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 January 2014

 

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
20035-900 — Rio de Janeiro — RJ,
Brazil
(55-21) 3224-4477
(Address of principal executive offices)

 

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

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

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

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

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

 

 


 
 

 

This report on Form 6-K is incorporated by reference in the Registration Statement on Form of F-3 of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”) (No. 333-183618) and Petrobras Global Finance B.V. (“PGF”) (No. 333-183618-01) and its accompanying prospectus supplement dated as of January 7, 2014.

Exhibits

Exhibit 4.1 — Guaranty for the 2018 Notes

Exhibit 4.2 — Tenth Supplemental Indenture

Exhibit 4.3 —  Form of 2.750% Global Notes due 2018 (included in Exhibit 4.2)

Exhibit 4.4 — Guaranty for the 2021 Notes

Exhibit 4.5 — Eleventh Supplemental Indenture

Exhibit 4.6 — Form of 3.750% Global Notes due 2021 (included in Exhibit 4.5)

Exhibit 4.7 — Guaranty for the 2025 Notes

Exhibit 4.8 — Twelfth Supplemental Indenture

Exhibit 4.9 —  Form of 4.750% Global Notes due 2025 (included in Exhibit 4.8)

Exhibit 4.10 — Guaranty for the 2034 Notes

Exhibit 4.11 — Thirteenth Supplemental Indenture

Exhibit 4.12 —  Form of 6.625% Global Notes due 2034 (included in Exhibit 4.11)

Exhibit 5.1 — Opinion of internal counsel to Petrobras

Exhibit 5.2 — Opinion of Houthoff Buruma, Dutch counsel to PGF and Petrobras

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

 

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SIGNATURES

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

 

 

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

 

 

By: /s/ Larris Carris Cardoso

Name: Larris Carris Cardoso

Title: Corporate Finance Manager

 

 

 

By: /s/ Guilherme Ribeiro de Almeida

Name: Guilherme Ribeiro de Almeida

Title: Foreign Exchange Sectorial Manager

 

 

 

Date: January 14, 2013                                                          

 

 

 

 

Exhibit 4.1

 

 

 

 

 

 

GUARANTY

Dated as of January 14, 2014

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON , as

Trustee for the Noteholders

Referred to Herein

 

 


 

 

Table of Contents
   

Page

SECTION 1.  

Definitions 

2

SECTION 2.  

Guaranty  

6

SECTION 3.  

Guaranty Absolute  

7

SECTION 4.  

Independent Obligation  

8

SECTION 5.  

Waivers and Acknowledgments  

9

SECTION 6.  

Claims Against the Issuer  

10

SECTION 7.  

Covenants  

10

SECTION 8.  

Amendments, Etc  

14

SECTION 9.  

Indemnity  

14

SECTION 10.  

Notices, Etc  

14

SECTION 11.  

Survival  

15

SECTION 12.  

No Waiver; Remedies  

15

SECTION 13.  

Continuing Agreement; Assignment of Rights Under the Indenture and the 2018 Notes

15

SECTION 14.  

Currency Rate Indemnity  

15

SECTION 15.  

Governing Law; Jurisdiction; Waiver of Immunity, Etc  

16

SECTION 16.  

Execution in Counterparts  

18

SECTION 17.  

Entire Agreement  

18

SECTION 18.

The Trustee  

18

 

 

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GUARANTY

 

GUARANTY (this “ Guaranty ”), dated as of January 14, 2014, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2018 Notes (as defined below) issued pursuant to 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 Tenth Supplemental Indenture among the Issuer, the Guarantor, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent hereunder (the “ Principal Paying Agent ”) and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”), dated as of the date hereof (the “ Tenth Supplemental Indenture ”).  The Original Indenture, as supplemented by the Tenth Supplemental Indenture and as amended or supplemented from time to time with respect to the 2018 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 €1,500,000,000 aggregate principal amount of its 2.750% Global Notes due 2018 under the Indenture (the “ 2018 Notes ”); 

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 2018 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 2018 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 2018 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2018 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.

 

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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 Tenth 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

Clearstream, Luxembourg ” means Clearstream Banking, société anonyme.

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

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.

Guaranteed Obligations ” has the meaning specified in Section 2.

Indebtedness ” means any obligation (whether present or future, actual or contingent and including, without limitation, any Guarantee) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under generally accepted accounting principles in the country of incorporation of the relevant obligor, would constitute a capital lease obligation).

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

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, assets, property, condition (financial or otherwise) or, results of operation, of the Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or

 

 

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enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty or any other Transaction Document, or (d) the material rights or benefits available to the Noteholders or the Trustee, as representative of the Noteholders under the Indenture, this Guaranty or any of the other Transaction Documents.

Material Subsidiary ” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 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;

 

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(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;

(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 Tenth 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.

 

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

Project Financing ” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.

Qualifying Asset ” in relation to any Project Financing means:

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

(ii)        any drilling or other rig, any drilling or production platform, pipeline, marine vessel, vehicle or other equipment or any refinery, oil or gas field, processing plant, real property (whether leased or owned), right of way or plant or other fixtures or equipment;

(iii)       any revenues or claims which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale, loss or damage to, such concession, authorization or other legal right or such drilling or other rig, drilling or production platform, pipeline, marine vessel, vehicle or other equipment or refinery, oil or gas field, processing plant, real property, right of way, plant or other fixtures or equipment or any contract or agreement relating to any of the foregoing or the Project Financing of any of the foregoing (including insurance policies, credit support arrangements and other similar contracts) or any rights under any performance bond, letter of credit or similar instrument issued in connection therewith;

(iv)       any oil, gas, petrochemical or other hydrocarbon‑based products produced or processed by such project, including any receivables or contract rights arising therefrom or relating thereto and any such product (and such receivables or contract rights) produced or processed by other projects, fields or assets to which the lenders providing the Project Financing required, as a condition therefor, recourse as security in addition to that produced or processed by such project; and

(v)        shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor by, a special purpose company formed solely for the development of a project, and whose principal assets and business are constituted by such project and whose liabilities solely relate to such project.

SEC ” means the United States Securities and Exchange Commission

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

 

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Termination Date has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2018 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 2018 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 2018 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 2018 Notes.  Such notice shall specify the amount or amounts under the Indenture and the 2018 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2018 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 2018 Notes and the Indenture.  All amounts payable by the Guarantor hereunder shall be payable in euros 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. (London 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.

 

 

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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 2018 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 2018 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 2018 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 2018 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2018 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 2018 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

 

 

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(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.

SECTION 4.         Independent Obligation     The obligations of the Guarantor  hereunder are independent of the Issuer’s obligations under the 2018 Notes and the Indenture.  The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2018 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.

 

 

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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 2018 Notes.

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

 

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SECTION 6.         Claims Against the Issuer     The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this 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 2018 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 2018 Notes remain outstanding or any amount remains unpaid on the 2018 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) 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 2018 Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor  in respect of this Guaranty may be served, and the Guarantor  will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d)       Ranking .  The Guarantor  will ensure at all times that its obligations under this Guaranty  will constitute the general, senior, unsecured and unsubordinated obligations of the Guarantor  and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor  (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty.

(e)        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 2018 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

 

 

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(f)        Negative Pledge .  So long as any 2018 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 2018 Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2018 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.

 

 

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(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).

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 2018 Notes required to approve the amendment. 

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

SECTION 10.     Notices, Etc     (a)        All notices and other communications provided for hereunder shall be in writing (including telegraphic or telecopy) and mailed, telecopied or delivered by hand, if to the Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro - RJ, Brazil, Telephone:  (55-21) 3224-4079, Telecopier: (55-21) 2544-7168, Attention: Sonia Tereza Terra Figueiredo, Debt Back-Office Manager, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 7E, 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).

 

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

SECTION 12.     No Waiver; Remedies .    No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 13.     Continuing Agreement; Assignment of Rights Under the Indenture and the 2018 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 2018 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 2018 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

             

 

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(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 2018 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 euros (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 2018 Notes or under any judgment or order.

SECTION 15.   Governing Law; Jurisdiction; Waiver of Immunity, Etc.     (a)                 This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b)                The Guarantor  hereby irrevocably and unconditionally submits , for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty  or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor  hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to 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.

 

 

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(c)                 The Guarantor  hereby irrevocably appoints and empowers the New York office of Petróleo Brasileiro S.A., located at 570 Lexington Avenue, 43rd Floor , New York , New York 10022 as its authorized agent (the “ Process Agent ”) to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceedings in any New York State court or United States federal  court sitting in the State of New York in the Borough of Manhattan and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts.  The Guarantor  will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such Process Agent and; should such Process Agent become unavailable for this purpose for any reason, the Guarantor  will promptly and irrevocably designate a new Process Agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c).  The Guarantor  irrevocably consents and agrees to the service of  any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 10  or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent.  Service upon the Guarantor  or the Process Agent as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Process Agent to give any notice of such service to the Guarantor  shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.

(d)                The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court.  The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.

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

 

 

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(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 2018 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

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

 

[ Signature page follows

 

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

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

By:    /s/ Larry Carris Cardoso

      Name: Larry Carris Cardoso
                Title: Corporate Finance Manager

By:    /s/ Guilherme Ribeiro de Almeida

      Name: Guilherme Ribeiro de Almeida
                Title: Foreign Exchange Sectorial Manager

WITNESSES:

1. /s/ Maurício Piragibe C. Faria                                                   

    Name: Maurício Piragibe C. Faria

 

2. /s/ Renan Feuchard Pinto                                                   

    Name: Renan Feuchard Pinto

 

 

 

 

 

 

 

 

Signature page to Guaranty for the 2018 Notes

 

 


 

 

ACKNOWLEDGED:

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

 

 

By:    /s/ John T. Needham, Jr. 

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

WITNESSES:

1.          /s/ Catherine F. Donohue           

            Name: Catherine F. Donohue

 

 

2.          /s/ Michelle Drinkard                  

            Name: Michelle Drinkard

 

 

 

 

Signature page to Guaranty for the 2018 Notes

 

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014 , before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

 

 

On this 14 th day of January 2014 , before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

 

 

[Notarial Seal]

 

/s/ Danny Lee                         

Notary Public                                        

COMMISSION EXPIRES


 

Exhibit 4.2

 

 

TENTH SUPPLEMENTAL INDENTURE

TENTH SUPPLEMENTAL INDENTURE, effective as of January 14, 2014, 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 Weenapoint Toren A, Weena 722, 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 ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as principal paying agent hereunder (the “ Principal Paying Agent ”) and THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent (as defined below).

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 this Tenth Supplemental Indenture, dated as of January 14, 2014 (the “ Tenth Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

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

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-183618-01) (the “ Registration Statement ”), dated August 29, 2012, the Prospectus Supplement dated January 7, 2014 and related Base Prospectus dated August 29, 2012 (collectively, the “ Offering Document ”) and the Indenture, €1,500,000,000 of its 2.750% Global Notes due 2018, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Tenth Supplemental Indenture; 

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

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

 


 

 

WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Tenth 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 Tenth 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 Tenth Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Tenth 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, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent 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 Tenth 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:

“Bund Rate” means, as of any Redemption Date, the rate per annum equal to the yield to maturity as of such Redemption Date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such Redemption Date.

“Business Day” means each Target System Day.  With respect to notes in certificated form, the reference to Business Day will also mean a day on which banking institutions generally are open for business in the location of each office of a transfer agent, but only with respect to a payment or other action to occur at that office.

“Closing Date” means January 14, 2014.

 

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“Comparable German Bund Issue” means the German Bundesanleihe security selected by the Independent German Bund Investment Banker as having a fixed maturity most nearly equal to the remaining term of the series of Notes to be redeemed and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to the remaining term of the Notes to be redeemed; provided, however, that, if the remaining term of the Notes to be redeemed is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the remaining term of the Notes to be redeemed is less than one year, a fixed maturity of one year shall be used.

“Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Independent German Bund Investment Bank obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations.

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

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

“euro” means the euro or such other lawful currency of the member states of the European Monetary Union that have adopted or that will adopt the single currency in accordance with the Treaty Establishing the European Community, as amended by the Treaty on European Union, as at the time of payment shall be legal tender for the payment of public and private debts.

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

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

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

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

“Lien” means any mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance on any property or asset, including, without limitation, any equivalent created or arising under applicable law.

                                                                                                        

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“Luxembourg Paying Agent” means a paying agent with respect to the Notes located in Luxembourg that is selected by the Company, which shall initially be The Bank of New York Mellon (Luxembourg) S.A.

“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 Tenth Supplemental Indenture.

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

“Permitted Lien” means a:

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

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

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

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

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

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

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

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

                                                                                                      

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(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.

“Principal Paying Agent” means a paying agent with respect to the Notes located in London, England, which shall initially be The Bank of New York Mellon, London Branch.

“Reference German Bund Dealer” means each of BNP Paribas, Crédit Agricole Corporate and Investment Bank, HSBC Bank plc and J.P. Morgan Securities plc, or their affiliates, which are dealers of German Bundesanleihe securities and two other leading dealers of German Bundesanleihe securities reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a dealer of German Bundesanleihe securities, the Company will substitute therefor another dealer of German Bundesanleihe securities.

“Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Independent German Bund Investment Banker of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent German Bund Investment Bank by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the Redemption Date.

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

“Target System Day” is any day in which the Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET2) System (or any successor thereto) is open for business and a day on which commercial banks are open for dealings in euro deposits in the London interbank market.

                                                                              

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Article 2
TERMS OF THE NOTES

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

(a)                 Title :  The Notes shall constitute a series of Securities having the title “2.750% Global Notes due 2018”.

(b)                Aggregate Amount :  The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Tenth Supplemental Indenture shall be €1,500,000,000 .  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 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 continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras.  All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

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

                                                                  

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(d)                Maturity :  The entire outstanding principal of the Notes shall be payable in a single installment on January 15, 2018 (the “ Stated Maturity ”).  No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

(e)                 Interest:  Interest shall accrue on the Notes at the rate of 2.750% 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 Principal Paying Agent and distributed by the Principal Paying Agent in accordance with this Indenture annually in arrears on January 15 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on January 15, 2015, and will initially accrue from and including the date of issuance and thereafter from and including 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).  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).  As provided in the Original Indenture, (i) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Principal Paying Agent in London, or such other paying agent office in London as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (ii) all such payments to the Principal Paying Agent shall be made by the Company by depositing immediately available funds in euros by 12:00 p.m. (London time) one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iii) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in London.

(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.

 

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(g)        Payment Account :  On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Tenth 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 €100,000 and integral multiples of €1,000 in excess thereof, and shall be transferable in integral multiples of €100,000 and integral multiples of €1,000 in excess thereof and the Depositary for such Global Notes shall be The Bank of New York Mellon, London Branch, as common depositary for Clearstream and Euroclear.

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

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

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

                                                                                             

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(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)        Determination of Notes Outstanding .  For the purposes of the definition of “Outstanding” in Section 1.01 of the Original Indenture only, the U.S. dollar equivalent of the principal amount of Notes issued on the Closing Date shall be determined by converting such principal amount of Notes into U.S. dollars at the cross exchange rate of 0.7315, the cross exchange rate for the purchase of U.S. dollars on January 10, 2014 as published in Bloomberg in the “Currency” section.

(o)           Luxembourg Stock Exchange Listing .  The Company shall maintain a Luxembourg Paying Agent if and for so long as the Notes are admitted to listing on the Official List of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange and for so long as the Luxembourg Stock Exchange so requires.  The Company may vary such appointment and will notify the Luxembourg Stock Exchange of such change of appointment.  For so long as any Notes are represented by Global Notes, all notices to holders of the Notes will be delivered to Euroclear and Clearstream in accordance with their applicable policies as in effect from time to time.  In addition, if and for so long as the Notes are listed on the official list of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange, and the rules of the stock exchange so require, the Company shall publish notices with respect to the Notes on the website of the Luxembourg Stock Exchange.  Such notices will be deemed to have been given on the date of such publication.

                                                                                                        

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Section 2.02.  Amendments to Article Five Relating to Events of Default .  

(a)        Restated Events of Default :  As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to 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 .      Amendments to Article 10 Relating to Covenants.    

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

“Section 10.11      Use of Proceeds

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally to finance Petrobras’ planned capital expenditure under its 2013-2017 Business Plan and for general corporate purposes.

Section 10.12        Negative Pledge

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

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

     

 

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(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 euros (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof. 

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

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

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 Tenth 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.

                                                                                                      

 

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

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

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

Article 4
MISCELLANEOUS

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

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

 

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

Section 4.06.    Additional Agency Provisions. The Company initially appoints The Bank of New York Mellon, London Branch as Principal Paying Agent hereunder and The Bank of New York Mellon (Luxembourg) S.A. as Luxembourg Paying Agent hereunder.  The parties hereto agree that in accepting such appointment and acting as such under the Indenture, the Principal Paying Agent and the Luxembourg Paying Agent shall be entitled to the rights, benefits, protections, immunities and indemnities afforded to the Trustee under the Indenture.

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

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

                                                                                                      

 

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IN WITNESS WHEREOF, the parties have caused this Tenth 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/ Gustavo Tardin Barbosa                         
                                                                  Name: Gustavo Tardin Barbosa
                                                                  Title:   Managing Director A

 

                                                            By:  /s/ Alexandre Quintão Fernandes                 
                                                                  Name: Alexandre Quintão Fernandes
                                                                  Title:   Managing Director B

 

                                                            PETRÓLEO BRASILEIRO S.A. – PETROBRAS

                                                            By:  /s/ Larry Carris Cardoso                               
                                                                  Name: Larry Carris Cardoso
                                                                  Title:    Corporate Finance Manager  

 

                                                            By:  /s/ Guilherme Ribeiro de Almeida                  
                                                                  Name: Guilherme Ribeiro de Almeida
                                                                  Title:    Foreign Exchange Sectorial Manager

 

                                                      WITNESSES: 

1.          /s/ Maurício Piragibe C. Faria                          

                                                                  Name: Maurício Piragibe C. Faria

 

2.          /s/ Renan Feuchard Pinto                                             

                                                                        Name: Renan Feuchard Pinto

 

 

Signature page to Tenth Supplemental Indenture

 


 

 

                                                            THE BANK OF NEW YORK MELLON, as Trustee

                                                            By:  /s/ John T. Needham, Jr.              
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue               

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                     

                                                                 Name: Michelle Drinkard

 

 

Signature page to Tenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                         

Notary Public

COMMISSION EXPIRES



 

 


 

 

                                                            THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Principal Paying Agent

                                                            By:  /s/ John T. Needham, Jr.         
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue           

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                 

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Tenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, London Branch, 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                  

Notary Public

COMMISSION EXPIRES

 

 


 

 

                                                            THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent

                                                            By:  /s/ John T. Needham, Jr.         
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Attorney-in-Fact

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue           

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                 

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Tenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is an Attorney-in-Fact of The Bank of New York Mellon (Luxembourg) S.A., 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                     

Notary Public

COMMISSION EXPIRES

 

 


 

 

Exhibit A

Form of 2.750% Global Note due 2018

 

GLOBAL NOTE

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS THE COMMON DEPOSITARY (THE “COMMON DEPOSITARY”) FOR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME AND EUROCLEAR BANK S.A./N.V.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF A NOMINEE FOR THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY, OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.

 


 

 

PETROBRAS GLOBAL FINANCE B.V.

2.750% GLOBAL NOTES DUE 2018

No.
ISIN No.: XS0982711631

Common Code: 098271163

Principal Amount: €1,500,000,000 
Initial Issuance Date: January 14, 2014

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 2.750% Global Notes due 2018 (the “ Notes ”), issued in an initial aggregate principal amount of ONE BILLION, FIVE HUNDRED MILLION EUROS ( €1,500,000,000) under the Tenth Supplemental Indenture (the “ Tenth Supplemental Indenture ”), effective as of January 14, 2014, 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 ”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent, to the Indenture, dated as of August 29, 2012 (the “ Original Indenture ”, and as supplemented by the Tenth 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 The Bank of New York Depositary (Nominee) Limited, or its registered assigns, as nominee of the Common Depositary for Euroclear System (“ Euroclear ”) and Clearstream Banking, société anonyme (“ Clearstream ”), and as the Holder of record of this Note, the principal amount specified above in euros on January 15, 2018 (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, annually on January 15 of each year, (each such date, an “ Interest Payment Date ”), commencing January 15, 2015, at a rate equal to 2.750% per annum, and will initially accrue from and including the date of issuance and thereafter from and including 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 euros 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 euros 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 2.750% per annum until all required amounts due in respect of the Notes have been paid.  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).

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 100,000 and integral multiples of 1,000 in excess thereof.

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

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 


 

 

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

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

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

PETROBRAS 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: January ___ , 2014

The Bank of New York Mellon
As Trustee

By:  ____________________
            Name: 
            Title:  Authorized Officer

 


 

 

ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

 

(Please print or type name and address,

including zip code, of assignee:)

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

 

Date:                                       Your Signature:

(Sign exactly as your name

appears on the face of this Note)

 

 

 

 


 

 

 

Exhibit B

 

[Form of Guaranty]

 

 

 

 

 

Exhibit 4.4

 

 

 

 

 

GUARANTY

Dated as of January 14, 2014

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON , as

Trustee for the Noteholders

Referred to Herein

 

 


 
Table of Contents
   

Page

SECTION 1.  

Definitions 

2

SECTION 2.  

Guaranty  

6

SECTION 3.  

Guaranty Absolute  

7

SECTION 4.  

Independent Obligation  

8

SECTION 5.  

Waivers and Acknowledgments  

9

SECTION 6.  

Claims Against the Issuer  

10

SECTION 7.  

Covenants  

10

SECTION 8.  

Amendments, Etc  

14

SECTION 9.  

Indemnity  

14

SECTION 10.  

Notices, Etc  

14

SECTION 11.  

Survival  

15

SECTION 12.  

No Waiver; Remedies  

15

SECTION 13.  

Continuing Agreement; Assignment of Rights Under the Indenture and the 2018 Notes

15

SECTION 14.  

Currency Rate Indemnity  

15

SECTION 15.  

Governing Law; Jurisdiction; Waiver of Immunity, Etc  

16

SECTION 16.  

Execution in Counterparts  

18

SECTION 17.  

Entire Agreement  

18

SECTION 18.

The Trustee  

18

 

 

 

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GUARANTY

 

GUARANTY (this “ Guaranty ”), dated as of January 14, 2014, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2021 Notes (as defined below) issued pursuant to the Indenture (as defined below) (the “ Trustee ”).  

WITNESSETH:

WHEREAS, Petrobras 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 Eleventh Supplemental Indenture among the Issuer, the Guarantor, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent hereunder (the “ Principal Paying Agent ”) and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”), dated as of the date hereof (the “ Eleventh Supplemental Indenture ”).  The Original Indenture, as supplemented by the Eleventh Supplemental Indenture and as amended or supplemented from time to time with respect to the 2021 Notes, is hereinafter referred to as the “ Indenture ”; 

WHEREAS, the Issuer has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with the Indenture and is, on the date hereof, issuing €750,000,000 aggregate principal amount of its 3.750% Global Notes due 2021 under the Indenture (the “ 2021 Notes ”); 

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

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

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

 

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

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

(b) As used herein, the following capitalized terms shall have the following meanings:

Affiliate , ” with respect to any Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person; it being understood that for purposes of this definition, the term “ control ” (including the terms “ controlling , ” “ controlled by ” and “ under common control with ”) of a Person shall mean the possession, direct or indirect, of the power to vote 25 % or more of the equity or similar voting interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities , by contract or otherwise.

Authorized Representative ” of the Guarantor  or any other Person means the person or persons authorized to act on behalf of such entity by its chief executive officer, president, chief operating officer, chief financial officer or any vice president or its Board of Directors or any other governing body of such entity.

Board of Directors ”, when used with respect to a corporation, means either the board of directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them

Clearstream, Luxembourg ” means Clearstream Banking, société anonyme.

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

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.

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;

 

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(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;

(viii)  Lien over any Qualifying Asset relating to a project financed by, and securing Indebtedness incurred in connection with, the Project Financing of such project by the Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

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

(x)  Lien resulting from the Transaction Documents;

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

(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.

 

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

Project Financing ” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.

Qualifying Asset ” in relation to any Project Financing means:

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

(ii)        any drilling or other rig, any drilling or production platform, pipeline, marine vessel, vehicle or other equipment or any refinery, oil or gas field, processing plant, real property (whether leased or owned), right of way or plant or other fixtures or equipment;

(iii)       any revenues or claims which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale, loss or damage to, such concession, authorization or other legal right or such drilling or other rig, drilling or production platform, pipeline, marine vessel, vehicle or other equipment or refinery, oil or gas field, processing plant, real property, right of way, plant or other fixtures or equipment or any contract or agreement relating to any of the foregoing or the Project Financing of any of the foregoing (including insurance policies, credit support arrangements and other similar contracts) or any rights under any performance bond, letter of credit or similar instrument issued in connection therewith;

(iv)       any oil, gas, petrochemical or other hydrocarbon‑based products produced or processed by such project, including any receivables or contract rights arising therefrom or relating thereto and any such product (and such receivables or contract rights) produced or processed by other projects, fields or assets to which the lenders providing the Project Financing required, as a condition therefor, recourse as security in addition to that produced or processed by such project; and

(v)        shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor by, a special purpose company formed solely for the development of a project, and whose principal assets and business are constituted by such project and whose liabilities solely relate to such project.

SEC ” means the United States Securities and Exchange Commission

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

 

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Termination Date has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2021 Notes and this 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 2021 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 2021 Notes but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganization or similar proceeding involving the Issuer.

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

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

 

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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 2021 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 2021 Notes or any other document or agreement, and a separate action or actions may be brought and prosecuted against the Guarantor  to enforce this 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 2021 Notes;

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

(iv)              any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed  Obligations or any other obligations of any other person or entity under or in respect of the Transaction Documents, or any other amendment or waiver of or any consent to departure from any Transaction Document, including, without limitation, any increase in the obligations of the Issuer under the Indenture and the 2021 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2021 Notes of  the Indenture or otherwise;

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

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

(vii)            any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor  or any Subsidiary thereof or any change in the name, purposes, business, capital stock (including ownership thereof) or constitutive documents of the Issuer or the Guarantor

 

 

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(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.

SECTION 4.         Independent Obligation     The obligations of the Guarantor  hereunder are independent of the Issuer’s obligations under the 2021 Notes and the Indenture.  The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2021 Notes, without in any way affecting or impairing the liability of the Guarantor  hereunder.  The Trustee shall not be obligated to exhaust recourse or remedies against the Issuer to recover payments required to be made under the Indenture nor take any other action against the Issuer before being entitled to payment from the Guarantor  of all amounts contemplated in Section  2 hereof owed hereunder or proceed against or have resort to any balance of any deposit account or credit on the books of the Trustee in favor of the Issuer or in favor of the Guarantor .  Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor , either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.

 

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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 2021  Notes.

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

 

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SECTION 6.         Claims Against the Issuer     The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this 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 2021 Notes have been discharged in full (the later of such dates being the “ Termination Date ”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Trustee in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this 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 2021  Notes remain outstanding or any amount remains unpaid on the 2021  Notes and the Indenture, the Guarantor will, and will cause each of its Subsidiaries, as applicable, to comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this 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) 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 2021  Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor  in respect of this Guaranty  may be served, and the Guarantor  will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d)       Ranking .  The Guarantor  will ensure at all times that its obligations under this Guaranty  will constitute the general, senior, unsecured and unsubordinated obligations of the Guarantor  and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor  (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty.

(e)        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 2021 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

 

 

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

 

 

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(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).

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 2021 Notes required to approve the amendment. 

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

SECTION 10.     Notices, Etc     (a)        All notices and other communications provided for hereunder shall be in writing (including telegraphic or telecopy) and mailed, telecopied or delivered by hand, if to the Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro - RJ, Brazil, Telephone:  (55-21) 3224-4079, Telecopier: (55-21) 2544-7168, Attention: Sonia Tereza Terra Figueiredo, Debt Back-Office Manager, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 7E, 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).

 

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

SECTION 12.     No Waiver; Remedies .    No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 13.     Continuing Agreement; Assignment of Rights Under the Indenture and the 2021 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 2021 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 2021 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

             

 

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(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 2021 Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor , and ( b ) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation.  The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.

(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 euros (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 2021  Notes or under any judgment or order.

SECTION 15.   Governing Law; Jurisdiction; Waiver of Immunity, Etc.     (a)                 This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b)                The Guarantor  hereby irrevocably and unconditionally submits , for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty  or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor  hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to 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.

 

 

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(c)                 The Guarantor  hereby irrevocably appoints and empowers the New York office of Petróleo Brasileiro S.A., located at 570 Lexington Avenue, 43rd Floor , New York , New York 10022 as its authorized agent (the “ Process Agent ”) to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceedings in any New York State court or United States federal  court sitting in the State of New York in the Borough of Manhattan and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts.  The Guarantor  will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such Process Agent and; should such Process Agent become unavailable for this purpose for any reason, the Guarantor  will promptly and irrevocably designate a new Process Agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c).  The Guarantor  irrevocably consents and agrees to the service of  any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 10  or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent.  Service upon the Guarantor  or the Process Agent as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Process Agent to give any notice of such service to the Guarantor  shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.

(d)                The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court.  The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.

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

 

 

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(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 2021 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

SECTION 18.   The Trustee    

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

 

[ Signature page follows

 

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IN WITNESS WHEREOF, the Guarantor  has caused this 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/ Larry Carris Cardoso

      Name: Larry Carris Cardoso
                Title: Corporate Finance Manager

By:    /s/ Guilherme Ribeiro de Almeida

      Name: Guilherme Ribeiro de Almeida
                Title: Foreign Exchange Sectorial Manager

WITNESSES:

1. /s/ Maurício Piragibe C. Faria                                                   

    Name: Maurício Piragibe C. Faria

 

2. /s/ Renan Feuchard Pinto                                                   

    Name: Renan Feuchard Pinto

 

 

 

 

 

 

Signature page to Guaranty for the 2021 Notes

 

 


 

 

ACKNOWLEDGED:

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

 

By: /s/ John T. Needham, Jr.                     

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

WITNESSES:

1.          /s/ Catherine F. Donohue       

            Name: Catherine F. Donohue

 

 

2.          /s/ Michelle Drinkard              

            Name: Michelle Drinkard

 

 

 

 

 

Signature page to Guaranty for the 2021 Notes

 

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014 , before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

 

 

On this 14 th day of January 2014 , before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

 

 

[Notarial Seal]

 

/s/ Danny Lee                         

Notary Public                                        

COMMISSION EXPIRES


 

Exhibit 4.5

 

 

ELEVENTH SUPPLEMENTAL INDENTURE

ELEVENTH SUPPLEMENTAL INDENTURE, effective as of January 14, 2014, 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 Weenapoint Toren A, Weena 722, 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 ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as principal paying agent hereunder (the “ Principal Paying Agent ”) and THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent (as defined below).

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 this Eleventh Supplemental Indenture, dated as of January 14, 2014 (the “ Eleventh Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

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

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-183618-01) (the “ Registration Statement ”), dated August 29, 2012, the Prospectus Supplement dated January 7, 2014 and related Base Prospectus dated August 29, 2012 (collectively, the “ Offering Document ”) and the Indenture, €750,000,000 of its 3.750% Global Notes due 2021, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Eleventh Supplemental Indenture; 

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

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

 


 

 

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

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

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

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent 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 Eleventh Supplemental Indenture.

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

“Bund Rate” means, as of any Redemption Date, the rate per annum equal to the yield to maturity as of such Redemption Date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such Redemption Date.

“Business Day” means each Target System Day.  With respect to notes in certificated form, the reference to Business Day will also mean a day on which banking institutions generally are open for business in the location of each office of a transfer agent, but only with respect to a payment or other action to occur at that office.

“Closing Date” means January 14, 2014.

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“Comparable German Bund Issue” means the German Bundesanleihe security selected by the Independent German Bund Investment Banker as having a fixed maturity most nearly equal to the remaining term of the series of Notes to be redeemed and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to the remaining term of the Notes to be redeemed; provided, however, that, if the remaining term of the Notes to be redeemed is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the remaining term of the Notes to be redeemed is less than one year, a fixed maturity of one year shall be used.

“Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Independent German Bund Investment Bank obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations.

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

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

“euro” means the euro or such other lawful currency of the member states of the European Monetary Union that have adopted or that will adopt the single currency in accordance with the Treaty Establishing the European Community, as amended by the Treaty on European Union, as at the time of payment shall be legal tender for the payment of public and private debts.

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

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

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

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

“Lien” means any mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance on any property or asset, including, without limitation, any equivalent created or arising under applicable law.

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“Luxembourg Paying Agent” means a paying agent with respect to the Notes located in Luxembourg that is selected by the Company, which shall initially be The Bank of New York Mellon (Luxembourg) S.A.

“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 Eleventh Supplemental Indenture.

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

“Permitted Lien” means a:

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

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

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

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

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

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

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

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

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(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.

“Principal Paying Agent” means a paying agent with respect to the Notes located in London, England, which shall initially be The Bank of New York Mellon, London Branch.

“Reference German Bund Dealer” means each of BNP Paribas, Crédit Agricole Corporate and Investment Bank, HSBC Bank plc and J.P. Morgan Securities plc, or their affiliates, which are dealers of German Bundesanleihe securities and two other leading dealers of German Bundesanleihe securities reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a dealer of German Bundesanleihe securities, the Company will substitute therefor another dealer of German Bundesanleihe securities.

“Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Independent German Bund Investment Banker of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent German Bund Investment Bank by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the Redemption Date.

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

“Target System Day” is any day in which the Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET2) System (or any successor thereto) is open

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for business and a day on which commercial banks are open for dealings in euro deposits in the London interbank market.

Article 2
TERMS OF THE NOTES

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

(a)                 Title :  The Notes shall constitute a series of Securities having the title “3.750% Global Notes due 2021”.

(b)                Aggregate Amount :  The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Eleventh Supplemental Indenture shall be €750,000,000 .  As provided in the Original Indenture, the Company may, from time to time, without the consent of the Holders of Notes, issue Add On Notes having identical terms (including 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 continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras.  All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

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

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(d)                Maturity :  The entire outstanding principal of the Notes shall be payable in a single installment on January 14, 2021 (the “ Stated Maturity ”).  No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

(e)                 Interest:  Interest shall accrue on the Notes at the rate of 3.750% 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 Principal Paying Agent and distributed by the Principal Paying Agent in accordance with this Indenture annually in arrears on January 14 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on January 14, 2015, and will initially accrue from and including the date of issuance and thereafter from and including 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).  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).  As provided in the Original Indenture, (i) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Principal Paying Agent in London, or such other paying agent office in London as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (ii) all such payments to the Principal Paying Agent shall be made by the Company by depositing immediately available funds in euros by 12:00 p.m. (London time) one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iii) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in London.

(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.

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

(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 €100,000 and integral multiples of €1,000 in excess thereof, and shall be transferable in integral multiples of €100,000 and integral multiples of €1,000 in excess thereof and the Depositary for such Global Notes shall be The Bank of New York Mellon, London Branch, as common depositary for Clearstream and Euroclear.

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

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

(k)        Optional Early Redemption .  The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on an annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Bund Rate plus 35 basis points (the “ Euro Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

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(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)        Determination of Notes Outstanding .  For the purposes of the definition of “Outstanding” in Section 1.01 of the Original Indenture only, the U.S. dollar equivalent of the principal amount of Notes issued on the Closing Date shall be determined by converting such principal amount of Notes into U.S. dollars at the cross exchange rate of 0.7315, the cross exchange rate for the purchase of U.S. dollars on January 10, 2014 as published in Bloomberg in the “Currency” section.

(o)           Luxembourg Stock Exchange Listing .  The Company shall maintain a Luxembourg Paying Agent if and for so long as the Notes are admitted to listing on the Official List of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange and for so long as the Luxembourg Stock Exchange so requires.  The Company may vary such appointment and will notify the Luxembourg Stock Exchange of such change of appointment.  For so long as any Notes are represented by Global Notes, all notices to holders of the Notes will be delivered to Euroclear and Clearstream in accordance with their applicable policies as in effect from time to time.  In addition, if and for so long as the Notes are listed on the official list of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange, and the rules of the stock exchange so require, the Company shall publish notices with respect to the Notes on the website of the Luxembourg Stock Exchange.  Such notices will be deemed to have been given on the date of such publication.

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Section 2.02.  Amendments to Article Five Relating to Events of Default .  

(a)        Restated Events of Default :  As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to 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 .      Amendments to Article 10 Relating to Covenants.    

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

“Section 10.11      Use of Proceeds

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally to finance Petrobras’ planned capital expenditure under its 2013-2017 Business Plan and for general corporate purposes.

Section 10.12        Negative Pledge

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

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

     

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(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 euros (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof. 

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

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

Article 3
GUARANTY

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

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

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

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

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

Article 4
MISCELLANEOUS

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

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

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

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

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

Section 4.06.    Additional Agency Provisions. The Company initially appoints The Bank of New York Mellon, London Branch as Principal Paying Agent hereunder and The Bank of New York Mellon (Luxembourg) S.A. as Luxembourg Paying Agent hereunder.  The parties hereto agree that in accepting such appointment and acting as such under the Indenture, the Principal Paying Agent and the Luxembourg Paying Agent shall be entitled to the rights, benefits, protections, immunities and indemnities afforded to the Trustee under the Indenture.

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

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

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

 

                                                            PETROBRAS GLOBAL FINANCE B.V.

                                                            By:  /s/ Gustavo Tardin Barbosa                         
                                                                  Name: Gustavo Tardin Barbosa
                                                                  Title:   Managing Director A

 

                                                            By:  /s/ Alexandre Quintão Fernandes                 
                                                                  Name: Alexandre Quintão Fernandes
                                                                  Title:   Managing Director B

 

                                                            PETRÓLEO BRASILEIRO S.A. – PETROBRAS

                                                            By:  /s/ Larry Carris Cardoso                               
                                                                  Name: Larry Carris Cardoso
                                                                  Title:    Corporate Finance Manager  

 

                                                            By:  /s/ Guilherme Ribeiro de Almeida                  
                                                                  Name: Guilherme Ribeiro de Almeida
                                                                  Title:    Foreign Exchange Sectorial Manager

 

                                                      WITNESSES: 

1.          /s/ Maurício Piragibe C. Faria                          

                                                                  Name: Maurício Piragibe C. Faria

 

2.          /s/ Renan Feuchard Pinto                                             

                                                                        Name: Renan Feuchard Pinto

 

 

Signature page to Eleventh Supplemental Indenture

 


 

                                                            THE BANK OF NEW YORK MELLON, as Trustee

                                                           

                                                            By:  /s/ John T. Needham, Jr.                  
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue                     

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                          

                                                                 Name: Michelle Drinkard

 

 

 

 

Signature page to Eleventh Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                       

Notary Public

COMMISSION EXPIRES



 


 

 

                                                            THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Principal Paying Agent

                                                            By:  /s/ John T. Needham, Jr.                 
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue                    

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                          

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Eleventh Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, London Branch, 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                        

Notary Public

COMMISSION EXPIRES

 

 


 

 

                                                            THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent

                                                            By:  /s/ John T. Needham, Jr.                   
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Attorney-in-Fact

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue                      

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                            

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Eleventh Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is an Attorney-in-Fact of The Bank of New York Mellon (Luxembourg) S.A., 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                   

Notary Public

COMMISSION EXPIRES

 

 


 

 

Exhibit A

Form of 3.750% Global Note due 2021

 

GLOBAL NOTE

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS THE COMMON DEPOSITARY (THE “COMMON DEPOSITARY”) FOR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME AND EUROCLEAR BANK S.A./N.V.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF A NOMINEE FOR THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY, OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.

 


 

 

PETROBRAS GLOBAL FINANCE B.V.

3.750% GLOBAL NOTES DUE 2021

No.
ISIN No.: XS0982711987

Common Code: 098271198

Principal Amount: €750,000,000 
Initial Issuance Date: January 14, 2014

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 3.750% Global Notes due 2021 (the “ Notes ”), issued in an initial aggregate principal amount of SEVEN HUNDRED FIFTY MILLION EUROS ( €750,000,000) under the Eleventh Supplemental Indenture (the “ Eleventh Supplemental Indenture ”), effective as of January 14, 2014, 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 ”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent, to the Indenture, dated as of August 29, 2012 (the “ Original Indenture ”, and as supplemented by the Eleventh Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee.  Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered.  All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.

The Issuer, for value received, hereby promises to pay to The Bank of New York Depositary (Nominee) Limited, or its registered assigns, as nominee of the Common Depositary for Euroclear System (“ Euroclear ”) and Clearstream Banking, société anonyme (“ Clearstream ”), and as the Holder of record of this Note, the principal amount specified above in euros on January 14, 2021 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.

As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from the Closing Date, annually on January 14 of each year, (each such date, an “ Interest Payment Date ”), commencing January 14, 2015, at a rate equal to 3.750% per annum, and will initially accrue from and including the date of issuance and thereafter from and including 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 euros 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 euros 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 3.750% per annum until all required amounts due in respect of the Notes have been paid.  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).

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 100,000 and integral multiples of 1,000 in excess thereof.

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

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 


 

 

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

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

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

PETROBRAS 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: January ___ , 2014

The Bank of New York Mellon
As Trustee

By:  ____________________
            Name: 
            Title:  Authorized Officer

 


 

 

ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

 

(Please print or type name and address,

including zip code, of assignee:)

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

 

Date:                                       Your Signature:

(Sign exactly as your name

appears on the face of this Note)

 

 

 

 


 

 

 

Exhibit B

[Form of Guaranty]

 

 

 

 

 

Exhibit 4.7

 

 

GUARANTY

Dated as of January 14, 2014

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON , as

Trustee for the Noteholders

Referred to Herein

 

 

 

 


 

 

Table of Contents

   

Page

SECTION 1    Definitions  2
SECTION 2 Guaranty 6
SECTION 3 Guaranty Absolute 7
SECTION 4 Independent Obligation 8
SECTION 5 Waivers and Acknowledgments 9
SECTION 6 Claims Against the Issuer 10
SECTION 7 Covenants 10
SECTION 8 Amendments, Etc. 14
SECTION 9 Indemnity 14
SECTION 10 Notices, Etc 14
SECTION 11 Survival 15
SECTION 12 No Waiver; Remedies 15
SECTION 13 Continuing Agreement; Assignment of Rights Under the Indenture and the 2025 Notes 15
SECTION 14 Currency Rate Indemnity 15
SECTION 15 Governing Law; Jurisdiction; Waiver of Immunity, Etc. 16
SECTION 16 Execution in Counterparts 18
SECTION 17 Entire Agreement 18
SECTION 18 The Trustee 18

 

 

 

i

 

 


 

 

GUARANTY

 

GUARANTY (this “ Guaranty ”), dated as of January 14, 2014, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2025 Notes (as defined below) issued pursuant to 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 Twelfth Supplemental Indenture among the Issuer, the Guarantor, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent hereunder (the “ Principal Paying Agent ”) and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”), dated as of the date hereof (the “ Twelfth Supplemental Indenture ”).  The Original Indenture, as supplemented by the Twelfth Supplemental Indenture and as amended or supplemented from time to time with respect to the 2025 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 €800,000,000 aggregate principal amount of its 4.750% Global Notes due 2025 under the Indenture (the “ 2025 Notes ”); 

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 2025 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 2025 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 2025 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2025 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.

 

1

 

 


 

 

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

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

(b) As used herein, the following capitalized terms shall have the following meanings:

Affiliate , ” with respect to any Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person; it being understood that for purposes of this definition, the term “ control ” (including the terms “ controlling , ” “ controlled by ” and “ under common control with ”) of a Person shall mean the possession, direct or indirect, of the power to vote 25 % or more of the equity or similar voting interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities , by contract or otherwise.

Authorized Representative ” of the Guarantor  or any other Person means the person or persons authorized to act on behalf of such entity by its chief executive officer, president, chief operating officer, chief financial officer or any vice president or its Board of Directors or any other governing body of such entity.

Board of Directors ”, when used with respect to a corporation, means either the board of directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them

Clearstream, Luxembourg ” means Clearstream Banking, société anonyme.

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

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.

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

 

2

 

 


 

 

enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty or any other Transaction Document, or (d) the material rights or benefits available to the Noteholders or the Trustee, as representative of the Noteholders under the Indenture, this Guaranty or any of the other Transaction Documents.

Material Subsidiary ” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 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;

 

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(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;

(viii)  Lien over any Qualifying Asset relating to a project financed by, and securing Indebtedness incurred in connection with, the Project Financing of such project by the Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;

(ix)  Lien existing as of the date of the Twelfth Supplemental Indenture;

(x)  Lien resulting from the Transaction Documents;

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

(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.

 

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

Project Financing ” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.

Qualifying Asset ” in relation to any Project Financing means:

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

(ii)        any drilling or other rig, any drilling or production platform, pipeline, marine vessel, vehicle or other equipment or any refinery, oil or gas field, processing plant, real property (whether leased or owned), right of way or plant or other fixtures or equipment;

(iii)       any revenues or claims which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale, loss or damage to, such concession, authorization or other legal right or such drilling or other rig, drilling or production platform, pipeline, marine vessel, vehicle or other equipment or refinery, oil or gas field, processing plant, real property, right of way, plant or other fixtures or equipment or any contract or agreement relating to any of the foregoing or the Project Financing of any of the foregoing (including insurance policies, credit support arrangements and other similar contracts) or any rights under any performance bond, letter of credit or similar instrument issued in connection therewith;

(iv)       any oil, gas, petrochemical or other hydrocarbon‑based products produced or processed by such project, including any receivables or contract rights arising therefrom or relating thereto and any such product (and such receivables or contract rights) produced or processed by other projects, fields or assets to which the lenders providing the Project Financing required, as a condition therefor, recourse as security in addition to that produced or processed by such project; and

(v)        shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor by, a special purpose company formed solely for the development of a project, and whose principal assets and business are constituted by such project and whose liabilities solely relate to such project.

SEC ” means the United States Securities and Exchange Commission

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

 

5

 

 


 

 

Termination Date has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2025 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 2025 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 2025 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 2025 Notes.  Such notice shall specify the amount or amounts under the Indenture and the 2025 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2025 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 2025 Notes and the Indenture.  All amounts payable by the Guarantor hereunder shall be payable in euros 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. (London 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.

 

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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 2025 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 2025 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 2025 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 2025 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2025 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 2025 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

 

 

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(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.

SECTION 4.         Independent Obligation     The obligations of the Guarantor  hereunder are independent of the Issuer’s obligations under the 2025 Notes and the Indenture.  The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2025 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.

 

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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 2025  Notes.

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

 

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SECTION 6.         Claims Against the Issuer     The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this 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 2025 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 2025  Notes remain outstanding or any amount remains unpaid on the 2025  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) 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 2025  Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor  in respect of this Guaranty  may be served, and the Guarantor  will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d)       Ranking .  The Guarantor  will ensure at all times that its obligations under this Guaranty  will constitute the general, senior, unsecured and unsubordinated obligations of the Guarantor  and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor  (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty. 

(e)        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 2025 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

 

 

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(f)        Negative Pledge .  So long as any 2025  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 2025  Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 2025  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.

 

 

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(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).

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 2025 Notes required to approve the amendment. 

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

SECTION 10.     Notices, Etc     (a)        All notices and other communications provided for hereunder shall be in writing (including telegraphic or telecopy) and mailed, telecopied or delivered by hand, if to the Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro - RJ, Brazil, Telephone:  (55-21) 3224-4079, Telecopier: (55-21) 2544-7168, Attention: Sonia Tereza Terra Figueiredo, Debt Back-Office Manager, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 7E, 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).

 

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

SECTION 12.     No Waiver; Remedies .    No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 13.     Continuing Agreement; Assignment of Rights Under the Indenture and the 2025 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 2025 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 2025 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

             

 

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(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 2025 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 euros (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 2025  Notes or under any judgment or order.

SECTION 15.   Governing Law; Jurisdiction; Waiver of Immunity, Etc.     (a)                 This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b)                The Guarantor  hereby irrevocably and unconditionally submits , for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty  or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor  hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to 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.

 

 

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(c)                 The Guarantor  hereby irrevocably appoints and empowers the New York office of Petróleo Brasileiro S.A., located at 570 Lexington Avenue, 43rd Floor , New York , New York 10022 as its authorized agent (the “ Process Agent ”) to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceedings in any New York State court or United States federal  court sitting in the State of New York in the Borough of Manhattan and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts.  The Guarantor will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such Process Agent and; should such Process Agent become unavailable for this purpose for any reason, the Guarantor  will promptly and irrevocably designate a new Process Agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c).  The Guarantor  irrevocably consents and agrees to the service of  any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 10  or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent.  Service upon the Guarantor  or the Process Agent as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Process Agent to give any notice of such service to the Guarantor  shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.

(d)                The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court.  The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.

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

 

 

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(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 2025 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

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

 

[ Signature page follows

 

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

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

By:    /s/ Larry Carris Cardoso

      Name: Larry Carris Cardoso
                Title: Corporate Finance Manager

By:    /s/ Guilherme Ribeiro de Almeida

      Name: Guilherme Ribeiro de Almeida
                Title: Foreign Exchange Sectorial Manager

WITNESSES:

1. /s/ Maurício Piragibe C. Faria                                                   

    Name: Maurício Piragibe C. Faria

 

2. /s/ Renan Feuchard Pinto                                                   

    Name: Renan Feuchard Pinto

 

 

 

 

 

 

 

 

 

 

 

Signature page to Guaranty for the 2025 Notes

 

 


 

 

ACKNOWLEDGED:

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

 

By: /s/ John T. Needham, Jr.                 

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

WITNESSES:

1.          /s/ Catherine F. Donohue             

            Name: Catherine F. Donohue

 

 

2.          /s/ Michelle Drinkard                                                        

            Name: Michelle Drinkard

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature page to Guaranty for the 2025 Notes

 

 

 

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014 , before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

 

 

On this 14 th day of January 2014 , before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

 

 

[Notarial Seal]

 

/s/ Danny Lee                        

Notary Public                                        

COMMISSION EXPIRES


 

Exhibit 4.8

 

 

TWELFTH SUPPLEMENTAL INDENTURE

TWELFTH SUPPLEMENTAL INDENTURE, effective as of January 14, 2014, 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 Weenapoint Toren A, Weena 722, 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 ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as principal paying agent hereunder (the “ Principal Paying Agent ”) and THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent (as defined below).

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 this Twelfth Supplemental Indenture, dated as of January 14, 2014 (the “ Twelfth Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

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

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-183618-01) (the “ Registration Statement ”), dated August 29, 2012, the Prospectus Supplement dated January 7, 2014 and related Base Prospectus dated August 29, 2012 (collectively, the “ Offering Document ”) and the Indenture, €800,000,000 of its 4.750% Global Notes due 2025, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Twelfth Supplemental Indenture; 

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

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

 


 

 

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

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

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

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Company, Petrobras, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent 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 Twelfth Supplemental Indenture.

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

“Bund Rate” means, as of any Redemption Date, the rate per annum equal to the yield to maturity as of such Redemption Date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such Redemption Date.

“Business Day” means each Target System Day.  With respect to notes in certificated form, the reference to Business Day will also mean a day on which banking institutions generally are open for business in the location of each office of a transfer agent, but only with respect to a payment or other action to occur at that office.

“Closing Date” means January 14, 2014.

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“Comparable German Bund Issue” means the German Bundesanleihe security selected by the Independent German Bund Investment Banker as having a fixed maturity most nearly equal to the remaining term of the series of Notes to be redeemed and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to the remaining term of the Notes to be redeemed; provided, however, that, if the remaining term of the Notes to be redeemed is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer, the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the remaining term of the Notes to be redeemed is less than one year, a fixed maturity of one year shall be used.

“Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Independent German Bund Investment Bank obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations.

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

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

“euro” means the euro or such other lawful currency of the member states of the European Monetary Union that have adopted or that will adopt the single currency in accordance with the Treaty Establishing the European Community, as amended by the Treaty on European Union, as at the time of payment shall be legal tender for the payment of public and private debts.

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

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

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

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

“Lien” means any mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance on any property or asset, including, without limitation, any equivalent created or arising under applicable law.

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“Luxembourg Paying Agent” means a paying agent with respect to the Notes located in Luxembourg that is selected by the Company, which shall initially be The Bank of New York Mellon (Luxembourg) S.A.

“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 Twelfth Supplemental Indenture.

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

“Permitted Lien” means a:

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

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

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

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

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

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

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

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

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(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.

“Principal Paying Agent” means a paying agent with respect to the Notes located in London, England, which shall initially be The Bank of New York Mellon, London Branch.

“Reference German Bund Dealer” means each of BNP Paribas, Crédit Agricole Corporate and Investment Bank, HSBC Bank plc and J.P. Morgan Securities plc, or their affiliates, which are dealers of German Bundesanleihe securities and two other leading dealers of German Bundesanleihe securities reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a dealer of German Bundesanleihe securities, the Company will substitute therefor another dealer of German Bundesanleihe securities.

“Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Independent German Bund Investment Banker of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent German Bund Investment Bank by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the Redemption Date.

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

“Target System Day” is any day in which the Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET2) System (or any successor thereto) is open

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for business and a day on which commercial banks are open for dealings in euro deposits in the London interbank market.

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 “4.750% Global Notes due 2025”.

(b)                Aggregate Amount :  The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Twelfth Supplemental Indenture shall be €800,000,000 .  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 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 continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras.  All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

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

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(d)                Maturity :  The entire outstanding principal of the Notes shall be payable in a single installment on January 14, 2025 (the “ Stated Maturity ”).  No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

(e)                 Interest:  Interest shall accrue on the Notes at the rate of 4.750% 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 Principal Paying Agent and distributed by the Principal Paying Agent in accordance with this Indenture annually in arrears on January 14 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on January 14, 2015, and will initially accrue from and including the date of issuance and thereafter from and including 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).  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).  As provided in the Original Indenture, (i) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Principal Paying Agent in London, or such other paying agent office in London as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (ii) all such payments to the Principal Paying Agent shall be made by the Company by depositing immediately available funds in euros by 12:00 p.m. (London time) one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iii) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in London.

(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.

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

(h)        Form and Denomination :  The Notes shall be issuable in whole in the registered form of one or more Global Notes (without coupons), in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof, and shall be transferable in integral multiples of €100,000 and integral multiples of €1,000 in excess thereof and the Depositary for such Global Notes shall be The Bank of New York Mellon, London Branch, as common depositary for Clearstream and Euroclear.

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

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

(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 Bund Rate plus 40 basis points (the “ Euro Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

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(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)        Determination of Notes Outstanding .  For the purposes of the definition of “Outstanding” in Section 1.01 of the Original Indenture only, the U.S. dollar equivalent of the principal amount of Notes issued on the Closing Date shall be determined by converting such principal amount of Notes into U.S. dollars at the cross exchange rate of 0. 7315, the cross exchange rate for the purchase of U.S. dollars on January 10, 2014 as published in Bloomberg in the “Currency” section.

(o)           Luxembourg Stock Exchange Listing .  The Company shall maintain a Luxembourg Paying Agent if and for so long as the Notes are admitted to listing on the Official List of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange and for so long as the Luxembourg Stock Exchange so requires.  The Company may vary such appointment and will notify the Luxembourg Stock Exchange of such change of appointment.  For so long as any Notes are represented by Global Notes, all notices to holders of the Notes will be delivered to Euroclear and Clearstream in accordance with their applicable policies as in effect from time to time.  In addition, if and for so long as the Notes are listed on the official list of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange, and the rules of the stock exchange so require, the Company shall publish notices with respect to the Notes on the website of the Luxembourg Stock Exchange.  Such notices will be deemed to have been given on the date of such publication.

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Section 2.02.  Amendments to Article Five Relating to Events of Default .  

(a)        Restated Events of Default :  As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to 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 .      Amendments to Article 10 Relating to Covenants.    

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

“Section 10.11      Use of Proceeds

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally to finance Petrobras’ planned capital expenditure under its 2013-2017 Business Plan and for general corporate purposes.

Section 10.12        Negative Pledge

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

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

     

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(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 euros (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof. 

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

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

Article 3
GUARANTY

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

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

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

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

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

Article 4
MISCELLANEOUS

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

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

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

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

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

Section 4.06.    Additional Agency Provisions. The Company initially appoints The Bank of New York Mellon, London Branch as Principal Paying Agent hereunder and The Bank of New York Mellon (Luxembourg) S.A. as Luxembourg Paying Agent hereunder.  The parties hereto agree that in accepting such appointment and acting as such under the Indenture, the Principal Paying Agent and the Luxembourg Paying Agent shall be entitled to the rights, benefits, protections, immunities and indemnities afforded to the Trustee under the Indenture.

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

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

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

 

                                                            PETROBRAS GLOBAL FINANCE B.V.

                                                            By:  /s/ Gustavo Tardin Barbosa                         
                                                                  Name: Gustavo Tardin Barbosa
                                                                  Title:   Managing Director A

 

                                                            By:  /s/ Alexandre Quintão Fernandes                 
                                                                  Name: Alexandre Quintão Fernandes
                                                                  Title:   Managing Director B

 

                                                            PETRÓLEO BRASILEIRO S.A. – PETROBRAS

                                                            By:  /s/ Larry Carris Cardoso                               
                                                                  Name: Larry Carris Cardoso
                                                                  Title:    Corporate Finance Manager  

 

                                                            By:  /s/ Guilherme Ribeiro de Almeida                  
                                                                  Name: Guilherme Ribeiro de Almeida
                                                                  Title:    Foreign Exchange Sectorial Manager

 

                                                      WITNESSES: 

1.          /s/ Maurício Piragibe C. Faria                          

                                                                  Name: Maurício Piragibe C. Faria

 

2.          /s/ Renan Feuchard Pinto                                             

                                                                        Name: Renan Feuchard Pinto

 

 

 

Signature page to Twelfth Supplemental Indenture

 


 

 

                                                            THE BANK OF NEW YORK MELLON, as Trustee
 

                                                            By:  /s/ John T. Needham, Jr.             
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue                

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                      

                                                                 Name: Michelle Drinkard

 

 

 

 

Signature page to Twelfth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                

Notary Public

COMMISSION EXPIRES



 


 

 

                                                            THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Principal Paying Agent

                                                            By:  /s/ John T. Needham, Jr.            
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue              

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                    

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Twelfth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, London Branch, 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                 

Notary Public

COMMISSION EXPIRES

 

 


 

 

                                                            THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent

                                                            By:  /s/ John T. Needham, Jr.           
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Attorney-in-Fact

 

                                                            WITNESSES:

 

                                                            1.   /s/ Catherine F. Donohue            

                                                                 Name: Catherine F. Donohue

                                                            2.   /s/ Michelle Drinkard                  

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Twelfth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is an Attorney-in-Fact of The Bank of New York Mellon (Luxembourg) S.A., 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                             

Notary Public

COMMISSION EXPIRES

 

 


 

 

Exhibit A

Form of 4.750% Global Note due 2025

 

GLOBAL NOTE

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS THE COMMON DEPOSITARY (THE “COMMON DEPOSITARY”) FOR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME AND EUROCLEAR BANK S.A./N.V.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF A NOMINEE FOR THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY, OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.

 


 

 

PETROBRAS GLOBAL FINANCE B.V.

4.750% GLOBAL NOTES DUE 2025

No.
ISIN No.: XS0982711714

Common Code: 098271171

Principal Amount: €800,000,000 
Initial Issuance Date: January 14, 2014

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 4.750% Global Notes due 2025 (the “ Notes ”), issued in an initial aggregate principal amount of EIGHT HUNDRED MILLION EUROS ( €800,000,000) under the Twelfth Supplemental Indenture (the “ Twelfth Supplemental Indenture ”), effective as of January 14, 2014, 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 ”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent, to the Indenture, dated as of August 29, 2012 (the “ Original Indenture ”, and as supplemented by the Twelfth Supplemental Indenture and any further supplements thereto with respect to the Notes, the “ Indenture ”), by and among the Issuer and the Trustee.  Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered.  All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.

The Issuer, for value received, hereby promises to pay to The Bank of New York Depositary (Nominee) Limited, or its registered assigns, as nominee of the Common Depositary for Euroclear System (“ Euroclear ”) and Clearstream Banking, société anonyme (“ Clearstream ”), and as the Holder of record of this Note, the principal amount specified above in euros on January 14, 2025 (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, annually on January 14 of each year, (each such date, an “ Interest Payment Date ”), commencing January 14, 2015, at a rate equal to 4.750% per annum, and will initially accrue from and including the date of issuance and thereafter from and including 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 euros 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 euros 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 4.750% per annum until all required amounts due in respect of the Notes have been paid.  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).

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 100,000 and integral multiples of 1,000 in excess thereof.

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

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 


 

 

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

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

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

PETROBRAS 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: January ___ , 2014

The Bank of New York Mellon
As Trustee

By:  ____________________
            Name: 
            Title:  Authorized Officer

 


 

 

ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

 

(Please print or type name and address,

including zip code, of assignee:)

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

 

Date:                                       Your Signature:

(Sign exactly as your name

appears on the face of this Note)

 

 

 

 


 

 

 

Exhibit B

[Form of Guaranty]

 

 

 

 

 

  Exhibit 4.10

 

 

GUARANTY

Dated as of January 14, 2014

between

PETRÓLEO BRASILEIRO S.A.—PETROBRAS,

as Guarantor,

and

THE BANK OF NEW YORK MELLON , as

Trustee for the Noteholders

Referred to Herein

 

 

 

 


 

 

Table of Contents

 

   

Page

SECTION 1    Definitions  2
SECTION 2 Guaranty 6
SECTION 3 Guaranty Absolute 7
SECTION 4 Independent Obligation 8
SECTION 5 Waivers and Acknowledgments 9
SECTION 6 Claims Against the Issuer 10
SECTION 7 Covenants 10
SECTION 8 Amendments, Etc. 14
SECTION 9 Indemnity 14
SECTION 10 Notices, Etc 14
SECTION 11 Survival 15
SECTION 12 No Waiver; Remedies 15
SECTION 13 Continuing Agreement; Assignment of Rights Under the Indenture and the 2034 Notes 15
SECTION 14 Currency Rate Indemnity 15
SECTION 15 Governing Law; Jurisdiction; Waiver of Immunity, Etc. 16
SECTION 16 Execution in Counterparts 18
SECTION 17 Entire Agreement 18
SECTION 18 The Trustee 18

 

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GUARANTY

 

GUARANTY (this “ Guaranty ”), dated as of January 14, 2014, between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “ Guarantor ”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“ Brazil ”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee for the holders of the 2034 Notes (as defined below) issued pursuant to 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 Thirteenth Supplemental Indenture among the Issuer, the Guarantor, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent hereunder (the “ Principal Paying Agent ”) and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”), dated as of the date hereof (the “ Thirteenth Supplemental Indenture ”).  The Original Indenture, as supplemented by the Thirteenth Supplemental Indenture and as amended or supplemented from time to time with respect to the 2034 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 £600,000,000 aggregate principal amount of its 6.625% Global Notes due 2034 under the Indenture (the “ 2034 Notes ”); 

WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the 2034 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 2034 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 2034 Notes by the Issuer;

WHEREAS, it is a condition precedent to the issuance of the 2034 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 Thirteenth 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

Clearstream, Luxembourg ” means Clearstream Banking, société anonyme.

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

Euroclear ” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.

Guaranteed Obligations ” has the meaning specified in Section 2.

Indebtedness ” means any obligation (whether present or future, actual or contingent and including, without limitation, any Guarantee) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under generally accepted accounting principles in the country of incorporation of the relevant obligor, would constitute a capital lease obligation).

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

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, assets, property, condition (financial or otherwise) or, results of operation, of the Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or

 

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enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty or any other Transaction Document, or (d) the material rights or benefits available to the Noteholders or the Trustee, as representative of the Noteholders under the Indenture, this Guaranty or any of the other Transaction Documents.

Material Subsidiary ” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 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;

 

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(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;

(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 Thirteenth 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.

 

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

Project Financing ” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.

Qualifying Asset ” in relation to any Project Financing means:

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

(ii)        any drilling or other rig, any drilling or production platform, pipeline, marine vessel, vehicle or other equipment or any refinery, oil or gas field, processing plant, real property (whether leased or owned), right of way or plant or other fixtures or equipment;

(iii)       any revenues or claims which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale, loss or damage to, such concession, authorization or other legal right or such drilling or other rig, drilling or production platform, pipeline, marine vessel, vehicle or other equipment or refinery, oil or gas field, processing plant, real property, right of way, plant or other fixtures or equipment or any contract or agreement relating to any of the foregoing or the Project Financing of any of the foregoing (including insurance policies, credit support arrangements and other similar contracts) or any rights under any performance bond, letter of credit or similar instrument issued in connection therewith;

(iv)       any oil, gas, petrochemical or other hydrocarbon‑based products produced or processed by such project, including any receivables or contract rights arising therefrom or relating thereto and any such product (and such receivables or contract rights) produced or processed by other projects, fields or assets to which the lenders providing the Project Financing required, as a condition therefor, recourse as security in addition to that produced or processed by such project; and

(v)        shares or other ownership interest in, and any subordinated debt rights owing to the Guarantor by, a special purpose company formed solely for the development of a project, and whose principal assets and business are constituted by such project and whose liabilities solely relate to such project.

SEC ” means the United States Securities and Exchange Commission

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

 

5

 

 


 

 

Termination Date has the meaning specified in Section 6.

Transaction Documents ” means, collectively, the Indenture, the 2034 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 2034 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 2034 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 2034 Notes.  Such notice shall specify the amount or amounts under the Indenture and the 2034 Notes that were not paid on the date that such amounts were required to be paid under the terms of the Indenture and the 2034 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 2034 Notes and the Indenture.  All amounts payable by the Guarantor hereunder shall be payable in pounds sterling 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. (London 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.

 

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SECTION 3.         Guaranty Absolute       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 2034 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 2034 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 2034 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 2034 Notes as a result of further issuances, any rescheduling of the Issuer’s obligations under the 2034 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 2034 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

 

 

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(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.

SECTION 4.         Independent Obligation    The obligations of the Guarantor  hereunder are independent of the Issuer’s obligations under the 2034 Notes and the Indenture.  The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture and the 2034 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.

 

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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 20 34  Notes.

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

 

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SECTION 6.         Claims Against the Issuer     The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this 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 2034 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 20 34  Notes remain outstanding or any amount remains unpaid on the 20 34  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) 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 20 34  Notes are outstanding, the Guarantor will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Guarantor  in respect of this Guaranty  may be served, and the Guarantor  will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location.

(d)       Ranking .  The Guarantor  will ensure at all times that its obligations under this Guaranty  will constitute the general, senior, unsecured and unsubordinated obligations of the Guarantor  and will rank pari passu , without any preferences among themselves, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor  (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty. 

(e)        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 2034 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

 

 

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(f)        Negative Pledge .  So long as any 20 34  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 20 34  Notes as is duly approved by the Trustee, at the direction of the Noteholders, in accordance with the Indenture. In addition, the Guarantor will not allow any of the Guarantor’s Material Subsidiaries to create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness, (ii) any of the Indebtedness of the Guarantor’s Material Subsidiaries or (iii) the Indebtedness of any other person, unless it contemporaneously creates or permits the Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor or such Material Subsidiary provides such other security for the 20 34  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.

 

 

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(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).

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 2034 Notes required to approve the amendment. 

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

SECTION 10.     Notices, Etc     (a)        All notices and other communications provided for hereunder shall be in writing (including telegraphic or telecopy) and mailed, telecopied or delivered by hand, if to the Guarantor, addressed to it at Avenida República do Chile, 65, 20035-900 Rio de Janeiro - RJ, Brazil, Telephone:  (55-21) 3224-4079, Telecopier: (55-21) 2544-7168, Attention: Sonia Tereza Terra Figueiredo, Debt Back-Office Manager, if to the Trustee, at The Bank of New York Mellon, 101 Barclay Street, 7E, 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).

 

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

SECTION 12.     No Waiver; Remedies .    No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 13.     Continuing Agreement; Assignment of Rights Under the Indenture and the 2034 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 2034 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 2034 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

             

 

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(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 2034 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 pounds sterling (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 20 34  Notes or under any judgment or order.

SECTION 15.   Governing Law; Jurisdiction; Waiver of Immunity, Etc.     (a)                 This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

(b)                The Guarantor  hereby irrevocably and unconditionally submits , for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty  or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to 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.

 

 

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(c)                 The Guarantor  hereby irrevocably appoints and empowers the New York office of Petróleo Brasileiro S.A., located at 570 Lexington Avenue, 43rd Floor , New York , New York 10022 as its authorized agent (the “ Process Agent ”) to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceedings in any New York State court or United States federal  court sitting in the State of New York in the Borough of Manhattan and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts.  The Guarantor  will take any and all action necessary to continue such designation in full force and effect and to advise the Trustee of any change of address of such Process Agent and; should such Process Agent become unavailable for this purpose for any reason, the Guarantor  will promptly and irrevocably designate a new Process Agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c).  The Guarantor  irrevocably consents and agrees to the service of  any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 10  or to any other address of which it shall have given notice pursuant to Section 10 or to its Process Agent.  Service upon the Guarantor  or the Process Agent as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Process Agent to give any notice of such service to the Guarantor  shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.

(d)                The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court.  The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.

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

 

 

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(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 2034 Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.

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

 

[ Signature page follows

 

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

PETRÓLEO BRASILEIRO S.A. – PETROBRAS

By:    /s/ Larry Carris Cardoso

      Name: Larry Carris Cardoso
                Title: Corporate Finance Manager

By:    /s/ Guilherme Ribeiro de Almeida

      Name: Guilherme Ribeiro de Almeida
                Title: Foreign Exchange Sectorial Manager

WITNESSES:

1. /s/ Maurício Piragibe C. Faria                                                   

    Name: Maurício Piragibe C. Faria

 

2. /s/ Renan Feuchard Pinto                                                   

    Name: Renan Feuchard Pinto

 

 

 

 

 

 

Signature page to Guaranty for the 2034 Notes

 

 


 

 

ACKNOWLEDGED:

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

 

By: /s/ John T. Needham, Jr.                

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

WITNESSES:

1.          /s/ Catherine F. Donohue            

            Name: Catherine F. Donohue

 

 

2.          /s/ Michelle Drinkard                  

            Name: Michelle Drinkard

 

 

 

 

 

 

 

 

 

Signature page to Guaranty for the 2034 Notes

 

 

 

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14 th day of January 2014 , before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

 

 

On this 14 th day of January 2014 , before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

 

 

[Notarial Seal]

 

/s/ Danny Lee                          

Notary Public                                        

COMMISSION EXPIRES

 

Exhibit 4.11

 

 

THIRTEENTH SUPPLEMENTAL INDENTURE

THIRTEENTH SUPPLEMENTAL INDENTURE, effective as of January 14, 2014, 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 Weenapoint Toren A, Weena 722, 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 ”), THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee hereunder (the “ Trustee ”), THE BANK OF NEW YORK MELLON, LONDON BRANCH, as principal paying agent hereunder (the “ Principal Paying Agent ”) and THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent (as defined below).

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 this Thirteenth Supplemental Indenture, dated as of January 14, 2014  (the “ Thirteenth Supplemental Indenture ”, and together with the Original Indenture and any further supplements thereto, the “ Indenture ”) providing for the issuance from time to time of debt securities and debt warrants of the Company to be issued in one or more series as provided in the Indenture;

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

WHEREAS , on the date hereof the Company intends to issue pursuant to its Registration Statement on Form F-3 (File No. 333-183618-01) (the “ Registration Statement ”), dated August 29, 2012, the Prospectus Supplement dated January 7, 2014 and related Base Prospectus dated August 29, 2012 (collectively, the “ Offering Document ”) and the Indenture, £600,000,000 of its 6.625% Global Notes due 2034, in the form attached as Exhibit A hereto (the “ Notes ”), having the terms and conditions contemplated in the Offering Document as provided for in the Original Indenture, as supplemented by this Thirteenth Supplemental Indenture; 

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

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

 


 

 

WHEREAS , the Company and Petrobras confirm that any and all conditions and requirements necessary to make this Thirteenth 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 Thirteenth 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 Thirteenth Supplemental Indenture; and

WHEREAS , the Company and Petrobras have requested that the Trustee execute and deliver this Thirteenth 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, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent 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 Thirteenth 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:

 “Business Day” means any day on which banking and trust institutions in London are not authorized generally or obligated by law, regulation or executive order to close.  With respect to notes in certificated form, the reference to Business Day will also mean a day on which banking institutions generally are open for business in the location of each office of a transfer agent, but only with respect to a payment or other action to occur at that office.

“Closing Date” means January 14, 2014.

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“Comparable Sterling Benchmark Issue” means the U.K. Government security selected by the Independent Sterling Investment Banker as having a fixed maturity most nearly equal to the remaining term of the series of Notes to be redeemed and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of sterling-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to the remaining term of the Notes to be redeemed; provided, however, that, if the remaining term of the Notes to be redeemed is not equal to the fixed maturity of the U.K. Government security selected by such Sterling Reference Dealer, the Sterling Benchmark Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of the U.K. Government securities for which such yields are given, except that if the remaining term of the Notes to be redeemed is less than one year, a fixed maturity of one year shall be used.

“Comparable Sterling Benchmark Price” means, with respect to any Redemption Date, the average of all Sterling Reference Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Sterling Reference Dealer Quotation, or if the Independent Sterling Investment Banker obtains fewer than four such Sterling Reference Dealer Quotations, the average of all such quotations.

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

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

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

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

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

“Lien” means any mortgage, pledge, lien, hypothecation, security interest or other charge or encumbrance on any property or asset, including, without limitation, any equivalent created or arising under applicable law.

“Luxembourg Paying Agent” means a paying agent with respect to the Notes located in Luxembourg that is selected by the Company, which shall initially be The Bank of New York Mellon (Luxembourg) S.A.

“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 Thirteenth Supplemental Indenture.

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

“Permitted Lien” means a:

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

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

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

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

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

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

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

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

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

(j)  Lien granted or incurred to secure any extension, renewal, refinancing, refunding or exchange (or successive extensions, renewals, refinancings, refundings or exchanges), in whole or in part, of or for any Indebtedness secured by Lien referred to in

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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.

“pounds sterling” or “£” means the lawful currency of the United Kingdom.

“Principal Paying Agent” means a paying agent with respect to the Notes located in London, England, which shall initially be The Bank of New York Mellon, London Branch.

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

“Sterling Benchmark Rate” means, with respect to any redemption date, the rate per annum equal to the annual equivalent yield to maturity or interpolated maturity of the Comparable Sterling Benchmark Issue, assuming a price for the Comparable Sterling Benchmark Issue (expressed as a percentage of its principal amount) equal to the Comparable Sterling Benchmark Price for such Redemption Date.

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

“Sterling Reference Dealer” means (i) each of BNP Paribas, HSBC Bank plc and J.P. Morgan Securities plc, which are primary securities dealers in securities of the U.K. Government, and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary government securities dealer of securities of the U.K. Government (a “Primary Sterling Dealer”), the Company will substitute therefor another Primary Sterling Dealer and (ii) any other two Primary Sterling Dealers selected by the Company.

“Sterling Reference Dealer Quotation” means, with respect to each Sterling Reference Dealer and any Redemption Date, the average, as determined by the Independent Sterling Investment Banker, of the bid and asked prices for the Comparable Sterling Benchmark Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Sterling Investment Banker by such Sterling Reference Dealer at 11 a.m. Central European Time (CET) on the third business day preceding such Redemption Date.

Article 2  
TERMS OF THE NOTES

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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 “6.625% Global Notes due 2034”.

(b)                Aggregate Amount :  The aggregate principal amount of the Notes that may be initially authenticated and delivered under this Thirteenth Supplemental Indenture shall be £600,000,000 .  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 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 continuing, or shall occur as a result of the issuance of such Add On Notes, (ii) such Add On Notes shall rank pari passu with the Notes and shall have identical terms, conditions and benefits as the Notes and be part of the same series as the Notes, (iii) the Company and the Trustee shall have executed and delivered a further supplemental indenture to the Indenture providing for the issuance of such Add On Notes and reflecting such amendments to the Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes, (iv) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended Guaranty reflecting the increase in the aggregate principal amount of the Notes resulting from the issuance of the Add On Notes and (v) the Trustee shall have received all such opinions and other documents as it shall have requested, including an Opinion of Counsel stating that such Add On Notes are authorized and permitted by the Indenture and all conditions precedent to the issuance of such Add On Notes have been complied with by the Company and Petrobras.  All Add On Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture.

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

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(d)                Maturity :  The entire outstanding principal of the Notes shall be payable in a single installment on January 16, 2034 (the “ Stated Maturity ”).  No payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes, upon redemption prior to the Stated Maturity pursuant to Section 11.08 of the Original Indenture or pursuant to 2.01(l) and (m) hereof.

(e)                 Interest:  Interest shall accrue on the Notes at the rate of 6.625% 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 Principal Paying Agent and distributed by the Principal Paying Agent in accordance with this Indenture annually in arrears on January 16 of each year during which any portion of the Notes shall be Outstanding (each, an “ Interest Payment Date ”), commencing on January 16, 2015, and will initially accrue from and including the date of issuance and thereafter from and including 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).  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).  As provided in the Original Indenture, (i) payment of principal and interest and other amounts on the Notes will be made at the Corporate Trust Office of the Principal Paying Agent in London, or such other paying agent office in London as the Company appoints, in the form provided for in Section 10.08 of the Original Indenture, (ii) all such payments to the Principal Paying Agent shall be made by the Company by depositing immediately available funds in pounds sterling by 12:00p.m. (London time) one Business Day prior to the relevant Interest Payment Date to the Payment Account and (iii) so long as any of the Notes remain Outstanding, the Company shall maintain a paying agent in London.

(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.

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(g)        Payment Account :  On the Closing Date, the Trustee shall establish (and shall promptly notify the Company of the establishment of such account, including the relevant account numbers and other relevant identifying details) and, until the Notes and all accounts due in respect thereof have been paid in full, the Trustee shall maintain the special purpose non-interest bearing trust account established pursuant to this Thirteenth 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 £100,000 and integral multiples of £1,000 in excess thereof, and shall be transferable in integral multiples of £100,000 and integral multiples of £1,000 in excess thereof and the Depositary for such Global Notes shall be The Bank of New York Mellon, London Branch, as common depositary for Clearstream and Euroclear.

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

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

(k)        Optional Early Redemption .  The Notes are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, upon not less than 30 but no more than 60 days’ notice, at a Redemption Price equal to the greater of (A) 100% of the principal amount of such Notes and (B) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on an annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Sterling Benchmark Rate plus 45 basis points (the “ Sterling Make Whole Amount ”), plus in each case, accrued interest on the principal amount of such Notes to (but not including) the date of redemption.

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(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)        Determination of Notes Outstanding .  For the purposes of the definition of “Outstanding” in Section 1.01 of the Original Indenture only, the U.S. dollar equivalent of the principal amount of Notes issued on the Closing Date shall be determined by converting such principal amount of Notes into U.S. dollars at the cross exchange rate of 0.6067, the cross exchange rate for the purchase of U.S. dollars on January 10, 2014 as published in Bloomberg in the “Currency” section.

(o)           Luxembourg Stock Exchange Listing .  The Company shall maintain a Luxembourg Paying Agent if and for so long as the Notes are admitted to listing on the Official List of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange and for so long as the Luxembourg Stock Exchange so requires.  The Company may vary such appointment and will notify the Luxembourg Stock Exchange of such change of appointment.  For so long as any Notes are represented by Global Notes, all notices to holders of the Notes will be delivered to Euroclear and Clearstream in accordance with their applicable policies as in effect from time to time.  In addition, if and for so long as the Notes are listed on the official list of the Luxembourg Stock Exchange and trading on the Euro MTF market of the Luxembourg Stock Exchange, and the rules of the stock exchange so require, the Company shall publish notices with respect to the Notes on the website of the Luxembourg Stock Exchange.  Such notices will be deemed to have been given on the date of such publication.

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Section 2.02.  Amendments to Article Five Relating to Events of Default .  

(a)        Restated Events of Default :  As it applies to the Notes, Section 5.01 of the Original Indenture shall be amended to 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 .      Amendments to Article 10 Relating to Covenants.    

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

“Section 10.11      Use of Proceeds

The Company will use the proceeds from the offer and sale of the Notes after the deduction of any commissions principally to finance Petrobras’ planned capital expenditure under its 2013-2017 Business Plan and for general corporate purposes.

Section 10.12        Negative Pledge

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

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

     

10

 


 

 

(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 pounds sterling (the “ Denomination Currency ”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof. 

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

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

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 Thirteenth 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.

11

 


 

 

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

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

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

Article 4
MISCELLANEOUS

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

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

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

Section 4.06.    Additional Agency Provisions. The Company initially appoints The Bank of New York Mellon, London Branch as Principal Paying Agent hereunder and The Bank of New York Mellon (Luxembourg) S.A. as Luxembourg Paying Agent hereunder.  The parties hereto agree that in accepting such appointment and acting as such under the Indenture, the Principal Paying Agent and the Luxembourg Paying Agent shall be entitled to the rights, benefits, protections, immunities and indemnities afforded to the Trustee under the Indenture.

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

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

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IN WITNESS WHEREOF, the parties have caused this Thirteenth 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/ Gustavo Tardin Barbosa                         
                                                                  Name: Gustavo Tardin Barbosa
                                                                  Title:   Managing Director A

 

                                                            By:  /s/ Alexandre Quintão Fernandes                 
                                                                  Name: Alexandre Quintão Fernandes
                                                                  Title:   Managing Director B

 

                                                            PETRÓLEO BRASILEIRO S.A. – PETROBRAS

                                                            By:  /s/ Larry Carris Cardoso                               
                                                                  Name: Larry Carris Cardoso
                                                                  Title:    Corporate Finance Manager  

 

                                                            By:  /s/ Guilherme Ribeiro de Almeida                  
                                                                  Name: Guilherme Ribeiro de Almeida
                                                                  Title:    Foreign Exchange Sectorial Manager

 

                                                      WITNESSES: 

1.          /s/ Maurício Piragibe C. Faria                          

                                                                  Name: Maurício Piragibe C. Faria

 

2.          /s/ Renan Feuchard Pinto                                             

                                                                        Name: Renan Feuchard Pinto

 

 

Signature page to Thirteenth Supplemental Indenture

 


 

 

                                                            THE BANK OF NEW YORK MELLON, as Trustee
 

                                                            By:  /s/ John T. Needham, Jr.                 
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue                  

                                                                 Name: Catherine F. Donohue

                                                            2.   /s/ Michelle Drinkard                       

                                                                 Name: Michelle Drinkard

 

 

 

 

Signature page to Thirteenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.

On this 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                    

Notary Public

COMMISSION EXPIRES



 


 

 

                                                            THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Principal Paying Agent

                                                            By:  /s/ John T. Needham, Jr.             
                                                                  Name: John T. Needham, Jr.
                                                                  Title: Vice President

 

                                                            WITNESSES:

 

                                                            1.  /s/ Catherine F. Donohue              

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                    

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Thirteenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is a Vice President of The Bank of New York Mellon, London Branch, 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                       

Notary Public

COMMISSION EXPIRES

 

 


 

 

                                                            THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent

                                                            By:  /s/ John T. Needham, Jr.                
                                                                  Name: John T. Needham, Jr.
                                                                  Title:  Attorney-in-Fact

 

                                                            WITNESSES:

 

                                                            1.   /s/ Catherine F. Donohue              

                                                                 Name: Catherine F. Donohue

                                                            2.  /s/ Michelle Drinkard                     

                                                                 Name: Michelle Drinkard

 

 

 

Signature page to Thirteenth Supplemental Indenture

 


 

 

STATE OF NEW YORK                   )

                                                           )           ss:

COUNTY OF NEW YORK              )

On this 14th day of January 2014, before me, a notary public within and for said county, personally appeared John T. Needham, Jr., to me personally known, who being duly sworn, did say that he is an Attorney-in-Fact of The Bank of New York Mellon (Luxembourg) S.A., 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 14th day of January 2014, before me personally came Catherine F. Donohue and Michelle Drinkard to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.

[Notarial Seal]

/s/ Danny Lee                                   

Notary Public

COMMISSION EXPIRES

 

 


 

 

Exhibit A

Form of 6.625% Global Note due 2034

 

GLOBAL NOTE

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS THE COMMON DEPOSITARY (THE “COMMON DEPOSITARY”) FOR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME AND EUROCLEAR BANK S.A./N.V.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF A NOMINEE FOR THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY, OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.

 


 

 

PETROBRAS GLOBAL FINANCE B.V.

      6.625% GLOBAL NOTES DUE 2034

No.
ISIN No.: XS0982711474

Common Code: 098271147

Principal Amount: £600,000,000         
Initial Issuance Date: January 14, 2014

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 6.625% Global Notes Due 2034 (the “ Notes ”), issued in an initial aggregate principal amount of SIX HUNDRED MILLION POUNDS STERLING ( £600,000,000 ) under the Thirteenth Supplemental Indenture (the “ Thirteenth Supplemental Indenture ”), effective as of January 14, 2014, 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 ”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “ Trustee ”), The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent, to the Indenture, dated as of August 29, 2012 (the “ Original Indenture ”, and as supplemented by the Thirteenth 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 The Bank of New York Depositary (Nominee) Limited, or its registered assigns, as nominee of the Common Depositary for Euroclear System (“ Euroclear ”) and Clearstream Banking, société anonyme (“ Clearstream ”), and as the Holder of record of this Note, the principal amount specified above in pounds sterling on January 16, 2034 (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, annually on January 16 of each year, (each such date, an “ Interest Payment Date ”), commencing January 16, 2015, at a rate equal to 6.625% per annum, and will initially accrue from and including the date of issuance and thereafter from and including 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 pounds sterling 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 pounds sterling 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 6.625% per annum until all required amounts due in respect of the Notes have been paid.  Where interest is required to be calculated in respect of a period which is equal to or shorter than an Interest Period, it shall be calculated on the basis of a 365-day year or a 366-day year, as applicable, and the actual number of days elapsed in the relevant period in accordance with the Actual/Actual International Capital Market Association (“ICMA”) method, from and including the date from which interest begins to accrue to but excluding the date on which it falls due, divided by the actual number of calendar days in the Interest Period in which the relevant period falls (including the first such calendar day but excluding the last).

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 £ 100,000 and integral multiples of £ 1,000 in excess thereof.

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

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 


 

 

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

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

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

PETROBRAS 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:January ___, 2014

The Bank of New York Mellon
As Trustee

By:  ____________________
            Name: 
            Title:  Authorized Officer

 


 

 

ASSIGNMENT FORM

For value received

hereby sells, assigns and transfers unto

(Please insert social security or

other identifying number of assignee)

 

(Please print or type name and address,

including zip code, of assignee:)

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

 

Date:                                       Your Signature:

(Sign exactly as your name

appears on the face of this Note)

 

 

 

 


 

 

 

Exhibit B

[Form of Guaranty]

 

 

 

 

 

Exhibit 5.1

 

January 14, 2014

Petróleo Brasileiro S.A.— Petrobras

Avenida República do Chile, 65

20031-912 Rio de Janeiro—RJ

Brazil

 

Petrobras Global Finance B.V.

Weenapoint Toren A, Weena 722

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 Guaranty for the 2018 Notes dated as of January 14, 2014 (the “ Guaranty for the 2018 Notes ”), the Guaranty for the 2021 Notes dated as of January 14, 2014 (the “ Guaranty for the 2021 Notes ”), the Guaranty for the 2025 Notes dated as of January 14, 2014 (the “ Guaranty for the 2025 Notes ”) and the Guaranty for the 2034 Notes dated as of January 14, 2014 (the “ Guaranty for the 2034 Notes ” and, together with the Guaranty for the 2018 Notes, the Guaranty for the 2021 Notes and the Guaranty for the 2025 Notes, the “ Guaranties ”), by and among Petrobras, as the Guarantor, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”) under the Indenture (the “ Original Indenture ”) dated as of August 29, 2012, by and between Petrobras’ wholly-owned subsidiary, Petrobras Global Finance B.V. (“ PGF ”), and the Trustee.  The Guaranty for the 2018 Notes relates to the €1,500,000,000 2.750% Global Notes due 2018 (the “ 2018 Notes ”) to be issued by PGF under the Tenth Supplemental Indenture, dated as of January 14, 2014, by and among PGF, the Trustee, Petrobras, The Bank of New York Mellon, London Branch, as principal paying agent (the “ Principal Paying Agent ”) and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”) (the “ Tenth Supplemental Indenture ”).  The Guaranty for the 2021 Notes relates to the €750,000,000 3.750% Global Notes due 2021 (the “ 2021 Notes ”) to be issued by PGF under the Eleventh Supplemental Indenture, dated as of January 14, 2014, by and among PGF, the Trustee, Petrobras, the Principal Paying Agent and the Luxembourg Paying Agent (the “ Eleventh Supplemental Indenture ”).  The Guaranty for the 2025 Notes relates to the €800,000,000 4.750% Global Notes due 2025 (the “ 2025 Notes ”) to be issued by PGF under the Twelfth Supplemental Indenture, dated as of January 14, 2014, by and among PGF, the Trustee, Petrobras, the Principal Paying Agent and the Luxembourg Paying Agent (the “ Twelfth Supplemental Indenture ”).  The Guaranty for the 2034 Notes relates to the £600,000,000 6.625% Global Notes due 2034 (the

 

1

 

 


 
 

 

2034 Notes ” and, together with the 2018 Notes, the 2021 Notes and the 2025 Notes, the “ Notes ”) to be issued by PGF under the Thirteenth Supplemental Indenture, dated as of January 14, 2014, by and among PGF, the Trustee, Petrobras, the Principal Paying Agent and the Luxembourg Paying Agent (the “ Thirteenth Supplemental Indenture ”, and the Original Indenture, as supplemented by the Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Thirteenth Supplemental Indenture, as applicable, the “ Indenture ”, and together with the Guaranties, the “ Transaction Documents ”). 

 

For the purpose of rendering this opinion, I have examined the execution copies or copies certified to my satisfaction of the following documents:

 

(i)                  the Original Indenture;

(ii)                a form of the Tenth Supplemental Indenture;

(iii)              a form of the Eleventh Supplemental Indenture

(iv)              a form of the Twelfth Supplemental Indenture;

(v)                a form of the Thirteenth Supplemental Indenture;

(vi)              a form of the Guaranty for the 2018 Notes;

(vii)            a form of the Guaranty for the 2021 Notes;

(viii)          a form of the Guaranty for the 2025 Notes;

(ix)              a form of the Guaranty for the 2034 Notes;

(x)                the Estatuto Social of Petrobras;

(xi)              resolutions of the board of directors and board of executive officers of Petrobras authorizing the signing of each Transaction Document to which Petrobras is a party;

(xii)            a Secretary’s Certificate of Petrobras;

(xiii)          an Officer’s Certificate of Petrobras; and

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

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.

2

 

 


 
 

 

Based on the foregoing and subject to the qualifications and limitations hereinafter specified, I am of the opinion that:

(i)                  Petrobras has been duly incorporated and is validly existing as a corporation ( sociedade de economia mista under the laws of Brazil.

(ii)                Petrobras has all power and authority to enter into and perform its obligations under the Guaranties.

(iii)              The execution, delivery and performance of the Guaranties have been duly authorized by the board of executive officers of Petrobras.

I express no opinion as to any matter which may be, or which purports to be, governed by the laws of any jurisdiction other than the laws of Brazil. 

This opinion is limited to the matters expressly stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. 

I hereby consent to the use of my name in the prospectus constituting a part of the Registration Statement, and in any prospectus supplements related thereto, under the heading “Legal Matters” as counsel who has passed on certain matters of Brazilian law relating to the Notes, the Indenture and the Guaranties, and to the use of this opinion as an exhibit to the Registration Statement.  In giving such consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

 

/s/ Nilton Antonio de Almeida Maia 

Nilton Antonio de Almeida Maia

General Counsel of Petróleo

Brasileiro S.A.— Petrobras

 

 

3

 

Exhibit 5.2

 

P.O. Box 1507, 3000 BM Rotterdam

Weena 355, Rotterdam

 

 

 

PETROBRAS GLOBAL FINANCE B.V.

Weena 722

3014 DA  Rotterdam

The Netherlands

 

Petróleo Brasileiro S.A. – Petrobras

Avenida República do Chile, 65

20031-912 Rio de Janeiro
Brazil

 

Rotterdam, 14 January 2014

Re: PETROBRAS GLOBAL FINANCE B.V. – Issue of global notes

Our ref: 320008290/11103221.3

 

 

           

 

 

Dear Sirs,

1.              Introduction 

We have acted as special Dutch legal counsel to PETROBRAS GLOBAL FINANCE B.V., with corporate seat in Rotterdam, the Netherlands (the " Issuer ") in relation to the offering pursuant to the registration statement on Form F-3 (Nos. 333-183618 and 333-183618-01) (the " Registration Statement ") and the issuance by the Issuer of € 1,500,000,000  2.750% global notes due 2018 (the " 2018 Notes ") pursuant to the Original Indenture (as defined below) as supplemented by the Tenth Supplemental Indenture (as defined below), € 750,000,000  3.750% global notes due 2021 (the " 2021 Notes ") pursuant to the Original Indenture as supplemented by the Eleventh Supplemental Indenture (as defined below), € 800,000,000  4.750% global notes due 2025 (the " 2025 Notes ") pursuant to the Original Indenture as supplemented by the Twelfth Supplemental Indenture (as defined below) and £ 600,000,000 6.625% global notes due 2034 (the " 2034 Notes ") pursuant to the Original Indenture as supplemented by the Thirteenth Supplemental Indenture (as defined below). The 2018 Notes, the 2021 Notes, the 2025 Notes and the 2034 Notes are collectively referred to in this opinion as the “ Notes ”. The Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Thirteenth Supplemental Indenture will collectively be referred to as the " Documents ". 

 

 

 


 

 

2.              Scope of investigation; definitions

For purposes of this letter, we have examined and relied solely upon the following documents:

2.1.          a copy received by us on 29 August 2012 of a signed copy of an indenture between The Bank of New York Mellon (the " Trustee ") and the Issuer dated 29 August 2012 (the " Original Indenture "); 

2.2.          a copy received by us on 11 January 2014 of an execution copy of the tenth supplemental indenture to the Original Indenture among the Issuer, Petrobras Petróleo Brasileiro S.A. – Petrobras (" Petrobras " or " Guarantor "), the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent (the " Tenth Supplemental Indenture "); 

2.3.          a copy received by us on 11 January 2014 of an execution copy of the eleventh supplemental indenture to the Original Indenture among the Issuer, Petrobras, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent (the " Eleventh Supplemental Indenture ");  

2.4.          a copy received by us on 11 January 2014 of an execution copy of the twelfth supplemental indenture to the Original Indenture among the Issuer, Petrobras, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent (the " Twelfth Supplemental Indenture ");  

2.5.          a copy received by us on 11 January 2014 of an execution copy of the thirteenth supplemental indenture to the Original Indenture among the Issuer, Petrobras, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent (the " Thirteenth Supplemental Indenture ");  

2.6.          a photocopy of a notarial copy of the Issuer's deed of incorporation dated 2 August 2012 containing, according to the Extract (as defined below), its current articles of association (the " Articles "), as deposited with the chamber of commerce for Rotterdam (the " Chamber of Commerce "); 

2.7.          a faxed copy of a trade register extract regarding the Issuer obtained from the Chamber of Commerce and dated 14 January 2014 (the " Extract "); 

2.8.          a copy received by us on 13 January 2014 of a written resolution of the Issuer's board of managing directors ( bestuur ) dated 7 January 2014 (the " Managing Board Resolution "), containing a power of attorney granted by the Issuer to Sérvio Túlio da Rosa

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Tinoco, Arthur Costa da Silva, Maurício Piragibe de Carvalho Faria, Neyde Lucia Sáfadi de Abreu, Larry Carris Cardoso, José Roberto Espósito, Andre Luis Campos Silva, Guilherme Ribeiro de Almeida, Alexandre Antonio Germano Bittencourt and Renan Feuchard Pinto (the " Power of Attorney "); and

2.9.          a copy received by us on 13 January 2014 of a written resolution of PETROBRAS INTERNATIONAL BRASPETRO B.V. in its stated capacity as the Issuer's sole shareholder dated 7 January 2014 (the " Shareholders Resolution "). 

In addition, on 14 January 2014:

2.10.        the bankruptcy division ( faillissementsgriffie ) of the Rotterdam district court has confirmed to us over the telephone that the Issuer is not listed in the register kept by that district court as having been declared bankrupt or granted suspension of payments;

2.11.        we obtained a print of the Dutch online register for Dutch insolvencies available at http://insolventies.rechtspraak.nl, confirming that the Issuer is not listed in this Dutch online register as having been declared bankrupt or granted suspension of payments; and

2.12.        we obtained a print of the Dutch online register for EU insolvencies kept pursuant to the Insolvency Regulation (as defined below) and available at http://www.rechtspraak.nl/Uitspraken-en-Registers/centraal-insolventieregister/Pages/EU-Registratie.aspx, confirming that the Issuer is not listed in this Dutch online register as being the subject of any Insolvency Proceeding (as defined below);

(the confirmations contained in paragraphs 2.10, 2.11 and 2.12 together the " Non-Insolvency Confirmations "). 

3.              Further definitions; interpretation

3.1.          In this letter:

" DCC " means the Dutch Civil Code ( Burgerlijk Wetboek ); 

" Dutch Law " means the laws of the Kingdom of the Netherlands excluding Aruba, Bonaire, Curaçao, Saba, Sint Eustatius and Sint Maarten (" the Netherlands ") as they currently stand and are applied by the courts of the Netherlands but excluding unpublished case law and case law available in electronic form only;

" FMSA " means the Dutch Financial Markets Supervision Act ( Wet op het financieel toezicht ); 

" Indentures " means the Original Indenture and the Documents collectively;

" Insolvency Proceeding " means each of the proceedings listed in Annex A or B of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000, L 160, 1), as amended (the “ Insolvency Regulation ”); 

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" Offer Regulations " means (a) Commission Regulation (EC) No. 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the incorporation by reference and publication of such prospectuses and dissemination of advertisements, as amended and supplemented, including Commission Delegated Regulation (EU) No. 486/2012 of 30 March 2012 amending Regulation (EC) No. 809/2004 as regards the format and the content of the prospectus, the base prospectus, the summary and the final terms and as regards the disclosure requirements and (b) Commission Regulation (EC) No. 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilization of financial instruments;

" Resolutions " means the Managing Board Resolution and the Shareholders Resolution;

" SEC " means the U.S. Securities and Exchange Commission; and

" Trust Convention " means the 1985 Convention on the Law applicable to Trusts and their Recognition.

3.2.          In this letter Dutch legal concepts are expressed in English terms. In some instances the Dutch terms expressing such concepts are mentioned for the purpose of clarification. These concepts of Dutch Law may not be identical to the concepts existing under the laws of other jurisdictions and described by the English terms used in this letter.

4.              Assumptions 

For the purpose of this letter, we have assumed that:

4.1.          all copies of documents conform to the originals and that all originals are authentic and complete;

4.2.          each signature is the genuine signature of the individual concerned;

4.3.          the Documents have been or will have been entered into in the form reviewed by us;

4.4.          all factual matters, statements in documents, confirmations and other results of our investigation, relied upon or assumed herein, were true and accurate on the date of execution of the Documents and remain true and accurate on the date hereof;

4.5.          the Issuer is not the subject of any Insolvency Proceeding, emergency measures     ( noodregeling ), a non-insolvency dissolution or liquidation, or a statutory merger or demerger;

4.6.          at the time of the offering of the Notes (i) the Registration Statement, and any amendments thereto (including post-effective amendments) has been filed with the SEC and will have become effective; (ii) a prospectus supplement will have been prepared and

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filed with the SEC describing the Notes offered thereby; (iii) the Notes will be issued and sold in compliance with all applicable U.S. federal and state securities laws and all other applicable laws other than the laws of the Netherlands and in the manner stated in the Registration Statement and a prospectus supplement thereto;

4.7.          the Notes will be executed on behalf of the Issuer and any other party thereto by a person or persons authorised to execute the same, authenticated, issued and delivered in accordance with the provisions of the Indentures;

4.8.          all Notes: (i) are within the capacity and powers of each party other than the Issuer; (ii) will have been validly issued to and accepted by each party;

4.9.          there is no works council whose advice on the signing of the Registration Statement, the Issuer's entry into the Indentures or the issue of the Notes must be sought pursuant to the Dutch Works Councils Act ( Wet op de ondernemingsraden ); 

4.10.        the Resolutions were validly passed and remain in full force and effect without modification;

4.11.        the Power of Attorney remains in full force and effect without modification and that no rule of law under the The Hague Convention on the Law applicable to Agency 1978 applies or may be applied to the existence and extent of the authority of any person who is authorised to sign the Documents on behalf of the Issuer under the Power of Attorney, which adversely affects the existence and extent of that authority as expressed in the Power of Attorney;

4.12.        each party to the Documents and the Notes other than the Issuer has all requisite power and authority (corporate and otherwise) to enter into and perform the Documents and the Notes;

4.13.        the Documents and the Notes have been duly and validly authorised by the parties thereto other than the Issuer and have been entered into by or on behalf of, and has been and will be duly performed by, the parties thereto other than the Issuer;

4.14.        the Documents have been or will have been signed on behalf of the Issuer by either (i) a managing director A of the Issuer and a managing director B of the Issuer, or (ii) a person named as attorney in the Power of Attorney;

4.15.        when validly entered into by all the parties thereto, the Documents and the Notes constitute the valid and binding obligations of each of the parties thereto, and are enforceable against those parties in accordance with their terms, under the laws of the State of New York by which they are expressed to be governed and all other applicable laws, other than Dutch law;

 

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4.16.        any and all authorizations and consents of, or other filings with or notifications to, any public authority or other relevant body or person in or of any jurisdiction other than the Netherlands which may be required (other than under the laws of the Netherlands) in respect of the offering of the Notes and the execution or performance of the Documents have been or will be duly obtained or made, as the case may be;

4.17.        the assets of the Issuer are not intended for public use ( de openbare dienst ); 

4.18.        no Note qualifies as a game or wager ( spel of weddingschap ) within the meaning of section 7A:1825 DCC and no issue of Notes falls within the scope of the Games of Chance Act ( Wet op de kansspelen ); 

4.19.        all Notes offered to the public ( aangeboden aan het publiek ) in the Netherlands, have been, are or will be offered in accordance with the FMSA, including the rules promulgated thereunder, and, to the extent applicable, the Offer Regulations;

4.20.        no Notes have been, are or will be admitted to trading on a regulated market operated or situated in the European Economic Area;

4.21.       at the time when it disposed or disposes of any Notes in the context of any offer of Notes, the Issuer did or does not possess inside information ( voorwetenschap ) in respect of itself or the trade in the relevant Notes; and

4.22.       that the Issuer and the Guarantor comply and will continue to comply with the requirements set out in section 3:2 of the FMSA and that the Issuer therefore does not require a banking license pursuant to the FMSA.

5.              Opinions 

Based upon the foregoing and subject to any factual matters and documents not disclosed to us in the course of our investigation, and subject to the qualifications and limitations stated hereafter, we express the following opinions:

5.1.     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.

5.2.         The Issuer has the corporate power to enter into and perform the Documents and to issue and perform the Notes.

5.3.          The Issuer has taken all necessary corporate action to authorize its entry into and performance of the Documents and the Notes.

5.4.          The entry into and performance of the Documents and the issue and performance of the Notes by the Issuer do not conflict with or result in a violation of the Articles or Dutch Law.

 

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5.5.          Under Dutch Law, the Issuer is not entitled to immunity from legal proceedings nor are its assets immune from execution.

6.              Qualifications 

This letter is subject to the following qualifications:

6.1.          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, 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.

6.2.          Under Dutch Law, notwithstanding the recognition of the laws of the State of New York as the governing law of the Documents and the Notes:

a.        effect may be given to the overriding mandatory provisions of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful, such irrespective of the governing law of the Documents;

b.       Dutch Law will be applied insofar as it is mandatory overriding irrespective of the governing law of the Documents and the Notes; and

c.        the application of the laws of the State of New York may be refused if it is manifestly incompatible with Dutch public policy.

6.3.          The enforcement in a court of the Netherlands of the Documents and the Notes and of foreign judgments is subject to Dutch rules of civil procedure.

6.4.          The enforcement in the Netherlands of the Documents and the Notes may be limited under the 1977 Sanction Act ( Sanctiewet 1977 ) or otherwise by international sanctions.

6.5.          To the extent that Dutch law applies, any provision that the holder of a Note may be treated as its absolute owner may not be enforceable under all circumstances.

6.6.          To the extent that Dutch law applies, title to a Note may not pass if (i) the Note is not delivered ( geleverd ) in accordance with Dutch law, (ii) the transferor does not have the power to pass on title ( beschikkingsbevoegdheid ) to the Notes, or (iii) the transfer of title is not made pursuant to a valid title of transfer ( geldige titel ). 

6.7.          Any trust to which the Trust Convention applies, will be recognised subject to the Trust Convention. Any trust to which the Trust Convention does not apply may not be recognised.

6.8.          To the extent Dutch law applies, any provision in the Indentures to the effect that:

 

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a.        the Trustee may in its own name as trustee of an express trust, institute proceedings;

b.       no holder of any Note shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indentures, the Notes or for the appointment of a receiver or trustee, or for any other remedy under the Indentures, unless such holder has amongst others previously given written notice to the Trustee as further provided in the Indentures;

c.        the Trustee may prosecute and enforce all rights of action and claims under the Indentures or the Notes without the possession of any of the Notes or the production thereof in any proceeding relating thereto;

may not be enforceable.

6.9.          We express no opinion on the consequences of any concurrent proceedings or competing judgments resulting therefrom.

6.10.       In proceedings before a court of the Netherlands for the enforcement of the Documents or any Note, the court may mitigate amounts due in respect of litigation and collection costs. In addition, specific performance or injunction relief may not always be granted.

6.11.       The appointment of a process agent only constitutes an elected address for service of process, recognised under Dutch Law, if parties elect domicile ( woonplaats ) explicitly, in writing and with a view to the service of process. A writ of summons ( dagvaardingsexploot ) commencing civil proceedings ( dagvaardingsprocedure ) before a Dutch court needs to be served by a bailiff of the courts of the Netherlands. If the proceedings before a Dutch court are commenced by a petition ( verzoekschrift ), a notice ( oproeping ) needs to be given by the court.

6.12.        T o the extent that Dutch Law applies, a power of attorney ( volmacht ) (including the appointment of an agent for purposes of service of process) (i) does not exclude the principal's right to perform the legal acts covered by the power of attorney, (ii) can be irrevocable only to the extent it has been granted for the purpose of performing a legal act in the interest of the authorised person or a third party and is subject to any amendments made or limitations imposed by a court on serious grounds ( gewichtige redenen ), and (iii) will terminate upon the death of the attorney, upon the attorney being placed under guardianship ( ondercuratelestelling ), upon the attorney giving notice of termination ( opzegging ) and, if not irrevocable, upon revocation by the principal.

6.13.        To the extent that any provision of the Indentures or the Notes are general conditions within the meaning of section 6:231 DCC, a holder of a Note may nullify ( vernietigen ) that provision if (i) the Issuer has not offered the holder a reasonable opportunity to examine the provisions of the Indentures or Notes, or (ii) the provision, having regard to all

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relevant circumstances, is unreasonably onerous to the holder. A provision in general conditions as referred to in section 6:236 DCC is deemed to be unreasonably onerous, irrespective of the circumstances, if the holder of Note is a natural person not acting in the conduct of a profession or trade. The provisions such as set out in section 8.02 of the Original Indenture might fall within the scope of section 6:236 DCC.

6.14.        The Extract does not provide conclusive evidence that the facts set out therein are correct. However, under the Dutch 2007 Trade Register Act ( Handelsregisterwet 2007 ), subject to limited exceptions, a company incorporated in the Netherlands cannot invoke the incorrectness or incompleteness of the information regarding it contained in a trade register extract against third parties who were unaware thereof.

6.15.        The Non-Insolvency Confirmations do not provide conclusive evidence that the Issuer has not become the subject of an Insolvency Proceeding.

6.16.        We express no opinion on tax law.

6.17.        We express no opinion on the laws of the European Union (insofar as not implemented in Dutch Law or directly applicable in the Netherlands) and on competition and procurement laws.

6.18.        We express no opinion on any right, or the consequences of exercising any right, to convert a Note into another instrument.

6.19.        We express no opinion with respect to any rights in rem

7.              Limitations 

We express no opinion or statement on any law other than Dutch Law. Our investigation has further been limited to the text of the documents. We have not investigated the meaning and effect of any document governed by a law other than Dutch Law under that other law.

The opinions and statements expressed herein are rendered only as of the date of this letter and we assume no obligation to advise you of facts, circumstances, events or changes in Dutch Law that may hereafter arise or be brought to our attention and that may alter, affect or modify the opinions or statements expressed herein.

Nothing in this letter should be taken as expressing an opinion or statement in respect of any representations or warranties or other information contained in the Indentures and Registration Statement or any other document examined in connection with this letter except as expressly confirmed herein.

 

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8.              Reliance 

This letter may only be relied upon under the express condition that it and any issues of interpretation or liability arising thereunder will be governed by Dutch Law and be brought before a court of the Netherlands. In addition, this letter may only be relied upon under the express condition and limitation that any possible liability of Houthoff Buruma, its members (including their directors) and employees is limited to the amount available and payable under Houthoff Buruma's professional malpractice insurance coverage.

This letter is an exhibit to the Registration Statement and may be relied upon for the purpose of the issue of the Notes. In addition this letter is addressed to you and may only be relied upon by you in connection with the issue of the Notes and the transactions to which the Documents relate. This letter may not be supplied, and its contents or existence may not be disclosed, to any person other than as an exhibit to (and therefore together with) the Registration Statement and may not be relied upon for any purpose other than the issue of the Notes and the transactions to which the Documents relate. A copy may, however, be provided to your legal counsel solely for the purpose of the issue of the Notes and the transactions to which the Documents relate and subject to the same restrictions.

We hereby consent to the filing of this opinion as Exhibit 5.3 to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement, and in the prospectus supplement relating to the offering of the Notes, under the heading "Legal Matters" as counsel for the Issuer who has passed on the validity of 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 U.S. Securities Act of 1933 or the rules and regulations of the SEC thereunder.

In giving this consent, we do not imply that we are experts under the U.S. Securities Act of 1933, as amended or the rules or regulations of the SEC issued thereunder with respect to any part of the Registration Statement, including this letter.

 

Yours faithfully,

 

/s/ HOUTHOFF BURUMA COÖPERATIEF U.A.

HOUTHOFF BURUMA COÖPERATIEF U.A.

                                                                                                                                                             

Exhibit 5.3

 

 January 14, 2014

Petróleo Brasileiro S.A.—Petrobras

Avenida República do Chile, 65

20035-900 Rio de Janeiro – RJ

Brazil

 

Petrobras Global Finance B.V.

Weenapoint Toren A, Weena 722

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 (No. 333-183618-01) of €1,500,000,000 aggregate principal amount of PGF’s 2.750% Global Notes due 2018 (the “ 2018 Notes ”), €750,000,000 aggregate principal amount of PGF’s 3.750% Global Notes due 2021 (the “ 2021 Notes ”), €800,000,000 aggregate principal amount of PGF’s 4.750% Global Notes due 2025 (the “ 2025 Notes ”) and £600,000,000 aggregate principal amount of PGF’s 6.625% Global Notes due 2034 (the “ 2034 Notes ” and, together with the 2018 Notes, the 2021 Notes and the 2025 Notes, the “ Notes ”).  The Notes are to be issued under an indenture dated as of August 29, 2012 (the “ Original Indenture ”) between PGF and The Bank of New York Mellon, a New York banking corporation, as trustee (the “ Trustee ”), as supplemented by a tenth supplemental indenture dated as of January 14, 2014 (the “ Tenth Supplemental Indenture ”) among PGF, Petrobras, the Trustee, The Bank of New York Mellon, London Branch, as principal paying agent (the “ Principal Paying Agent ”), and The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg paying agent (the “ Luxembourg Paying Agent ”), an eleventh supplemental indenture dated as of January 14, 2014 (the “ Eleventh Supplemental Indenture ”) among PGF, Petrobras, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent, a twelfth supplemental indenture dated as of January 14, 2014 (the “ Twelfth Supplemental Indenture ”) among PGF, Petrobras, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent, and a thirteenth supplemental indenture dated as of January 14, 2014 (the “ Thirteenth Supplemental Indenture ”) among PGF, Petrobras, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent.  The Original Indenture, the Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Thirteenth Supplemental Indenture together are herein called the “ Indenture ”.  The 2018 Notes will have the benefit of a guaranty, dated as of January 14, 2014 (the “ Guaranty for the 2018 Notes” ), the 2021 Notes will have the benefit of a guaranty, dated as of January 14, 2014 (the “ Guaranty for the 2021 Notes ”), the 2025 Notes will have the benefit of a guaranty, dated as of January 14, 2014 (the “ Guaranty for the 2025 Notes ”), and the 2034 Notes will have the benefit of a guaranty, dated as of January 14, 2014 (the “ Guaranty for the 2034 Notes ” and, together with the Guaranty of the 2018 Notes, the Guaranty for the 2021 Notes and the Guaranty for the 2025 Notes, the “ Guaranties ”), in each case between Petrobras and the Trustee.  Such registration statement, as amended as of its most recent effective date (January 7, 2014), insofar as it relates to the Notes (as determined pursuant to 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 International Finance Company

Page 2                                                                        

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

(a)       an executed copy of the Original Indenture;

(b)       a form of the Tenth Supplemental Indenture, including a form of the global certificate representing the 2018 Notes as executed by PGF (the “ 2018 Global Notes ”); 

(c)       a form of the Eleventh Supplemental Indenture, including a form of the global certificate representing the 2021 Notes as executed by PGF (the “ 2021 Global Notes ”); 

(d)      a form of the Twelfth Supplemental Indenture, including a form of the global certificate representing the 2025 Notes as executed by PGF (the “ 2025 Global Notes ”); 

(e)       a form of the Thirteenth Supplemental Indenture, including a form of the global certificate representing the 2034 Notes as executed by PGF (the “ 2034 Global Notes ” and, together with the 2018 Global Notes, the 2021 Global Notes and the 2025 Global Notes, the “ Global Notes ”); 

(f)        a form of the Guaranty for the 2018 Notes;

 

 


 

Petróleo Brasileiro S.A. – Petrobras

Petrobras International Finance Company

Page 3                                                                        

(g)       a form of the Guaranty for the 2021 Notes;

(h)       a form of the Guaranty for the 2025 Notes; and

(i)         a form of the Guaranty for the 2034 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 Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture, the Thirteenth Supplemental Indenture, the Global Notes and the Guaranties have been duly executed and delivered by PGF and Petrobras, as applicable, in the forms thereof that we have examined and the Global Notes have been duly delivered to and paid for by the purchasers thereof in the manner described in the Registration Statement and authenticated in accordance with the terms of the Indenture, the Global Notes will be valid, binding and enforceable obligations of PGF, entitled to the benefits of the Indenture, and the Guaranties will be valid, binding and enforceable obligations of Petrobras.

Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of 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 Indenture and the Global 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.

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

 


 

Petróleo Brasileiro S.A. – Petrobras

Petrobras International Finance Company

Page 4                                                                        

In addition, we note that (a) the enforceability in the United States of the waiver  in Section 15(f) of the Guaranties and Section 1.15 of the Indenture by each of Petrobras and PGF 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 and (b) the designation in Section 1.15 of the Indenture or Section 15(b) of the Guaranties of the U.S. federal courts located in the borough of Manhattan, city of New York, New York as the venue for actions or proceedings relating to the Indenture, the Global Notes and the Guaranties is (notwithstanding the waiver in Section 1.15 of the Indenture and Section 15(b) of the Guaranties) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. § 1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such actions or proceedings.

We express no opinion as to the enforceability of Section 14 of the Guaranties and Section 10.13 of the Indenture relating to currency indemnity.

In addition, we note that the waiver of defenses in Section 5 of the Guaranties may be ineffective to the extent that any such defense involves a matter of public policy in New York.

The foregoing opinions are limited to the federal law of the United States of America and the law of the state of New York.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement 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.

Very truly yours,

 

CLEARY GOTTLIEB STEEN & HAMILTON LLP

 

 

By: /s/ Francesca L. Odell

Francesca L. Odell