;

 

  (b)

the Prospectus Supplement will have been prepared and filed with the SEC describing the Notes offered thereby; and

 


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  (c)

the Notes will be issued and sold in compliance with all applicable U.S. federal and state securities laws and all other applicable laws.

 

9.4

No Notes have been, are or will be admitted to trading on a regulated market or multilateral trading facility in the European Union.

 

10.

G ENERAL

 

10.1

All documents and instruments envisaged to be notified, handed over, (de)registered, or transferred in giving effect to the Transaction Documents have been or will be duly notified, handed over, (de)registered or transferred (as relevant) and all relevant data protection, privacy and bank secrecy rules will be complied with.

 

10.2

Where the envisaged effect of a Transaction Document or any provision of the Transaction Documents is subject to the performance of any further act, compliance with any condition or the occurrence of any such fact or circumstance, such act, condition, fact or circumstance has been performed, has occurred or is complied with (as relevant).

 

10.3

The binding effect of the Transaction Documents on the Issuer is not affected by threat ( bedreiging ), fraud ( bedrog ), abuse of circumstances ( misbruik van omstandigheden ), mistake (dwaling ) or equity principles (such as the Dutch principles of reasonableness and fairness).

 

10.4

No previous or future issue of any securities whatsoever by the Issuer will interfere with the Notes or affect the Transaction Documents.

 

10.5

All Transaction Documents submitted to us as drafts, when executed, will not differ in form and content from the drafts received by us (and any blanks in such drafts will have been duly completed consistent with their intended use).

 


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A PPENDIX 3

(Q UALIFICATIONS AND R ESERVATION )

 

1.

Q UALIFICATIONS

 

1.1

Enforceability

The opinions and statements expressed herein are subject to any limitations arising from or in connection with, and we do not express any opinion or statement as to the consequences of, any Insolvency Proceeding or emergency measures or resolution and recovery laws or regulations, a non-insolvency dissolution or liquidation, a statutory merger or demerger, fraudulent conveyance ( actio pauliana ) and other laws of general application relating to or affecting the rights of creditors.

 

1.2

Insolvency Confirmations

The Insolvency Confirmations do not provide conclusive evidence that the Issuer is not subject to any Dutch Insolvency Proceedings and the Extract does not provide conclusive evidence that the matters set out therein are correct.

 

1.3

Powers of attorney, mandates, authorities granted

Under the laws of The Netherlands, a power of attorney ( volmacht ):

 

  (a)

will automatically, i.e. by operation of law ( van rechtswege ), terminate upon the bankruptcy of such entity or if such power of attorney is withdrawn by such entity and may become ineffective upon its moratorium of payments ( surseance van betaling );

 

  (b)

can only be made irrevocable ( onherroepelijk ) to the extent that it has been granted to perform legal acts ( rechtshandelingen ) which are in the interests of the representative appointed by the power of attorney, or of a third party; and

 

  (c)

an irrevocable power of attorney may, in certain circumstances, be amended or be declared ineffective by a Dutch Court for serious reasons ( gewichtige redenen ).

Similar observations apply to a mandate (last).

To the extent that, without limitation, the appointment of an agent for service of process or the authorisation to apply monies or granting delegation authority to sign or execute notes, orders and instructions and other elements of the Transaction Documents are to be considered as the granting of a power of attorney or mandate, the above may affect such appointment, authorisation, delegation or elements and if the appointment of an agent for service of process or such delegation is capable of being revoked, once the relevant principal has revoked such appointments or delegation, may not be valid against such principal. Similar considerations may be relevant for other appointments and acts of delegation such as the appointment of other agents, administrators, asset managers, etc.

 

1.4

Execution of the Notes

In the event that Notes are executed on behalf of the Issuer by use of facsimile or electronically generated signatures (where such facsimile or relevant electronic document shows the signatures of authorised signatories of its managing directors), this will only be binding on the Issuer if such facsimile or electronically generated signatures are printed or duplicated on such Notes by a person or entity duly authorised on behalf of the Issuer to do so and provided that any power of attorney or mandate granted by the Issuer in connection with the dating, authentication, completion and issue of such Notes has not

 


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terminated as set out above. Enforcement of the Notes may require presentation of the authorised use of facsimile or electronically generated signatures.

 

1.5

Qualifications other parties involved

Any matter qualified for in relation to the Issuer is equally qualified for as to other parties involved where we opine in relation to any other party.

2. R ESERVATION

We express no opinion as to the correctness of any representations, warranties or statements given by the Issuer or any of its directors, officers, attorneys or any of its other representatives (expressly or impliedly) under or by virtue of the Documents, and we have relied on such representations, warranties and statements, save if and insofar as the matters warranted or stated are the subject-matter of specific opinions in this letter.

 


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Petrobras Global Finance B.V.

 

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   19 M ARCH 2019

 

A PPENDIX 4

(S OME D EFINITIONS AND I NTERPRETATION )

For the avoidance of doubt, hereafter references to acts, regulations, rules, guidelines etc. are a reference to such acts, regulations, rules, guidelines etc. as they currently stand - where relevant upon amendment or variation as per today - and any reference to such acts, regulations and rules includes a reference to the decrees and regulations promulgated thereunder or pursuant thereto.

 

1.

Dutch acts c.a.

 

DCC

 

  

the Dutch Civil Code ( Burgerlijk Wetboek ).

DCCP

  

the Dutch Code of Civil Procedures ( Wetboek van Burgerlijke Rechtsvordering ).

 

DFSA

  

the Dutch Financial Supervision Act ( Wet op het financieel toezicht ).

 

WOR

  

the Dutch Act on the Works Councils ( Wet op de ondernemingsraden ).

 

 

2.

Treaties and regulations

 

Insolvency Regulation

  

the “Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings” which is a recast of the EC Council Regulation no. 1346/2000 of 29 May 2000 ( Insolventieverordening ).