Petrobras - Petroleo Brasileiro SA F-4, filed Jul 6, 2020
Petrobras - Petroleo Brasileiro SA (PBR)
As filed with the Securities and Exchange Commission on July 6, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| Petróleo Brasileiro S.A. – Petrobras | Petrobras Global Finance B.V. |
(Exact name of each registrant as specified in its charter)
| Brazilian Petroleum Corporation – Petrobras | Not Applicable |
(Translation of registrant’s name into English)
| The Federative Republic of Brazil | The Netherlands |
(Jurisdiction of incorporation or organization)
| 1311 | 1311 |
(Primary Standard Industrial Classification Code Number)
| Not Applicable | Not Applicable |
(I.R.S. employer identification number)
| Avenida República do Chile, 65 20031-912 – Rio de Janeiro – RJ, Brazil +55 (21) 3224-4477 |
Weena 762 3014 DA – Rotterdam - The Netherlands +31 (0) 10 206-7000 |
(Address and telephone number of registrant’s principal executive offices)
|
Petrobras America Inc. 10350 Richmond Ave., Suite 1400 Houston, Texas 77042 +1 (713) 808-2000 |
(Name, address and telephone number of agent for service)
With a copy to:
|
Francesca L. Odell, Esq. Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 +1 (212) 225-2000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If this Form is filed to register additional securities of an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
| Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) | ¨ | |||
| Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) | ¨ |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
| Emerging growth company | ¨ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Unit(1) | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee(2) | ||||||||||||
| 5.093% Global Notes Due 2030 | U.S.$4,115,281,000 | 100% | U.S.$4,115,281,000 | U.S.$534,163.47 | ||||||||||||
| Guaranty of 5.093% Global Notes Due 2030 | (3) | (3) | (3) | (3) | ||||||||||||
| (1) | The securities being registered hereby are offered (i) in exchange for the securities described in this prospectus, previously sold in transactions exempt from registration under the Securities Act of 1933, as amended, or the “Securities Act” and (ii) upon certain resales of the securities by broker-dealers. The registration fee has been computed based on the face value of the securities solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 under the Securities Act. |
| (2) | Calculated pursuant to Rule 457 under the Securities Act. |
| (3) | Pursuant to Rule 457(n), no separate fee is payable with respect to the guaranty. |
The Registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities or consummate the exchange offer until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 6, 2020
PROSPECTUS
Petrobras Global Finance B.V.
Offers to Exchange
U.S.$4,115,281,000 aggregate principal amount of 5.093% Global Notes Due 2030
Unconditionally guaranteed by
Petróleo Brasileiro S.A. — Petrobras
(Brazilian Petroleum Corporation— Petrobras)
Terms of the exchange offer:
| · | We are offering to exchange securities that we sold in private offerings, or the “Old Securities,” for an equal principal amount of new registered securities, or the “New Securities.” |
| · | The exchange offer commences on , 2020 and expires at 5:00 p.m., New York City time, on , 2020, unless we extend it. |
| · | You may withdraw a tender of Old Securities at any time prior to the expiration of the exchange offer. |
| · | Subject to the conditions described herein, all Old Securities that are validly tendered and not validly withdrawn will be exchanged. |
| · | The exchange of Old Securities will not be a taxable exchange for United States federal income tax purposes. See “Taxation—United States Federal Income Taxation.” For a discussion of certain Dutch and Brazilian tax considerations, see “Taxation—Dutch Tax Considerations” and “Taxation—Brazilian Tax Considerations,” respectively. |
| · | We will not receive any proceeds from the exchange offer. The Old Securities surrendered and exchanged for New Securities will be retired and canceled. Accordingly, the issuance of the New Securities will not result in any increase in our outstanding indebtedness. |
| · | The terms of the New Securities to be issued are identical to the Old Securities issued by Petrobras Global Finance B.V., except for terms with respect to additional interest payments, registration rights and legends reflecting transfer restrictions. |
| · | The New Securities will be unconditionally and irrevocably guaranteed by Petróleo Brasileiro S.A. — Petrobras. |
The New Securities are expected to be listed on the Official List of the Luxembourg Stock Exchange and to trade on the Euro MTF Market of such exchange. Application will be made to the Luxembourg Stock Exchange for listing of the New Securities. We also intend to apply to have the New Securities approved for listing on the New York Stock Exchange, or the “NYSE.”
Each broker-dealer participating in the exchange offer must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Securities received in exchange for Old Securities that were acquired as a result of market-making activities or other trading activities. By acknowledging this obligation and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of New Securities received in exchange for Old Securities where the broker-dealer acquired the Old Securities as a result of market-making activities or other trading activities. We have agreed to make this prospectus available to any broker-dealer for up to 180 days after the registration statement is declared effective (subject to extension under certain circumstances) for use in connection with any such resale. See “Plan of Distribution.”
We are not making an offer to exchange securities in any jurisdiction where the offer is not permitted.
Investing in the New Securities issued in the exchange offer involves certain risks. See “Risk Factors” beginning on page 12.
Neither the U.S. Securities and Exchange Commission, or the “SEC,” nor any state securities commission in the United States of America, or the “United States,” has approved or disapproved the securities to be distributed in the exchange offer, nor have they determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
, 2020
TABLE OF CONTENTS
i
In this prospectus, unless the context otherwise requires or as otherwise indicated, references to “Petrobras” mean Petróleo Brasileiro S.A. – Petrobras and its consolidated subsidiaries taken as a whole, and references to “PGF” mean Petrobras Global Finance B.V., a wholly-owned subsidiary of Petrobras. Terms such as “we,” “us” and “our” generally refer to both Petrobras and PGF, unless the context requires otherwise or as otherwise indicated.
We are responsible for the information contained and incorporated by reference in this prospectus. PGF and Petrobras have not authorized anyone to give you any other information, and we take no responsibility for any other information that others may give you. Neither PGF nor Petrobras is making an offer of the New Securities in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or any document incorporated by reference is accurate as of any date other than the date of the relevant document.
References herein to “reais” or “R$” are to the lawful currency of Brazil. References herein to “U.S. dollars” or “U.S.$” are to the lawful currency of the United States.
ii
Some of the information contained or incorporated by reference in this prospectus are forward-looking statements that are not based on historical facts and are not assurances of future results. Many of the forward-looking statements contained, or incorporated by reference in this prospectus may be identified by the use of forward-looking words, such as “believe,” “expect,” “estimate,” “anticipate,” “intend,” “plan,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely,” “potential” and similar expressions.
Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. There is no assurance that the expected events, trends or results will actually occur.
We have made forward-looking statements that address, among other things:
| · | the outbreak of the COVID-19 pandemic and its impacts on the sanitary, health, political and economic conditions worldwide and specifically in Brazil; |
| · | our marketing and expansion strategy; |
| · | our exploration and production activities, including drilling; |
| · | our activities related to refining, import, export, transportation of oil, natural gas and oil products, petrochemicals, power generation, biofuels and other sources of renewable energy; |
| · | our projected and targeted capital expenditures, commitments and revenues; |
| · | our liquidity and sources of funding; |
| · | our pricing strategy and development of additional revenue sources; and |
| · | the impact, including cost, of acquisitions and divestments. |
Our forward-looking statements are not guarantees of future performance and are subject to assumptions that may prove incorrect and uncertainties that are difficult to predict. Our actual results could differ materially from those expressed or forecast in any forward-looking statements as a result of a variety of assumptions and factors. These factors include, but are not limited to, the following:
| · | our ability to obtain financing; |
| · | general economic and business conditions, including crude oil and other commodity prices, refining margins and prevailing exchange rates; |
| · | global economic conditions; |
| · | our ability to find, acquire or gain access to additional reserves and to develop our current reserves successfully; |
| · | uncertainties inherent in making estimates of our oil and gas reserves, including recently discovered oil and gas reserves; |
| · | competition; |
| · | technical difficulties in the operation of our equipment and the provision of our services; |
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| · | changes in, or failure to comply with, laws or regulations, including with respect to fraudulent activity, corruption and bribery; |
| · | receipt of governmental approvals and licenses; |
| · | international and Brazilian political, economic and social developments; |
| · | natural disasters, accidents, military operations, terrorist acts, acts of sabotage, wars or embargoes; |
| · | regulatory developments, including regulations related to climate change; |
| · | the cost and availability of adequate insurance coverage; |
| · | our ability to successfully implement assets sales under our portfolio management program; |
| · | the outcome of ongoing corruption investigations and any new facts or information that may arise in relation to the “Lava Jato investigation;” |
| · | the effectiveness of our risk management policies and procedures, including operational risks; and |
| · | litigation, such as class actions or enforcement or other proceedings brought by governmental and regulatory agencies. |
For additional information on factors that could cause our actual results to differ from expectations reflected in forward-looking statements, please see “Risk Factors” in this prospectus and in documents incorporated by reference in this prospectus.
All forward-looking statements attributed to us or a person acting on our behalf are expressly qualified in their entirety by this cautionary statement, and you should not place undue reliance on any forward-looking statement included in this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information or future events or for any other reason.
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Incorporation of Certain Documents by Reference
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and certain later information that we file with the SEC will automatically update and supersede earlier information filed with the SEC or included in this prospectus. Petrobras is incorporating by reference into this prospectus the following documents that it has filed with the SEC:
| 1. | The Petrobras Annual Report on Form 20-F for the year ended December 31, 2019 filed with the SEC on March 23, 2020, as amended by Amendment No. 1 on Form 20-F/A filed with the SEC on April 21, 2020 (as so amended, the “2019 Form 20-F”). |
| 4. | The Petrobras Report on Form 6-K furnished to the SEC on June 8, 2020, relating to exports of fuel oil in May. |
| 5. | The Petrobras Report on Form 6-K furnished to the SEC on June 25, 2020, relating to the appointment of a new member of the board of directors. |
| 6. | The Petrobras Report on Form 6-K furnished to the SEC on June 29, 2020, relating to the financing agreement with Technip Brasil and Flexibras. | |
| 7. | The Petrobras Report on Form 6-K furnished to the SEC on July 6, 2020, relating to severance programs. | |
| 8. | Any future annual reports of Petrobras on Form 20-F filed with, and all reports on Form 6-K that are designated in such reports as being incorporated by reference into this prospectus furnished to, the SEC after the date of this prospectus and prior to the termination of the exchange offer. |
In addition, all reports and other documents filed by us with the SEC after the date of this registration statement and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference herein.
We will provide without charge to any person to whom a copy of this prospectus is delivered, upon the written or oral request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated herein by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference in such documents). Requests should be directed to Petrobras’s Investor Relations Department located at Avenida República do Chile, 65 — 18th Floor, 20031-912—Rio de Janeiro, RJ, Brazil, Attn: Leandro da Rocha Santos, Institutional Investors Manager at Investor Relations Department (telephone: +55 (21) 3224-0792; fax: +55 (21) 3224-1401; e-mail: petroinvest@petrobras.com.br).
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Where You Can Find More Information
We have filed a registration statement with the SEC on Form F-4 under the Securities Act relating to the New Securities offered by this prospectus. This prospectus, which is a part of that registration statement, does not contain all of the information set forth in the registration statement. For more information with respect to our company and the securities offered by this prospectus, you should refer to the registration statement and to the exhibits filed with it. Statements contained or incorporated by reference in this prospectus regarding the contents of any contract or other document are not necessarily complete, and, where the contract or other document is an exhibit to the registration statement or incorporated or deemed to be incorporated by reference, each of these statements is qualified in all respects by the provisions of the actual contract or other document.
We are subject to the information requirements of the Exchange Act, applicable to a foreign private issuer, and accordingly file or furnish reports, including annual reports on Form 20-F, reports on Form 6-K, and other information with the SEC. Any filings we make electronically will be available to the public over the Internet at the SEC’s web site at http://www.sec.gov. These reports and other information may also be inspected and copied at the offices of the New York Stock Exchange, at 11 Wall St, New York, NY 10005.
Electronic Delivery of Documents
We are delivering copies of this prospectus in electronic form through the facilities of The Depository Trust Company, or “DTC.” You may obtain paper copies of the prospectus by contacting the Luxembourg listing agent at its address specified on the inside back cover of this prospectus. By participating in the exchange offer, you will be consenting to electronic delivery of these documents.
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This summary highlights key information described in greater detail elsewhere, or incorporated by reference, in this prospectus. This summary is not complete and does not contain all of the information you should consider before participating in the exchange offer. You should read carefully the entire prospectus, including “Risk Factors” and the documents incorporated by reference herein, which are described under “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information.”
PGF
PGF is a wholly-owned finance subsidiary of Petrobras, incorporated under the laws of the Netherlands as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) on August 2, 2012. PGF is an indirect subsidiary of Petrobras, and all of PGF’s shares are held by Petrobras’s Dutch subsidiary Petrobras International Braspetro B.V. PGF’s business is to raise financing to fund the operations of companies within the Petrobras group, including by issuing debt securities in the international capital markets. PGF does not currently have any operations, revenues or assets other than those related to the issuance, administration and repayment of its debt securities. All debt securities issued by PGF are fully and unconditionally guaranteed by Petrobras. PGF was incorporated for an indefinite period of time.
Petrobras uses PGF as its main vehicle to issue securities in the international capital markets. PGF’s first offering of notes fully and unconditionally guaranteed by Petrobras occurred in September 2012. In December 2014, PGF assumed the obligations of Petrobras’s former finance subsidiary Petrobras International Finance Company S.A. (“PifCo”) under all then outstanding notes originally issued by PifCo, which continue to benefit from Petrobras’s full and unconditional guaranty.
PGF’s registered office is located at Weena 762, 9th floor, room A, 3014 DA Rotterdam, The Netherlands, and our telephone number is +31 (0) 10 206-7000.
Petrobras
Petrobras is one of the world’s largest integrated oil and gas companies, engaging in a broad range of oil and gas activities. Petrobras is a sociedade de economia mista, organized and existing under the laws of Brazil. For the years ended December 31, 2019 and 2018, Petrobras had sales revenues of U.S.$76,589 million and U.S.$84,638 million, respectively, gross profit of U.S.$30,857 million and U.S.$32,454 million, respectively, and net income attributable to shareholders of Petrobras of U.S.$10,151 million and U.S.$7,173 million, respectively. For the three-month periods ended March 31, 2020 and 2019, Petrobras had sales revenues of U.S.$17,143 million and U.S.$18,803 million, respectively, gross profit of U.S.$7,264 million and U.S.$6,590 million, respectively, and loss attributable to shareholders of Petrobras of U.S.$9,715 million and net income of attributable to shareholders U.S.$1,070 million, respectively. In 2019, Petrobras’s average domestic daily oil production was 2.17 million bbl/d, which represented 81% of Brazil’s total oil production (based on production data issued by the National Petroleum, Natural Gas and Biofuels Agency). In the three-month period ended March 31, 2020, Petrobras’s average domestic daily oil production was 2.32 million bbl/d. As a result of divestments concluded by Petrobras in 2019, it reassessed its business segments and currently divides its activities into the following segments of operations:
| · | Exploration and Production: this segment covers the activities of exploration, development and production of crude oil, Natural Gas Liquids (“NGL”) and natural gas in Brazil and abroad, for the primary purpose of supplying our domestic refineries. Our exploration and production segment also operates through partnerships with other companies, including holding interests in non-Brazilian companies in this segment; |
| · | Refining, Transportation and Marketing: this segment covers the activities of refining, logistics, transport, marketing and trading of crude oil and oil products in Brazil and abroad, exports of ethanol, petrochemical operations, such as extraction and processing of shale, as well as holding interests in petrochemical companies in Brazil; and |
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| · | Gas and Power: this segment covers the activities of logistics and trading of natural gas and electricity, transportation and trading of liquefied natural gas (“LNG”), generation of electricity by means of thermoelectric power plants, as well as holding interests in transportation and distribution companies of natural gas in Brazil and abroad. It also includes natural gas processing and fertilizer operations. |
Additionally, we have a Corporate and Other Business classification that includes activities that are not attributed to the business segments, notably those related to corporate financial management, corporate overhead and other expenses, provision for the class action settlement, and actuarial expenses related to the pension and medical benefits for retired employees and their dependents. It also comprises biofuels and distribution businesses. The biofuels business covers the activities of production of biodiesel and its co-products and ethanol. The distribution business covers the equity interest in the associate Petrobras Distribuidora S.A. (“BR Distribuidora”) and the business for the distribution of oil products abroad (in Argentina, Bolivia, Colombia and Uruguay). For further information regarding our business segments, see Notes 12 and 31 to our audited consolidated financial statements included in the 2019 Form 20-F incorporated by reference herein.
Petrobras’s principal executive office is located at Avenida República do Chile, 65, 20031-912 – Rio de Janeiro, RJ, Brazil, its telephone number is +55 (21) 3224-4477, and our website is www.petrobras.com.br. The information on our website, which might be accessible through a hyperlink resulting from this URL, is not and shall not be deemed to be incorporated into this prospectus.
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| Old Securities |
On September 18, 2019, PGF issued U.S.$4,115,281,000 aggregate principal amount of its 5.093% Global Notes due 2030, or the “Old Securities.”
The Old Securities are unconditionally and irrevocably guaranteed by Petrobras.
The Old Securities are unregistered and were issued by PGF as consideration in a private exchange offer conducted in reliance upon exemptions from the registration requirements of the Securities Act.
|
| New Securities |
We are offering new, registered 5.093% Global Notes due 2030, or the “New Securities” in exchange for the Old Securities.
The New Securities will be unconditionally and irrevocably guaranteed by Petrobras.
|
| Registration Rights Agreements | When PGF issued the Old Securities, PGF and Petrobras entered into an exchange and registration rights agreement with the initial purchasers named therein, in which they agreed to use their commercially reasonable efforts to complete an exchange offer of those Old Securities on or prior to a particular date.
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| The Exchange Offer | Under the terms of the exchange offer, holders of Old Securities are entitled to exchange Old Securities for an equal principal amount of New Securities with substantially identical terms, except for terms with respect to additional interest payments, registration rights and legends reflecting transfer restrictions. The security identifiers for the Old Securities are as follows:
CUSIP / ISIN CUSIP / ISIN Restricted Global Note Regulation S Global Note 71647N BF5 / N6945A AL1 / US71647NBF50 USN6945AAL19
You should read the discussion under the heading “Description of the New Securities” for further information about the New Securities and the discussion under the heading “The Exchange Offer” for more information about the exchange process.
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| Minimum Denomination | The Old Securities may be tendered only in a principal amount of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. |
| Principal Amount Outstanding |
As of the date of this prospectus, U.S.$4,115,281,000 aggregate principal amount of the Old Securities is outstanding.
|
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| Resale of New Securities |
Based on an interpretation by the SEC staff set forth in no-action letters issued to third parties, we believe that you may offer the New Securities issued in the exchange offer for resale, resell them or otherwise transfer them without compliance with the registration and prospectus delivery provisions of the Securities Act, as long as:
• you are not a broker-dealer who purchased the Old Securities directly from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act;
• you are not an “affiliate” of PGF or of Petrobras, as that term is defined in Rule 405 of the Securities Act; and
• you are acquiring the New Securities in the ordinary course of your business, you are not participating in, and do not intend to participate in, a distribution of the New Securities and you have no arrangement or understanding with any person to participate in a distribution of the New Securities.
If any statement above is not true and you transfer any New Security without delivering a prospectus meeting the requirements of the Securities Act or without an exemption from the registration requirements of the Securities Act, you may incur liability under the Securities Act. We do not assume responsibility for or indemnify you against this liability.
If you are a broker-dealer and receive New Securities for your own account in exchange for Old Securities that you acquired as a result of market making or other trading activities, you must acknowledge that you will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Securities. We will make this prospectus available to broker-dealers for use in resales for 180 days after the expiration date of the exchange offer.
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| Consequences of Failure to Exchange Old Securities |
If you do not exchange your Old Securities for New Securities, you will continue to hold your Old Securities. You will no longer be able to require that we register the Old Securities under the Securities Act. In addition, you will not be able to offer or sell the Old Securities unless:
• they are registered under the Securities Act; or
• you offer or sell them under an exemption from the requirements of, or in a transaction not subject to, the Securities Act.
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| Expiration Date | The exchange offer will expire at 5:00 p.m., New York City time, on , 2020, unless we decide to extend the expiration date. |
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| Conditions to the Exchange Offer |
We may terminate the exchange offer and refuse to accept any Old Securities for exchange if:
• there has been a change in applicable law or the SEC staff’s interpretation of applicable law, and the exchange offer is not permitted under applicable law or applicable SEC staff interpretations of law; or
• there is a stop order in effect or threatened with respect to the exchange offer or the indenture governing those securities.
We have not made the exchange offer contingent on holders tendering any minimum principal amount of Old Securities for exchange.
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| Certain Deemed Representations, Warranties and Undertakings |
If you participate in the exchange offer, you will be deemed to have made certain acknowledgments, representations, warranties and undertakings. See “The Exchange Offer—Holders’ Deemed Representations, Warranties and Undertakings.”
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| Procedure for Tendering Old Securities |
If you wish to participate in the exchange offer, you must deliver electronically your acceptance together with your Old Securities through DTC’s Automated Tender Offer Program, or “ATOP,” system.
If you are not a direct participant in DTC, you must, in accordance with the rules of the DTC participant who holds your securities, arrange for a direct participant in DTC to submit your acceptance to DTC electronically.
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| Withdrawal Rights |
You may withdraw the tender of your Old Securities at any time prior to 5:00 p.m., New York City time, on the expiration date, unless we have already accepted your Old Securities. To withdraw, you must send a written notice of withdrawal to the exchange agent through the electronic submission of a message in accordance with the procedures of DTC’s ATOP system by 5:00 p.m., New York City time, on the scheduled expiration date. We may extend the expiration date without extending withdrawal rights.
If you are not a direct participant in DTC, you must, in accordance with the rules of the DTC participant who holds your securities, arrange for a direct participant in DTC to submit your written notice of withdrawal to DTC electronically by 5:00 p.m., New York City time, on the expiration date.
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| Acceptance of Old Securities and Delivery of New Securities |
If all of the conditions to the exchange offer are satisfied or waived, we will accept any and all Old Securities that are properly tendered in the exchange offer prior to 5:00 p.m., New York City time, on the expiration date. We will deliver the New Securities promptly after the expiration of the exchange offer. |
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| Tax Considerations |
The exchange of Old Securities for New Securities will not be a taxable exchange for United States federal income tax purposes. See “Taxation—United States Federal Income Taxation.” For a discussion of certain Dutch and Brazilian tax considerations, see “Taxation—Dutch Tax Considerations” and “Taxation—Brazilian Tax Considerations,” respectively.
You should consult your tax advisor about the tax consequences of the exchange offer as it applies to your individual circumstances.
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| Fees and Expenses | We will bear all expenses related to consummating the exchange offer and complying with the exchange and registration rights agreement. |
| Exchange Agent | The Bank of New York Mellon is serving as the exchange agent for the exchange offer. The exchange agent’s address, telephone number and facsimile number are included under the heading “The Exchange Offer—The Exchange Agent; Luxembourg Listing Agent.” |
| Risk Factors |
Holders of Old Securities that do not exchange their Old Securities for New Securities will continue to be subject to the restrictions on transfer that are listed on the legends of those Old Securities. These restrictions will make the Old Securities less liquid. To the extent that Old Securities are tendered and accepted in the exchange offer, the trading market, if any, for the Old Securities would be reduced.
We cannot promise that a market for the New Securities will be liquid or will continue to exist. Prevailing interest rates and general market conditions could affect the price of the New Securities. This could cause the New Securities to trade at prices that may be lower than their principal amount or their initial offering price.
In addition to these risks, you should carefully consider the risk factors beginning on page 12, the section entitled “Risk Factors” in Petrobras’s 2019 Form 20-F, which is incorporated by reference in this prospectus, and the other information included or incorporated by reference herein, before deciding to participate in the exchange offer.
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Summary of the Terms of the New Securities
| Issuer | Petrobras Global Finance B.V., or “PGF.” |
| New Securities Offered | U.S.$4,115,281,000 aggregate principal amount of 5.093% Global Notes due 2030, or the “New Securities.” |
| Form and Terms |
The form and terms of the New Securities are the same as the form and terms of the Old Securities, except that:
• the New Securities will be registered under the Securities Act and therefore will not bear legends restricting their transfer; and
• holders of the New Securities will not be entitled to some of the benefits of the exchange and registration rights agreement.
The New Securities will evidence the same debt as the Old Securities.
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| Maturity Date | The New Securities will mature on January 15, 2030. |
| Interest |
The New Securities will bear interest from July 15, 2020 or from the most recent interest payment date, at the rate of 5.093% per annum, payable semi-annually in arrears on each interest payment date.
If your Old Securities are accepted for exchange, you will receive interest on the corresponding New Securities and not on such Old Securities. Any Old Securities not tendered will remain outstanding and continue to accrue interest according to their terms.
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| Interest Payment Dates | January 15 and July 15 of each year, commencing on January 15, 2021. |
| Denominations | PGF will issue the New Securities only in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. |
| Trustee, Registrar, Paying Agent and Transfer Agent |
The Bank of New York Mellon. |
| Luxembourg Paying Agent, Transfer Agent and Listing Agent |
The Bank of New York Mellon SA/NV, Luxembourg Branch. |
| Codes | |
| (a) CUSIP | 71647N BE8 |
| (b) ISIN | US71647NBE85 |
| Use of Proceeds | PGF will not receive any cash proceeds from the issuance of the New Securities. |
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| Indenture | The New Securities will be issued pursuant to an indenture, dated September 18, 2019, among PGF, Petrobras, The Bank of New York Mellon, a New York banking corporation, as trustee, and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent and paying agent. |
| Guaranty | The New Securities will be unconditionally guaranteed by Petrobras under the guaranty. See “Description of the Guaranty.” |
| Ranking |
The New Securities constitute general senior unsecured and unsubordinated obligations of PGF that will at all times rank pari passu among themselves and with all other unsecured unsubordinated indebtedness issued from time to time by PGF.
The obligations of Petrobras under the guaranty constitute general senior unsecured obligations of Petrobras that will at all times rank pari passu among themselves and with all other senior unsecured obligations of Petrobras that are not, by their terms, expressly subordinated in right of payment to Petrobras’s obligations under the guaranty.
|
| Optional Redemption |
PGF may redeem the New Securities at any time in whole or in part by paying the greater of the principal amount of the New Securities and the “make-whole” amount, plus, in each case, accrued interest, as described under “Description of the New Securities—Optional Redemption—Optional Redemption With ‘Make-Whole’ Amount for the New Securities.”
|
| Early Redemption at PGF’s Option Solely for Tax Reasons |
The New Securities will be redeemable in whole at their principal amount, plus accrued and unpaid interest, if any, to but excluding the relevant date of redemption, at PGF’s option at any time only in the event of certain changes affecting taxation. See “Description of the New Securities—Optional Redemption—Redemption for Taxation Reasons.” |
| Covenants | |
| (a) PGF |
The terms of the indenture will require PGF, among other things, to:
• pay all amounts owed by it under the indenture and the New Securities when such amounts are due;
• maintain an office or agent in the United States for the purpose of service of process and maintain a paying agent located in the United States;
• ensure that the New Securities continue to be senior obligations of PGF;
• use proceeds from the issuance of the New Securities for specified purposes; and
• replace the trustee upon any resignation or removal of the trustee.
|
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|
In addition, the terms of the indenture will restrict the ability of PGF and its subsidiaries, among other things, to:
• undertake certain mergers, consolidations or similar transactions; and
• create certain liens on its assets or pledge its assets. | |
| PGF’s covenants are subject to a number of important qualifications and exceptions. See “Description of the New Securities—Covenants.” | |
| (b) Petrobras |
The terms of the guaranty will require Petrobras, among other things, to:
• pay all amounts owed by it in accordance with the terms of the guaranty and the indenture;
• maintain an office or agent in the United States for the purpose of service of process;
• ensure that its obligations under the guaranty will continue to be senior obligations of Petrobras; and
• make available certain financial statements to the trustee.
|
|
In addition, the terms of the guaranty will restrict the ability of Petrobras and its subsidiaries, among other things, to:
• undertake certain mergers, consolidations or similar transactions; and
• create certain liens on its assets or pledge its assets.
| |
| Petrobras’s covenants are subject to a number of important qualifications and exceptions. See “Description of the Guaranty—Covenants.” | |
| Events of Default |
The following events of default will be events of default with respect to the New Securities:
• failure to pay principal on the New Securities within seven calendar days of its due date;
• failure to pay interest on the New Securities within 30 calendar days of any interest payment date;
• breach by PGF of a covenant or agreement in the indenture or by Petrobras of a covenant or agreement in the guaranty for the New Securities if not remedied within 60 calendar days; |
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|
• acceleration of a payment on the indebtedness of PGF or Petrobras or any material subsidiary that equals or exceeds U.S.$200 million;
• certain events of bankruptcy, reorganization, liquidation, insolvency, moratorium or intervention law or law with similar effect of PGF or Petrobras or any material subsidiary;
• certain events relating to the unenforceability of the New Securities, the indenture or the guaranty for the New Securities against PGF or Petrobras; and
• Petrobras ceasing to own at least 51% of PGF’s outstanding voting shares.
The events of default are subject to a number of important qualifications and limitations. See “Description of the New Securities—Events of Default.”
|
|
| Further Issuances | PGF reserves the right, from time to time, without the consent of the holders of the New Securities, to issue additional New Securities on terms and conditions identical to those of the New Securities, which additional New Securities shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the series of New Securities offered hereby. Any additional New Securities shall be issued under a separate CUSIP or ISIN number unless the additional New Securities are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with no more than a de minimis amount of original discount, in each case for U.S. federal income tax purposes. See “Description of the New Securities—Further Issuances.” |
| Modification of New Securities, Indenture and Guaranty | The terms of the indenture may be modified by PGF and the trustee, and the terms of the guaranty may be modified by Petrobras and the trustee, in some cases without the consent of the holders of the New Securities. See “Description of the New Securities—Modification and Waiver” and “Description of the Guaranty—Amendments.” |
| Book Entry; Delivery and Form | The New Securities will be issued in book-entry form through the facilities of DTC for the accounts of its direct and indirect participants, including Clearstream Banking, société anonyme, and Euroclear S.A./N.V., as operator of the Euroclear System, and will trade in DTC’s Same-Day Funds Settlement System. Beneficial interests in New Securities held in book-entry form will not be entitled to receive physical delivery of certificated New Securities except in certain limited circumstances. See “Book Entry; Delivery and Form.” |
| Withholding Taxes; Additional Amounts | Any and all payments of principal, premium, if any, and interest in respect of the New Securities will be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments, levies, imposts or charges whatsoever imposed, levied, collected, withheld or assessed by Brazil, the jurisdiction of PGF’s incorporation (currently the |
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| Netherlands) or any other jurisdiction in which PGF appoints a paying agent under the indenture, or any political subdivision or any taxing authority thereof or therein, unless such withholding or deduction is required by law. If PGF is required by law to make such withholding or deduction, it will pay such additional amounts as are necessary to ensure that the holders receive the same amount as they would have received without such withholding or deduction, subject to certain exceptions. In the event Petrobras is obligated to make payments to the holders under the guaranty, Petrobras will pay such additional amounts as are necessary to ensure that the holders receive the same amount as they would have received without such withholding or deduction, subject to certain exceptions. See “Description of the New Securities-Covenants-Additional Amounts.” | |
| Governing Law | The indenture governing the New Securities, the New Securities and the guaranty will be governed by, and construed in accordance with, the laws of the State of New York. |
| Listing | PGF intends to have the New Securities approved for listing on the Official List of the Luxembourg Stock Exchange and to trade on the Euro MTF Market of such exchange. PGF also intends to apply to have the New Securities approved for listing on the NYSE. We cannot assure you that these applications will be accepted. |
| Risk Factors | You should carefully consider the risk factors discussed beginning on page 12, the section entitled “Risks” in our 2019 Form 20-F, which is incorporated by reference in this prospectus, and the other information included or incorporated by reference in this prospectus, before deciding to participate in the exchange offer. |
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Our 2019 Form 20-F includes extensive risk factors relating to our operations, our compliance and control risks, our relationship with the Brazilian federal government, and to Brazil. You should carefully consider those risks and the risks described below, as well as the other information included or incorporated by reference in this prospectus, before making a decision to participate in the exchange offer and invest in the New Securities.
Risks Relating to the Exchange Offer
If holders of Old Securities do not participate in the exchange offer, the Old Securities will continue to be subject to transfer restrictions.
Holders of Old Securities that are not registered under the Securities Act who do not exchange their unregistered Old Securities for New Securities will continue to be subject to the restrictions on transfer that are listed on the legends of those Old Securities. These restrictions will make the Old Securities less liquid. To the extent that Old Securities are tendered and accepted in the exchange offer, the trading market, if any, for the Old Securities would be reduced.
Risks Relating to the New Securities
The market for the New Securities may not be liquid.
The New Securities are an issuance of new securities with no established trading market. PGF intends to have the New Securities approved for listing on the Official List of the Luxembourg Stock Exchange and to trade on the Euro MTF Market of such exchange. PGF also intends to apply to have the New Securities approved for listing on the NYSE. We can provide no assurance as to the liquidity of or trading markets for the New Securities. We cannot guarantee that holders of the New Securities will be able to sell their New Securities in the future. If a market for the New Securities does not develop, holders of the New Securities may not be able to resell the New Securities for an extended period of time, if at all.
Restrictions on the movement of capital out of Brazil may impair your ability to receive payments on the guaranty and restrict Petrobras’s ability to make payments to PGF in U.S. dollars.
In the past, the Brazilian economy has experienced balance of payment deficits and shortages in foreign exchange reserves, and the government has responded by restricting the ability of Brazilian or foreign persons or entities to convert reais into foreign currencies. The government may institute a restrictive exchange control policy in the future. Any restrictive exchange control policy could prevent or restrict our access to U.S. dollars, and consequently our ability to meet our U.S. dollar obligations under the guaranty and could also have a material adverse effect on our business, financial condition and results of operations. We cannot predict the impact of any such measures on the Brazilian economy. In the event that any such restrictive exchange control policies were instituted by the Brazilian government, we may face adverse regulatory consequences in the Netherlands that may lead us to redeem the New Securities prior to their maturity.
In addition, payments by Petrobras under the guaranty in connection with PGF’s New Securities do not currently require approval by or registration with the Central Bank of Brazil. The Central Bank of Brazil may nonetheless impose prior approval requirements on the remittance of U.S. dollars, which could cause delays in such payments.
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Petrobras would be required to pay judgments of Brazilian courts enforcing its obligations under the guaranty only in reais.
If proceedings were brought in Brazil seeking to enforce Petrobras’s obligations in respect of the guaranty, Petrobras would be required to discharge its obligations only in reais. Under Brazilian exchange controls, an obligation to pay amounts denominated in a currency other than reais, which is payable in Brazil pursuant to a decision of a Brazilian court, will be satisfied in reais at the rate of exchange in effect on the date of payment, as determined by the Central Bank of Brazil.
A finding that Petrobras is subject to U.S. bankruptcy laws and that the guaranty executed by it was a fraudulent conveyance could result in the relevant PGF holders losing their legal claim against Petrobras.
PGF’s obligation to make payments on the New Securities is supported by Petrobras’s obligation under the guaranty. Petrobras has been advised by our external U.S. counsel that the guaranty is valid and enforceable in accordance with the laws of the State of New York and the United States. In addition, Petrobras has been advised by our general counsel that the laws of Brazil do not prevent the guaranty from being valid, binding and enforceable against Petrobras in accordance with its terms.
In the event that U.S. federal fraudulent conveyance or similar laws are applied to the guaranty, and Petrobras, at the time it entered into the guaranty:
| · | was or is insolvent or rendered insolvent by reason of our entry into such guaranty; |
| · | was or is engaged in business or transactions for which the assets remaining with Petrobras constituted unreasonably small capital; or |
| · | intended to incur or incurred, or believed or believe that Petrobras would incur, debts beyond Petrobras’s ability to pay such debts as they mature; and |
| · | in each case, intended to receive or received less than reasonable equivalent value or fair consideration therefor, |
then Petrobras’s obligations under the guaranty could be avoided, or claims with respect to that agreement could be subordinated to the claims of other creditors. Among other things, a legal challenge to the guaranty on fraudulent conveyance grounds may focus on the benefits, if any, realized by Petrobras as a result of the issuance of the New Securities. To the extent that the guaranty is held to be a fraudulent conveyance or unenforceable for any other reason, the holders of the New Securities would not have a claim against Petrobras under the relevant guaranty and would solely have a claim against PGF. Petrobras cannot ensure that, after providing for all prior claims, there will be sufficient assets to satisfy the claims of the noteholders relating to any avoided portion of the guaranty.
We cannot assure you that the credit ratings for the New Securities will not be lowered, suspended or withdrawn by the rating agencies.
The credit ratings of the New Securities may change after issuance. Such ratings are limited in scope, and do not address all material risks relating to an investment in the New Securities, but rather reflect only the views of the rating agencies at the time the ratings are issued. An explanation of the significance of such ratings may be obtained from the rating agencies. We cannot assure you that such credit ratings will remain in effect for any given period of time or that such ratings will not be lowered, suspended or withdrawn entirely by the rating agencies, if, in the judgment of such rating agencies, circumstances so warrant. Any lowering, suspension or withdrawal of such ratings may have an adverse effect on the market price and marketability of the New Securities.
If interest payments on the New Securities become subject to withholding tax in the Netherlands, the New Securities may be redeemed prior to their stated maturity.
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The Netherlands is introducing a new withholding tax of 21.7% on interest payments commencing on January 1, 2021 (the “Dutch Withholding Tax Act 2021”). The new withholding tax will generally apply to interest payments made by an entity that is a tax resident in the Netherlands, such as PGF, to a “related entity” that is a tax resident in a “listed jurisdiction.” Generally, an entity is considered a “related entity” if (i) such entity has a direct or indirect interest – either individually or jointly as part of a collaborating group (samenwerkende groep) – that enables the holder of such interest to exercise a decisive influence on the decisions that can determine the activities of PGF, (ii) PGF has such an interest in such entity, or (iii) a third party has such an interest in both PGF and such entity. A jurisdiction is considered a “listed jurisdiction” if it is listed in the yearly updated Dutch Regulation on low-taxing jurisdictions and non-cooperative jurisdictions for tax purposes (Regeling laagbelastende staten en niet-coöperatieve rechtsgebieden voor belastingdoeleinden) which includes (i) jurisdictions with a corporation tax on business profits with a general statutory rate of less than 9%, and (ii) jurisdictions that are included in the EU list of non-cooperative jurisdictions. For the fiscal year 2020, the following 21 jurisdictions are considered “listed jurisdictions”: American Samoa, Anguilla, Bahamas, Bahrain, Barbados, Bermuda, the British Virgin Islands, the Cayman Islands, Fiji, Guam, Guernsey, Isle of Man, Jersey, Oman, Samoa, Trinidad and Tobago, Turkmenistan, Turks and Caicos Islands, Vanuatu, the United Arab Emirates, and the U.S. Virgin Islands.
The new withholding tax may also apply in situations where artificial structures are put in place with the main purpose or one of the main purposes to avoid the Dutch withholding tax, e.g., where an interest payment to a Listed Jurisdiction is artificially routed via an intermediate company in a non-Listed Jurisdiction.
In practice, PGF will not always be able to assess whether a noteholder is a related entity with respect to PGF or located in a listed jurisdiction. The parliamentary history is unclear on an issuer’s responsibilities to determine the absence of affiliation in respect of notes issued in the market, such as the New Securities.
Subject to certain conditions, if PGF is required to pay additional amount (see “Description of the New Securities—Covenants—Additional Amounts”) as a result of a change in law enacted after the date of the Indenture, PGF will have the option to redeem the New Securities in whole, but not in part (see “Description of the New Securities—Optional Redemption—Redemption for Taxation Reasons”). Potential investors should consider reinvestment risk in light of other investments available at that time.
Risks Relating to PGF and Petrobras
PGF’s operations and debt servicing capabilities are dependent on Petrobras.
PGF’s financial position and results of operations are directly affected by Petrobras’s decisions. PGF is an indirect, wholly-owned finance subsidiary of Petrobras incorporated in the Netherlands as a private company with limited liability. PGF does not currently have any operations, revenues or assets other than those related to its primary business of raising money for the purpose of on-lending to Petrobras and other subsidiaries of Petrobras. PGF’s ability to satisfy its obligations under the New Securities will depend on payments made to PGF by Petrobras and other subsidiaries of Petrobras under the loans made by PGF. The New Securities and all debt securities issued by PGF will be fully and unconditionally guaranteed by Petrobras. Petrobras’s financial condition and results of operations, as well as Petrobras’s financial support of PGF, directly affect PGF’s operational results and debt servicing capabilities.
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We will not receive any cash proceeds from the issuance of the New Securities under the exchange offer.
In consideration for issuing the New Securities as contemplated in this prospectus, we will receive in exchange an equal principal amount of Old Securities, which will be cancelled. Accordingly, the exchange offer will not result in any increase in our indebtedness.
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Selected Financial and Operating Information
This prospectus incorporates by reference (i) our unaudited consolidated interim financial statements as of March 31, 2020 and for the three months ended March 31, 2020 and 2019, prepared and presented in accordance with IAS 34 – “Interim Financial Reporting” as issued by the IASB, and (ii) our audited consolidated financial statements as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018 and 2017, which have been prepared in accordance with the IFRS as issued by the IASB.
The selected financial information as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018, and 2017, presented in the tables below have been derived from Petrobras’s audited consolidated financial statements. The selected financial information as of March 31, 2020 and for the three month periods ended March 31, 2020 and 2019 have been derived from Petrobras’s unaudited consolidated interim financial statements, which in the opinion of management, reflect all adjustments that are of a normal recurring nature necessary for a fair presentation of the results for such periods. The results of operations for the three months ended March 31, 2020 are not necessarily indicative of the operating results to be expected for the entire year. The selected consolidated financial data should be read in conjunction with, and are qualified in their entirety by reference to, Petrobras’s financial statements and the accompanying notes incorporated by reference in this prospectus.
Balance Sheet Data
| As of March 31, | As of December 31, | |||||||||||||||
| 2020 | 2019 | 2018 | 2017 | |||||||||||||
| (U.S.$ million) | (U.S.$ million) | |||||||||||||||
| Assets: | ||||||||||||||||
| Cash and cash equivalents | 15,462 | 7,372 | 13,899 | 22,519 | ||||||||||||
| Marketable securities | 644 | 888 | 1,083 | 1,885 | ||||||||||||
| Trade and other receivables, net | 3,052 | 3,762 | 5,746 | 4,972 | ||||||||||||
| Inventories | 6,008 | 8,189 | 8,987 | 8,489 | ||||||||||||
| Assets classified as held for sale | 2,249 | 2,564 | 1,946 | 5,318 | ||||||||||||
| Other current assets | 4,046 | 5,037 | 5,401 | 3,948 | ||||||||||||
| Long-term receivables | 23,039 | 17,691 | 22,059 | 21,450 | ||||||||||||
| Investments | 3,842 | 5,499 | 2,759 | 3,795 | ||||||||||||
| Property, plant and equipment | 113,454 | 159,265 | 157,383 | 176,650 | ||||||||||||
| Intangible assets | 15,104 | 19,473 | 2,805 | 2,340 | ||||||||||||
| Total assets | 186,900 | 229,740 | 222,068 | 251,366 | ||||||||||||
| Liabilities and equity: | ||||||||||||||||
| Total current liabilities | 25,935 | 28,816 | 25,051 | 24,948 | ||||||||||||
| Non-current liabilities(1) | 54,999 | 67,918 | 43,334 | 42,871 | ||||||||||||
| Non-current finance debt(2) | 60,777 | 58,791 | 80,508 | 102,045 | ||||||||||||
| Total liabilities | 141,711 | 155,525 | 148,893 | 169,864 | ||||||||||||
| Equity | ||||||||||||||||
| Share capital (net of share issuance costs) | 107,101 | 107,101 | 107,101 | 107,101 | ||||||||||||
| Reserves and other comprehensive income (deficit)(3) | (62,508 | ) | (33,778 | ) | (35,557 | ) | (27,299 | ) | ||||||||
| Equity attributable to the shareholders of Petrobras | 44,593 | 73,323 | 71,544 | 79,802 | ||||||||||||
| Non-controlling interests | 596 | 892 | 1,631 | 1,700 | ||||||||||||
| Total equity | 45,189 | 74,215 | 73,175 | 81,502 | ||||||||||||
| Total liabilities and equity | 186,900 | 229,740 | 222,068 | 251,366 | ||||||||||||
Excludes non-current finance debt.
| (1) | Excludes current portion of long-term finance debt. |
| (2) | Capital transactions, profit reserve and accumulated other comprehensive income (deficit). |
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Income Statement Data
| For the Three Months Ended March 31, | For the Year Ended December 31, | |||||||||||||||||||
| 2020(4) | 2019 | 2019(1) | 2018(2) | 2017(3) | ||||||||||||||||
| (U.S.$ million, except for share and per share data) | (US$ million, except for share and per share data) | |||||||||||||||||||
| Sales revenues | 17,143 | 18,803 | 76,589 | 84,638 | 77,884 | |||||||||||||||
| Operating income (loss) | (8,427 | ) | 3,591 | 20,614 | 16,788 | 10,553 | ||||||||||||||
| Net income (loss) attributable to our shareholders | (9,715 | ) | 1,070 | 10,151 | 7,173 | (91 | ) | |||||||||||||
| From continuing operations | (9,715 | ) | 979 | 7,660 | 6,572 | (347 | ) | |||||||||||||
| From discontinued operations | — | 91 | 2,491 | 601 | 256 | |||||||||||||||
| Weighted average number of shares outstanding(5): | ||||||||||||||||||||
| Common | 7,442,231,382 | (6) | 7,442,231,382 | (6) | 7,442,231,382 | (6) | 7,442,231,382 | (6) | 7,442,231,382 | (6) | ||||||||||
| Preferred | 5,601,969,879 | (6) | 5,601,969,879 | (6) | 5,601,969,879 | (6) | 5,601,969,879 | (6) | 5,601,980,132 | (6) | ||||||||||
| Basic and diluted earnings (losses) per: | ||||||||||||||||||||
| Common and preferred shares | (0.74 | ) | 0.08 | 0.78 | 0.55 | (0.01 | ) | |||||||||||||
| From continuing operations | (0.74 | ) | 0.07 | 0.59 | 0.50 | (0.03 | ) | |||||||||||||
| From discontinued operations | — | 0.01 | 0.19 | 0.05 | 0.02 | |||||||||||||||
| Common and preferred ADS(5) | (1.48 | ) | 0.16 | 1.56 | 1.10 | (0.02 | ) | |||||||||||||
| From continuing operations | (1.48 | ) | 0.14 | 1.18 | 1.00 | (0.06 | ) | |||||||||||||
| From discontinued operations | — | 0.02 | 0.38 | 0.10 | 0.04 | |||||||||||||||
| Operating income (loss) per: | ||||||||||||||||||||
| Common and preferred shares | (0.65 | ) | 0.28 | 1.58 | 1.29 | 0.81 | ||||||||||||||
| Common and preferred ADS(5) | (1.30 | ) | 0.56 | 3.16 | 2.58 | 1.62 | ||||||||||||||
| Cash dividends per(7) | ||||||||||||||||||||
| Common shares | — | — | 0.19 | 0.07 | — | |||||||||||||||
| Preferred shares | — | — | 0.23 | 0.24 | — | |||||||||||||||
| Common ADS(5) | — | — | 0.38 | 0.14 | — | |||||||||||||||
| Preferred ADS(5) | — | — | 0.46 | 0.48 | — | |||||||||||||||
| (1) | In July 2019, we closed the transaction under which we sold a further portion of our interest in BR Distribuidora. After the closing of this transaction, we are no longer the controlling shareholder of BR Distribuidora and, since August 2019, we have been reflecting BR Distribuidora’s results as an equity-accounted investment. Thus, from January to July 2019, we presented our post-tax profit of BR Distribuidora as Net income from discontinued operations in our consolidated statement of income, in accordance with IFRS 5, since it represented a separate major line of business. The statements of income for 2018 and 2017 were revised accordingly to reflect this classification. In 2019, we recognized impairment losses of US$2,848 million. |
| (2) | In 2018, we recognized the effects of the settlement of open matters with the Department of Justice and the SEC investigation, in the amount of US$853 million. We also recognized impairment losses of US$2,005 million. |
| (3) | In 2017, we recognized US$3,449 million as other income and expenses, due to the provision for legal proceedings relating to the agreement to settle our consolidated class action lawsuit before the United States District Court for the Southern District of New York. We also recognized impairment losses of US$1,191 million. |
| (4) | In the three-month period ended March 31, 2020, we recognized impairment losses amounting to US$13,371 million. |
| (5) | The ratio of ADR to our common and preferred shares is two shares to one ADR. |
| (6) | The total number of shares does not include 295,669 shares in treasury, of which 222,760 are common shares and 72,909 are preferred shares. |
| (7) | Pre-tax interest on capital and/or dividends proposed for the periods. Amounts were based on the exchange rate prevailing at the date of the approval by our board of directors, except for minimum mandatory dividends, which is based on the closing exchange rate on the date that our audited consolidated financial statements were released. |
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The following table sets out the consolidated debt and capitalization of Petrobras as of March 31, 2020, including accrued interest, which has been prepared in accordance with IAS 34 – “Interim Financial Reporting”, (i) on an actual basis, and (ii) as adjusted to give effect to the issue of the $3.25 billion aggregate principal amount of notes offered by PGF in May 2020, including the underwriting discount, but without giving effect to the application of net cash proceeds of such offering.
| As of March 31, 2020 | ||||||||
| Actual | As Adjusted | |||||||
| (U.S.$ million) | ||||||||
| (Unaudited) | ||||||||
| Lease Liability: | ||||||||
| Current portion of lease liability | 5,469 | 5,469 | ||||||
| Non-current portion | 17,066 | 17,066 | ||||||
| Total lease liability | 22,535 | 22,535 | ||||||
| Total finance debt: | ||||||||
| Current portion of finance debt | 5,925 | 5,925 | ||||||
| Non-current portion of finance debt | 60,777 | 63,984 | ||||||
| Foreign currency denominated | 58,388 | 61,595 | ||||||
| Local currency denominated | 8,314 | 8,314 | ||||||
| Total finance debt | 66,702 | 69,909 | ||||||
| Non-controlling interest | 596 | 596 | ||||||
| Petrobras’s shareholders’ equity(1) | 44,593 | 44,593 | ||||||
| Total capitalization | 134,426 | 137,633 | ||||||
| (1) | Consisting of (a) 7,442,231,382 shares of common stock and (b) 5,601,969,879 shares of preferred stock, in each case with no par value and in each case which have been authorized and issued. |
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This is a summary of the exchange offer and the material provisions of the exchange and registration rights agreement that we entered into on September 18, 2019 with the initial purchasers of the Old Securities. This section may not contain all the information that you should consider regarding the exchange offer and the exchange and registration rights agreement before participating in the exchange offer. For more detail, you should refer to the exchange and registration rights agreement, which we have filed with the SEC as an exhibit to the registration statement. You can obtain a copy of other documents by following the instructions under the heading “Where You Can Find More Information.”
Background and Purpose of the Exchange Offer
On September 18, 2019, PGF issued U.S.$4,115,281,000 aggregate principal amount of its 5.093% Global Notes due 2030, or the “Old Securities,” as consideration in a private exchange offer conducted in reliance upon exemptions from the registration requirements of the Securities Act.
As long as we determine that applicable law permits us to make the exchange offer, the exchange and registration rights agreement require that we use our commercially reasonable efforts to:
| Action | Date required for the Old Securities |
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| 1. | File, or cause to be filed, a registration statement for a registered exchange offer relating to New Securities with terms substantially similar to the Old Securities. | July 31, 2020 | ||
| 2. | Cause the registration statement to be declared effective by the SEC and promptly begin the exchange offer after the registration statement is declared effective. | August 31, 2020 | ||
| 3. | Issue the New Securities in exchange for Old Securities tendered in the exchange offer. | September 30, 2020 | ||
The exchange offer described in this prospectus will satisfy our obligations under the exchange and registration rights agreement relating to the Old Securities.
General Terms of the Exchange Offer
We are offering, upon the terms and subject to the conditions set forth in this prospectus, to exchange the Old Securities for New Securities.
As of the date of this prospectus, U.S.$4,115,281,000 aggregate principal amount of the Old Securities is outstanding.
Upon the terms and subject to the conditions set forth in this prospectus, we will accept for exchange all Old Securities that are validly tendered and not withdrawn before 5:00 p.m., New York City time, on the expiration date. We will issue New Securities in exchange for an equal principal amount of outstanding Old Securities accepted in the exchange offer. Holders may tender their Old Securities only in a principal amount of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. Subject to these requirements, you may tender less than the aggregate principal amount of Old Securities you hold, as long as you appropriately indicate this fact in your acceptance of the exchange offer.
We are sending this prospectus to all holders of record of the Old Securities as of , 2020. However, we have chosen this date solely for administrative purposes, and there is no fixed record date for determining which holders of Old Securities are entitled to participate in the exchange offer. Only holders of Old Securities, their legal representatives or their attorneys-in-fact may participate in the exchange offer.
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The exchange offer is not conditioned upon any minimum principal amount of Old Securities being tendered for exchange. However, our obligation to accept Old Securities for exchange is subject to certain conditions as set forth below under “—Conditions to the Exchange Offer.”
Any holder of Old Securities that is an “affiliate” of PGF or an “affiliate” of Petrobras may not participate in the exchange offer. We use the term “affiliate” as defined in Rule 405 of the Securities Act.
We will have formally accepted validly tendered Old Securities when we give written notice of our acceptance to the exchange agent. The exchange agent will act as our agent for the purpose of receiving Old Securities from holders and delivering New Securities to them in exchange.
The New Securities issued pursuant to the exchange offer will be delivered as promptly as practicable following the expiration date. If we do not extend the expiration date, then we would expect to deliver the New Securities on or about , 2020.
Resale of New Securities
Based on an interpretation by the SEC staff set forth in no-action letters issued to third parties, we believe that you may offer the New Securities issued in the exchange offer for resale, resell them or otherwise transfer them without compliance with the registration and prospectus delivery provisions of the Securities Act, as long as:
| · | you are not a broker-dealer who purchased the Old Securities directly from us for resale pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act; |
| · | you are not an “affiliate” of PGF or of Petrobras, as that term is defined in Rule 405 of the Securities Act; and |
| · | you are acquiring the New Securities in the ordinary course of your business, you are not participating in, and do not intend to participate in, a distribution of the New Securities and you have no arrangement or understanding with any person to participate in a distribution of the New Securities. |
If you acquire New Securities in the exchange offer for the purpose of distributing or participating in a distribution of the New Securities or you have any arrangement or understanding with respect to the distribution of the New Securities, you may not rely on the position of the staff of the SEC enunciated in the no-action letters to Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available April 13, 1988), or interpreted in the SEC interpretative letter to Shearman & Sterling LLP (available July 2, 1993), or similar no-action or interpretative letters, and you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction.
Each broker-dealer participating in the exchange offer must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Securities received in exchange for Old Securities that were acquired as a result of market-making activities or other trading activities. By acknowledging this obligation and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
A broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of New Securities received in exchange for Old Securities where the broker-dealer acquired the Old Securities as a result of market-making activities or other trading activities. We have agreed to make this prospectus available to any broker-dealer for up to 180 days after the registration statement is declared effective (subject to extension under certain circumstances) for use in connection with any such resale. See “Plan of Distribution.”
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Expiration Date; Extensions; Amendments
The exchange offer will expire on , 2020, at 5:00 p.m., New York City time, unless we extend the exchange offer. If we extend it, the exchange offer will expire on the latest date and time to which it is extended.
If we elect to extend the expiration date, we will notify the exchange agent of the extension by written notice and will make a public announcement regarding the extension prior to 9:00 a.m., New York City time, on the first business day after the previously scheduled expiration date.
We reserve the right, in our sole discretion, to:
| · | delay accepting any Old Securities tendered, |
| · | extend the exchange offer, and |
| · | amend the terms of the exchange offer in any manner. |
If we amend the terms of the exchange offer, we will promptly disclose the amendments in a new prospectus that we will distribute to the registered holders of the Old Securities. The term “registered holder” as used in this prospectus with respect to the Old Securities means any person in whose name the Old Securities are registered on the books of the trustee.
Holders’ Deemed Representations, Warranties and Undertakings
By tendering your Old Securities pursuant to the terms of the exchange offer, you are deemed to make certain acknowledgments, representations, warranties and undertakings to the issuer and the exchange agent, including that, as of the time of your tender and on the settlement date:
| 1. | any New Securities you receive in exchange for Old Securities tendered by you in the exchange offer will be acquired in the ordinary course of business by you; |
| 2. | you own, or have confirmed that the party on whose behalf you are acting owns, the Old Securities being offered, and have the full power and authority to offer for exchange the Old Securities offered by you, and that if the same are accepted for exchange by the issuer pursuant to the exchange offer, the issuer will acquire good and marketable title thereto on the settlement date, free and clear of all liens, charges, claims, encumbrances, interests and restrictions of any kind; |
| 3. | if you or any such other holder of Old Securities is not a broker-dealer, neither you nor such other person is engaged in, or intends to engage in, a distribution of the New Securities; |
| 4. | neither you nor any person who will receive the New Securities has any arrangement or understanding with any person to participate in a distribution of the New Securities; |
| 5. | you are not an “affiliate” of PGF or of Petrobras, as that term is defined in Rule 405 of the Securities Act; |
| 6. | if you or any such other holder of Old Securities is a broker-dealer, you will receive New Securities for your own account in exchange for Old Securities that were acquired by you as a result of market-making activities or other trading activities and acknowledge that you will deliver a prospectus in connection with any resale of such New Securities. However, by so acknowledging and by delivering a prospectus, you or such other person will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act; |
| 7. | the exchange offer is being made in reliance upon existing interpretations by the staff of the SEC set forth in interpretive letters issued to parties unrelated to the issuer that the New Securities issued in exchange for the Old Securities pursuant to the exchange offer may be offered for sale, resold and otherwise transferred by holders thereof (other than any such holder that is an “affiliate” of the issuer or |
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| of the guarantor within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Securities are acquired in the ordinary course of such holder’s business and such holder has no arrangement or understanding with any person to participate in the distribution of such New Securities; |
| 8. | you acknowledge that your exchange offer constitutes an irrevocable offer to exchange the Old Securities specified therein for New Securities, on the terms and subject to the conditions of the exchange offer (and subject to the issuer’s right to terminate or amend the exchange offer and to your right to withdraw your acceptance prior to 5:00 p.m., New York City time, on the expiration date, in either case in the manner specified in this prospectus); |
| 9. | all questions as to the form of all documents and the validity (including time of receipt) and acceptance of tenders will be determined by the issuer, in its sole discretion, which determination shall be final and binding; |
| 10. | you will, upon request, execute and deliver any additional documents deemed by the exchange agent or the issuer to be necessary or desirable to complete such exchange; |
| 11. | (a) if your Old Securities are held through an account at DTC, you have (1) delivered your Old Securities by book-entry transfer to the account maintained by the exchange agent at the book-entry transfer facility maintained by DTC and (2) you have transmitted your acceptance of the exchange offer to DTC electronically through DTC’s ATOP system in accordance with DTC’s normal procedures; or (b) if your Old Securities are held through an account at Euroclear or Clearstream Banking, société anonyme (Clearstream, Luxembourg), you have delivered or caused to be delivered instructions to Euroclear or Clearstream, Luxembourg, as the case may be, in accordance with their normal procedures, to take the steps referred to in clause (a) above with respect to your Old Securities; and |
| 12. | you authorize the exchange agent, DTC, Euroclear and/or Clearstream, Luxembourg, as the case may be, to take those actions specified in this prospectus with respect to the Old Securities that are the subject of the exchange offer. |
Procedures for Tendering Old Securities
Old Securities can only be tendered by a financial institution that is a participant in the book-entry transfer system of DTC. All of the Old Securities are issued in the form of global securities that trade in the book-entry systems of DTC, Euroclear and Clearstream, Luxembourg.
If you are a DTC participant and you wish to tender your Old Securities in the exchange offer, you must:
| 1. | transmit your Old Securities by book-entry transfer to the account maintained by the exchange agent at the book-entry transfer facility system maintained by DTC before 5:00 p.m., New York City time, on the expiration date; and |
| 2. | acknowledge and agree to be bound by the terms set forth under “—Holders’ Deemed Representations, Warranties and Undertakings” through the electronic transmission of an agent’s message via DTC’s ATOP system. |
The term “agent’s message” means a computer-generated message that DTC’s book-entry transfer facility has transmitted to the exchange agent and that the exchange agent has received. The agent’s message forms part of a book-entry transfer confirmation, which states that DTC has received an express acknowledgment from you as the participating holder tendering Old Securities. We may enforce this agreement against you.
If you are not a direct participant in DTC and hold your Old Securities through a DTC participant or the facilities of Euroclear or Clearstream, Luxembourg, you or the custodian through which you hold your Old Securities must submit, in accordance with the procedures of DTC, Euroclear or Clearstream, Luxembourg computerized
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instructions to DTC, Euroclear or Clearstream, Luxembourg to transfer your Old Securities to the exchange agent’s account at DTC and make, on your behalf, the acknowledgments, representations, warranties and undertakings set forth under “—Holders’ Deemed Representations, Warranties and Undertakings” through the electronic submission of an agent’s message via DTC’s ATOP system.
You must be sure to take these steps sufficiently in advance of the expiration date to allow enough time for any DTC participant or custodian through which you hold your Old Securities, Euroclear or Clearstream, Luxembourg, as applicable, to arrange for the timely electronic delivery of your Old Securities and submission of an agent’s message through DTC’s ATOP system.
Delivery of instructions to Euroclear or Clearstream, Luxembourg does not constitute delivery to the exchange agent through DTC’s ATOP system. You may not send any Old Securities or other documents to us.
If you are a beneficial owner whose Old Securities are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender Old Securities in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf.
Your tender of Old Securities and our acceptance of them as part of the exchange offer will constitute an agreement between you, PGF and Petrobras under which all of us accept the terms and conditions contained in this prospectus.
We will determine in our sole discretion all questions as to the validity, form, eligibility, time of receipt, acceptance and withdrawal of Old Securities tendered for exchange, and our determinations will be final and binding. We reserve the absolute right to reject any and all Old Securities that are not properly tendered or any Old Securities which we cannot, in our opinion or that of our counsel, lawfully accept. We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to particular Old Securities or particular holders of Old Securities either before or after the expiration date.
Our interpretation of the terms and conditions of the exchange offer will be final and binding on all parties. Unless we waive them, any defects or irregularities in connection with tenders of Old Securities for exchange must be cured within a period of time that we will determine. While we will use reasonable efforts to notify holders of defects or irregularities with respect to tenders of Old Securities for exchange, we will not incur any liability for failure to give notification. We will not consider Old Securities to have been tendered until any defects or irregularities have been cured or waived.
Acceptance of Old Securities for Exchange; Delivery of New Securities
After all the conditions to the exchange offer have been satisfied or waived, we will accept any and all Old Securities that are properly tendered before 5:00 p.m., New York City time, on the expiration date. We will deliver the New Securities that we issue in the exchange offer promptly after expiration of the exchange offer. For purposes of the exchange offer, we will have formally accepted validly tendered Old Securities when we give written notice of acceptance to the exchange agent.
We will issue New Securities in exchange for Old Securities only after the exchange agent’s timely receipt of:
| · | a confirmation of a book-entry transfer of the Old Securities into the exchange agent’s DTC account; and |
| · | an agent’s message transmitted through DTC’s ATOP system in which the tendering holder acknowledges and agrees to be bound by the terms set forth under “—Holders’ Deemed Representations, Warranties and Undertakings.” |
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However, we reserve the absolute right to waive any defects or irregularities in any tenders of Old Securities for exchange. If we do not accept any tendered Old Securities for any reason, they will be returned, without expense to the tendering holder, as promptly as practicable after the expiration or termination of the exchange offer.
Withdrawal of Tenders
Unless we have already accepted the Old Securities under the exchange offer, you may withdraw your tendered Old Securities at any time before 5:00 p.m., New York City time, on the scheduled expiration date. We may extend the expiration date without extending withdrawal rights.
For a withdrawal to be effective, the exchange agent must receive a written notice through the electronic submission of an agent’s message through, and in accordance with, the withdrawal procedures applicable to DTC’s ATOP system, before we have accepted the Old Securities for exchange and before 5:00 p.m., New York City time, on the scheduled expiration date. Notices of withdrawal must:
| 1. | specify the name of the person who deposited the Old Securities to be withdrawn; |
| 2. | identify the Old Securities to be withdrawn, including the principal amount of such Old Securities; and |
| 3. | be signed electronically by the holder in the same manner as the original signature by which the holder tendered the Old Securities. |
We will determine in our sole discretion all questions relating to the validity, form, eligibility and time of receipt of withdrawal notices. We will consider Old Securities that are properly withdrawn as not validly tendered for exchange for purposes of the exchange offer. Any Old Securities that are tendered for exchange but are withdrawn will be returned to their holder, without cost, as soon as practicable after their valid withdrawal. You may retender any Old Securities that have been properly withdrawn at any time on or before the expiration date by following the procedures described under “—Procedures for Tendering Old Securities” above.
If you are not a direct participant in DTC, you must, in accordance with the rules of the DTC participant who holds your Old Securities, arrange for a direct participant in DTC to submit your written notice of withdrawal to DTC electronically.
Conditions to the Exchange Offer
Notwithstanding any other terms of the exchange offer or any extension of the exchange offer, there are some circumstances in which we are not required to accept Old Securities for exchange or issue New Securities in exchange for them. In these circumstances, we may terminate or amend the exchange offer as described above before accepting Old Securities. We may take these steps if:
| · | we determine that we are not permitted to effect the exchange offer because of any change in law or applicable interpretations by the SEC; |
| · | a stop order is in effect or has been threatened with respect to the exchange offer or the qualification of the indenture under the Trust Indenture Act of 1939, as amended, or the “Trust Indenture Act;” provided that we use our commercially reasonable efforts to prevent the stop order from being issued, or if it has been issued, to have it withdrawn as promptly as practicable; or |
| · | we determine in our reasonable judgment that our ability to proceed with the exchange offer may be materially impaired because of changes in the SEC staff’s interpretations. |
If we determine, in good faith, that any of the foregoing conditions are not satisfied, we have the right to:
| · | refuse to accept any Old Securities and return all tendered securities to the tendering holders; |
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| · | extend the exchange offer and retain all Old Securities that were tendered prior to the expiration date, unless the holders exercise their right to withdraw them (see “—Withdrawal of Tenders”); or |
| · | waive the unsatisfied conditions of the exchange offer and accept all validly tendered Old Securities that have not been withdrawn. If a waiver of this type constitutes a material change to the exchange offer, we will promptly disclose the waiver in a supplement to this prospectus that will be distributed to the registered holders. We may also extend the exchange offer for a period of time, depending on the waiver’s significance and the manner in which it was disclosed to the registered holders, if the exchange offer would otherwise expire during that period. |
Consequences of Failure to Exchange
You will not be able to exchange Old Securities for New Securities under the exchange offer if you do not tender your Old Securities by the expiration date. After the exchange offer expires, holders may not offer or sell their untendered Old Securities in the United States except in accordance with an applicable exemption from the registration requirements of the Securities Act. However, subject to some conditions, we have an obligation to file a shelf registration statement covering resales of untendered Old Securities, as discussed below under “—Shelf Registration Statement.”
The Exchange Agent
The Bank of New York Mellon is serving as the exchange agent for the exchange offer. All tendered Old Securities and other related documents should be directed to the exchange agent, by book-entry transfer as detailed under “—Procedures for Tendering Old Securities.” You should address questions, requests for assistance and requests for additional copies of this prospectus and other related documents to the exchange agent as follows:
The Bank of New York Mellon
111 Sanders Creek Parkway
East Syracuse, New York, 13057
United States of America
Attention: CT Reorg Unit – Petrobras Global Finance
Phone: +1 (315) 414-3034
Fees and Expenses
We will pay all expenses related to our performance of the exchange offer, including:
| · | all SEC registration and filing fees and expenses; |
| · | all costs related to compliance with federal securities and state “blue sky” laws; |
| · | all printing expenses; |
| · | all fees and disbursements of our attorneys; and |
| · | all fees and disbursements of our independent certified public accountants. |
We will not make any payments to brokers, dealers or other persons soliciting acceptances of the exchange offer. However, we will pay the exchange agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses incurred in connection with the exchange offer.
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Transfer Taxes
We will pay all transfer taxes incurred by you as a holder tendering your Old Securities for exchange under the exchange offer. However, you will be responsible for paying any applicable transfer taxes on those transactions if:
| · | you instruct us to register the New Securities in someone else’s name; or |
| · | you request that we return untendered or withdrawn Old Securities or Old Securities not accepted in the exchange offer to someone else. |
Shelf Registration Statement
Under the exchange and registration rights agreement, we are obligated in some situations to file a shelf registration statement under the Securities Act covering holders’ resales of those Old Securities. We have agreed to use our commercially reasonable efforts to cause a shelf registration statement to become effective if:
| 1. | we cannot file the exchange offer registration statement or issue the New Securities because the exchange offer is no longer permitted by applicable law or applicable SEC policy; |
| 2. | for any other reason, we fail to complete the exchange offer within the time period set forth in the exchange and registration rights agreement; or |
| 3. | any holder of the Old Securities notifies us less than 20 days after the exchange offer is completed that: |
| · | a change in applicable law or SEC policy prevents it from reselling the New Securities to the public without delivering a prospectus, and this prospectus is not appropriate or available for such resales; |
| · | it is an initial purchaser and owns Old Securities purchased directly from us or an affiliate of ours; or |
| · | a change in applicable law or SEC policy prevents the holders of a majority of Old Securities to resell to the public the New Securities acquired in the exchange offer without restriction under the Securities Act or applicable “blue sky” or state securities laws. |
If we are obligated to file a shelf registration statement, we will at our own expense use our commercially reasonable efforts to file it, or cause it to be filed or amend or supplement an existing “shelf” registration statement under the Securities Act, no later than September 30, 2020 or within 30 days after the filing obligation arises; provided, however, that we will not be required to file a shelf registration statement or amend or supplement an existing shelf registration statement during any statutory or self-imposed blackout period.
We will use our commercially reasonable efforts to have the SEC declare the shelf registration statement effective within 60 days after we are required to file the shelf registration statement, and to keep the shelf registration statement effective and to amend and supplement the prospectus contained in it to permit any holder of securities covered by it to deliver that prospectus for use in connection with any resale until the earlier of one year after the effective date of the registration statement or such time as all of the securities covered by the shelf registration statement have been sold pursuant thereto or may be sold pursuant to Rule 144(d) under the Securities Act if held by a non-affiliate of the issuer. Nonetheless, we will not be required to cause the shelf registration statement to be declared effective by the SEC or keep it effective, supplemented or amended during any statutory or self-imposed blackout period.
In the event that a shelf registration statement is filed, we will provide each holder of Old Securities that cannot be transferred freely with copies of the prospectus that is part of the shelf registration statement, notify each holder when the shelf registration statement has become effective and take certain other actions that are required to permit unrestricted resales of the New Securities. A holder that sells Old Securities pursuant to the shelf registration statement will be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with its
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sales and will be bound by the provisions of the exchange and registration rights agreement that are applicable to that holder (including certain indemnification rights and obligations).
In order to be eligible to sell its securities pursuant to the shelf registration statement, a holder must comply with our request for information about the holder which we may, as required by the SEC, include in the shelf registration statement within 15 calendar days after receiving our request.
Additional Interest
Under the exchange and registration rights agreement that we entered into on September 18, 2019, we must pay additional interest as liquidated damages to holders of Old Securities in the event of any of the following registration defaults:
| 1. | we do not file the exchange offer registration statement on or before July 31, 2020; |
| 2. | the exchange offer registration statement is not declared effective by the SEC on or before August 31, 2020; |
| 3. | we fail to consummate the exchange offer by September 30, 2020; |
| 4. | a shelf registration statement required to be filed pursuant to the exchange and registration rights agreement is not filed on or before the date specified for its filing; |
| 5. | a shelf registration statement otherwise required to be filed is not declared effective on or before the date specified in the exchange and registration rights agreement; or |
| 6. | the shelf registration statement is declared effective but subsequently, subject to certain limited exceptions, ceases to be effective at any time that we and the guarantor are obligated to maintain its effectiveness. |
After a registration default occurs, we will increase the interest rate on the Old Securities by 0.25% per year over the rate stated on the face of the Old Securities for each 90-day period during which the registration default continues, up to a maximum increase of 1.00% per year over the original rate; provided that such additional interest will cease to accrue on the later of (i) the date on which the Old Securities become freely transferable pursuant to Rule 144 under the Securities Act and (ii) the date on which the J.P. Morgan Corporate Emerging Markets Bond Index (CEMBI) is modified to permit the inclusion of freely transferable securities that have not been registered under the Securities Act. We call this increase in the interest rate “additional interest.” Our obligation to pay additional interest will cease once we have cured the registration defaults and the applicable interest rate on affected Old Securities will revert to the original rate.
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Description of the New Securities
This section of this prospectus summarizes the material terms of the indenture governing the New Securities and the New Securities. It does not, however, describe all of the terms of the indenture and the New Securities and is qualified in its entirety by reference to the provisions of the indenture and the New Securities. We urge you to read the indenture in connection with the New Securities, because it will define your rights as holders of the New Securities. You may obtain copies of the indenture upon written request to the trustee and, for so long as the New Securities are admitted to listing on the Official List of the Luxembourg Stock Exchange and to trading on the Euro MTF Market of the Luxembourg Stock Exchange, at the office of the paying agent in Luxembourg.
The Indenture
PGF will issue the New Securities under an indenture, dated September 18, 2019, among PGF, Petrobras, The Bank of New York Mellon, a New York banking corporation, as trustee, and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent and paying agent.
The indenture provides the specific terms of the New Securities, including granting holders rights against Petrobras under the guaranty.
The New Securities
The New Securities will be general, senior, unsecured and unsubordinated obligations of PGF having the following basic terms:
The title of the New Securities will be the 5.093% Global Notes due 2030;
The New Securities will:
| · | be issued in an aggregate principal amount of up to U.S.$4,115,281,000; |
| · | mature on January 15, 2030; |
| · | bear interest at a rate of 5.093% per annum from July 15, 2020, or from the most recent interest payment date on such notes, until maturity or early redemption and until all required amounts due in respect of the New Securities have been paid; |
| · | be issued in global registered form without interest coupons attached; |
| · | be issued and may be transferred only in principal amounts of U.S.$2,000 and in integral multiples of U.S.$1,000 in excess thereof; and |
| · | be unconditionally guaranteed by Petrobras pursuant to a guaranty described below under “—Guaranty.” |
All payments of principal and interest on the New Securities will be paid in U.S. dollars;
Interest on the New Securities will be paid semi-annually on January 15 and July 15 of each year (each of which we refer to as an “interest payment date”), commencing on January 15, 2021 and the regular record date for any interest payment date will be the business day preceding that date; and
In the case of amounts not paid by PGF under the indenture and the New Securities (or Petrobras under the guaranty for the New Securities), interest will continue to accrue on such amounts at a default rate equal to 0.5% in excess of the interest rate on the New Securities, from and including the date when such amounts were due and owing and through and excluding the date of payment of such amounts by PGF or Petrobras.
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Despite the Brazilian government’s ownership interest in Petrobras, the Brazilian government is not responsible in any manner for PGF’s obligations under the New Securities or Petrobras’s obligations under the guaranty for the New Securities.
Guaranty
Petrobras will unconditionally and irrevocably guarantee the full and punctual payment when due, whether at the maturity date of the New Securities, or earlier or later by acceleration or otherwise, of all of PGF’s obligations now or hereafter existing under the indenture and the New Securities, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses or otherwise. The guaranty will be unsecured and will rank equally with all of Petrobras’s other existing and future unsecured and unsubordinated debt including guaranty previously issued by Petrobras in connection with prior issuances of indebtedness. See “Description of the Guaranty.”
Depositary with Respect to Global Notes
The New Securities will be issued in global registered form with the Depository Trust Company, or “DTC,” as depositary. For further information in this regard, see “Book Entry; Delivery and Form.”
Events of Default
The following events will be events of default with respect to the New Securities:
| · | PGF does not pay the principal on the New Securities within seven calendar days of its due date and the trustee has not received such amounts from Petrobras under the guaranty by the end of that seven-day period. |
| · | PGF does not pay interest or other amounts, including any additional amounts, on the New Securities within 30 calendar days of their due date and the trustee has not received such amounts from Petrobras under the guaranty by the end of that 30-day period. |
| · | PGF or Petrobras remains in breach of any covenant or any other term in respect of the New Securities issued under the indenture or guaranty for 60 calendar days after receiving a notice of default stating that it is in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of the New Securities. |
| · | The maturity of any indebtedness of PGF or Petrobras or a material subsidiary in a total aggregate principal amount of U.S.$200,000,000 (or its equivalent in another currency) or more is accelerated in accordance with the terms of that indebtedness, it being understood that prepayment or redemption by us or a material subsidiary of any indebtedness is not acceleration for this purpose. |
| · | PGF or Petrobras or any material subsidiary stops paying or is generally unable to pay its debts as they become due, except in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, spin-off, merger, conveyance or transfer duly approved by the note holders. |
| · | If proceedings are initiated against PGF, Petrobras or any material subsidiary under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect, or under any other law for the relief of, or relating to, debtors, and such proceeding is not dismissed or stayed within 90 calendar days. |
| · | An administrative or other receiver, manager or administrator, or any such or other similar official is appointed in relation to, or a distress, execution, attachment, sequestration or other process is levied or put in force against, the whole or a substantial part of the undertakings or assets of PGF or Petrobras or any material subsidiary and is not discharged or removed within 90 calendar days. |
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| · | PGF or Petrobras or any material subsidiary voluntarily commences or consents to proceedings under any applicable liquidation, bankruptcy, reorganization, insolvency, moratorium or any other similar laws, PGF or Petrobras or any material subsidiary enters into any composition or other similar arrangement with our creditors under applicable Brazilian law (such as a recuperação judicial or extrajudicial, which is a type of liquidation agreement). |
| · | PGF or Petrobras or any material subsidiary files an application for the appointment of an administrative or other receiver, manager or administrator, or any such or other similar official, in relation to PGF or Petrobras or any material subsidiary, or PGF or Petrobras or any material subsidiary takes legal action for a readjustment or deferment of any part of its indebtedness. |
| · | An effective resolution is passed, or any authorized action is taken by any court of competent jurisdiction, directing PGF or Petrobras or any material subsidiary’s winding-up, dissolution or liquidation, except for the purpose of and followed by a consolidation, merger, conveyance or transfer duly approved by the note holders. |
| · | Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as the events referred to in the six immediately preceding paragraphs. |
| · | The New Securities, the indenture, the guaranty or any part of those documents cease to be in full force and effect or binding and enforceable against PGF or Petrobras, or it becomes unlawful for PGF or Petrobras to perform any material obligation under any of the foregoing documents to which it is a party. |
| · | PGF or Petrobras contests the enforceability of the New Securities, the indenture or the guaranty, or denies that it has liability under any of the foregoing documents to which it is a party. |
| · | Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in PGF. |
For purposes of the events of default:
| · | “indebtedness” means any obligation (whether present or future, actual or contingent and including any guaranty) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under IFRS, would be a capital lease obligation). |
| · | “material subsidiary” means, as to any person, any subsidiary of such person which, on any given date of determination accounts for more than 15% of such person’s total consolidated assets (as set forth on such person’s most recent consolidated financial statements prepared in accordance with IFRS). |
Covenants
PGF will be subject to the following covenants with respect to the New Securities:
Payment of Principal and Interest
PGF will duly and punctually pay the principal of and any premium and interest and other amounts (including any additional amounts in the event withholding and other taxes are imposed in Brazil or the jurisdiction of incorporation of PGF) on the New Securities in accordance with the New Securities and the indenture.
Maintenance of Corporate Existence
PGF will maintain its corporate existence and take all reasonable actions to maintain all rights, privileges and the like necessary or desirable in the normal conduct of business, activities or operations, unless PGF’s board of directors determines that maintaining such rights and privileges is no longer desirable in the conduct of PGF’s business and is not disadvantageous in any material respect to holders.
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Maintenance of Office or Agency
So long as the New Securities are outstanding, PGF will maintain an office or agency in the United States where notices to and demands upon it in respect of the indenture and the New Securities may be served.
Initially, PGF has appointed Petrobras America Inc., with offices located at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, as its agent. PGF will not change the appointment of the agent without prior written notice to the trustee and appointing a replacement agent or designating an office in the United States.
Ranking
PGF will ensure that the New Securities will at all times constitute its general senior, unsecured and unsubordinated obligations and will rank pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations (other than obligations preferred by statute or by operation of law).
Statement by Managing Directors as to Default
PGF will deliver to the trustee, within 90 calendar days after the end of its fiscal year, a directors’ certificate, stating whether or not to the best knowledge of its signers thereof there is an event of default in connection with the performance and observance of any of the terms, provisions and conditions of the indenture or the New Securities and, if there is such an event of default by PGF, specifying all such events of default and their nature and status of which the signers may have knowledge.
Provision of Financial Statements and Reports
In the event that PGF files any financial statements or reports with the SEC or publishes or otherwise makes such statements or reports publicly available in the Netherlands, the United States or elsewhere, PGF will furnish a copy of the statements or reports to the trustee within 15 calendar days of the date of filing or the date the information is published or otherwise made publicly available. 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 will comply with PGF’s obligation to deliver such statements and reports to the trustee. PGF will provide to the trustee with prompt written notification at such time that PGF becomes or ceases to be a reporting company. The trustee will have no obligation to determine if and when PGF’s financial statements or reports, if any, are publicity available and accessible electronically.
Along with each such financial statement or report, if any, PGF will provide a directors’ certificate stating (i) that a review of PGF’s activities has been made during the period covered by such financial statements with a view to determining whether PGF has kept, observed, performed and fulfilled its covenants and agreements under the indenture; and (ii) that no event of default, has occurred during that period or, if one or more have actually occurred, specifying all those events and what actions have been taken and will be taken with respect to that event of default.
Delivery of these reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of any of those will not constitute constructive notice of any information contained in them or determinable from information contained in them, including PGF’s compliance with any of its covenants under the indenture (as to which the trustee is entitled to rely exclusively on directors’ certificates).
Appointment to Fill a Vacancy in Office of Trustee
PGF, whenever necessary to avoid or fill a vacancy in the office of trustee, will appoint a successor trustee in the manner provided in the indenture so that there will at all times be a trustee with respect to the New Securities.
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Payments and Paying Agents
PGF will, prior to 3:00 p.m., New York City time, on the business day preceding any payment date of the principal of or interest on the New Securities or other amounts (including additional amounts), deposit with the trustee a sum sufficient to pay such principal, interest or other amounts (including additional amounts) so becoming due.
For long as the New Securities are listed on the Official List of the Luxembourg Stock Exchange and trade on the Euro MTF Market of the Luxembourg Stock Exchange, PGF will also maintain a paying agent and a transfer agent in Luxembourg.
All payments on the New Securities will be subject in all cases to any applicable tax, fiscal or other laws and regulations in any jurisdictions, but without prejudice to the provisions of “—Additional Amounts.” For the purposes of the preceding sentence, the phrase “applicable tax, fiscal or other laws and regulations” will include any obligation on us to withhold or deduct from a payment pursuant to Section 1471(b) of the Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code, any regulations thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto (collectively, “FATCA”).
Additional Amounts
Except as provided below, PGF or Petrobras, as applicable, will make all payments of amounts due under the New Securities and the indenture and each other document entered into in connection with the New Securities and the indenture without withholding or deducting any present or future taxes, levies, deductions or other governmental charges of any nature imposed by Brazil, the jurisdiction of PGF’s incorporation (currently the Netherlands) or any jurisdiction in which PGF appoints a paying agent under the indenture, or any political subdivision of such jurisdictions (the “taxing jurisdictions”). If PGF or Petrobras, as applicable, is required by law to withhold or deduct any taxes, levies, deductions or other governmental charges, PGF or Petrobras, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay the holders any additional amounts necessary to ensure that they receive the same amount as they would have received without such withholding or deduction. For the avoidance of doubt, the foregoing obligations shall extend to payments under the guaranty.
All references to principal, premium, if any, and interest in respect of the New Securities will be deemed to refer to any additional amounts which may be payable as set forth in the indenture or in the New Securities.
PGF or Petrobras, as applicable, will not, however, pay any additional amounts in connection with any tax, levy, deduction or other governmental charge that is imposed due to any of the following (“excluded additional amounts”):
| · | the holder has a connection with the taxing jurisdiction other than merely holding the New Securities or receiving principal or interest payments on the New Securities (such as citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management, present or deemed present within the taxing jurisdiction); |
| · | any tax imposed on, or measured by, net income; |
| · | the holder fails to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the taxing jurisdiction, if (i) such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge, (ii) the holder is able to comply with such requirements without undue hardship and (iii) at least 30 calendar days prior to the first payment date with respect to which such requirements under the applicable law, regulation, administrative practice or treaty will apply, PGF or Petrobras, as applicable, has notified all holders or the trustee that they will be required to comply with such requirements; |
| · | the holder fails to present (where presentation is required) its New Securities within 30 calendar days after PGF has made available to the holder a payment under the New Securities and the indenture, |
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| provided that PGF or Petrobras, as applicable, will pay additional amounts which a holder would have been entitled to, had the New Securities owned by such holder been presented on any day (including the last day) within such 30 calendar day period; | ||
| · | any estate, inheritance, gift, value added, Financial Transactions Tax (“FTT”), use or sales taxes or any similar taxes, assessments or other governmental charges; or |
| · | where the holder would have been able to avoid the tax, levy, deduction or other governmental charge by taking reasonable measures available to such holder. |
PGF shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that are imposed by a taxing jurisdiction from any payment under the New Securities or under any other document or instrument referred to in the indenture or from the execution, delivery, enforcement or registration of the New Securities or any other document or instrument referred to in the indenture. PGF shall indemnify and make whole the holders of the New Securities for any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies payable by PGF as provided in this paragraph paid by such holder. As provided in “—Payments and Paying Agents,” all payments in respect of the New Securities will be made subject to any withholding or deduction required pursuant to FATCA, and we will not be required to pay any additional amounts on account of any such deduction or withholding required pursuant to FATCA.
Negative Pledge
So long as the New Securities remain outstanding, PGF will not create or permit any lien, other than a PGF permitted lien, on any of its assets to secure (i) any of its indebtedness or (ii) the indebtedness of any other person, unless PGF contemporaneously creates or permits such lien to secure equally and ratably its obligations under the New Securities as is duly approved by a resolution of the holders of the New Securities in accordance with the indenture. In addition, PGF will not allow any of its material subsidiaries, if any, to create or permit any lien, other than a PGF permitted lien, on any of its assets to secure (i) any of its indebtedness; (ii) any of the material subsidiary’s indebtedness or (iii) the indebtedness of any other person, unless it contemporaneously creates or permits the lien to secure equally and ratably its obligations under the New Securities and the indenture or PGF provides such other security for the New Securities and the indenture as is duly approved by a resolution of the holders of the New Securities in accordance with the indenture. This covenant is subject to a number of important exceptions, including an exception that permits PGF to grant liens in respect of indebtedness the principal amount of which, in the aggregate, together with all other liens not otherwise described in a specific exception, does not exceed 20% of PGF’s consolidated total assets (as determined in accordance with IFRS) at any time as at which PGF’s balance sheet is prepared and published in accordance with applicable law.
Limitation on Consolidation, Merger, Sale or Conveyance
PGF 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 Petrobras) or permit any person (other than a direct or indirect subsidiary of PGF) to merge with or into it unless such consolidation, amalgamation, merger, lease, spin-off or transfer of properties, assets or revenues does not violate any provision of Dutch financial regulatory laws and:
| · | either PGF is the continuing entity or the person (the “successor company”) formed by the consolidation or into which PGF is merged or that acquired (through a transfer of assets, a spin-off or otherwise) or leased the property or assets of PGF will assume (jointly and severally with PGF unless PGF will have ceased to exist as a result of that merger, consolidation or amalgamation), by a supplemental indenture, all of PGF’s obligations under the indenture and the New Securities; |
| · | the successor company (jointly and severally with PGF unless PGF will have ceased to exist as part of the merger, consolidation or amalgamation) agrees to indemnify each holder against any tax, assessment or governmental charge thereafter imposed on the holder solely as a consequence of the consolidation, |
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| merger, conveyance, spin-off, transfer or lease with respect to the payment of principal of, or interest on, the New Securities; | ||
| · | immediately after giving effect to the transaction, no event of default, and no default has occurred and is continuing; |
| · | PGF has delivered to the trustee a directors’ certificate and an opinion of counsel, each stating that the transaction, and the supplemental indenture relating to the transaction, comply with the terms of the indenture, and that all conditions precedent provided for in the indenture and relating to the transaction have been complied with; and |
| · | PGF has delivered notice of any such transaction to the trustee. |
Notwithstanding anything to the contrary in the foregoing, so long as no default or event of default under the indenture or the New Securities will have occurred and be continuing at the time of the proposed transaction or would result from the transaction:
| · | PGF may merge, amalgamate or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of all or substantially all of its properties, assets or revenues to a direct or indirect subsidiary of PGF or Petrobras in cases when PGF is the surviving entity in the transaction and the transaction would not have a material adverse effect on PGF and its subsidiaries taken as a whole, it being understood that if PGF is not the surviving entity, PGF will be required to comply with the requirements set forth in the previous paragraph; or |
| · | any direct or indirect subsidiary of PGF may merge or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of assets to, any person (other than PGF or any of its subsidiaries or affiliates) in cases when the transaction would not have a material adverse effect on PGF and its subsidiaries taken as a whole; or |
| · | any direct or indirect subsidiary of PGF may merge or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of assets to, any other direct or indirect subsidiary of PGF or Petrobras; or |
| · | any direct or indirect subsidiary of PGF may liquidate or dissolve if PGF determines in good faith that the liquidation or dissolution is in the best interests of Petrobras, and would not result in a material adverse effect on PGF and its subsidiaries taken as a whole and if the liquidation or dissolution is part of a corporate reorganization of PGF or Petrobras. |
PGF may omit to comply with any term, provision or condition set forth in certain covenants applicable to the New Securities or any term, provision or condition of the indenture, if before the time for the compliance the holders of at least a majority of the principal amount of the outstanding New Securities waive the compliance, but no waiver can operate except to the extent expressly waived, and, until a waiver becomes effective, PGF’s obligations and the duties of the trustee in respect of any such term, provision or condition will remain in full force and effect.
As used above, the following terms have the meanings set forth below:
“indebtedness” means any obligation (whether present or future, actual or contingent and including any guaranty) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under IFRS, would be a capital lease obligation).
A “guaranty” means an obligation of a person to pay the indebtedness of another person including, without limitation:
| · | an obligation to pay or purchase such indebtedness; |
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| · | an obligation to lend money or to purchase or subscribe for shares or other securities or to purchase assets or services in order to provide funds for the payment of such indebtedness; |
| · | an indemnity against the consequences of a default in the payment of such indebtedness; or |
| · | any other agreement to be responsible for such indebtedness. |
A “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.
A “PGF permitted lien” means any:
| (a) | lien arising by operation of law, such as merchants’, maritime or other similar liens arising in PGF’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 PGF’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with PGF’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 that 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 PGF or any subsidiary to secure the acquisition costs of those assets or to secure indebtedness incurred solely for the purpose of financing the acquisition of those assets, including any lien existing at the time of the acquisition of those assets, so long as the maximum amount so secured does not exceed the aggregate acquisition costs of all such assets or the aggregate indebtedness incurred solely for the acquisition of those assets, as the case may be; |
| (e) | lien granted in connection with indebtedness of a wholly-owned subsidiary owing to PGF or another wholly-owned subsidiary; |
| (f) | lien existing on any asset or on any stock of any subsidiary prior to the acquisition thereof by PGF or any subsidiary, so long as the lien is not created in anticipation of that acquisition; |
| (g) | lien existing as of the date of the original issuance of the Old Securities; |
| (h) | lien resulting from the indenture or the guaranty, if any; |
| (i) | lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by PGF, on amounts of cash or cash equivalents on deposit in any reserve or similar account to pay interest on those securities for a period of up to 24 months as required by any rating agency as a condition to the rating agency rating those securities as investment grade; |
| (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 liens referred to in paragraphs (a) through (i) above (but not paragraph (c)), so long as the lien does not extend to any other property, the principal amount of the indebtedness secured by the lien is not increased, and in the case of paragraphs (a), (b) and (f), the obligees meet the requirements of the applicable paragraph; and |
| (k) | lien in respect of indebtedness the principal amount of which in the aggregate, together with all other liens not otherwise qualifying as PGF permitted liens pursuant to another part of this definition of PGF |
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| permitted liens, does not exceed 20% of PGF’s consolidated total assets (as determined in accordance with IFRS) at any date as at which PGF’s balance sheet is prepared and published in accordance with applicable law. |
A “wholly-owned subsidiary” means, with respect to any corporate entity, any person of which 100% of the outstanding capital stock (other than qualifying shares, if any) having by its terms ordinary voting power (not dependent on the happening of a contingency) to elect the board of directors (or equivalent controlling governing body) of that person, is at the time owned or controlled directly or indirectly by that corporate entity, by one or more wholly-owned subsidiaries of that corporate entity or by that corporate entity and one or more wholly-owned subsidiaries.
Notices
For so long as New Securities in global form are outstanding, notices to be given to holders will be given to the trustee in accordance with its applicable policies in effect from time to time. If New Securities are issued in individual definitive form, notices to be given to holders will be deemed to have been given upon the mailing by first class mail of such notices to holders of the New Securities at their registered addresses as they appear in the registrar’s records.
From and after the date the New Securities are admitted to listing on the Official List of the Luxembourg Stock Exchange and to trading on the Euro MTF Market of the Luxembourg Stock Exchange and so long as it is required by the rules of such exchange, all notices to holders of New Securities will be published in English:
| (1) | in a leading newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort); |
| (2) | if such Luxembourg publication in not practicable, in one other leading English language newspaper being published on each day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions; or |
| (3) | on the website of the Luxembourg Stock Exchange, www.bourse.lu. |
Notices shall be deemed to have been given on the date of publication as aforesaid or, if published on different dates, on the date of the first such publication. In addition, notices will be mailed to holders of New Securities at their registered addresses.
Optional Redemption
PGF will not be permitted to redeem the New Securities before their stated maturity, except as set forth below. The New Securities will not be entitled to the benefit of any sinking fund (we will not deposit money on a regular basis into any separate account to repay your New Securities). In addition, you will not be entitled to require us to repurchase your New Securities from you before the stated maturity.
On and after the redemption date, interest will cease to accrue on the New Securities or any portion of the New Securities called for redemption (unless we default in the payment of the redemption price and accrued and unpaid interest). On or before the business day prior to any redemption date, we will deposit with the trustee money sufficient to pay the redemption price of and (unless the redemption date shall be an interest payment date) accrued and unpaid interest to the redemption date on the New Securities to be redeemed on such date. If less than all of the New Securities are to be redeemed, the New Securities to be redeemed shall be selected by the trustee by such method as set forth in the indenture.
Optional Redemption With “Make-Whole” Amount for the New Securities
PGF will have the right at our option to redeem the New Securities, in whole or in part, at any time or from time to time prior to their maturity, on at least 15 days’ but not more than 60 days’ notice, at a redemption price equal
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to the greater of (i) 100% of the principal amount of such New Securities and (ii) the sum of the present values of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points with respect to the New Securities, plus in each case accrued and unpaid interest on the principal amount of such New Securities to the date of redemption. The redemption notice may at PGF’s option be subject to the satisfaction of one or more conditions precedent, and such notice may be rescinded or the redemption date delayed in the event that any or all such conditions shall not have been satisfied by the redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the New Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such New Securities.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by us.
“Comparable Treasury Price” means, with respect to any redemption date (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (ii) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means each of Citigroup Global Markets Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC and Morgan Stanley & Co. LLC or their respective affiliates, which are primary United States government securities dealers, and two other leading primary United States government securities dealers in New York City reasonably designated by us in writing; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), we will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third business day preceding such redemption date.
On and after the redemption date, interest will cease to accrue on the New Securities or any portion of the New Securities called for redemption (unless we default in the payment of the redemption price and accrued and unpaid interest). On or before the redemption date, we will deposit with the trustee money sufficient to pay the redemption price of and (unless the redemption date shall be an interest payment date) accrued and unpaid interest to the redemption date on the New Securities to be redeemed on such date. If less than all of the New Securities are to be redeemed, the New Securities to be redeemed shall be selected by the trustee by such method as set forth in the indenture.
Redemption for Taxation Reasons
We have the option, subject to certain conditions, to redeem the New Securities in whole at their principal amount, plus accrued and unpaid interest, if any, to the date of redemption, if and when, as a result of a change in, execution of, or amendment to, any laws or treaties or the official application or interpretation of any laws or treaties applicable to PGF or Petrobras, enacted after the date of the Indenture, we would be required to pay additional amounts
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related to the deduction of certain withholding taxes in respect of certain payments on the New Securities. See “-Covenants—Additional Amounts.”
The optional tax redemption set forth in this prospectus shall apply with the reincorporation of PGF being treated as the adoption of a successor entity. Such redemption 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 in such new jurisdiction of incorporation that would result in the obligation to pay additional amounts.
Further Issuances
The indenture by its terms does not limit the aggregate principal amount of securities that may be issued under it and permits the issuance, from time to time, of additional notes (also referred to as add-on New Securities) of the same series as those offered under this prospectus. The ability to issue add-on New Securities is subject to several requirements, however, including that (i) no event of default under the indenture or event that with the passage of time or other action may become an event of default (such event being a “default”) will have occurred and then be continuing or will occur as a result of that additional issuance, (ii) the add-on New Securities will rank pari passu and have equivalent terms and benefits as the New Securities offered under this prospectus except for the price to the public and the issue date and (iii) any add-on New Securities shall be issued under a separate CUSIP or ISIN number unless the add-on New Securities are issued pursuant to a "qualified reopening" of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with no more than a de minimis amount of original discount, in each case for U.S. federal income tax purposes. Any add-on New Securities with respect to the New Securities will be part of the same series as such New Securities that PGF is currently offering and the holders will vote on all matters in relation to the New Securities as a single series.
Covenant Defeasance
We can make the same type of deposit described below and be released from all or some of the restrictive covenants (if any) that apply to the New Securities. This is called “covenant defeasance.” In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the New Securities. In order to achieve covenant defeasance, we must do the following:
| · | We must irrevocably deposit in trust for the benefit of all direct holders of the New Securities a combination of money and non-callable U.S. government or U.S. government agency debt securities or bonds that, in the opinion of a nationally recognized firm of independent accountants, will generate enough cash without reinvestment to make interest, principal and any other payments, including additional amounts, on the New Securities on their various due dates. |
| · | We must deliver to the trustee a legal opinion of our counsel confirming that under then current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the New Securities any differently than if we did not make the deposit and just repaid the New Securities ourselves. |
If we accomplish covenant defeasance, the following provisions of the indenture as it applies to the New Securities and of the New Securities would no longer apply:
| · | Any covenants applicable to the New Securities described under “—Covenants.” |
| · | The events of default relating to breach of those covenants being defeased and acceleration of the maturity of other debt, described under “―Events of Default.” |
If we accomplish covenant defeasance, you can still look to us for repayment of the New Securities if there were a shortfall in the trust deposit. In fact, if any event of default occurred (such as our bankruptcy) and the New Securities become immediately due and payable, there may be such a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
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Modification and Waiver
There are three types of changes we can make to the indenture and the New Securities.
Changes Requiring Your Approval. These are changes that cannot be made to the New Securities without the specific approval of each holder of New Securities. These are the following types of changes:
| · | change the stated maturity of the principal, interest or premium on the New Securities; |
| · | reduce any amounts due on the New Securities; |
| · | change any obligation to pay the additional amounts described under “—Covenants—Additional Amounts;” |
| · | reduce the amount of principal payable upon acceleration of the maturity of the New Securities following a default; |
| · | change the place or currency of payment on the New Securities; |
| · | impair any of the conversion or exchange rights of the New Securities; |
| · | impair any right to sue for payment, conversion or exchange; |
| · | reduce the percentage of holders of New Securities whose consent is needed to modify or amend the indenture; |
| · | reduce the percentage of holders of New Securities whose consent is needed to waive compliance with various provisions of the relevant indenture or to waive specified defaults; and |
| · | modify any other aspect of the provisions dealing with modification and waiver of the indenture. |
Changes Requiring a Majority Vote. These are changes to the indenture and the New Securities that require a vote of approval by the holders of New Securities that together represent a majority of the outstanding principal amount of the New Securities. Most changes fall into this category, except for clarifying changes, amendments, supplements and other changes that would not adversely affect holders of the New Securities in any material respect. For example, this vote would be required for us to obtain a waiver of all or part of any covenants applicable to the New Securities or a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the indenture or the New Securities listed under “Changes Requiring Your Approval” unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval. These changes do not require any vote by holders of New Securities. This type is limited to curing any ambiguity, defect or inconsistency, making changes to conform the provisions contained in the indenture to the description of the New Securities and the guaranty contained in this prospectus and making changes that do not adversely affect the rights of holders of the New Securities in any material respect, such as adding covenants, additional events of default or successor trustees.
When taking a vote and deciding how much principal amount to attribute to the New Securities that we, any of our affiliates and any other obligor under the New Securities acquire or hold, will not be counted as outstanding when determining voting rights. In addition, New Securities will not be considered outstanding, and therefore will not be eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption.
We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding New Securities that are entitled to vote or take other action under the indenture. In limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other action to be taken by holders of the New Securities, that vote or action may be taken only by persons who are
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holders of outstanding New Securities on the record date and must be taken within 180 days following the record date or another period that we or, if it sets the record date, the trustee may specify. We may shorten or lengthen (but not beyond 180 days) this period from time to time.
Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or the New Securities or request a waiver.
Conversion
The New Securities will not be convertible into, or exchangeable for, any other securities.
Listing
PGF intends to apply to have the New Securities listed on the Official List of the Luxembourg Stock Exchange and to trading on the Euro MTF Market of the Luxembourg Stock Exchange. PGF also intends to apply to have the New Securities approved for listing on the NYSE. We cannot assure you that these applications will be accepted. Following the issuance of the New Securities, PGF will use its commercially reasonable efforts to obtain and maintain such admissions to listing and trading; provided that if PGF is unable to list the New Securities on the Official List of the Luxembourg Stock Exchange and/or the New Securities do not trade on the Euro MTF Market of the Luxembourg Stock Exchange, or if as a result of any applicable rule, requirement or legislation, PGF would be required to publish financial information either more regularly than it otherwise would be required to or according to accounting principles which are materially different from the accounting principles which Petrobras would otherwise use to prepare its published financial information, PGF may delist the New Securities in accordance with the rules of the Luxembourg Stock Exchange and it will use its commercially reasonable efforts to list and maintain a listing of the New Securities on a different section of the Luxembourg Stock Exchange or on such other listing authority, stock exchange and/or quotation system inside or outside the European Union as PGF may decide.
Currency Rate Indemnity
PGF has agreed that, if a judgment or order made by any court for the payment of any amount in respect of any New Securities is expressed in a currency (the “judgment currency”) other than U.S. dollars (the “denomination currency”), PGF will indemnify the relevant holder and the trustee against any deficiency arising from any variation in rates of exchange between the date as of which the denomination currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment. This indemnity will constitute a separate and independent obligation from PGF’s other obligations under the indenture, will give rise to a separate and independent cause 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 order for a liquidated sum or sums in respect of amounts due in respect of the New Securities or under any judgment or order described above.
The Trustee and the Paying Agent
The Bank of New York Mellon, a New York banking corporation, is the trustee under the indenture and has been appointed by PGF as registrar, paying agent and transfer agent with respect to the New Securities. The address of the trustee is 240 Greenwich Street, 7E, New York, New York 10286. PGF will at all times maintain a paying agent in New York City until the New Securities are paid. The Bank of New York Mellon (Luxembourg) S.A. has been designated paying agent in Luxembourg with respect to the New Securities.
Any corporation or association into which the trustee or any agent named above may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the trustee or any agent shall be a party, or any corporation or association to which all or substantially all of the corporate trust business of the trustee or any agent may be sold or otherwise transferred, shall be the successor trustee or relevant agent, as applicable, hereunder without any further act.
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General
Petrobras will guarantee the New Securities (the “guaranty”) for the benefit of the holders.
The guaranty will provide that Petrobras will unconditionally and irrevocably guarantee the New Securities on the terms and conditions described below.
The following summary describes the material provisions of the guaranty. You should read the more detailed provisions of the guaranty, including the defined terms, for provisions that may be important to you. This summary is subject to, and qualified in its entirety by reference to, the provisions of the guaranty.
Despite the Brazilian government’s ownership interest in Petrobras, the Brazilian government is not responsible in any manner for PGF’s obligations under the New Securities, or Petrobras’s obligations under the guaranty.
Ranking
The obligations of Petrobras under the guaranty will constitute general unsecured obligations of Petrobras which at all times will rank pari passu with all other senior unsecured obligations of Petrobras that are not, by their terms, expressly subordinated in right of payment to the obligations of Petrobras under the guaranty.
In addition, Petrobras’s obligations under the guaranty of the New Securities rank, and will rank, pari passu with its obligations in respect of outstanding and future guaranty of indebtedness issued by PGF.
Nature of Obligation
Petrobras will unconditionally and irrevocably guarantee (by way of a first demand guarantee) the full and punctual payment when due, whether at the maturity date of the New Securities, or earlier or later by acceleration or otherwise, of all of PGF’s obligations now or hereafter existing under the indenture and the New Securities, whether for principal, interest, make-whole premium, fees, indemnities, costs, expenses, tax payments or otherwise (such obligations being referred to as the “guaranteed obligations”).
The obligation of Petrobras to pay amounts in respect of the guaranteed obligations will be absolute and unconditional (thus waiving any benefits of order set forth under Brazilian law, including those established in articles 827, 834, 835, 838 and 839 of the Brazilian Civil Code, under article 794, caput, of the Brazilian Civil Procedure Code) upon failure of PGF to make, at the maturity date of the New Securities or earlier upon any acceleration or otherwise of the applicable New Securities in accordance with the terms of the indenture, any payment in respect of principal, interest or other amounts due under the indenture and the New Securities on the date any such payment is due. If PGF fails to make payments to the trustee in respect of the guaranteed obligations, Petrobras will, upon notice from the trustee, immediately pay to the trustee such amount of the guaranteed obligations payable under the indenture and the New Securities. All amounts payable by Petrobras under the guaranty will be payable in U.S. dollars and in immediately available funds to the trustee. Petrobras will not be relieved of its obligations under the guaranty unless and until the trustee receives all amounts required to be paid by Petrobras under such guaranty (and any related event of default under the indenture has been cured), including payment of the total non-payment overdue interest.
Events of Default
There are no events of default under the guaranty. The indenture, however, contains events of default relating to Petrobras that may trigger an event of default and acceleration of the New Securities. See “Description of the New Securities―Events of Default.” Upon any such acceleration (including any acceleration arising out of the insolvency or similar events relating to Petrobras), if PGF fails to pay all amounts then due under the New Securities and the indenture, Petrobras will be obligated to make such payments pursuant to the guaranty.
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Covenants
For so long as any of the New Securities are outstanding and Petrobras has obligations under the guaranty, Petrobras will, and will cause each of its subsidiaries, as applicable, to comply with the terms of the following covenants:
Performance Obligations under the Guaranty and Indenture
Petrobras will pay all amounts owed by it and comply with all its other obligations under the terms of the guaranty and the indenture in accordance with the terms of those agreements.
Maintenance of Corporate Existence
Petrobras will maintain in effect its corporate existence and all necessary registrations and 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. However, this covenant will not require Petrobras 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 on Petrobras taken as a whole or have a materially adverse effect on the rights of the holders of the New Securities.
Maintenance of Office or Agency
So long as the New Securities are outstanding, Petrobras will maintain an office or agency in the United States where notices to and demands upon it in respect of the guaranty may be served. Initially, Petrobras has appointed Petrobras America Inc., with offices located at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, as its agent. Petrobras will not change the appointment of the agent without prior written notice to the Trustee and appointing a replacement agent or designating an office, in the United States.
Ranking
Petrobras will ensure at all times that its obligations under the guaranty will be its general senior unsecured and unsubordinated obligations and will rank pari passu, with all other present and future senior unsecured and unsubordinated obligations of Petrobras (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 Petrobras under the guaranty.
Provision of Financial Statements and Reports
Petrobras will provide to the trustee, in English or accompanied by a certified English translation thereof, (i) within 90 calendar days after the end of each fiscal quarter (other than the fourth quarter), its unaudited and consolidated statement of financial position and statement of income prepared in accordance with IFRS, and (ii) within 120 calendar days after the end of each fiscal year, its audited and consolidated balance sheet and statement of income calculated in accordance with IFRS. 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 will comply with Petrobras’s obligation to deliver such statements and reports to the trustee. The trustee will have no obligation to determine if and when Petrobras’s financial statements or reports, if any, are publicity available and accessible electronically.
Along with each such financial statement or report, if any, Petrobras will provide an officers’ certificate stating that a review of Petrobras’s and PGF’s activities has been made during the period covered by such financial statements with a view to determining whether Petrobras and PGF have kept, observed, performed and fulfilled their covenants and agreements under the guaranty and the indenture, as applicable, and that no event of default has occurred during such period.
In addition, whether or not Petrobras is required to file reports with the SEC, Petrobras will file with the SEC and deliver to the trustee (for redelivery to all holders of the New Securities, upon written request) all reports and
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other information it would be required to file with the SEC under the Exchange Act if it were subject to those regulations. If the SEC does not permit the filing described above, Petrobras will provide annual and interim reports and other information to the trustee within the same time periods that would be applicable if Petrobras were required and permitted to file these reports with the SEC.
Delivery of these reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of any of those shall not constitute constructive notice of any information contained in them or determinable from information contained therein, including Petrobras’s compliance with any of its covenants in the guaranty (as to which the trustee is entitled to rely exclusively on officer’s certificates).
Negative Pledge
So long as the New Securities remain outstanding, Petrobras will not create or permit any lien, other than a Petrobras permitted lien, on any of its assets to secure (i) any of its indebtedness or (ii) the indebtedness of any other person, unless Petrobras contemporaneously creates or permits the lien to secure equally and ratably its obligations under the guaranty or Petrobras provides other security for its obligations under the guaranty and the indenture as is duly approved by a resolution of the holders of New Securities in accordance with the indenture. In addition, Petrobras will not allow any of its material subsidiaries, if any, to create or permit any lien, other than a Petrobras permitted lien, on any of Petrobras’s assets to secure (i) any of its indebtedness, (ii) any of the material subsidiary’s indebtedness or (iii) the indebtedness of any other person, unless Petrobras contemporaneously creates or permits the lien to secure equally and ratably Petrobras’s obligations under the guaranty and the indenture or Petrobras provides such other security for its obligations under the guaranty as is duly approved by a resolution of the holders of the New Securities in accordance with the indenture.
As used in this “Negative Pledge” section, the following terms have the respective meanings set forth below:
A “guaranty” means an obligation of a person to pay the indebtedness of another person including without limitation:
| · | an obligation to pay or purchase such indebtedness; |
| · | an obligation to lend money, to purchase or subscribe for shares or other securities or to purchase assets or services in order to provide funds for the payment of such indebtedness; |
| · | an indemnity against the consequences of a default in the payment of such indebtedness; or |
| · | any other agreement to be responsible for such indebtedness. |
“indebtedness” means any obligation (whether present or future, actual or contingent and including, without limitation, any guaranties) 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).
A “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.
A “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.
A “qualifying asset” in relation to any project means:
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| · | any concession, authorization or other legal right granted by any governmental authority to Petrobras or any of Petrobras’s subsidiaries, or any consortium or other venture in which Petrobras or any subsidiary has any ownership or other similar interest; |
| · | 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; |
| · | any revenues or claims that 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; |
| · | 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 therefore, recourse as security in addition to that produced or processed by such project; and |
| · | shares or other ownership interest in, and any subordinated debt rights owing to Petrobras 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. |
A “Petrobras permitted lien” means a:
| (a) | 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 Brazil or of any state or region of Brazil; |
| (b) | lien arising by operation of law, such as merchants’, maritime or other similar liens arising in Petrobras’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; |
| (c) | lien arising from Petrobras’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with Petrobras’s past practice; |
| (d) | lien arising in the ordinary course of business in connection with indebtedness maturing not more than one year after the date on which that indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions; |
| (e) | lien granted upon or with respect to any assets hereafter acquired by Petrobras or any subsidiary to secure the acquisition costs of those assets or to secure indebtedness incurred solely for the purpose of financing the acquisition of those assets, including any lien existing at the time of the acquisition of those assets, so long as the maximum amount so secured will not exceed the aggregate acquisition costs of all such assets or the aggregate indebtedness incurred solely for the acquisition of those assets, as the case may be; |
| (f) | lien granted in connection with the indebtedness of a wholly-owned subsidiary owing to Petrobras or another wholly-owned subsidiary; |
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| (g) | lien existing on any asset or on any stock of any subsidiary prior to its acquisition by Petrobras or any subsidiary so long as that lien is not created in anticipation of that acquisition; |
| (h) | lien over any qualifying asset relating to a project financed by, and securing indebtedness incurred in connection with, the project financing of that project by Petrobras, any of Petrobras’s subsidiaries or any consortium or other venture in which Petrobras or any subsidiary has any ownership or other similar interest; |
| (i) | lien existing as of the date of the original issuance of the Old Securities; |
| (j) | lien resulting from the indenture, the New Securities and the guaranty, if any; |
| (k) | lien incurred in connection with the issuance of debt or similar securities of a type comparable to those already issued by Petrobras, 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; |
| (l) | 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 any lien referred to in paragraphs (a) through (k) above (but not paragraph (d)), provided that such lien does not extend to any other property, the principal amount of the indebtedness secured by the lien is not increased, and in the case of paragraphs (a), (b), (c) and (g), the obligees meet the requirements of that paragraph, and in the case of paragraph (h), the indebtedness is incurred in connection with a project financing by Petrobras, any of Petrobras’s subsidiaries or any consortium or other venture in which Petrobras or any subsidiary have any ownership or other similar interest; and |
| (m) | lien in respect of indebtedness the principal amount of which in the aggregate, together with all liens not otherwise qualifying as Petrobras permitted liens pursuant to another part of this definition of Petrobras permitted liens, does not exceed 20% of Petrobras’s consolidated total assets (as determined in accordance with IFRS) at any date as at which Petrobras’s balance sheet is prepared and published in accordance with applicable law. |
A “wholly-owned subsidiary” means, with respect to any corporate entity, any person of which 100% of the outstanding capital stock (other than qualifying shares, if any) having by its terms ordinary voting power (not dependent on the happening of a contingency) to elect the board of directors (or equivalent controlling governing body) of that person is at the time owned or controlled directly or indirectly by that corporate entity, by one or more wholly-owned subsidiaries of that corporate entity or by that corporate entity and one or more wholly-owned subsidiaries.
A “material subsidiary” means a subsidiary of Petrobras which on any given date of determination accounts for more than 15% of Petrobras’s total consolidated assets (as set forth on Petrobras’s most recent balance sheet prepared in accordance with IFRS).
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Limitation on Consolidation, Merger, Sale or Conveyance
Petrobras 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 Petrobras) or permit any person (other than a direct or indirect subsidiary of Petrobras) to merge with or into it unless:
| · | either Petrobras is the continuing entity or the person (the “successor company”) formed by such consolidation or into which Petrobras is merged or that acquired (through a transfer of assets, a spin-off or otherwise) or leased such property or assets of Petrobras will assume (jointly and severally with Petrobras unless Petrobras will have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to the guaranty, all of Petrobras’s obligations under the guaranty; |
| · | the successor company (jointly and severally with Petrobras unless Petrobras will have ceased to exist as part of such merger, consolidation or amalgamation) agrees to indemnify each holder against any tax, assessment or governmental charge thereafter imposed on such holder solely as a consequence of such consolidation, merger, conveyance, spin-off, transfer or lease with respect to the payment of principal of, or interest on, the New Securities; |
| · | immediately after giving effect to the transaction, no event of default, and no default has occurred and is continuing; and |
| · | Petrobras has delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such merger, consolidation, sale, spin-off, transfer or other conveyance or disposition and the amendment to the guaranty comply with the terms of the guaranty and that all conditions precedent provided for in the guaranty and relating to such transaction have been complied with. |
Notwithstanding anything to the contrary in the foregoing, so long as no default or event of default under the indenture or the New Securities, as applicable, has occurred and is continuing at the time of such proposed transaction or would result therefrom and Petrobras has delivered notice of any such transaction to the trustee:
| · | Petrobras may merge, amalgamate or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of all or substantially all of its properties, assets or revenues to a direct or indirect subsidiary of Petrobras in cases when Petrobras is the surviving entity in such transaction and such transaction would not have a material adverse effect on Petrobras and its subsidiaries taken as whole, it being understood that if Petrobras is not the surviving entity, Petrobras will be required to comply with the requirements set forth in the previous paragraph; |
| · | any direct or indirect subsidiary of Petrobras may merge or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of assets to, any person (other than Petrobras or any of its subsidiaries or affiliates) in cases when such transaction would not have a material adverse effect on Petrobras and its subsidiaries taken as a whole; |
| · | any direct or indirect subsidiary of Petrobras may merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of assets to, any other direct or indirect subsidiary of Petrobras; or |
| · | any direct or indirect subsidiary of Petrobras may liquidate or dissolve if Petrobras determines in good faith that such liquidation or dissolution is in the best interests of Petrobras, and would not result in a material adverse effect on Petrobras and its subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of Petrobras. |
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Amendments
The guaranty may only be amended or waived in accordance with its terms pursuant to a written document which has been duly executed and delivered by Petrobras and the trustee, acting on behalf of the holders of the New Securities. Because the guaranty form part of the indenture, it may be amended by Petrobras and the trustee, in some cases without the consent of the holders. See “Description of the New Securities—Modification and Waiver.”
Except as contemplated above, the indenture will provide that the trustee may execute and deliver any other amendment to the guaranty or grant any waiver thereof only with the consent of the holders of a majority in aggregate principal amount of the New Securities then outstanding.
Governing Law
The guaranty will be governed by the laws of the State of New York.
Jurisdiction
Petrobras has consented to the non-exclusive jurisdiction of any court of the State of New York or any U.S. federal court sitting in the Borough of Manhattan, The City of New York, New York, United States and any appellate court from any thereof. Petrobras has appointed Petrobras America Inc., with offices located at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, as its authorized agent upon which process may be served in any action or proceeding brought in such New York State federal court sitting in New York City. The guaranty will provide that if Petrobras no longer maintains an office in New York City, then it will appoint a replacement process agent within New York City as its authorized agent upon which process may be served in any action or proceeding.
Waiver of Immunities
To the extent that Petrobras may in any jurisdiction claim for itself or its assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with the guaranty (or any document delivered pursuant thereto) and to the extent that in any jurisdiction there may be immunity attributed to Petrobras, PGF or their assets, whether or not claimed, Petrobras has irrevocably agreed with the trustee, for the benefit of the holders, not to claim, and to irrevocably waive, the immunity to the full extent permitted by law.
Currency Rate Indemnity
Petrobras has agreed that, if a judgment or order made by any court for the payment of any amount in respect of any of its obligations under the guaranty is expressed in a currency (the “judgment currency”) other than U.S. dollars (the “denomination currency”), Petrobras will indemnify the relevant holder and the trustee against any deficiency arising from any variation in rates of exchange between the date as of which the denomination currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment. This indemnity will constitute a separate and independent obligation from Petrobras’s other obligations under the guaranty, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect.
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Book-Entry Issuance
Except under limited circumstances, all New Securities will be book-entry notes. This means that holders of Old Securities participating in the exchange offer will not be entitled to have the New Securities registered in their names and will not be entitled to receive physical delivery of the New Securities in definitive (paper) form. Instead, upon issuance, all the New Securities will be represented by one or more fully registered global notes. When we issue the global notes, DTC will use its book-entry registration and transfer system to credit the respective principal amounts of the New Securities represented by the global notes to the accounts of the participants designated by the holders of the Old Securities participating in the exchange offer.
Each global note will be deposited directly with The Depository Trust Company, a securities depositary, and will be registered in the name of DTC’s nominee. Global notes may also be deposited indirectly with Clearstream, Luxembourg and Euroclear, as indirect participants of DTC. For background information regarding DTC and Clearstream, Luxembourg and Euroclear, see “—The Depository Trust Company” and “—Clearstream, Luxembourg and Euroclear” below. No global note representing book-entry notes may be transferred except as a whole by DTC to a nominee of DTC, or by a nominee of DTC to another nominee of DTC. Thus, DTC will be the only registered holder of the New Securities and will be considered the sole representative of the beneficial owners of the New Securities for purposes of the indenture. In a few special situations described below, a global note will terminate and interests in it will be exchanged for physical certificates representing the New Securities. After that exchange, the choice of whether to hold securities directly or in street name will be up to you. You must consult your bank or broker to find out how to have your interests in the securities transferred to your name, so that you will be a direct holder.
The special situations for termination of a global security representing the New Securities are:
| · | when the depositary notifies us that it is unwilling or unable to continue as depositary for such global note or the depositary ceases to be a clearing agent registered under the Exchange Act, at a time when such depositary is required to be so registered in order to act as depositary, and, in each case, we do not or cannot appoint a successor depositary within 90 days; |
| · | when we notify the trustee that we wish to terminate the global note upon a change in tax law that would be adverse to us but for the termination of the global note; or |
| · | when an event of default on the New Securities has occurred and has not been cured. |
When a global security terminates, the depositary (and not us, the trustee, any warrant agent, any transfer agent or any registrar) is responsible for deciding the names of the institutions that will be the initial direct holders.
The registration of the global notes in the name of DTC’s nominee will not affect beneficial ownership and is performed merely to facilitate subsequent transfers. The book-entry system, which is also the system through which most publicly traded common stock is held in the United States, is used because it eliminates the need for physical movement of securities certificates. The laws of some jurisdictions, however, may require some purchasers to take physical delivery of their New Securities in definitive form. These laws may impair the ability of beneficial holders to transfer the New Securities.
In this prospectus, unless and until definitive (paper) notes are issued to the beneficial owners, all references to “registered holders” of New Securities shall mean DTC. PGF, Petrobras, the trustee and any paying agent, transfer agent, registrar or other agent may treat DTC as the absolute owner of the New Securities for all purposes.
The Depository Trust Company
The policies of DTC will govern payments, transfers, exchange and other matters relating to the beneficial owner’s interest in the New Securities held by that owner. Neither the trustee, registrar, paying agent and transfer agent nor we have any responsibility for any aspect of the actions of DTC or any of their direct or indirect participants.
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Neither the trustee, registrar, paying agent and transfer agent nor we have any responsibility for any aspect of the records kept by DTC or any of their direct or indirect participants. In addition, neither the trustee, registrar, paying agent and transfer agent nor we supervise DTC in any way. DTC and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. Investors should be aware that DTC and its participants are not obligated to perform these procedures and may modify them or discontinue them at any time. The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC as they are currently in effect. DTC could change its rules and procedures at any time.
DTC has advised us as follows:
| · | DTC is: |
| o | a limited purpose trust company organized under the laws of the State of New York; |
| o | a member of the Federal Reserve System; |
| o | a “clearing corporation” within the meaning of the Uniform Commercial Code; and |
| o | a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. |
| · | DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of certificates. |
| · | Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives. |
| · | Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants. |
| · | The rules applicable to DTC and DTC participants are on file with the SEC. |
Clearstream, Luxembourg and Euroclear
Clearstream, Luxembourg has advised that: it is a duly licensed bank organized as a société anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the supervision of the financial sector (Commission de surveillance du secteur financier); it holds securities for its customers and facilitates the clearance and settlement of securities transactions among them, and does so through electronic book-entry transfers between the accounts of its customers, thereby eliminating the need for physical movement of certificates; it provides other services to its customers, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities; it interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships; its customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other professional financial intermediaries; its U.S. customers are limited to securities brokers and dealers and banks; and indirect access to the Clearstream, Luxembourg system is also available to others that clear through Clearstream, Luxembourg customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies.
Euroclear has advised that: it is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking and Finance Commission (Commission Bancaire et Financière) and the National Bank of Belgium (Banque Nationale de Belgique); it holds securities for its participants and facilitates the clearance and settlement of securities transactions among them; it does so through simultaneous electronic book-entry delivery against payments, thereby eliminating the need for physical movement of certificates; it provides other services to its
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participants, including credit, custody, lending and borrowing of securities and tri-party collateral management; it interfaces with the domestic markets of several countries; its customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations and certain other professional financial intermediaries; indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have custodial relationships with Euroclear customers; and all securities in Euroclear are held on a fungible basis, which means that specific certificates are not matched to specific securities clearance accounts.
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The following is a summary of certain U.S. federal income, Brazilian and Dutch tax considerations that may be relevant to the exchange of Old Securities and ownership and disposition of the New Securities. This summary is based on the U.S. federal, Brazilian and Dutch tax laws in effect on the date of this prospectus. These laws are subject to change. Any change could apply retroactively and could affect the continued validity of the summary. This summary does not describe any tax consequences arising under the laws of any state, locality or taxing jurisdiction other than Brazil, the Netherlands and the United States. There currently is no income tax treaty between Brazil and the United States. Although Brazilian and U.S. tax authorities have had discussions that may culminate in such a treaty, we cannot make any assurances regarding whether or when such a treaty will enter into force or how it will affect holders of the Old Securities and New Securities.
This summary does not describe all of the tax considerations that may be relevant to your situation, particularly if you are subject to special tax rules. Each holder or beneficial owner of Old Securities considering an exchange of Old Securities for New Securities should consult its own tax advisor as to the Brazilian, Dutch, U.S. or other tax consequences of the ownership and disposition of New Securities and the exchange of Old Securities for New Securities, including the effect of any foreign, state or local tax laws.
U.S. Federal Income Tax Considerations
The following is a summary of certain U.S. federal income tax considerations that may be relevant to investors considering the exchange offer. This summary addresses only investors that hold the New Securities as “capital assets” for U.S. federal income tax purposes. The summary does not address tax considerations applicable to investors that may be subject to special tax rules, such as banks or other financial institutions, tax-exempt entities, partnerships (or entities or arrangements treated as partnerships for U.S. federal income tax purposes) or partners therein, insurance companies, dealers in securities or currencies, traders in securities electing to mark to market, persons that will hold the New Securities as a position in a “straddle” or conversion transaction, or as part of a “synthetic security” or other integrated financial transaction or persons that have a “functional currency” other than the U.S. dollar, and nonresident alien individuals present in the United States for 183 days or more during the taxable year. In addition, the discussion does not address the alternative minimum tax, the U.S. federal estate and gift tax, the Medicare tax on net investment income or other aspects of U.S. federal income or state and local taxation that may be relevant to an investor. For purposes of this discussion, a “U.S. Holder” is a beneficial owner of a New Security that is, for U.S. federal income tax purposes, a citizen or resident of the United States, a domestic corporation or an entity otherwise subject to U.S. federal income taxation on a net income basis in respect of the New Security. A “Non-U.S. Holder” is a beneficial owner of a New Security that is not a U.S. Holder.
This summary is based on the Internal Revenue Code of 1986, as amended, existing, proposed and temporary U.S. Treasury regulations and judicial and administrative interpretations thereof, in each case as of the date hereof. All of the foregoing are subject to change (possibly with retroactive effect) or to differing interpretations, which could affect the U.S. federal income tax consequences described herein.
U.S. Holders that use an accrual method of accounting for tax purposes (“accrual method holders”) generally are required to include certain amounts in income no later than the time such amounts are reflected on certain financial statements (the “book/tax conformity rule”). The application of the book/tax conformity rule thus may require the accrual of income earlier than would be the case under the general tax rules described below. It is not entirely clear to what types of income the book/tax conformity rule applies, or, in some cases, how the rule is to be applied if it is applicable. However, recently released proposed regulations generally would exclude, among other items, original issue discount market discount (in either case, whether or not de minimis) from the applicability of the book/tax conformity rule. Although the proposed regulations generally will not be effective until taxable years beginning after the date on which they are issued in final form, taxpayers generally are permitted to elect to rely on their provisions currently. Accrual method holders should consult with their tax advisors regarding the potential applicability of the book/tax conformity rule to their particular situation.
INVESTORS SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE TAX CONSEQUENCES OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF THE NEW SECURITIES, INCLUDING THE APPLICATION TO THEIR PARTICULAR CIRCUMSTANCES OF THE U.S. FEDERAL INCOME TAX CONSIDERATIONS DISCUSSED BELOW, AS WELL AS THE
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APPLICATION OF U.S. FEDERAL ESTATE, GIFT AND ALTERNATIVE MINIMUM TAX LAWS, the Medicare tax on net investment income, U.S. STATE AND LOCAL TAX LAWS AND FOREIGN TAX LAWS.
Exchange of Old Securities and New Securities
An exchange of Old Securities for New Securities will not be a taxable event for U.S. federal income tax purposes. Accordingly, a U.S. Holder will not realize any gain or loss upon the exchange of its Old Securities for New Securities. The U.S. Holder’s tax basis and holding period in the New Securities will be the same as its tax basis and holding period in the Old Securities.
Payments of Interest and Additional Amounts
Payments of interest on a New Security (which may include additional amounts) generally will be taxable to a U.S. Holder as ordinary interest income when such interest is accrued or received, in accordance with the U.S. Holder’s regular method of accounting for U.S. federal income tax purposes.
Interest income (including additional amounts) in respect of the New Security generally will constitute foreign-source income for purposes of computing the foreign tax credit allowable under the U.S. federal income tax laws. The limitation on foreign income taxes eligible for credit is calculated separately with respect to specific classes of income. Such income generally will constitute “passive category income” for foreign tax credit purposes for most U.S. Holders. The calculation and availability of foreign tax credits and, in the case of a U.S. Holder that elects to deduct all foreign income taxes for that taxable year, the availability of such deduction involves the application of complex rules that depend on the U.S. Holder’s particular circumstances. In addition, foreign tax credits generally will not be allowed for certain short-term or hedged positions in the New Securities. U.S. Holders should consult their own tax advisors regarding the availability of foreign tax credits or deductions in respect of foreign taxes and the treatment of additional amounts.
A Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax on interest income earned in respect of New Securities.
Amortizable Premium
If a U.S. Holder purchased an Old Security for an amount that was greater than the principal amount of the Old Security, the U.S. Holder will be considered to have purchased the security with amortizable bond premium. With some exceptions, the U.S. Holder may elect to amortize this premium (as an offset to interest income), using a constant yield method, over the remaining term of the New Security. If the U.S. Holder elects to amortize bond premium with respect to a New Security (or had previously elected to amortize bond premium on an Old Security, which election will carry over to the New Security), the U.S. Holder must reduce its tax basis in the New Security by the amounts of the premium amortized in any year. If the U.S. Holder does not elect to amortize such premium, the amount of any premium will be included in the U.S. Holder’s tax basis in the New Security when the New Security is disposed of. Therefore, a U.S. Holder that does not elect to amortize such premium and that holds the New Security to maturity generally will be required to treat the premium as capital loss when the New Security matures. An election to amortize bond premium applies to all taxable debt obligations then owned and thereafter acquired by a U.S. Holder, and such election may be revoked only with the consent of the Internal Revenue Service (the “IRS”). An election can be made in any taxable year in which a U.S. Holder holds a security with amortizable bond premium, but if such U.S. Holder elects to amortize bond premium for a security acquired before the taxable year for which the election is made, the U.S. holder may not amortize amounts that would have been amortized in prior years had an election been in effect for those prior years. U.S. Holders should consult their own tax advisors about the election to amortize bond premium.
Market Discount
If a U.S. Holder purchased an Old Security at a price that is lower than its remaining redemption amount by at least 0.25% of its remaining redemption amount multiplied by the number of remaining whole years to maturity, the New Security will be considered to have market discount. In such case, gain realized by the U.S. Holder on the disposition of the New Security generally will be treated as ordinary income to the extent of the market discount that accrued on both the Old Security and the New Security, treated as a single instrument, while held by the U.S. Holder. In addition, the U.S. Holder could be required to defer the deduction of a portion of the interest paid on any indebtedness incurred or maintained to purchase or carry the security. In general terms, market discount on a security
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will be treated as accruing ratably over the term of such security, or, at the U.S. Holder’s election, under a constant-yield method.
A U.S. Holder may elect to include market discount in income on a current basis as it accrues (on either a ratable or constant-yield basis) in lieu of treating a portion of any gain realized on a disposition as ordinary income. If the U.S. Holder elects to include market discount on a current basis, the interest deduction deferral rule described above will not apply. Any such election must be made in the year the U.S. Holder acquires the market discount bond and, if made, applies to all market discount bonds acquired by the U.S. Holder on or after the first day of the taxable year to which such election applies and is revocable only with the consent of the IRS. U.S. Holders who acquired Old Securities other than at original issuance should consult their own tax advisors regarding the possible application of the market discount rules to the Acquisition.
Sale or Disposition of New Securities
A U.S. Holder generally will recognize capital gain or loss upon the sale, exchange, retirement or other taxable disposition of a New Security in an amount equal to the difference between the amount realized upon such disposition (not including any amounts attributable to accrued and unpaid interest, which will be taxable as such) and such U.S. Holder’s adjusted tax basis in the New Security. As discussed above under “Exchanges of Old Securities for New Securities,” a U.S. Holder’s tax basis in the New Security will equal the U.S. Holder’s basis in the Old Security, which generally will equal such U.S. Holder’s purchase price of the Old Security, reduced by any bond premium that the U.S. Holder amortized and increased by any market discount that the U.S. Holder previously included in income. Except as described under “Market Discount” above, gain or loss recognized by a U.S. Holder on the disposition of a New Security generally will be long-term capital gain or loss if, at the time of the disposition, the New Security has been held for more than one year (taking into account the holding period for the Old Security, as discussed above). The net amount of long-term capital gain recognized by an individual U.S. Holder generally is subject to tax at a reduced rate. The deductibility of capital losses is subject to limitations.
Capital gain or loss recognized by a U.S. Holder generally will be U.S.-source gain or loss. Consequently, if any such gain is subject to foreign tax, a U.S. Holder may not be able to credit the tax against its U.S. federal income tax liability unless such credit can be applied (subject to the applicable limitation) against tax due on other income treated as derived from foreign sources. U.S. Holders should consult their own tax advisors as to the foreign tax credit implications of a disposition of the New Securities.
A Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax on gain realized on the sale or other taxable disposition of New Securities.
Specified Foreign Financial Assets
Certain U.S. Holders that own “specified foreign financial assets” with an aggregate value in excess of US$50,000 on the last day of the taxable year or $75,000 at any time during the taxable year are generally required to file an information statement along with their tax returns, currently on IRS Form 8938, with respect to such assets. “Specified foreign financial assets” include any financial accounts held at a non-U.S. financial institution, as well as securities issued by a non-U.S. issuer (which would include the New Securities) that are not held in accounts maintained by financial institutions. Higher reporting thresholds apply to certain individuals living abroad and to certain married individuals. Regulations extend this reporting requirement to certain entities that are treated as formed or availed of to hold direct or indirect interests in specified foreign financial assets based on certain objective criteria. U.S. Holders who fail to report the required information could be subject to substantial penalties. In addition, the statute of limitations for assessment of tax would be suspended, in whole or in part. Prospective investors should consult their own tax advisors concerning the application of these rules to their investment in the New Securities, including the application of the rules to their particular circumstances.
Backup Withholding and Information Reporting
Payments in respect of the New Securities that are paid within the United States or through certain U.S.-related financial intermediaries are subject to information reporting, and may be subject to backup withholding, unless the U.S. Holder (i) is a corporation (other than an S corporation) or other exempt recipient, and demonstrates this fact
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when so required, or (ii) provides a correct taxpayer identification number, certifies that it is not subject to backup withholding and otherwise complies with applicable requirements of the backup withholding rules. The amount of any backup withholding collected from a payment to a U.S. Holder will be allowed as a credit against the U.S. Holder’s U.S. federal income tax liability, and may entitle the U.S. Holder to a refund, provided that certain required information is timely furnished to the IRS.
Although Non-U.S. Holders generally are exempt from backup withholding, a Non-U.S. Holder may, in certain circumstances, be required to comply with certification procedures to prove entitlement to this exemption.
Brazilian Tax Considerations
The following discussion is a summary of the Brazilian tax considerations relating to an investment in the New Securities by a non-resident of Brazil. This discussion is based on the tax laws of Brazil as in effect on the date of this prospectus and is subject to any change in Brazilian law that may come into effect after such date. The information set forth below is intended to be a general discussion only and does not address all possible tax consequences relating to an investment in the New Securities.
PROSPECTIVE HOLDERS OF NEW SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISERS AS TO THE CONSEQUENCES OF PURCHASING THE NEW SECURITIES, INCLUDING, WITHOUT LIMITATION, THE CONSEQUENCES OF THE RECEIPT OF INTEREST AND THE SALE OR OTHER DISPOSITION OF THE NEW SECURITIES OR COUPONS.
Payments in Respect of the New Securities, and Sale or Other Disposition of New Securities
Generally, an individual, entity, trust or organization that is domiciled for tax purposes outside Brazil (a “Non-Resident”) is subject to income tax in Brazil only when income is derived from a Brazilian source or when the transaction giving rise to such earnings involves assets located in Brazil. Therefore, based on the fact that PGF is considered to be domiciled abroad for tax purposes, any interest, gains, fees, commissions, expenses and any other income paid by PGF in respect of the New Securities it issues to Non-Resident holders should not be subject to withholding or deduction in respect of Brazilian income tax or any other taxes, duties, assessments or governmental charges in Brazil, provided that such payments are made by PGF with funds held outside of Brazil.
Any capital gains generated outside Brazil as a result of a transaction between two Non-Resident holders with respect to assets not located in Brazil are generally not subject to tax in Brazil. If the assets are located in Brazil, then capital gains realized thereon are subject to income tax, according to Law No. 10,833, enacted on December 29, 2003. Since the New Securities will be issued by a legal entity incorporated outside of Brazil and registered abroad, the New Securities should not fall within the definition of assets located in Brazil for purposes of Law No. 10,833, gains realized on the sale or other disposition of the New Securities made outside Brazil by a Non-Resident holder to another
Non-Resident should not be subject to Brazilian taxes. However, considering the general and unclear scope of this legislation and the absence of judicial guidance in respect thereof, we cannot assure prospective investors that such interpretation of this law will prevail in the courts of Brazil. If the income tax is deemed to be due, the gains may be subject to income tax in Brazil, effective as from January 1, 2017, (as confirmed by Declaratory Act No. 3, of April 27, 2016), at progressive rates as follows: (i) 15% for the part of the gain that does not exceed R$5 million, (ii) 17.5% for the part of the gain that exceeds R$5 million but does not exceed R$10 million, (iii) 20% for the part of the gain that exceeds R$10 million but does not exceed R$30 million and (iv) 22.5% for the part of the gain that exceeds R$30 million; or 25.0% if such Non-Resident holder is located in a Low or nil tax jurisdiction as it will be further detailed below. A lower rate, however, may apply under an applicable tax treaty between Brazil and the country where the Non-Resident holder has its domicile.
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Payments Made by Petrobras as Guarantor
In the event the issuer fails to timely pay any due amount, including any payment of principal, interest or any other amount that may be due and payable in respect of the New Securities, the guarantor will be required to assume the obligation to pay such due amounts. As there is no specific legal provision dealing with the imposition of withholding income tax on payments made by Brazilian sources to Non-Resident beneficiaries under guarantees and no uniform decision from the Brazilian courts, there is a risk that tax authorities will take the position that the funds remitted by the guarantor to the Non-Resident holders may be subject to the imposition of withholding income tax at a general 15% rate, or at a 25% rate, if the Non-Resident holder is located in a Low or nil tax jurisdiction.
Arguments exist to sustain that (a) payments made under the guaranty structure should be subject to imposition of withholding income tax according to the nature of the guaranteed payment, in which case only interest and fees should be subject to taxation at a rate of 15%, or 25%, in cases of beneficiaries located in Low or nil tax jurisdictions, as defined by the Brazilian legislation; or (b) payments made under guaranty by Brazilian sources to Non-Resident beneficiaries should not be subject to the imposition of withholding income tax, to the extent that they should qualify as a credit transaction by the Brazilian party to the borrower. The imposition of withholding income tax under these circumstances has not been settled by the Brazilian courts.
If the payments with respect to the New Securities are made by Petrobras as a guarantor, then Non-Resident holders will be indemnified so that, after payment of applicable Brazilian taxes imposed by deductions or withholding with respect to principal or interest payable with respect to the New Securities, subject to certain exceptions, as mentioned in “Description of the New Securities,” a Non-Resident holder will receive an amount equal to the amount that such Non-Resident holder would have received if no such taxes were imposed. See “Description of the New Securities.”
Discussion on Low or nil tax jurisdictions
According to Law No. 9,430, dated December 27, 1996, as amended, a Low or nil tax jurisdiction is a country or location that (i) does not impose taxation on income, (ii) imposes income tax at a maximum rate lower than 20% or (iii) imposes restrictions on the disclosure of shareholding composition or the ownership of the investment.
Additionally, on June 24, 2008, Law No. 11,727/08 created the concept of privileged tax regimes, which encompasses the countries and jurisdictions that (i) do not tax income or tax it at a maximum rate lower than 20%; (ii) grant tax advantages to a Non-Resident entity or individual (a) without the need to carry out a substantial economic activity in the country or a said territory or (b) conditioned to the non-exercise of a substantial economic activity in the country or a said territory; (iii) do not tax proceeds generated abroad or tax them at a maximum rate lower than 20% or (iv) restrict disclosure about the ownership of assets and ownership rights or restrict disclosure about economic transactions carried out.
On November 28, 2014, the Brazilian tax authorities issued Ordinance 488, which decreased, from 20% to 17%, the minimum threshold for certain specific cases. The reduced 17% threshold applies only to countries and regimes aligned with international standards of fiscal transparency in accordance with rules to be established by the Brazilian tax authorities.
We consider that the best interpretation of the current Brazilian tax legislation, especially in regard to the abovementioned Law 11,727/08, should lead to the conclusion that the concept of privileged tax regimes should only apply for certain Brazilian tax purposes, such as transfer pricing and thin capitalization rules. According to this interpretation, the concept of privileged tax regimes should not be applied in connection with the taxation of payments related to the New Securities to Non-Residents. Regulations and non-binding tax rulings issued by Brazilian federal tax authorities seem to confirm this interpretation.
Notwithstanding the fact that such “privileged tax regime” concept was enacted in connection with transfer pricing rules and is also applicable to thin capitalization and cross-border interest deductibility rules, Brazilian tax authorities may take the position that such Privileged Tax Regime definition also applies to other types of transactions.
In the event that the privileged tax regime concept is interpreted to be applicable to transactions such as payments related to the New Securities to Non-Residents, this tax law would accordingly result in the imposition of
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taxation to a Non-Resident that meets the privileged tax regime requirements in the same way applicable to a resident located in a Low or nil tax jurisdiction. Prospective investors should therefore consult with their own tax advisors regarding the consequences of the implementation of Law No. 11,727, Normative Instruction No. 1,037/2010, as amended, and of any related Brazilian tax laws or regulations concerning Low or nil tax jurisdictions and privileged tax regimes.
Other Tax Considerations
Brazilian law imposes a Tax on Foreign Exchange Transactions (Imposto sobre Operações de Crédito, Câmbio e Seguro, ou relativas a Títulos e Valores Mobiliários), or IOF/Exchange, due on the conversion of reais into foreign currency and on the conversion of foreign currency into reais. Currently, the IOF/Exchange rate for almost all foreign currency exchange transactions is 0.38%. According to Section 15-B of the Decree No. 6,306, as amended, the settlement of exchange transactions in connection with foreign financing or loans, for both inflow and outflow of proceeds into and from Brazil, are subject to IOF/Exchange at a 0% rate. Currently, in the case of the settlement of foreign exchange transactions (including simultaneous foreign exchange transactions), in connection with the inflow of proceeds to Brazil deriving from foreign loans, including those obtained through the issuance of securities in the international market, with the minimum average term not exceeding 180 days, the IOF/Exchange tax rate is 6% (this rate of 6% will be levied with penalties and interest in the case of financings or international bonds with a minimum average term longer than 180 days in which an early redemption occurs in the first 180 days). The Brazilian federal government is permitted to increase this rate at any time up to 25.0%. Any such increase in rates may only apply to future transactions.
In addition, the Brazilian tax authorities could argue that a Tax on Loan Transactions (Imposto sobre Operações de Crédito, Câmbio e Seguro, ou relativas a Títulos e Valores Mobiliários), or IOF/Credit, due on loan transactions could be imposed upon any amount paid in respect of the New Securities by the guarantor under the guaranty given at a rate of up to 1.88% of the total amount paid.
Generally, there are no inheritance, gift, succession, stamp, or other similar taxes in Brazil with respect to the ownership, transfer, assignment or other disposition of the New Securities by a Non-Resident, except for gift and inheritance taxes imposed by some Brazilian states on gifts or bequests by individuals or entities not domiciled or residing in Brazil to individuals or entities domiciled or residing within such states.
Dutch Tax Considerations
Scope of Discussion
The following is a summary of certain material Dutch tax consequences of the acquisition, holding and disposal of the New Securities. This summary does not purport to describe all possible tax considerations or consequences that may be relevant to a holder or prospective holder of New Securities. This section is intended as general information only, it does not constitute tax or legal advice, and it does not purport to deal with the Dutch tax consequences applicable to all categories of investors, some of which (such as trusts or similar arrangements) may be subject to special rules. In view of its general nature, this summary should be treated with appropriate caution.
This summary is based on the tax laws of the Netherlands, published regulations thereunder and published authoritative case law, all as in effect on the date hereof, and all of which are subject to change, or to different interpretation, possibly with retroactive effect. Where the summary refers to "the Netherlands" or "Dutch" it refers only to the part of the Kingdom of the Netherlands located in Europe. For the avoidance of doubt, this summary does not describe the consequences of the entering into effect of the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), which act will enter into effect as per January 1, 2021. Please see “Risk factors—If interest payments on the New Securities become subject to withholding tax in the Netherlands, the New Securities may be redeemed prior to their stated maturity” for more information on the new withholding tax on interest in the Netherlands.
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HOLDERS OR PROSPECTIVE HOLDERS OF NEW SECURITIES SHOULD CAREFULLY CONSIDER THE TAX CONSEQUENCES OF INVESTING IN THE NEW SECURITIES AND CONSULT THEIR OWN TAX ADVISER ABOUT THEIR OWN TAX SITUATION IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES AS WELL AS THE NEW WITHHOLDING ON INTEREST IN THE NETHERLANDS (TO BECOME EFFECTIVE AS PER JANUARY 1, 2021). FINALLY, POTENTIAL INVESTORS SHOULD BE AWARE THAT TAX REGULATIONS AND THEIR APPLICATION BY THE RELEVANT TAXATION AUTHORITIES CHANGE FROM TIME TO TIME, WITH OR WITHOUT RETROACTIVE EFFECT. ACCORDINGLY, IT IS NOT POSSIBLE TO PREDICT THE PRECISE TAX TREATMENT WHICH WILL APPLY AT ANY GIVEN TIME.
For Dutch tax purposes, a holder of New Securities may include, without limitation:
| · | an owner of New Securities who, in addition to the title to such New Securities, has an economic interest in such New Securities; |
| · | a person or an entity that holds the entire economic interest in New Securities; |
| · | a person or an entity that holds an interest in an entity, such as a partnership or a mutual fund, that is transparent for Dutch tax purposes, the assets of which comprise New Securities; and |
| · | a person who is deemed to hold an interest in New Securities, as referred to under any of the above, pursuant to the attribution rules of article 2.14a, of the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001), with respect to property that has been segregated, for example, in a trust or a foundation. |
Withholding Tax
All payments of principal or interest made by PGF under the New Securities may be made free of withholding or deduction of, for or on account of any taxes of any nature imposed, levied, withheld or assessed by the Netherlands or any political subdivision or taxing authority thereof or therein.
Taxes on Income and Capital Gains
Please note that the summary in this section does not describe the Dutch tax considerations for:
| (i) | holders of New Securities if such holders, and in the case of an individual, his or her partner or certain of his or her relatives by blood or marriage in the direct line (including foster children), have a substantial interest (aanmerkelijk belang) or deemed substantial interest (fictief aanmerkelijk belang) in PGF under the Dutch Income Tax Act 2001. Generally speaking, a holder of securities has a substantial interest in PGF if it has, directly or indirectly (and, in the case of an individual, alone or together with certain relatives) (i) the ownership of, a right to acquire the ownership of, or certain rights over, shares representing 5 per cent. or more of either the total issued and outstanding capital of PGF or the issued and outstanding capital of any class of shares of PGF, or (ii) the ownership of, or certain rights over, profit participating certificates (winstbewijzen) that relate to 5 per cent. or more of either the annual profit or the liquidation proceeds of PGF. A deemed substantial interest may arise if a substantial interest (or part thereof) has been disposed of, or is deemed to have been disposed of, on a non-recognition basis; |
| (ii) | pension funds, investment institutions (fiscale beleggingsinstellingen), exempt investment institutions (vrijgestelde beleggingsinstellingen) (as defined in the Dutch Corporate Income Tax Act 1969; Wet op de vennootschapsbelasting 1969) and other entities that are, in whole or in part, not subject to or exempt from Dutch corporate income tax; and |
| (iii) | holders of New Securities who are individuals and for whom the New Securities or any benefit derived from the New Securities are a remuneration or deemed to be a remuneration for activities |
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performed by such holders or certain individuals related to such holders (as defined in the Dutch Income Tax Act 2001).
Dutch Resident Entities
Generally speaking, if the holder of New Securities is an entity that is a resident or deemed to be resident of the Netherlands for Dutch corporate income tax purposes (a “Dutch Resident Entity”), any payment under the New Securities or any gain or loss realized on the disposal or deemed disposal of the New Securities is subject to Dutch corporate income tax at a rate of 16.5% with respect to taxable profits up to €200,000 and 25% with respect to taxable profits in excess of that amount (rates and brackets for 2020).
Dutch Resident Individuals
If the holder of New Securities is an individual resident or deemed to be resident of the Netherlands for Dutch income tax purposes (a “Dutch Resident Individual”), any payment under the New Securities or any gain or loss realized on the disposal or deemed disposal of the New Securities is taxable at the progressive Dutch income tax rates (with a maximum of 49.5% in 2020), if:
| (i) | the New Securities are attributable to an enterprise from which the holder of New Securities derives a share of the profit, whether as an entrepreneur (ondernemer) or as a person who has a co-entitlement to the net worth (medegerechtigd tot het vermogen) of such enterprise without being a shareholder (as defined in the Dutch Income Tax Act 2001); or |
| (ii) | the holder of New Securities is considered to perform activities with respect to the New Securities that go beyond ordinary asset management (normaal, actief vermogensbeheer) or derives benefits from the New Securities that are taxable as benefits from other activities (resultaat uit overige werkzaamheden). |
If the above-mentioned conditions (i) and (ii) do not apply to the individual holder of New Securities, such holder will be taxed annually on a deemed return (with a maximum of 5.28% in 2020) on the individual's net investment assets (rendementsgrondslag) for the year, insofar the individual's net investment assets for the year exceed a statutory threshold (heffingvrij vermogen). The deemed return on the individual's net investment assets for the year is taxed at a rate of 30%. Actual income, gains or losses in respect of the New Securities are as such not subject to Dutch income tax.
The net investment assets for the year are the fair market value of the investment assets less the allowable liabilities on January 1 of the relevant calendar year. The New Securities are included as investment assets. For the net investment assets on January 1, 2020, the deemed return ranges from 1.7893% up to 5.28% (depending on the aggregate amount of the net investment assets of the individual on January 1, 2020). The deemed return will be adjusted annually on the basis of historic market yields.
Non-residents of the Netherlands
A holder of New Securities will not be treated as a resident of the Netherlands by reason only of the holding of New Securities or the execution, performance, delivery and/or enforcement of the New Securities.
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A holder who is not a resident of the Netherlands, nor deemed to be a resident, is not taxable on income derived from the New Securities and capital gains realized upon the disposal or redemption of the New Securities, except if:
| (i) | such holder derives profits from an enterprise, whether as entrepreneur (ondernemer) or pursuant to a co-entitlement to the net worth of the enterprise, other than as an entrepreneur or a shareholder, which enterprise is, in whole or in part, carried on through a (deemed) permanent establishment (vaste inrichting) or a permanent representative (vaste vertegenwoordiger) that is taxable in the Netherlands, to which the New Securities are attributable; |
| (ii) | the holder is an individual and derives benefits from miscellaneous activities (overige werkzaamheden) carried out in the Netherlands in respect of the New Securities, including without limitation activities which are beyond the scope of active portfolio investment activities; |
| (iii) | the holder is not an individual and is entitled to a share in the profits of an enterprise or a co-entitlement to the net worth of an enterprise, which is effectively managed in the Netherlands, other than by way of securities, and to which enterprise the New Securities are attributable; or |
| (iv) | the holder is an individual and is entitled to a share in the profits of an enterprise that is effectively managed in the Netherlands, other than by way of securities, and to which enterprise the New Securities are attributable. |
Dutch Gift and Inheritance Taxes
No Dutch gift or inheritance taxes are due in respect of any gift of Notes by, or inheritance of the Notes on the death of a holder, except if:
| (i) | at the time of the gift or death of the holder, the holder is a resident, or is deemed to be a resident, of the Netherlands or the transfer is otherwise construed as a gift or inheritance made by, or on behalf of, a person who, at the time of the gift or death, is or is deemed to be a resident of the Netherlands; |
| (ii) | the holder dies within 180 days after the date of the gift of the Notes and is not, or not deemed to be, at the time of the gift, but is, or deemed to be, at the time of his or her death, a resident of the Netherlands; or |
| (iii) | the gift of the Notes is made under a condition precedent and the holder is a resident. |
For purposes of Dutch gift and inheritance taxes, among others, a person that holds Dutch nationality will be deemed to be a resident of the Netherlands if such person has been resident in the Netherlands at any time during the ten years preceding the date of the gift or such person’s death. Additionally, for purposes of Dutch gift tax, among others, a person not holding the Dutch nationality will be deemed to be a resident of the Netherlands if such person has been resident in the Netherlands at any time during the twelve months preceding the date of the gift.
Other taxes and duties
No other Dutch taxes, including value-added tax (VAT) and taxes of a documentary nature, such as capital tax, stamp or registration tax or duty, are payable by or on behalf of a holder of the New Securities by reason only of the purchase, ownership and disposal of the New Securities.
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Each broker-dealer participating in the exchange offer must deliver a prospectus meeting the requirements of the Securities Act and other applicable (European) prospectus legislation in connection with any resale of the New Securities received in exchange for Old Securities that were acquired as a result of market-making activities or other trading activities. By acknowledging this obligation and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
A broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of New Securities received in exchange for Old Securities where the broker-dealer acquired the Old Securities as a result of market-making activities or other trading activities. We have agreed to make this prospectus available to any broker-dealer for up to 180 days after the registration statement is declared effective (subject to extension under certain circumstances) for use in connection with any such resale.
Neither PGF nor Petrobras will receive any proceeds from any sale of New Securities by broker-dealers. New Securities that broker-dealers receive for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Securities or a combination of such methods of resale, at market prices prevailing at the time of resale. These transactions may be at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such New Securities. Any broker-dealer that resells New Securities that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such New Securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of New Securities and any commission or concessions that any such persons receive may be deemed to be underwriting compensation under the Securities Act. However, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
We have agreed to pay all expenses incidental to the exchange offer, but we will not pay any broker-dealer commissions or concessions. We will indemnify the holders of the Old Securities, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act.
By accepting the exchange offer, each broker-dealer that receives New Securities in the exchange offer agrees that it will stop using the prospectus if it receives notice from us of any event that makes any statement in this prospectus false in any material respect or which requires any changes in this prospectus in order to make the statements true.
We are delivering copies of this prospectus in electronic form through the facilities of DTC. You may obtain paper copies of the prospectus by contacting the Luxembourg listing agent at its address specified on the inside back cover of this prospectus. By participating in the exchange offer, you will be consenting to electronic delivery of these documents.
The New Securities are new issues of securities with no established trading market. PGF intends to have the New Securities approved for listing on the Official List of the Luxembourg Stock Exchange and to trade on the Euro MTF Market of such exchange. PGF also intends to apply to have the New Securities approved for listing on the NYSE. We cannot assure you that these applications will be accepted or that an active market for the New Securities will exist at any time and, if any such market develops, we cannot assure you as to the liquidity of such a market.
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Difficulties of Enforcing Civil Liabilities Against Non U.S. Persons
Petrobras
Petrobras is a sociedade de economia mista (mixed-capital company), a public sector company with some private sector ownership, established under the laws of Brazil. All of its executive officers and directors and certain advisors named herein reside in Brazil. In addition, substantially all of its assets and those of its executive officers, directors and certain advisors named herein are located in Brazil. As a result, it may not be possible for investors to effect service of process upon Petrobras or its executive officers, directors and advisors named herein within the United States or other jurisdictions outside Brazil or to enforce against Petrobras or its executive officers, directors and advisers named herein judgments obtained in the United States or other jurisdictions outside Brazil. In addition, it may not be possible for you to enforce a judgment of a United States court for civil liability based upon the United States federal securities laws against any of those persons outside the United States.
Ms. Taísa Oliveira Maciel, Petrobras’s general counsel, has advised Petrobras that, subject to the requirements described below, judgments of United States courts for civil liabilities based upon the United States federal securities laws may be enforced in Brazil. A judgment against Petrobras or the other persons described above obtained outside Brazil would be enforceable in Brazil, without reconsideration of the merits, only if the judgment satisfies certain requirements and receives confirmation from the Brazilian Superior Court of Justice (Superior Tribunal de Justiça). The foreign judgment will only be confirmed if:
| · | it fulfills all formalities required for its enforceability under the laws of the country where the foreign judgment is granted; |
| · | it is for the payment of a sum certain of money; |
| · | it was issued by a competent court in the jurisdiction where the judgment was awarded after service of process was properly made in accordance with applicable law; |
| · | it is not subject to appeal; |
| · | it must be apostilled by a competent authority of the State from which the document emanates according to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents or, if such State is not signatory of the Hague Convention, it must be duly authenticated by a competent Brazilian consulate; |
| · | it is authenticated by a Brazilian consular office in the country where it was issued, and is accompanied by a sworn translation into Portuguese, unless an exemption is provided by an international treaty to which Brazil is a signatory; and |
| · | it is not contrary to Brazilian national sovereignty, public policy or good morals. |
Notwithstanding the foregoing, no assurance can be given that such confirmation would be obtained, that the process described above could be conducted in a timely manner or that a Brazilian court would enforce a monetary judgment for violation of the U.S. securities laws with respect to any securities issued by Petrobras.
Ms. Taísa Oliveira Maciel has also advised Petrobras that:
| · | original actions based on the U.S. federal securities laws may be brought in Brazilian courts and that, subject to Brazilian public policy and national sovereignty, Brazilian courts may enforce liabilities in such actions against Petrobras, certain of its directors and officers and the advisors named herein; |
| · | if an investor resides outside Brazil and owns no real property in Brazil, he or she must provide a bond sufficient to guarantee court costs and legal fees, including the defendant’s attorneys’ fees, as determined by the Brazilian court, in connection with litigation in Brazil, except: (1) when an exemption is provided by an international agreement or treaty that Brazil is a signatory; (2) in the case of claims for collection on a título executivo extrajudicial (an instrument which may be enforced in Brazilian courts without a |
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review on the merits), in the case of the enforcement of a foreign judgment which has been confirmed by the Brazilian Superior Court of Justice; or (3) counterclaims as established, according to Article 83 of the Brazilian Code of Civil Procedure (Código de Processo Civil);
| · | Brazilian law limits an investor’s ability as a judgment creditor of Petrobras to satisfy a judgment against Petrobras by attaching its gas and oil reserves, as Petrobras does not own any of the crude oil and natural gas reserves in Brazil. Under Brazilian law, the Brazilian government owns all crude oil and natural gas reserves in Brazil; |
| · | a law has been enacted in Brazil to regulate judicial and extrajudicial reorganization and liquidation of business companies. Such law revoked the previous Brazilian Bankruptcy law. The new law is not applicable to mixed capital companies, such as Petrobras, and does not provide whether the federal government of Brazil is liable for Petrobras’s obligations in the event of bankruptcy; and |
| · | certain of Petrobras’s exploration and production assets may be subject to reversion to the Brazilian government under Petrobras’s concession agreements. Such assets, under certain circumstances, may not be subject to attachment or execution. |
PGF
PGF is duly incorporated as a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands. All of the directors of PGF reside outside the United States. PGF has no assets and all or a substantial portion of the assets of PGF’s directors are located outside of the United States. As a result, it may be difficult for investors to effect service of process within the United States upon PGF or such persons or to enforce, in the United States courts, judgment against PGF or such persons or judgments obtained in such courts predicated upon the civil liability provisions of the federal securities laws of the United States.
PGF has been advised by its special Dutch counsel, NautaDutilh N.V., that a judgment rendered by a federal or state court in New York, or a “New York Court,” cannot be enforced in the Netherlands for the reason that the United States and the Netherlands currently do not have a treaty providing for the reciprocal recognition and enforcement of judgments (other than arbitration awards) in civil and commercial matters. In order to obtain a judgment that can be enforced in the Netherlands, the dispute will have to be re-litigated before the competent Dutch court. If a person has obtained a final and conclusive judgment for the payment of money rendered by the New York Court which is enforceable in the United States, the person will be required to file its claim with the court of competent jurisdiction in the Netherlands. Such party may submit to the Dutch court the final judgement rendered by the New York Court. The Dutch court will have discretion to attach such weight to this final judgment as it deems appropriate. The Dutch court can be expected to adjudicate substantial importance to such judgment without full re-examination or full re-litigation of the substantive matters adjudicated thereby (marginale toetsing), to the extent (i) the New York Court accepted jurisdiction in the matter on the basis of an internationally recognized ground to accept jurisdiction, (ii) the proceedings before such court have complied with the principles proper procedure and fair trail (behoorlijke rechtspleging), (iii) such judgment does not conflict with the public policy (openbare orde) of the Netherlands and (iv) such judgment not being incompatible with a judgment given between the same parties by a Dutch court or with a prior judgment given between the same parties by a foreign court in a dispute concerning the same subject matter and based on the same cause of action, provided such prior judgment is recognizable in the Netherlands.
The enforcement in a Dutch court of judgments rendered by a court in the United States is subject to the Dutch rules of civil procedure. Judgments may be rendered in a foreign currency but enforcement is executed in Euro at the applicable rate of exchange. Enforcement of obligations in the Netherlands will be subject to the nature of remedies available in the Dutch courts. The taking of current proceedings in more than one jurisdiction may be disallowed by the Dutch courts, but such courts have the power to stay proceedings if concurrent proceedings are being brought elsewhere.
Subject to the foregoing and service of process in accordance with applicable treaties and rules, investors may be able to enforce in the Netherlands judgments in civil and commercial matters obtained from U.S. federal or state courts. However, no assurance can be given that those judgments will be enforceable and, in particular, awards of punitive damages in actions brought in the United States or elsewhere may be unenforceable in the Netherlands. In
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addition, there can be no assurance that a Dutch court would accept jurisdiction and impose civil liability in an original action commenced in the Netherlands and predicated solely upon U.S. federal securities laws.
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Certain legal matters with respect to Dutch law will be passed upon for PGF by NautaDutilh N.V., special Dutch counsel for PGF. Certain legal matters with respect to Brazilian law will be passed upon for Petrobras by Ms. Taísa Oliveira Maciel, Petrobras’s general counsel. The validity of the New Securities, the indenture and the guaranty and certain legal matters with respect to U.S. federal law will be passed upon for PGF and Petrobras by Cleary Gottlieb Steen & Hamilton LLP, special U.S. counsel for PGF and Petrobras.
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With respect to the unaudited consolidated interim financial information of Petrobras as of March 31, 2020 and for the three-month period ended March 31, 2020 and 2019, incorporated by reference herein, KPMG Auditores Independentes, an independent registered public accounting firm, reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate report included in the Petrobras Form 6-K furnished to the SEC on May 15, 2020 and incorporated by reference herein, states that they did not audit and they do not express an opinion on that unaudited consolidated interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. The accountants are not subject to the liability provisions of Section 11 of the Securities Act for their report on the unaudited consolidated interim financial information because that report is not a ‘report’ or a ‘part’ of the registration statement prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Securities Act.
The consolidated financial statements of Petrobras as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018 and 2017 and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2019 (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated herein by reference to the Annual Report on Form 20-F filed with the SEC on March 23, 2020, as amended by Amendment No. 1 on Form 20-F/A filed with the SEC on April 21, 2020, have been so incorporated in reliance on the reports of KPMG Auditores Independentes, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
Certain oil and gas reserve data incorporated by reference in this prospectus and the registration statement by reference to the 2019 Form 20-F were reviewed by DeGolyer and MacNaughton as indicated therein, in reliance upon the authority of such firm as expert in estimating proved oil and gas reserves.
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Listing and General Information
| 1. | PGF intends to apply to have the New Securities listed on the Official List of the Luxembourg Stock Exchange and to trading on the Euro MTF Market of the Luxembourg Stock Exchange. We cannot assure you that this application will be accepted. |
| 2. | PGF expects the New Securities to be accepted for clearance and settlement through DTC, Euroclear and Clearstream at or prior to the settlement date of the exchange offer. The CUSIP and ISIN numbers for the New Securities are as follows: |
Global Note | ||
| CUSIP | 71647N BE8 | |
| ISIN | US71647NBE85 | |
| 3. | We have obtained all necessary consents, approvals and authorizations in connection with the issuance and performance of the New Securities. Resolutions of PGF’s board of managing directors, dated June 30, 2020, authorized the issuance of the New Securities. Resolutions of Petrobras’s board of directors, dated June 24, 2020, authorized the execution and delivery of the guaranty. |
| 4. | Except as disclosed in this prospectus, since March 31, 2020, there has been no material adverse change (or any development or event involving a prospective change of which we are or might reasonably be expected to be aware) which is materially adverse to Petrobras’s financial condition and that of its subsidiaries taken as a whole. |
| 5. | Except as described in this prospectus, including the documents incorporated by reference herein, there are no pending actions, suits or proceedings against or affecting Petrobras or any of its subsidiaries or any of its respective properties, which, if determined adversely to Petrobras or any such subsidiary, would individually or in the aggregate have an adverse effect on its financial condition and that of its subsidiaries taken as a whole or would adversely affect its ability to perform its obligations under the New Securities or which are otherwise material in the context of the issue of the New Securities, and, to the best of our knowledge, no such actions, suits or proceedings are threatened. |
| 6. | The New Securities will be fully and unconditionally guaranteed by Petrobras. |
| 7. | PGF’s registered office is located at Weena 762, 9th floor, room A, 3014 DA Rotterdam, The Netherlands, and our telephone number is +31 (0) 10 206-7000. Petrobras’ principal executive office is located at Avenida República do Chile, 65 — 10th Floor, 20031-912—Rio de Janeiro, RJ, Brazil (telephones: +55 (21) 3224-1510 or +55 (21) 3224-9947). |
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Issuer
Petrobras Global Finance B.V.
Weena 762, 3014 DA
Rotterdam
The Netherlands
GUARANTOR
Petróleo Brasileiro S.A. — Petrobras
Avenida República do Chile, 65
20031-912 — Rio de Janeiro
RJ, Brazil
INDENTURE TRUSTEE, REGISTRAR, PRINCIPAL PAYING AND TRANSFER AGENT
The Bank of New Mellon
240 Greenwich Street, Floor 7E,
New York, New York 10286
United States of America
LUXEMBOURG LISTING AGENT
The Bank of New York Mellon SA/NV, Luxembourg Branch
Vertigo Building-Polaris
2-4 rue Eugène Ruppert, L-2453
Grand Duchy of Luxembourg
EXCHANGE AGENT
The Bank of New Mellon
111 Sanders Creek Parkway
East Syracuse, New York, 13057
United States of America
LEGAL ADVISORS
To the Issuer and Guarantor as to
| U.S. Federal and New York Law: | Dutch Law: |
| Cleary Gottlieb Steen & Hamilton LLP | NautaDutilh N.V. |
| One Liberty Plaza | Beethovenstraat 400 |
| New York, New York 10006 | 1082 PR Amsterdam |
| United States of America | The Netherlands |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 20. | Indemnification of Directors and Officers |
Article 23, Section 1 of Petrobras’s by-laws requires it to defend its senior management in administrative and legal proceedings and maintain insurance coverage to protect senior management from liability arising from the performance of the senior manager’s functions. Petrobras maintains an insurance policy covering losses and expenses arising from management actions taken by the directors and officers of Petrobras and its subsidiaries, including PGF, in their capacity as such.
Neither PGF’s Articles of Association nor the laws of the Netherlands provide for indemnification of directors or officers.
| Item 21. | Exhibits and Financial Statement Schedules |
(a) Exhibits
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* Filed herewith.
(b) Financial Statement Schedules
All schedules have been omitted because they are not required or are not applicable, or the information is included in the financial statements or notes thereto.
(c) Not applicable.
| Item 22. | Undertakings |
(a) The undersigned registrants hereby undertake:
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: | |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”); | |
| (ii) | To reflect in the prospectus any facts arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information set forth in the registration statement. | |
provided, however, that the undertakings set forth in paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by Petrobras pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
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| 2. | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. | |
| 4. | In the case of Petrobras, to file a post-effective amendment to this registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished; provided that Petrobras includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by Petrobras pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement. | |
| 5. | That, for the purpose of determining liability under the Securities Act to any purchaser | |
| (i) | Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of the registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. | |
| 6. | That, for the purpose of determining liability of the registrants under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: | |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424; | |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants; |
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| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and | |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser. |
| 7. | That, for purposes of determining any liability under the Securities Act, each filing of Petrobras’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
| 8. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. | |
| 9. | (i) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means, and (ii) to arrange or provide for a facility in the United States for the purpose of responding to such requests. The undertaking in subparagraph (i) above includes information contained in documents filed subsequent to the effective date of this registration statement through the date of responding to the request. | |
| 10. | To supply by means of a post-effective amendment all information concerning a transaction and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
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SIGNATURE PAGE OF PETROBRAS GLOBAL FINANCE B.V.
Pursuant to the requirements
of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Rio de Janeiro, Brazil
on July 6, 2020.
| PETROBRAS GLOBAL FINANCE B.V. | |||
| By: | /s/ Guilherme Rajime Takahashi Saraiva | ||
| Name: | Guilherme Rajime Takhashi Saraiva | ||
| Title: | Managing Director A | ||
| PETROBRAS GLOBAL FINANCE B.V. | |||
| By: | /s/ João Lossio Pereira dos Reis | ||
| Name: | João Lossio Pereira dos Reis | ||
| Title: | Managing Director B | ||
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Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Ricardo Rodriguez Besada Filho, Larry Carris Cardoso, André Luis Campos Silva, José Roberto Espósito and Tomaz André Barbosa his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, acting individually, to sign any and all amendments (including post-effective amendments) to the registration statement on Form F-4, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the indicated capacities as indicated below on July 6, 2020, in respect of Petrobras Global Finance B.V.
| Signature | Title | |
| /s/ Guilherme Rajime Takahashi Saraiva | ||
| Guilherme Rajime Takahashi Saraiva | Managing Director A | |
| /s/ João Lossio Pereira dos Reis | ||
| João Lossio Pereira dos Reis | Managing Director B | |
| /s/ Donald Puglisi | ||
| PUGLISI & ASSOCIATES | Authorized Representative in the United States |
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SIGNATURE PAGE OF PETRÓLEO BRASILEIRO S.A. — PETROBRAS
Pursuant to the requirements
of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Rio de Janeiro, Brazil
on July 6, 2020.
| PETRÓLEO BRASILEIRO S.A. — PETROBRAS | |||
| By: | /s/ Roberto da Cunha Castello-Branco | ||
| Roberto da Cunha Castello-Branco | |||
| Chief Executive Officer | |||
| PETRÓLEO BRASILEIRO S.A. — PETROBRAS | |||
| By: | /s/ Andrea Marques de Almeida | ||
| Andrea Marques de Almeida | |||
| Chief Financial Officer and Chief Investor Relations Officer | |||
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Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Ricardo Rodriguez Besada Filho, Larry Carris Cardoso, André Luis Campos Silva, José Roberto Espósito and Tomaz André Barbosa his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, acting individually, to sign any and all amendments (including post-effective amendments) to the registration statement on Form F-4, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated below on July 6, 2020, in respect of Petróleo Brasileiro S.A.—Petrobras.
| Signature | Title | |
| /s/ Roberto da Cunha Castello Branco | ||
| Roberto da Cunha Castello Branco | Chief Executive Officer and Member of the Board of Directors | |
| /s/ Andrea Marques de Almeida | ||
| Andrea Marques de Almeida | Chief Financial Officer and Chief Investor Relations Officer | |
| /s/ Rodrigo Araújo Alves | ||
|
Rodrigo Araújo Alves
|
Chief Accounting and Tax Officer | |
| /s/ Eduardo Bacellar Leal Ferreira | ||
| Eduardo Bacellar Leal Ferreira | Chairman of the Board of Directors | |
| /s/ Danilo Ferreira da Silva | ||
| Danilo Ferreira da Silva | Member of the Board of Directors | |
| /s/ João Cox Neto | ||
| João Cox Neto | Member of the Board of Directors | |
| Nivio Ziviani | Member of the Board of Directors | |
| Marcelo Mesquita de Siqueira Filho | Member of the Board of Directors | |
| /s/ Sônia Júlia Sulzbeck Villalobos | ||
| Sônia Júlia Sulzbeck Villalobos | Member of the Board of Directors | |
| /s/ Walter Mendes de Oliveira Filho | ||
|
Walter Mendes de Oliveira Filho |
Member of the Board of Directors | |
|
Member of the Board of Directors | ||
| Maria Cláudia Mello Guimarães | ||
| /s/ Donald Puglisi | ||
| PUGLISI & ASSOCIATES | Authorized Representative in the United States |
II-84
Exhibit 4.73
GUARANTY
Dated as of September 18, 2019
between
PETRÓLEO BRASILEIRO S.A.—PETROBRAS,
as Guarantor,
and
THE BANK OF NEW YORK MELLON, as
Trustee for the Noteholders
Referred to Herein
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Table of Contents
| Page | ||
| SECTION 1. | Definitions | 4 |
| SECTION 2. | Guaranty | 8 |
| SECTION 3. | Guaranty Absolute | 9 |
| SECTION 4. | Independent Obligation | 10 |
| SECTION 5. | Waivers and Acknowledgments | 10 |
| SECTION 6. | Claims Against the Issuer | 12 |
| SECTION 7. | Covenants | 12 |
| SECTION 8. | Amendments, Etc. | 15 |
| SECTION 9. | Indemnity | 16 |
| SECTION 10. | Notices, Etc | 16 |
| SECTION 11. | Survival | 16 |
| SECTION 12. | No Waiver; Remedies | 16 |
| SECTION 13. | Continuing Agreement; Assignment of Rights Under the Indenture and the 2030 Notes | 17 |
| SECTION 14. | Currency Rate Indemnity | 17 |
| SECTION 15. | Governing Law; Jurisdiction; Waiver of Immunity, Etc. | 18 |
| SECTION 16. | Execution in Counterparts | 19 |
| SECTION 17. | Entire Agreement | 19 |
| SECTION 18. | The Trustee | 19 |
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GUARANTY
GUARANTY (this “Guaranty”), dated as of September 18, 2019 between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “Guarantor”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“Brazil”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee under the Indenture (as defined below) (the “Trustee”).
WITNESSETH:
WHEREAS, Petrobras Global Finance B.V., a private company incorporated with limited liability under the laws of The Netherlands and a wholly-owned Subsidiary of the Guarantor (the “Issuer”) and the Guarantor have entered into an Indenture dated as of September 18, 2019 with the Trustee and THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH (the “Luxembourg Agent”), as it may be amended or supplemented from time to time with respect to the Notes, is hereinafter referred to as the “Indenture”;
WHEREAS, the Issuer has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with the Indenture and is, on the date hereof, issuing U.S.$4,115,281,000 aggregate principal amount of its 5.093% Global Notes due 2030 under the Indenture (the “Notes”);
WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the Notes (the “Noteholders”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;
WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the Notes by the Issuer;
WHEREAS, it is a condition precedent to the issuance of the Notes that the Guarantor shall have executed this Guaranty;
WHEREAS, the Guarantor agrees that this Guaranty’s obligations shall also extend to the Exchange Securities (as defined in the Indenture) if and when issued;
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 Indenture. All such definitions shall be read in a manner consistent with the terms of this Guaranty.
(b) As used herein, the following capitalized terms shall have the following meanings:
“Affiliate,” with respect to any Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person; it being understood that for purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) of a Person shall mean the possession, direct or indirect, of the power to vote 25% or more of the equity or similar voting interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Representative” of the Guarantor or any other Person means the person or persons authorized to act on behalf of such entity by its chief executive officer, president, chief operating officer, chief financial officer or any vice president or its Board of Directors or any other governing body of such entity.
“Board of Directors”, when used with respect to a corporation, means either the board of directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them.
“Denomination Currency” has the meaning specified in Section 14(b).
“Guaranteed Obligations” has the meaning specified in Section 2.
“Indebtedness” means any obligation (whether present or future, actual or contingent and including, without limitation, any Guarantee) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under generally accepted accounting principles in the country of incorporation of the relevant obligor, would constitute a capital lease obligation).
“Judgment Currency” has the meaning specified in Section 14(b).
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, assets, property, condition (financial or otherwise) or, results of operation, of the Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty or any other Transaction Document, or (d) the material rights or benefits available to the Noteholders or the Trustee, as representative of the Noteholders under the Indenture, this Guaranty or any of the other Transaction Documents.
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“Material Subsidiary” means, as to any Person, any Subsidiary of such Person which, on any given date of determination, accounts for more than 15% of Petrobras’ total consolidated assets, as such total assets are set forth on the most recent consolidated financial statements of Petrobras prepared in accordance with IFRS (or if Petrobras does not prepare financial statements in IFRS, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).
“Officer’s Certificate” means a certificate of an Authorized Representative of the Guarantor.
“Opinion of Counsel” means a written opinion of counsel from any Person either expressly referred to herein or otherwise reasonably satisfactory to the Trustee which may include, without limitation, counsel for the Guarantor, whether or not such counsel is an employee of the Guarantor.
“Permitted Lien” means a:
(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government of Brazil or of any state or region thereof;
(ii) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Guarantor’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;
(iii) Lien arising from the Guarantor’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Guarantor’s past practice;
(iv) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;
(v) Lien granted upon or with respect to any assets hereafter acquired by the Guarantor or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;
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(vi) Lien granted in connection with the Indebtedness of a Wholly-Owned Subsidiary owing to the Guarantor or another Wholly-Owned Subsidiary;
(vii) Lien existing on any asset or on any stock of any Subsidiary prior to the acquisition thereof by the Guarantor or any Subsidiary as long as such Lien is not created in anticipation of such acquisition;
(viii) Lien over any Qualifying Asset relating to a project financed by, and securing Indebtedness incurred in connection with, the Project Financing of such project by the Guarantor, any of the Guarantor’s Subsidiaries or any consortium or other venture in which the Guarantor or any Subsidiary has any ownership or other similar interest;
(ix) Lien existing as of the date of original issuance of the Notes;
(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 IFRS) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.
“Process Agent” has the meaning specified in Section 15(c).
“Project Financing” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.
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“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).
“Termination Date” has the meaning specified in Section 6.
“Transaction Documents” means, collectively, the Indenture, the Notes and this Guaranty.
(c) Construction. The parties agree that items (1) through (5) of Section 1.01 of the Indenture shall apply to this Guaranty, except as otherwise expressly provided or unless the context otherwise requires.
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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, the Notes and the Exchange Securities, 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, the Notes and the Exchange Securities 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, the Notes and the Exchange Securities. Such notice shall specify the amount or amounts under the Indenture, the Notes or the Exchange Securities that were not paid on the date that such amounts were required to be paid under the terms of the Indenture, the Notes and the Exchange Securities.
(c) The obligation of the Guarantor under this Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the Notes, the Exchange Securities and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.
All payments actually received by the Trustee pursuant to this Section 2 after 12:00 p.m. (New York time) on any Business Day will be deemed, for purposes of this Guaranty, to have been received by the Trustee on the next succeeding Business Day.
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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 the Notes, the Exchange Securities 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, the Notes, the Exchange Securities 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, the Notes or the Exchange Securities;
(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, the Notes or the Exchange Securities as a result of any rescheduling of the Issuer’s obligations under the Notes, the Exchange Securities, 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, the Notes and the Exchange Securities;
(vi) any manner of sale or other disposition of any assets of any Noteholder;
(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor or any Subsidiary thereof or any change in the name, purposes, business, capital stock (including ownership thereof) or constitutive documents of the Issuer or the Guarantor;
(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);
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(ix) the failure of any other person or entity to execute or deliver any other guaranty or agreement or the release or reduction of liability of any other guarantor or surety with respect to the Indenture;
(x) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Trustee or any Noteholder that might otherwise constitute a defense available to, or a discharge of, the Issuer or the Guarantor or any other party; or
(xi) any claim of set-off or other right which the Guarantor may have at any time against the Issuer or the Trustee, whether in connection with this transaction or with any unrelated transaction.
(b) This 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 Notes, the Exchange Securities and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture, the Notes or the Exchange Securities, without in any way affecting or impairing the liability of the Guarantor hereunder. The Trustee shall not be obligated to exhaust recourse or remedies against the Issuer to recover payments required to be made under the Indenture nor take any other action against the Issuer before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 hereof owed hereunder or proceed against or have resort to any balance of any deposit account or credit on the books of the Trustee in favor of the Issuer or in favor of the Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.
SECTION 5. Waivers and Acknowledgments
(a) The Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Trustee, on behalf of the Noteholders, protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person.
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(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, the Notes or the Exchange Securities.
(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 794, 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, the Notes or the Exchange Securities have been discharged in full (the later of such dates being the “Termination Date”), such amount shall be paid over to and received and held by the Trustee in trust for the benefit of the Noteholders, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Trustee in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Indenture. If (i) the Guarantor shall make payment to any Noteholder or the Trustee, on behalf of the Noteholders, of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the Termination Date shall have occurred, then the Trustee, on behalf of the Noteholders, will, at the Guarantor’s written request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by the Guarantor pursuant to this Guaranty.
SECTION 7. Covenants
For so long as the Notes or the Exchange Securities remain outstanding or any amount remains unpaid on the Notes, the Exchange Securities or 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.
(b) Maintenance of Corporate Existence. The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7(e) and (ii) take all actions to maintain all rights, privileges, titles to property, franchises, concessions and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this Section 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.
(c) Maintenance of Office or Agency. So long as any of the Notes are outstanding, the Guarantor will maintain an office or agency in the United States where notices to and demands upon the Guarantor in respect of this Guaranty may be served, and the Guarantor will not change the appointment of the agent without prior written notice to the Trustee and designation of a replacement agent or office in the United States.
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(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, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty.
(e) Limitation on Consolidation, Merger, Sale or Conveyance. (i) The Guarantor will not, in one or a series of transactions, consolidate or amalgamate with or merge into any corporation or convey, lease, spin-off or transfer substantially all of its properties, assets or revenues to any person or entity (other than a direct or indirect Subsidiary of the Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:
(A) either the Guarantor is the continuing entity or the person (the “Successor Company”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Guaranty;
(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as part of such merger, consolidation or amalgamation) agrees to indemnify each Noteholder against any tax, assessment or governmental charge thereafter imposed on such Noteholder solely as a consequence of such consolidation, merger, conveyance, transfer or lease with respect to the payment of principal of, or interest on, the Notes or the Exchange Securities pursuant to this Guaranty;
(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and
(D) the Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such merger consolidation, sale, transfer or other conveyance or disposition and the amendment to this Guaranty comply with the terms of this Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.
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(ii) Notwithstanding anything to the contrary in the foregoing, so long as no Default or Event of Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom and the Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):
(A) the Guarantor may merge, amalgamate or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of all or substantially all of its properties, assets or revenues to a direct or indirect Subsidiary of the Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or
(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or
(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or
(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.
(f) Negative Pledge. So long as any Notes remain outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor provides such other security for the Notes or the Exchange Securities 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 Notes or the Exchange Securities 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 IFRS and (B) within 120 calendar days after the end of each fiscal year, its audited and consolidated balance sheet and statement of income calculated in accordance with IFRS. For purposes of this Section 7(g), as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Guarantor’s obligation to deliver such statements and reports to the Trustee hereunder. The Guarantor shall provide the Trustee with prompt written notification at such time that the Guarantor ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Guarantor’s financial statements or reports are publicly available and accessible electronically.
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(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(g)(iii), the Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.
(iv) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee's receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor's compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
SECTION 8. Amendments, Etc.
No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the Notes or the Exchange Securities required to approve the amendment.
15
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, 10th Floor, 20031-912 Rio de Janeiro - RJ, Brazil, Telephone: +55 (21) 3224-1510/3224-9947, Telecopier: +55 (21) 3224-1401, Attention: Larry Carris Cardoso, Finance Department, Loans and Financing Administration General Manager, if to the Trustee, to The Bank of New York Mellon, at 240 Greenwich Street, Floor 7 East, New York, New York, 10286, USA, Telephone: +1 (212) 815-4259, Telecopier: +1 (212) 815-5603, Attention: Corporate Trust Department or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such notices and other communications shall, when telecopied, be effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty shall be effective as delivery of an original executed counterpart thereof.
(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).
SECTION 11. Survival
Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty, the termination of this Guaranty and/or the resignation or removal of the Trustee.
SECTION 12. No Waiver; Remedies.
No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
16
SECTION 13. Continuing Agreement; Assignment of Rights Under the Indenture and the Notes.
This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the repayment in full by the Issuer of all amounts due and owing under the Indenture with respect to the Notes and the Exchange Securities and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Guaranty, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Trustee, on behalf of Noteholders, and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Noteholder may assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the Note or Exchange Security held by it) to any other person or entity, and such other person or entity shall thereupon become vested with all the benefits in respect thereof granted to such Noteholder herein or otherwise, in each case as and to the extent provided in the Indenture. The Guarantor shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of all of the Noteholders.
SECTION 14. Currency Rate Indemnity.
(a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:
(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Guaranty any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Guarantor; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (a) the date as of which the local currency equivalent of the amounts due or contingently due under this Guaranty or in respect of the Notes or the Exchange Securities is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, and (b) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than U.S. dollars (the “Denomination Currency”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent obligations of the Guarantor from its obligations hereunder, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Guarantor for a liquidated sum or sums in respect of amounts due under this Guaranty, or under the Indenture, the Notes, the Exchange Securities or under any judgment or order.
17
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 sitting in the Borough of Manhattan, City of New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Guaranty or any other Transaction Document in the courts of any jurisdiction.
(c) The Guarantor hereby irrevocably appoints and empowers Petrobras America Inc. with offices at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, 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 in the United States, 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.
18
(d) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(e) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(f) This Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself, the Issuer or any of their property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Guaranty, any of the Transaction Documents or any document delivered pursuant hereto, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdictions, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this subsection (f) shall have the fullest scope permitted under the United States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act.
SECTION 16. Execution in Counterparts
This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.
SECTION 17. Entire Agreement
This Guaranty, together with the Indenture, the Notes and the Exchange Securities, 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]
19
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
| PETRÓLEO BRASILEIRO S.A. – PETROBRAS | |||
| By: | /s/ Bianca Nasser Patrocinio | ||
| Name: | Bianca Nasser Patrocinio | ||
| Title: | Executive Manager of Corporate Finance & Treasury | ||
| WITNESSES: | |||
| 1. | /s/ Renan Feuchard Pinto | ||
| Name: Renan Feuchard Pinto | |||
| 2. | /s/ Adriana Fernandes de Brito | ||
| Name: Adriana Fernandes de Brito | |||
20
| ACKNOWLEDGED: | |
| THE BANK OF NEW YORK MELLON, as Trustee and not | |
| in its individual capacity |
| By: | /s/ Wanda Camacho | ||
| Name: Wanda Camacho | |||
| Title: Vice President | |||
| WITNESSES: | |||
| 1. | /s/ Thomas Hacker | ||
| Name: Thomas Hacker | |||
| Title: Vice President | |||
| 2. | /s/ Stacey B. Poindexter | ||
| Name: Stacey B. Poindexter | |||
| Title: Vice President | |||
21
| STATE OF NEW YORK | ) | |
| ) | ss: | |
| COUNTY OF NEW YORK | ) |
On this 18th day of September 2019, before me, a notary public within and for said county, personally appeared Wanda Camacho, to me personally known, who being duly sworn, did say that she is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.
On this 18th day of September 2019, before me personally came Thomas Hacker, Vice President and Stacey B. Poindexter, Vice President, to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.
[Notarial Seal]
| / s/ Bret S. Derman | |
| Notary Public |
COMMISSION EXPIRES
22
Exhibit 4.74
FORM OF GLOBAL NOTE
5.093% Global Note due 2030
THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
PETROBRAS GLOBAL FINANCE B.V.
5.093% Global Notes due 2030
No. [●]
CUSIP No.: 71647N BE8
ISIN No.: US71647NBE85
Principal Amount: U.S.$[●]
Initial Issuance Date: [●], 2020
This Note is one of a duly authorized issue of notes of PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “Issuer”), designated as its 5.093% Global Notes due 2030 (the “Notes”), issued in an initial aggregate principal amount of U.S.$[●] under the Indenture (the “Indenture”), dated as of September 18, 2019, by and among the Issuer, Petróleo Brasileiro S.A. – Petrobras, a mixed capital company (sociedade de economia mista) organized under the laws of Brazil (“Petrobras”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “Trustee”), paying agent, Security Registrar and transfer agent and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent and Luxembourg paying agent. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co., or its registered assigns, as nominee of The Depository Trust Company (“DTC”), and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on January 15, 2030 (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 July 15, 2020, semi-annually in arrears on January 15 and July 15 of each year, (each such date, an “Interest Payment Date”), commencing January 15, 2021 at a rate equal to 5.093% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid.
Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment.
Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest shall accrue on the Notes at the rate of 5.093% per annum until all required amounts due in respect of the Notes have been paid. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.
The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.
This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.
The Indenture, the Guaranties or the Notes may be amended or supplemented as provided by the Indenture.
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. 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 minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.
Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTIES.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| PETROBRAS GLOBAL FINANCE B.V. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: |
| WITNESSES: | ||
| 1. | ||
| Name: | ||
| 2. | ||
| Name: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned Indenture.
Dated: , 2020
| 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 Security Registrar with full power of substitution in the premises.
| Date: | Your Signature: |
| (Sign exactly as your name | |
| appears on the face of this Note) |
| Signature Guaranty: | ||
| (Participant in a recognized signature guaranty medallion program) | ||
| Date: | ||
| Certifying Signature: | ||
Exhibit 4.75
PETROBRAS GLOBAL FINANCE B.V.
Company
PETRÓLEO BRASILEIRO S.A. – PETROBRAS
Guarantor
THE BANK OF NEW YORK MELLON
Trustee, Paying Agent, Security Registrar and Transfer Agent
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
Luxembourg Paying Agent
INDENTURE
Dated as of September 18, 2019
5.093% Global Notes due 2030
Petrobras Global Finance B.V.
Certain Sections of this Indenture relating to Sections 3.10 through 3.18, inclusive, of the Trust Indenture Act of 1939:
| Trust Indenture Act Section | Indenture Section | |||
| Section 3.10(a)(1) | 6.09 | |||
| (a)(2) | 6.09 | |||
| (a)(3) | Not Applicable | |||
| (a)(4) | Not Applicable | |||
| (b) | 6.08 | |||
| 6.10 | ||||
| Section 3.11(a) | 6.13 | |||
| (b) | 6.13 | |||
| Section 3.12(a) | 7.01 | |||
| 7.02 | ||||
| (b) | 7.02 | |||
| (c) | 7.02 | |||
| Section 3.13(a) | 7.03 | |||
| (b) | 7.03 | |||
| (c) | 7.03 | |||
| (d) | 7.03 | |||
| Section 3.14(a) | 7.04 | |||
| (a)(4) | 1.01 | |||
| 10.05 | ||||
| (b) | Not Applicable | |||
| (c)(l) | 1.02 | |||
| (c)(2) | 1.02 | |||
| (c)(3) | Not Applicable | |||
| (d) | Not Applicable | |||
| (e) | 1.02 | |||
| Section 3.15(a) | 6.01 | |||
| (b) | 6.02 | |||
| (c) | 6.01 | |||
| (d) | 6.01 | |||
| (e) | 5.14 | |||
| Section 3.16(a) | 1.01 | |||
| (a)(1)(A) | 5.02 | |||
| 5.12 | ||||
| (a)(1)(B) | 5.13 | |||
| (a)(2) | Not Applicable | |||
| 5.08 | ||||
| (c) | 1.04 | |||
| Section 3.17(a)(l) | 5.03 | |||
| (a)(2) | 5.04 | |||
| Section 3.18(a) | 1.07 | |||
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture.
Table of Contents
Page
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Compliance Certificates and Opinions | 13 |
| Section 1.03 | Form of Documents Delivered to Trustee | 14 |
| Section 1.04 | Acts of Holders of Securities; Record Dates | 14 |
| Section 1.05 | Notices, Etc., to Trustee, the Company and Petrobras | 17 |
| Section 1.06 | Notice to Holders of Securities; Waiver | 17 |
| Section 1.07 | Language of Notices, Etc. | 18 |
| Section 1.08 | Conflict with Trust Indenture Act | 18 |
| Section 1.09 | Effect of Headings and Table of Contents | 19 |
| Section 1.10 | Successors and Assigns | 19 |
| Section 1.11 | Separability Clause | 19 |
| Section 1.12 | Benefits of Indenture | 19 |
| Section 1.13 | Governing Law | 19 |
| Section 1.14 | Saturday, Sundays and Legal Holidays | 19 |
| Section 1.15 | Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity | 20 |
| Section 1.16 | Waiver of Jury Trial | 20 |
| Article Two SECURITY FORMS | ||
| Section 2.01 | Forms Generally | 20 |
| Section 2.02 | Form of Global Security | 21 |
| Section 2.03 | Form of Legend for Global Securities | 23 |
| Section 2.04 | Form of Trustee’s Certificate of Authentication | 23 |
| Section 2.05 | The Guaranty | 24 |
| Article Three THE SECURITIES | ||
| Section 3.01 | The Securities | 24 |
| Section 3.02 | Denominations | 25 |
| Section 3.03 | Execution, Authentication, Delivery and Dating | 25 |
| Section 3.04 | Temporary Securities | 26 |
| Section 3.05 | Registration, Registration of Transfer and Exchange | 27 |
| Section 3.06 | Mutilated, Destroyed, Lost and Stolen Securities | 32 |
| Section 3.07 | Payment of Interest; Interest Rights Preserved | 32 |
| Section 3.08 | Persons Deemed Owners | 34 |
| Section 3.09 | Cancellation | 34 |
| Section 3.10 | Computation of Interest | 34 |
| Section 3.11 | CUSIP or ISIN Numbers | 34 |
| Section 3.12 | Add On Notes | 35 |
| Section 3.13 | Payment Account | 36 |
i
| Article Four SATISFACTION AND DISCHARGE | ||
| Section 4.01 | Satisfaction and Discharge of Indenture | 36 |
| Section 4.02 | Application of Trust Money | 37 |
| Article Five REMEDIES | ||
| Section 5.01 | Events of Default | 37 |
| Section 5.02 | Acceleration of Maturity; Rescission and Annulment | 39 |
| Section 5.03 | Collection of Indebtedness and Suits for Enforcement by Trustee | 40 |
| Section 5.04 | Trustee May File Proofs of Claim | 41 |
| Section 5.05 | Trustee May Enforce Claims Without Possession of Securities | 41 |
| Section 5.06 | Application of Money Collected | 41 |
| Section 5.07 | Limitation on Suits | 42 |
| Section 5.08 | Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert | 42 |
| Section 5.09 | Restoration of Rights and Remedies | 42 |
| Section 5.10 | Rights and Remedies Cumulative | 43 |
| Section 5.11 | Delay or Omission Not Waiver | 43 |
| Section 5.12 | Control by Holders of Securities | 43 |
| Section 5.13 | Waiver of Past Defaults | 43 |
| Section 5.14 | Undertaking for Costs | 44 |
| Section 5.15 | Waiver of Stay, Extension or Usury Laws | 44 |
| Article Six THE TRUSTEE | ||
| Section 6.01 | Certain Duties and Responsibilities | 45 |
| Section 6.02 | Notice of Defaults | 45 |
| Section 6.03 | Certain Rights of Trustee | 45 |
| Section 6.04 | Not Responsible for Recitals or Issuance of Securities | 47 |
| Section 6.05 | May Hold Securities | 47 |
| Section 6.06 | Money Held in Trust | 47 |
| Section 6.07 | Compensation and Reimbursement | 48 |
| Section 6.08 | Conflicting Interests | 48 |
| Section 6.09 | Corporate Trustee Required; Eligibility | 48 |
| Section 6.10 | Resignation and Removal; Appointment of Successor | 49 |
| Section 6.11 | Acceptance of Appointment by Successor | 50 |
| Section 6.12 | Merger, Conversion, Consolidation or Succession to Business | 50 |
| Section 6.13 | Preferential Collection of Claims Against Company | 51 |
| Section 6.14 | Appointment of Authenticating Agent | 51 |
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| Article
Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | ||
| Section 7.01 | Company to Furnish Trustee Names and Addresses of Holders | 53 |
| Section 7.02 | Preservation of Information; Communications to Holders | 53 |
| Section 7.03 | Reports by Trustee | 53 |
| Section 7.04 | Reports by Company | 54 |
| Article
Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | ||
| Section 8.01 | Limitation on Consolidation, Merger, Sale or Conveyance | 54 |
| Section 8.02 | Successor Substituted | 56 |
| Article
Nine SUPPLEMENTAL INDENTURES | ||
| Section 9.01 | Supplemental Indentures Without Consent of Holders | 56 |
| Section 9.02 | Supplemental Indentures with Consent of Holders | 57 |
| Section 9.03 | Execution of Supplemental Indentures | 57 |
| Section 9.04 | Effect of Supplemental Indentures | 58 |
| Section 9.05 | Conformity with Trust Indenture Act | 58 |
| Section 9.06 | Reference in Securities to Supplemental Indentures | 58 |
| Article
Ten COVENANTS | ||
| Section 10.01 | Payment of Principal, Premium and Interest | 58 |
| Section 10.02 | Maintenance of Corporate Existence | 58 |
| Section 10.03 | Maintenance of Office or Agency | 59 |
| Section 10.04 | Ranking | 59 |
| Section 10.05 | Statement by Managing Directors as to Default | 59 |
| Section 10.06 | Provision of Financial Statements and Reports | 59 |
| Section 10.07 | Appointment to Fill a Vacancy in Office of Trustee | 60 |
| Section 10.08 | Payments and Paying Agents | 60 |
| Section 10.09 | Waiver of Certain Covenants | 63 |
| Section 10.10 | Additional Amounts | 63 |
| Section 10.11 | Use of Proceeds | 65 |
| Section 10.12 | Negative Pledge | 65 |
| Section 10.13 | Currency Rate Indemnity | 65 |
| Section 10.14 | Listing of the Securities | 66 |
| Article
Eleven REDEMPTION OF SECURITIES | ||
| Section 11.01 | Applicability of Article | 66 |
| Section 11.02 | Election to Redeem; Notice to Trustee | 66 |
| Section 11.03 | Selection by Trustee of Securities to Be Redeemed | 66 |
| Section 11.04 | Notice of Redemption | 67 |
| Section 11.05 | Deposit of Redemption Price | 68 |
| Section 11.06 | Securities Payable on Redemption Date | 68 |
| Section 11.07 | Securities Redeemed in Part | 68 |
| Section 11.08 | Optional Redemption Due to Changes in Tax Treatment | 68 |
| Section 11.09 | Optional Early Redemption | 69 |
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| Article Twelve SINKING FUNDS | ||
| Section 12.01 | No Sinking Fund | 69 |
| Article Thirteen MEETINGS OF HOLDERS OF SECURITIES | ||
| Section 13.01 | Purposes for Which Meetings May Be Called | 69 |
| Section 13.02 | Call, Notice and Place of Meetings | 69 |
| Section 13.03 | Persons Entitled to Vote at Meetings | 69 |
| Section 13.04 | Quorum; Action | 70 |
| Section 13.05 | Determination of Voting Rights; Conduct and Adjournment of Meetings | 70 |
| Section 13.06 | Counting Votes and Recording Action of Meetings | 71 |
| Article Fourteen DEFEASANCE AND COVENANT DEFEASANCE | ||
| Section 14.01 | Company’s Option to Effect Defeasance or Covenant Defeasance | 71 |
| Section 14.02 | Defeasance and Discharge | 71 |
| Section 14.03 | Covenant Defeasance | 71 |
| Section 14.04 | Conditions to Defeasance or Covenant Defeasance | 72 |
| Section 14.05 | Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 73 |
| Section 14.06 | Reinstatement | 73 |
| Exhibit A | Form of Restricted Global Note | |
| Exhibit B | Form of Regulation S Global Note | |
| Exhibit C | Form of Guaranty | |
| Annex A | Regulation S Certificate | |
| Annex B | Restricted Securities Certificate | |
| Annex C | Unrestricted Securities Certificate |
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INDENTURE, dated as of September 18, 2019, by and among PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “Company”), having its corporate seat at Rotterdam, The Netherlands and its principal office at Weena 762, 3014 DA Rotterdam, The Netherlands, PETRÓLEO BRASILEIRO S.A. – Petrobras, a mixed capital company (sociedade de economia mista) organized under the laws of the Federative Republic of Brazil (“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 (herein called the “Trustee”), paying agent, security registrar and transfer agent, and THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH, as Luxembourg paying agent (herein called the “Luxembourg Agent”).
RECITALS
The Company is a wholly-owned indirect subsidiary of Petrobras and has duly authorized the execution and delivery of this Indenture to provide for the issuance on the date hereof of U.S.$4,115,281,000 in aggregate principal amount of its 5.093% Global Notes due 2030 (the “Original Securities”), having the terms and conditions contemplated in (i) the offering memorandum, dated September 9, 2019 (the “Offering Memorandum”), relating to the Company’s offer to exchange any and all of its 4.375% Global Notes due May 2023, 6.250% Global Notes due March 2024, 5.299% Global Notes due January 2025, 8.750% Global Notes due May 2026, 7.375% Global Notes due January 2027, 5.999% Global Notes due January 2028 and 5.750% Global Notes due February 2029 for Original Securities. This Indenture also provides for the issuance of (i) Exchange Securities to be issued in exchange for the Original Securities or any Add On Notes pursuant to an applicable Registration Rights Agreement and (ii) Add On Notes that may be issued from time to time (together with the Original Securities and any Exchange Securities, the “Securities”).
As contemplated in the Offering Memorandum, Petrobras and the Trustee intend, in connection with the issuance of the Securities, to enter into a guaranty, dated as of the date hereof in the form attached as Exhibit C hereto (the “Guaranty”), to provide for an unconditional and irrevocable guaranty of the Securities by Petrobras.
All things necessary to make this Indenture a valid agreement of the Company and Petrobras, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of Securities, as follows:
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with IFRS, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are consistent with IFRS at the date of such computation; and
(4) Unless the context otherwise requires, any reference to an “Article,” a “Section” or an “Annex” refers to an Article, a Section or an Annex, as the case may be, of this Indenture; and
(5) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act,” when used with respect to any Holder, has the meaning set forth in Section 1.04.
“Additional Amounts” has the meaning set forth in Section 10.10.
“Add On Notes” has the meaning set forth in Section 3.12.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Members” has the meaning set forth in Section 3.05(1).
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of any depository for such Security, DTC, the Euroclear system and Clearstream, Luxembourg, in each case to the extent applicable to such transaction and as in effect from time to time.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities.
“Authorization,” with respect to any creation or issuance of Securities by the Company and any actions taken by the Company in connection with such issuance, means the authorization of such issuance and actions by the Board of Directors or any other corporate body of the Company required pursuant to the Company’s organizational documents and Dutch law to authorize such issuance and actions.
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“Authorized Representative” means a managing director A and a managing director B of the Company, acting jointly, any person duly authorized by the Company to represent the Company in accordance with the articles of association of the Company and any other person duly authorized by the Company pursuant to a power of attorney with specific powers to perform such act on behalf of the Company provided, however, that such power of attorney is granted in a legal and valid manner pursuant to the Company’s articles of association, and provided further that the Company may only appoint attorneys-in-fact who, in the judgment of the Company, have positions and responsibilities compatible with the powers granted.
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“Board of Directors,” when used with reference to the Company, means the board of directors of the Company or any committee of that board duly authorized to act for such board hereunder.
“Board Resolution” means, when used with reference to the Company, a copy of a resolution certified by any managing director of the Company, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and in each case delivered to the Trustee.
“Brazil” has the meaning set forth in the preamble of this Indenture.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“BRRD Party” means The Bank of New York Mellon SA/NV, Luxembourg Branch, as it is subject to Bail-in Powers.
“Business Day” means a day, other than a Saturday or Sunday, that (a) in the Place of Payment (or in any of the Places of Payment, if more than one) in which amounts are payable and (b) in the city in which the Corporate Trust Office is located, is not a day on which banking institutions are authorized or required by law or regulation to close (and for purposes of the sending of notices only, is not a day on which banking institutions in The Netherlands are authorized or required by law or regulation to close).
“Certificated Securities” has the meaning set forth in Section 3.05(1).
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“Clearstream, Luxembourg” means Clearstream Banking, société anonyme, Luxembourg, and its successors.
“Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument the United States Securities and Exchange Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter “Company” shall mean such successor Person.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Securities.
“Comparable Treasury Price” means, with respect to any Redemption Date (i) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (ii) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, 7E, New York, New York 10286, or such other address as the Trustee may designate from time to time by written notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).
“Covenant Defeasance” has the meaning set forth in Section 14.03.
“Default” means an event or condition that, with the giving of notice, lapse of time or failure to satisfy certain specified conditions, or any combination thereof, would become an Event of Default if not cured or remedied.
“Default Rate” has the meaning set forth in Section 3.07.
“Defaulted Interest” has the meaning set forth in Section 3.07.
“Defeasance” has the meaning set forth in Section 14.02.
“Denomination Currency” has the meaning set forth in Section 10.13.
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“Depositary” means, with respect to the Securities issuable or issued in whole or in part in the form of one or more Global Securities, DTC until a successor Depositary, if any, shall have become such pursuant to this Indenture, and thereafter Depositary shall mean or include each Person who is then a Depositary hereunder.
“Directors’ Certificate” means a certificate of a managing director A and a managing director B of the Company. For the purposes of Section 10.05, a managing director A and a managing director B of the Company shall satisfy the requirements of Section 314(a)(4) of the Trust Indenture Act.
“DTC” means The Depository Trust Company or its nominee, and its successors.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
“Euroclear” means Euroclear Bank S.A./N.V., a bank organized under the laws of the Kingdom of Belgium, as operator of the Euroclear system (or any successor securities clearing system).
“Event of Default” has the meaning set forth in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Exchange Offer” means an offer by the Company to exchange Original Securities or Add On Notes for substantially identical Exchange Securities (except that such Exchange Securities will not contain terms with respect to additional interest payments or legends reflecting transfer restrictions) pursuant to a Resale Registration Statement in accordance with any applicable Registration Rights Agreement.
“Exchange Security” means any Security issued by the Company (i) pursuant to an Exchange Offer, (ii) upon the registration of transfer of a Security registered for resale on a Resale Registration Statement or (iii) upon the transfer of, or in exchange for, Securities that are Exchange Securities.
“Expiration Date” has the meaning set forth in Section 1.04.
“Global Security” means any Security issued in the form set forth in Section 2.02 or established pursuant to Section 2.01 which is registered in the Security Register in the name of a Depositary and bears the legend set forth in Section 2.03.
“Guarantee” means an obligation of a person to pay the Indebtedness of another person including, without limitation:
(1) an obligation to pay or purchase such Indebtedness;
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(2) an obligation to lend money or to purchase or subscribe for shares or other securities or to purchase assets or services in order to provide funds for the payment of such Indebtedness;
(3) an indemnity against the consequences of a default in the payment of such Indebtedness; or
(4) any other agreement to be responsible for such Indebtedness.
“Guaranty” has the meaning set forth in the second paragraph of the recitals of this Indenture.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“IFRS” means International Financial Reporting Standards as adopted by the International Accounting Standards Board (“IASB”).
“Indebtedness” means any obligation (whether present or future, actual or contingent and including, without limitation, any Guarantee) for payment on or the repayment of money which has been borrowed or raised (including money raised by acceptance and all leases which, under IFRS, would be a capital lease obligation).
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Interest Payment Date” has the meaning set forth in Section 3.01.
“Investment Company Act” means the United States Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“Judgment Currency” has the meaning set forth in Section 10.13.
“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.
“Majority Holders” means the holders of more than 50% in aggregate principal amount of the Securities then Outstanding at any time.
“Material Adverse Effect” means a material adverse effect on (i) the business, operations, assets, property, condition (financial or otherwise) of the Company or its Subsidiaries, taken as a whole, the validity or enforceability of this Indenture, or (iii) the ability of the Company to perform its obligations under this Indenture, or the material rights of or benefits available to the Holders or the Trustee, as representative of the Holders under this Indenture.
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“Material Subsidiary” means a Subsidiary of Petrobras which, on any given date of determination, accounts for more than 15% of Petrobras’s total consolidated assets (as set forth on Petrobras’s most recent balance sheet prepared in accordance with IFRS).
“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“New Issue Offering Memorandum” has the meaning set forth in the first paragraph of the recitals of this Indenture.
“Notice of Default” means a written notice of the kind set forth in Section 5.01(3).
“Offering Memorandum” has the meaning set forth in the first paragraph of the recitals of this Indenture.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company and who shall be acceptable to the Trustee.
“Order” means a written request or order signed in the name of the Company by an Authorized Representative, in each case delivered to the Trustee.
“Original Issue Date” means September 18, 2019.
“Original Securities” has the meaning set forth in the first paragraph of the recitals of this Indenture.
“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee has been made;
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(3) Securities as to which Defeasance has been effected pursuant to Section 14.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on its behalf, which at the date of this Indenture includes the Trustee.
“Payment Account” has the meaning set forth in Section 3.13.
“Permitted Lien” means any:
| (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 that 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 those assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of those assets, including any Lien existing at the time of the acquisition of those assets, so long as the maximum amount so secured does not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of those assets, as the case may be; |
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| (e) | Lien granted in connection with 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, so long as the Lien is not created in anticipation of that acquisition; |
| (g) | Lien existing as of the date of the original issuance of the Securities; |
| (h) | Lien resulting from this Indenture or the Guaranty, if any; |
| (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 those securities for a period of up to 24 months as required by any rating agency as a condition to the rating agency rating those securities as investment grade; |
| (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 Liens referred to in clauses (a) through (i) above (but not clause (c)), so long as the Lien does not extend to any other property, the principal amount of the Indebtedness secured by the Lien is not increased, and in the case of clauses (a), (b) and (f), the obligees meet the requirements of the applicable clause; and |
| (k) | Lien in respect of Indebtedness the principal amount of which in the aggregate, together with all other Liens not otherwise qualifying as Permitted Liens pursuant to another part of this definition of Permitted Liens, does not exceed 20% of the Company’s consolidated total assets (as determined in accordance with IFRS) at any date as at which the Company’s balance sheet is prepared and published in accordance with applicable Law. |
“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, other entity or any government or any agency or political subdivision thereof.
“Petrobras” has the meaning set forth in the first paragraph of the preamble of this Indenture.
“Place of Payment,” when used with respect to the Securities, means the place or places where the principal of and any premium and interest on the Securities are payable.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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“Purchase Agreement” means any Purchase Agreement entered into to issue Securities under this Indenture.
“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Reference Treasury Dealer” means each of Citigroup Global Markets Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC and Morgan Stanley & Co. LLC or their respective affiliates, which are primary United States government securities dealers, and two other leading primary United States government securities dealers in New York City reasonably designated by the Company in writing; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third business day preceding such Redemption Date.
“Registered Security,” means any Security issued in registered form that is registered in the Security Register. Registered Securities shall include Global Securities and Certificated Securities.
“Registration Rights Agreement” means an agreement entered into by the Company contemplating the registration under the Securities Act of Original Securities or Add On Notes issued under this Indenture subsequent to the initial date of issuance of such Original Securities or Add On Notes.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities means one Business Day prior to any Interest Payment Date.
“Regulation S” means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time.
“Regulation S Certificate” means a certificate substantially in the form set forth in Annex A.
“Regulation S Global Security” has the meaning set forth in Section 2.01.
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“Regulation S Legend” has the meaning set forth in Section 2.02.
“Regulation S Securities” means all Original Securities or Add On Notes required pursuant to Section 3.05(3) to bear a Regulation S Legend. Such term includes a Regulation S Global Security.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the BRRD Party.
“Reorganization” means the conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person that guarantees the Company’s obligations under this Indenture and the Securities in accordance with Section 8.01.
“Resale Registration Statement” shall mean a registration statement under the Securities Act registering the Securities for resale pursuant to the terms of any Registration Rights Agreement.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department (or similar group) of the Trustee, with direct responsibility for the administration of this Indenture, and any officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Restricted Global Security” means any Global Security required pursuant to Section 3.05(3) to bear a Restricted Securities Legend.
“Restricted Period” means, with respect to any Regulation S Securities, the period of 41 consecutive days beginning on and including the later of (i) the day on which such Securities are first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the day on which the closing of the offering of such Securities pursuant to a Purchase Agreement occurs.
“Restricted Security” means all Original Securities or Add On Notes required pursuant to Section 3.05(3) to bear a Restricted Securities Legend. Such term includes a Restricted Global Security.
“Restricted Securities Certificate” means a certificate substantially in the form set forth in Annex B.
“Restricted Securities Legend” has the meaning set forth in Section 2.02.
“Rule l44A” means Rule l44A under the Securities Act (or any successor provision), as it may be amended from time to time.
“Rule 144A Securities” means all Original Securities or Add On Notes initially distributed in connection with the offering of such Original Securities or Add On Notes by the purchasers thereof in reliance upon Rule 144A.
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“SEC Registered Securities” means the Exchange Securities and all other Securities sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act, together with their respective Successor Securities.
“Securities” has the meaning set forth in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. All references herein to any Securities shall be deemed to include the rights of the Holder thereof under the Guaranty, which are an integral part of such Securities.
“Securities Act” means the United States Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings set forth in Section 3.05.
“Shelf Registration Statement” has the meaning set forth in Section 3.05.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, as to any Person, a corporation, company, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors (or similar governing body) of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Indenture shall refer to a Subsidiary or Subsidiaries of Petrobras.
“Successor Company” has the meaning set forth in Section 8.01.
“Successor Security” of any particular Security means every Security issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Taxing Jurisdictions” has the meaning set forth in Section 10.10.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.
“Trust Indenture Act” means the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed (except as provided in Section 9.05); provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“United States” means the United States of America (including the States and the District of Columbia) and its possessions (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
“Unrestricted Securities Certificate” means a certificate substantially in the form set forth in Annex C.
“U.S. Person” shall have the meaning ascribed to such term in Rule 902 of Regulation S.
“U.S. Government Obligations” has the meaning set forth in Section 14.04.
“Wholly-Owned Subsidiary” means, with respect to any corporate entity, any person of which 100% of the outstanding capital stock (other than qualifying shares, if any) having by the terms thereof ordinary voting power (not dependent on the happening of a contingency) to elect the board of directors (or equivalent controlling governing body) of such person is at the time owned or controlled directly or indirectly by such corporate entity, by one or more Wholly-Owned Subsidiaries of such corporate entity or by such corporate entity and one or more Wholly-Owned Subsidiaries thereof.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act with respect to compliance with conditions precedent provided for in this Indenture. Each such certificate or opinion shall be given in the form of a Directors’ Certificate, if to be given by an Authorized Representative, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture, except that in the event of any such application or request as to which the furnishing of such documents is specifically required by any provisions of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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Every certificate or opinion, whether required to be provided pursuant to this Section 1.02 or elsewhere, with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Representative, may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such managing directors know, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Representative, stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04 Acts of Holders of Securities; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders of Securities signing such instrument or instruments or so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 13.06.
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(2) The fact and date of the execution by any Person of any instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(3) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, or their duly designated proxies, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or duly designated proxies, of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, or their duly designated proxies, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders, or their duly designated proxies, of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the Company, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder in the manner set forth in Section 1.06.
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With respect to any record date set pursuant to this Section, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party or parties hereto in writing, and to each Holder in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date and, if an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party or parties hereto which set such record date shall be deemed to have designated the 180th day after such record date as the Expiration Date with respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents or proxies each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(4) The principal amount and serial numbers of Global Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(5) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(6) The provisions of this Section 1.04 are subject to the provisions of Section 13.05.
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Section 1.05 Notices, Etc., to Trustee, the Company and Petrobras.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders of Securities or other document provided for or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities, the Company or Petrobras shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (or sent by facsimile and confirmed in writing) to or with the Trustee at its Corporate Trust Office, Attention: Institutional Trust Services,
(2) the Company by the Trustee, Petrobras or any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed (or sent by facsimile and confirmed in writing) international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Board of Directors, or at any other address previously furnished in writing to the Trustee by the Company, or
(3) Petrobras by the Trustee, the Company or any Holder of Securities shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed (or sent by facsimile and confirmed in writing) international air mail postage prepaid and addressed to its principal office specified in the first paragraph of this instrument to the attention of its Board of Directors, or at any other address previously furnished in writing to the Trustee by Petrobras.
Section 1.06 Notice to Holders of Securities; Waiver.
For so long as Securities in global form are outstanding, notices to be given to Holders shall be given to the Trustee in accordance with its applicable policies in effect from time to time. If Securities are issued in individual definitive form, notices to be given to Holders shall be deemed to have been given upon the mailing by first class mail of such notices to Holders at their registered addresses as they appear in the Security Register.
From and after the date the Securities are admitted to listing on the Official List of the Luxembourg Stock Exchange and to trading on the Euro MTF Market of the Luxembourg Stock Exchange and so long as it is required by the rules of such exchange, all notices to Holders shall be published in English:
| (1) | in a leading newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort); |
| (2) | if such Luxembourg publication in not practicable, in one other leading English language newspaper being published on each day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions; or |
| (3) | on the website of the Luxembourg Stock Exchange, www.bourse.lu (or any successor website). |
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Notices shall be deemed to have been given on the date of publication as aforesaid or, if published on different dates, on the date of the first such publication. In addition, notices shall be mailed to Holders at their registered addresses as they appear in the Security Register.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Securities by mail, then such notification as shall be given with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to any Holder of an interest in a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), according to the Applicable Procedures of such Depositary, if any, prescribed for the giving of such notice.
The Trustee may rely upon and comply with instructions or directions sent via unsecured facsimile or email transmission and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of the Trustee’s reliance upon and compliance with instructions or directions given by unsecured facsimile or email transmission; provided, however, that such losses have not arisen from the negligence or willful misconduct of the Trustee, it being understood that the failure of the Trustee to verify or confirm that the person delivering the email or the fax in which the instructions or direction, are contained is, in fact, authorized to deliver such email or facsimile is authorized to do so does not constitute negligence or willful misconduct.
Section 1.07 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language.
Section 1.08 Conflict with Trust Indenture Act.
This Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required to be part of and govern indentures qualified under the Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the provision of such Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of such Act shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 1.09 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.11 Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13 Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.14 Saturday, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or the last day on which Holders have the right to convert or exchange their Securities shall not be a Business Day at any Place of Payment or place of conversion or exchange, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or conversion or exchange need not be made at such Place of Payment or place of conversion or exchange on such date, but may be made on the next succeeding Business Day at such Place of Payment or place of conversion or exchange with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or on such last day for conversion or exchange.
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Section 1.15 Appointment of Agent for Service; Submission to Jurisdiction; Waiver of Immunity.
By the execution and delivery of this Indenture, each of the Company and Petrobras hereby appoints Petrobras America Inc. as its agent upon which process may be served in any legal action or proceeding which may be instituted in any Federal court in the Borough of Manhattan, the City of New York, State of New York, arising out of or relating to the Securities or this Indenture, or, with respect to Petrobras, the Guaranties, but for that purpose only. Service of process upon such agent at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, and written notice of said service to the Company or Petrobras, as applicable, by the Person servicing the same addressed as provided by Section 1.05, shall be deemed in every respect effective service of process upon the Company or Petrobras, as applicable, in any such legal action or proceeding. Each of the Company and Petrobras 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 agent; should such agent become unavailable for this purpose for any reason, the Company or Petrobras, as applicable, will promptly and irrevocably designate a new agent in the United States, which will agree to act as such for powers and for the purposes set forth in this Section 1.15. Each of the Company and Petrobras hereby (i) irrevocably submits to the nonexclusive jurisdiction of any Federal court in the Borough of Manhattan, the City of New York, State of New York in which any such legal action or proceeding is so instituted, and any appellate court from any thereof, (ii) to the extent it may effectively do so, irrevocably and unconditionally waives any objection which it may have now or hereafter to the laying of the venue of any such legal action or proceeding and (iii) to the extent either or both of the Company or Petrobras has or hereafter may acquire any immunity from jurisdiction of any such court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, each of the Company and Petrobras hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Securities and, with respect to Petrobras, the Guaranties, to the fullest extent permitted by law. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms thereof or of this Indenture or the Guaranties until the appointment of a successor by the Company or Petrobras, as the case may be, with written notice thereof to the Trustee and such successor’s acceptance of such appointment. Each of the Company and Petrobras further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor.
Section 1.16 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 THIS INDENTURE OR THE SECURITIES.
Article Two
SECURITY FORMS
Section 2.01 Forms Generally.
The Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A and Exhibit B hereto, as applicable, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary or as may, consistently herewith, be determined by an Authorized Representative executing such Securities pursuant to this Indenture, as evidenced by its execution thereof.
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The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the managing directors executing such Securities, as evidenced by their execution of such Securities.
Upon their original issuance, any Rule 144A Securities and any Regulation S Securities shall be issued in the form of separate Global Securities. The Global Securities representing Rule 144A Securities, together with their Successor Securities which are Global Securities other than Regulation S Global Securities and SEC Registered Securities, are collectively herein called the “Restricted Global Securities”. The Global Securities representing Regulation S Securities, together with their Successor Securities which are Global Securities other than Restricted Global Securities and SEC Registered Securities, are collectively herein called the “Regulation S Global Securities”.
Section 2.02 Form of Global Security.
Original Securities and Add On Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more Global Securities substantially in the form of Exhibit B hereto, with such applicable legends as are provided herein and in Exhibit B hereto, except as otherwise permitted herein, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, Luxembourg, duly executed by the Company and authenticated by the Trustee (or an Authenticating Agent appointed by the Trustee in accordance with Section 6.14) as provided herein.
Original Securities and Add On Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more Global Securities substantially in the form of Exhibit A hereto, with such applicable legends as are provided herein and in Exhibit A hereto, except as otherwise permitted herein, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary, as the case may be, duly executed by the Company and authenticated by the Trustee (or an Authenticating Agent appointed by the Trustee in accordance with Section 6.14) as hereinafter provided.
The aggregate principal amount of any Global Security may from time to time be increased or decreased by adjustments made by the Security Registrar on the “Schedule of Increases and Decreases in Global Note” to such Global Security and recorded in the Security Register, as hereinafter provided.
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Every Restricted Security authenticated and delivered hereunder shall bear a legend in substantially the following form (the “Restricted Securities Legend”), unless otherwise permitted hereunder:
“THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT THIS GLOBAL NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO PETROBRAS GLOBAL FINANCE B.V., (2) SO LONG AS THIS GLOBAL NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY PURCHASER OF THIS GLOBAL NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS GLOBAL NOTE ONLY WITH THE CONSENT OF PETROBRAS GLOBAL FINANCE B.V.”
Every Regulation S Security authenticated and delivered hereunder shall bear a legend in substantially the following form (the “Regulation S Legend”), unless otherwise permitted hereunder:
“THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT NEITHER THIS GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE ON WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) THE ORIGINAL ISSUE DATE OF THIS NOTE.”
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Section 2.03 Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
“THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.”
Section 2.04 Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned Indenture.
Dated:
| The Bank of New York Mellon As Trustee | ||
| By: | ||
| Authorized Officer | ||
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Section 2.05 The Guaranty.
(a) The Guaranty shall be in the form attached as Exhibit C hereto, except as it may be amended or supplemented to provide for a Guarantee by Petrobras of any obligations with respect to any Add On Notes. The Trustee is hereby authorized and directed to acknowledge the Guaranty and to perform all of its duties and obligations thereunder.
(b) The Trustee shall enforce the provisions of the Guaranty against Petrobras in accordance with the terms thereof and the terms of this Indenture, and Petrobras, by execution of this Indenture, and by so agreeing to become a party to this Indenture, agrees that each Holder shall have direct rights under the Guaranty as if it were a party thereto.
(c) Petrobras hereby (i) acknowledges and agrees to be bound by the provisions of Section 1.08 and (ii) confirms that (A) its obligations under the Guaranty shall be issued pursuant to this Indenture and (B) it intends for the Holders, in addition to those rights under the Guaranty as provided therein, to be entitled to the benefits of this Indenture with respect to their rights against Petrobras under the Guaranty.
(d) 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, shall extend to any payments made by Petrobras pursuant to the Guaranty.
Article Three
THE SECURITIES
Section 3.01 The Securities.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited but only one series of Securities may be issued hereunder.
The Original Securities, any Add On Notes and any Exchange Securities shall constitute one series for all purposes under this Indenture, including without limitation, amendments, waivers or redemptions.
The Securities shall have the title “5.093% Global Notes due 2030”.
The aggregate principal amount of the Original Securities that may be authenticated and delivered under this Indenture shall be U.S.$4,115,281,000.
The Securities (including any additional Add On Notes) shall be general senior unsecured and unsubordinated obligations of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsecured and unsubordinated obligations from time to time outstanding that are not, by their terms, expressly subordinated in right of payment to the Securities (other than obligations preferred by statute or by operation of law).
The entire outstanding principal of the Securities shall be payable in a single installment on January 15, 2030. No payments in respect of the principal of the Securities 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 Securities or upon redemption prior to the Stated Maturity pursuant to Sections 11.08 or 11.09.
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Interest shall accrue on the Securities at the rate of 5.093% per annum until all required amounts due in respect of the Securities have been paid. All interest shall be paid by the Company to the Trustee and distributed by the Trustee in accordance with this Indenture semi-annually in arrears on January 15 and July 15 of each year during which any portion of the Securities shall be Outstanding (each, an “Interest Payment Date”), commencing on January 15, 2020, and will initially accrue from and including the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. Interest shall be paid to the Person in whose name a Security 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).
The Securities shall not be convertible into, or exchangeable for, any other securities.
Section 3.02 Denominations.
The Securities shall be issuable in minimum denominations of U.S.$2,000 and in integral multiples of U.S.$1,000 in excess thereof, and shall be transferable in integral multiples of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any Authorized Representative. The signature of any such Authorized Representative may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time a proper Authorized Representative shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such positions prior to the authentication and delivery of such Securities or did not hold such positions at the date of such Securities.
Pursuant to an Order, the Company shall execute and the Trustee shall authenticate (a) Original Securities for original issue on the date hereof in an aggregate principal amount of U.S.$4,115,281,000, (b) Add On Notes subject to compliance at the time of issuance of such Add On Notes with the provisions of this Indenture and (c) Exchange Securities to be issued in exchange for Original Securities or Add On Notes, as the case may be, pursuant to any applicable Registration Rights Agreement. The aggregate principal amount of Securities outstanding shall not exceed the amount of Securities so executed and authenticated except as provided in Section 3.06.
In authenticating the Securities, and accepting the additional responsibilities under this Indenture in relation to the Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and Directors’ Certificate stating,
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(1) that such forms or terms have been established in conformity with the provisions of this Indenture; and
(2) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised in writing by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability based upon the written advice of counsel.
The Trustee shall not be required to authenticate the Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the foregoing provisions of this Section 3.03, if all Securities are not to be originally issued at one time, it shall not be necessary to deliver the Directors’ Certificate and/or Order and Opinion of Counsel otherwise required pursuant to such provisions at or prior to the time of authentication of each Security if such documents are delivered at or prior to the authentication upon original issuance of the first Security to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute, and upon Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the managing directors executing such Securities may determine, as evidenced by their execution of such Securities.
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If temporary Securities are issued, the Company will cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities shall be exchangeable for definitive Securities upon surrender of the temporary Securities at the office or agency of the Company in a Place of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities, of any authorized denominations and of a like aggregate principal amount and tenor.
Until exchanged in full as hereinabove provided, temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities authenticated and delivered hereunder.
Section 3.05 Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided. Such Security Register shall distinguish between (i) Original Securities and Add On Notes and (ii) Exchange Securities.
Except as otherwise provided in this Section 3.05(1), upon surrender for registration of transfer of a Registered Security at the office or agency in a Place of Payment, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities, of any authorized denominations and of like tenor and aggregate principal amount.
Subject to Section 3.05(2), at the option of the Holder, Registered Securities may be exchanged for other Registered Securities, of any authorized denominations and of a like tenor and aggregate principal amount upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the same debt and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
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In the event that the Company delivers to the Trustee a copy of a Directors’ Certificate certifying that a registration statement under the Securities Act with respect to an Exchange Offer has been declared effective by the Commission and that the Company has offered Exchange Securities to the Holders in accordance with the Exchange Offer, the Trustee shall exchange, upon request of any Holder, such Holder’s Securities for Exchange Securities upon the terms set forth in the Exchange Offer.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company and the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04, 9.06 or 11.07 not involving any transfer.
Notwithstanding any other provision of this Indenture, the Trustee, Security Registrar or transfer agent for the Securities shall not be required to accept for registration of transfer of any Securities, except upon presentation of evidence satisfactory to the Company and the Trustee, Security Registrar or transfer agent that the transfer restrictions set forth herein have been complied with.
The Company shall not be required (i) to issue, register the transfer of or exchange Registered Securities during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to Global Registered Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Subject to Clause (4) below, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(c) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Sections 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(d) Except as provided below, owners of beneficial interests in Global Securities will not be entitled to receive Registered Securities in their names (“Certificated Securities”). Certificated Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if:
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(i) The Depositary notifies the Company that it is unwilling or unable to continue as depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when such Depositary is required to be so registered in order to act as depositary, and in each case, a successor Depositary is not appointed by the Company within 90 days of such notice,
(ii) The Company notifies the Trustee that it wishes to terminate the Global Securities upon a change in tax law that would be adverse to the Company but for the termination of the Global Securities, or
(iii) An Event of Default has occurred and is continuing and the Security Registrar has received a request from the Depositary or the Security Registrar and the Company have received a request from the Trustee.
In connection with the exchange of an entire Global Security for Certificated Securities pursuant to this Clause (d), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon receipt of an Order the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Certificated Securities of authorized denominations. Any Certificated Security issued under this Indenture shall not bear the legend set forth under Section 2.03.
(e) Members of, or participants in, DTC or Euroclear and Clearstream, Luxembourg, as the case may be (“Agent Members”), shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Security Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Security Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.
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(2) Certain Transfers and Exchanges.
(a) The following provisions shall apply with respect to any proposed transfer of an interest in a Restricted Global Security: If (i) the owner of a beneficial interest in a Restricted Global Security wishes to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to Regulation S and (ii) such Non-U.S. Person wishes to hold its interest in the Security through a beneficial interest in a Regulation S Global Security, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Restricted Global Security directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Security equal to the principal amount of the beneficial interest in the Restricted Global Security to be transferred, and
(ii) a Regulation S Certificate in the form of Annex A from the transferor,
and (y) subject to the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Regulation S Global Security and decrease the Restricted Global Security by such amount in accordance with the foregoing.
(b) If the owner of an interest in a Regulation S Global Security wishes to transfer such interest (or any portion thereof) to a “qualified institutional buyer” as defined by and pursuant to Rule 144A prior to the expiration of the Restricted Period therefor, (x) upon receipt by the Depositary and Security Registrar of:
(i) instructions from the Holder of the Regulation S Global Security directing the Depositary and Security Registrar to credit or cause to be credited a beneficial interest in the Restricted Global Security equal to the principal amount of the beneficial interest in the Regulation S Global Security to be transferred, and
(ii) a Restricted Securities Certificate in the form of Annex B duly executed by the transferor,
and (y) in accordance with the rules and procedures of the Depositary, the Depositary and Security Registrar shall increase the Restricted Global Security and decrease the Regulation S Global Security by such amount in accordance with the foregoing.
(c) Other Transfers. Any transfer of Restricted Securities or Regulation S Securities not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Certificated Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the rules and procedures of the Depositary, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Security Registrar of such opinions of counsel, certificates and/or other information reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with paragraph (3) of this Section 3.05.
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(3) Securities Act Legends. Rule 144A Securities and their Successor Securities shall bear a Restricted Securities Legend, and Regulation S Securities and their Successor Securities shall bear a Regulation S Legend, subject to the following:
(a) subject to the following Clauses of this Section 3.05(3), a Security or any portion thereof which is exchanged, upon registration of transfer or otherwise, for a Registered Global Security or any portion thereof shall bear the Securities Act legend borne by such Registered Global Security while represented thereby;
(b) subject to the following Clauses of this Section 3.05(3), a new Registered Security which is issued in exchange for another Security or any portion thereof, upon registration of transfer or otherwise, shall bear the Securities Act legend borne by such other Security, provided that, if such new Registered Security is required to be issued in the form of a Restricted Security, it shall bear a Restricted Securities Legend and, if such new Registered Security is so required to be issued in the form of a Regulation S Security, it shall bear a Regulation S Legend;
(c) any SEC Registered Securities shall not bear a Securities Act legend;
(d) after the applicable restricted period prescribed by Rule 144 under the Securities Act, a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if the Trustee has received an Unrestricted Securities Certificate, satisfactory to the Trustee and duly executed by the Holder of such legended Security or his attorney duly authorized in writing, and after such date and receipt of such certificate, the Trustee shall authenticate and deliver such a new Registered Security in exchange for or in lieu of such other Registered Security as provided in this Article Three;
(e) a new Registered Security which does not bear a Securities Act legend may be issued in exchange for or in lieu of a Registered Security or any portion thereof which bears such a legend if, in the Company’s judgment, placing such a legend upon such new Security is not necessary to ensure compliance with the registration requirements of the Securities Act, and the Trustee, at the direction of the Company, shall authenticate and deliver such a new Security as provided in this Article Three; and
(f) notwithstanding the foregoing provisions of this Section 3.05(3), a Successor Security of a Security that does not bear a particular form of Securities Act legend shall not bear such form of legend unless the Company has reasonable cause to believe that such Successor Security is a “restricted security” within the meaning of Rule 144 under the Securities Act, in which case the Trustee, at the direction of the Company, shall authenticate and deliver a new Security bearing a Restricted Securities Legend in exchange for such Successor Security as provided in this Article Three.
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Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and principal amount bearing a number not contemporaneously outstanding, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid, in the case of definitive Registered Securities, to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Company, may be paid by check mailed to the address of the Person as it appears in the Security Register or, in the case of Global Securities, by wire transfer of same-day funds to the Holder.
Any interest on any Registered Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities in the manner set forth in Section 1.06, not less than ten days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such predecessor Security.
Upon the occurrence and during the continuation of an Event of Default, (i) interest on the outstanding principal amount of the Securities shall accrue on the Securities at a rate equal to 0.5% per annum above the interest rate on the Securities 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 this Indenture, the Securities or the Guaranty 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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Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) any interest on such Security, and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures unless otherwise directed by an Order.
Section 3.10 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP or ISIN Numbers.
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.
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Section 3.12 Add On Notes.
The Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, issue pursuant to this Indenture additional Securities other than the Original Securities or the Exchange Securities (“Add On 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 Original Securities and any Exchange Securities and shall have equivalent terms, conditions and benefits as the Original Securities and any Exchange Securities and be part of the same series as the Original Securities and any Exchange Securities, except for the price to the public and the issue date, (iii) any such Add On Notes shall be issued under a separate CUSIP or ISIN number unless such Add On Notes are issued pursuant to a “qualified reopening” of the original series, are otherwise treated as part of the same “issue” of debt instruments as the original series or are issued with no more than a de minimis amount of original discount, in each case for U.S. federal income tax purposes, (iv) the Company and the Trustee shall have executed and delivered a further supplemental indenture to this Indenture providing for the issuance of such Add On Notes and reflecting such amendments to this Indenture as may be required to reflect the increase in the aggregate principal amount of the Securities resulting from the issuance of the Add On Notes, (v) Petrobras shall have executed and delivered and the Trustee shall have acknowledged an amended and restated Guaranty reflecting the increase in the aggregate principal amount of the Securities resulting from the issuance of the Add On Notes and (vi) 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 this 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 Securities for all purposes hereunder and will be subject to and take the benefit of all of the terms, conditions and provisions of this Indenture. Any Add On Notes will be part of the same series as the Original Securities and the Holders will vote on all matters in relation to the Securities as a single series.
Add On Notes:
(1) may have a different issue date from such other Outstanding Securities;
(2) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on such other Outstanding Securities;
(3) may have terms specified pursuant to the Board Resolution or other document evidencing an Authorization or in a supplemental indenture for such Add On Notes making appropriate adjustments to the terms of this Indenture applicable to such Add On Notes in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any Registration Rights Agreement applicable to such Add On Notes, which are not adverse in any material respect to the Holder of Outstanding Securities (other than such Add On Notes); and
(4) may be entitled to step-up interest not applicable to such other Outstanding Securities and may not be entitled to such step-up interest applicable to such other Outstanding Securities.
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Section 3.13 Payment Account.
The Trustee shall promptly notify the Company of the existing omnibus account (the “Payment Account”) for payment of the Company’s securities, including the relevant account numbers and other relevant identifying details and all payments required to be made by the Company under or with respect to the Securities shall be deposited by the Company in the Payment Account. 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 Securities) and used to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Securities and other securities of the Company for which the Company has deposited funds into the Payment Account. No funds, deposited by the Company, and 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, deposited by the Company, 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 Securities 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 Securities on the next succeeding Interest Payment Date or to pay amounts due and owing on other securities of the Company, as the case may be.
Article
Four
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Order of the Company cease to be of further effect (except as to any surviving rights of registration of transfer or exchange or conversion of Securities herein expressly provided for, and any right to receive Additional Amounts as provided in Section 10.10), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(a) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.08) have been delivered to the Trustee for cancellation; or
(b) all such Securities
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
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and the Company in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (l) of this Section, the obligations of the Trustee under Section 4.02 and the ninth paragraph of Section 10.08 shall survive.
Section 4.02 Application of Trust Money.
Subject to the provisions of the ninth paragraph of Section 10.08, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust (without liability to the Holders for interest or investment) and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with or received by the Trustee.
Article
Five
REMEDIES
Section 5.01 Events of Default.
“Event of Default,” wherever used herein with respect to the Securities, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) The Company shall fail to make any payment in respect of principal on any of the Securities whether on the Stated Maturity (as the same may be extended as permitted hereunder), upon redemption or prior to the Maturity or otherwise in accordance with the terms of the Securities and this Indenture, non-payment of which shall continue for a period of 7 days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Petrobras under the Guaranty or otherwise by the end of such 7 day period;
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(2) The Company shall fail to make any payment in respect of any interest or other amounts due on or with respect to the Securities (including Additional Amounts, if any) in accordance with the terms of the Securities and this Indenture, non-payment of which shall continue for a period of 30 days and the Trustee shall not have otherwise received such amounts from amounts on deposit, from Petrobras under the Guaranty or otherwise by the end of such 30 day period;
(3) The Company, or Petrobras, shall fail to perform, or breach, any term, covenant, agreement or obligation in respect of the Securities issued under this Indenture or the Guaranty, and such failure (other than any failure to make any payment under the Guaranty, for which there is no cure) is either incapable of remedy or continues for a period of 60 days after there has been received by the Company or Petrobras from the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
(4) The maturity of any Indebtedness of the Company or Petrobras or a Material Subsidiary thereof in a total aggregate principal amount of U.S.$200,000,000 (or its equivalent in another currency) or more is accelerated in accordance with the terms of that Indebtedness, it being understood that prepayment or redemption by the Company or Petrobras or a Material Subsidiary thereof of any Indebtedness is not acceleration for this purpose;
(5) The Company or Petrobras or any Material Subsidiary thereof stops payment of, or is generally unable to pay, its debts as and when they become due except (i) as is otherwise expressly provided under this Indenture or the Guaranty or (ii) in the case of a winding-up, dissolution or liquidation for the purpose of and followed by a consolidation, merger, spin off, conveyance or transfer, the terms of which shall have been duly approved by a resolution of a meeting of the Holders of the Outstanding Securities;
(6) Proceedings are initiated against the Company or Petrobras or any Material Subsidiary thereof under any applicable bankruptcy, reorganization, insolvency, moratorium or intervention law or law with similar effect or under any other law for the relief of, or relating to, debtors, and any such proceeding is not dismissed or stayed within 90 days after the entering of such proceeding, or an administrative or other receiver, manager, or administrator, or any such or other similar official is appointed in relation to, or a distress, execution, attachment, sequestration or other process is levied or put in force against, the whole or a substantial part of the undertakings or assets or revenues of the Company or Petrobras or any Material Subsidiary thereof and is not discharged or removed within 90 days;
(7) The Company or Petrobras or any Material Subsidiary thereof voluntarily commences or consents to proceedings relating to it under any applicable liquidation, insolvency, reorganization, moratorium or any other similar law, or under any other law for the relief of, or relating to, debtors, or makes or enters into any composition, recuperação judicial or extrajudicial or other similar arrangement with its creditors, or appoints or applies for the appointment of an administrative or other receiver, manager or administrator, or any such or other similar official, in relation to the Company or Petrobras or any Material Subsidiary thereof, or takes any judicial, administrative or other similar proceeding under any law for a readjustment or deferment of its Indebtedness or any part of it;
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(8) An effective resolution is passed for, or any authorized action is taken by any court of competent jurisdiction, directing the winding-up, dissolution or liquidation of the Company or Petrobras or any Material Subsidiary thereof (other than in any of the circumstances referred to as exceptions in paragraph (5) above);
(9) Any event occurs that under the laws of any relevant jurisdiction has substantially the same effect as any of the events referred to in any of paragraphs (5), (6), (7) or (8) of this Section 5.01;
(10) The Securities, this Indenture, the Guaranty, or any part of such documents, shall cease to be in full force and effect or binding and enforceable against the Company or Petrobras, as applicable, or it becomes unlawful for the Company or Petrobras to perform any material obligation under any of the Securities, this Indenture or the Guaranty, to which it is a party, or the Company or Petrobras shall contest the enforceability of the Securities, this Indenture or the Guaranty, or deny that it has liability under any of the Securities, this Indenture or the Guaranty, to which it is a party; and
(11) Petrobras fails to retain at least 51% direct or indirect ownership of the outstanding voting and economic interests (equity or otherwise) of and in the Company.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(6), 5.01 (7), 5.01(8) or 5.01(9)) occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities may declare the principal amount of all of the Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(6), 5.01(7), 5.01(8) or 5.01(9) occurs, the principal amount of all the Securities shall automatically and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to the Securities has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(a) all overdue interest on all Securities,
(b) the principal of (and premium and Additional Amounts, if any, on) any Securities which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(c) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other amounts due to the Trustee under Section 6.07; and
(2) all Events of Default with respect to the Securities, other than the non- payment of the principal of the Securities which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest or payment of any additional interest or Additional Amounts on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 7 days, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable, including Additional Amounts, on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all amounts due the Trustee under Section 6.07.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding provided, however, that the Trustee may, on behalf of the Holders of Securities, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest and any Additional Amounts on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
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THIRD: To the payment of the balance, if any, to the Company.
Section 5.07 Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Sections 3.04, 3.05 and 3.07) interest and any Additional Amounts on such Security on the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment and such rights shall not be impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as the case may be.
Section 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed necessary by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not follow any such direction if doing so would in its reasonable discretion either involve it in personal liability or be unduly prejudicial to Holders of Securities not joining in such direction.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities may on behalf of the Holders of all the Securities waive any past default hereunder and its consequences, except a default
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(1) in the payment of the principal of or any premium, interest or Additional Amounts on any Security, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security affected, or
(3) in the conversion or exchange of any Security of such Company and the delivery of Securities upon conversion.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess reasonable costs, including reasonable attorney’s fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or in any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date) or for the enforcement of any right to convert such Security pursuant to this Indenture.
Section 5.15 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Company hereby expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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Article Six
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
The duties, responsibilities, rights, benefits and protections of the Trustee shall be as specifically set forth in this Indenture and the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee, except as otherwise required by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
If a Responsible Officer of the Trustee has actual written notice of an Event of Default with respect to the Securities, the Trustee shall give the Holders of the Securities notice of such Event of Default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 5.01(3) with respect to the Securities, no such notice to such Holders shall be given until at least 60 days after the occurrence thereof.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by an Order and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely and be fully protected for such reliance upon a Directors’ Certificate or an Opinion of Counsel;
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(4) the Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney (and the Company shall reimburse the Trustee for reasonable expenses in connection with such inquiry or investigation); provided that the Trustee shall not be entitled to such information which the Company is prevented from disclosing as a matter of law or contract;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be within the discretion, rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any default (as defined in Section 6.02) or Event of Default unless a Responsible Officer of the Trustee has received written notice of any event which is in fact such a default at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(10) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;
(11) the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(12) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever including but not limited to loss of profit irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(13) notwithstanding anything herein to the contrary neither the Trustee nor any of its the agents shall incur any liability for not performing any act or fulfilling any duty obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or its respective agent as applicable including but not limited to any act or provision of any present or future law or regulation or governmental authority any act of God or war civil unrest local or national disturbance or disaster any act of terrorism fire riot strikes or work stoppages for any reason embargos government action or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility;
(14) the Trustee may act at the direction of the requisite Holders without incurring any liability; and
(15) the Trustee shall not be liable for errors in judgment made in good faith unless it was negligent in ascertaining the pertinent facts.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or investment of any money received by it hereunder except as otherwise agreed in writing with the Company.
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Section 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed in writing from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its written request for all reasonable fees, costs, indemnities, expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent that any such fees, costs, indemnities, expenses, disbursements or advances may be attributable to its negligence or bad faith; and
(3) 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 acceptance or administration of the trust or trusts hereunder and the performance of its duties hereunder, 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.
The Trustee shall have a lien prior to the Holders of Securities to payment of amounts due it under this Section 6.07 from funds held by the Trustee hereunder. “Trustee” for purposes hereof includes any predecessor trustee, but the negligence or bad faith of any trustee shall not affect the rights of any other trustee hereunder.
If the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in Sections 5.01(6), 5.01(7), 5.01(8) or 5.01(9), the reasonable expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any other applicable Law.
The provisions of this Section shall survive the resignation or removal of the Trustee, the repayment of the Securities and the termination of this Indenture.
Section 6.08 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be one and only one Trustee hereunder with respect to the Securities which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least U.S.$50,000,000 and its Corporate Trust Office in the Borough of Manhattan, The City of New York, New York. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In at any time the Trustee with respect to the Securities shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 6.10 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(2) The Trustee may resign at any time with respect to the Securities by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities.
(3) The Trustee may be removed at any time with respect to the Securities by Act of the Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and to the Company. The Trustee so removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee if no successor Trustee has been appointed within 30 days of such removal.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove by Board Resolution the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities, the Company shall promptly appoint a successor Trustee with respect to the Securities and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities.
(6) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to each of the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) of this Section.
(3) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation or association shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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Section 6.13 Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to the Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange, registration of transfer or partial conversion, exchange or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee and a copy of which shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than U.S.$50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation or association into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation or association succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation or association shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within- mentioned Indenture.
| The Bank of New York Mellon As Trustee | ||
| By: | ||
| As Authenticating Agent | ||
| By: | ||
| As Authorized Signatory | ||
If all of the Securities may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in the Place of Payment designated by the Company with respect of such Securities.
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Article Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than 15 days after each Regular Record Date in each year, a list, in such form as the Trustee may reasonably require, as to the names and addresses of the Holders of Securities as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, that, for so long as the Trustee shall be Security Registrar, no such list shall be required to be furnished.
Section 7.02 Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(2) The rights of the Holders of Securities to communicate with other Holders of Securities with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of any of them shall be held accountable solely by reason of any disclosure of information as to names and addresses of Holders of Securities made pursuant to the Trust Indenture Act.
Section 7.03 Reports by Trustee.
(1) On or about each July 15 following the date hereof, the Trustee shall transmit to Holders of Securities such reports, if any, dated as of the preceding May 15, concerning the Trustee and its actions under this Indenture as may be required pursuant to Section 3.13(a) of the Trust Indenture Act in the manner provided pursuant to Section 3.13(c) thereof. The Trustee shall also transmit to Holders of Securities such reports, if any, as may be required pursuant to Section 3.13(b) of the Trust Indenture Act at the times and in the manner provided pursuant thereto and to Section 3.13(c) thereof.
(2) A copy of each such report shall, at the time of such transmission to Holders of Securities, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
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Section 7.04 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders of Securities, such information, documents and other reports, including financial information and statements and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. For purposes of this Section 7.04, 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 Company’s obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice (other than with respect to notice of an Event of Default pursuant to Section 10.05 hereof) of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Directors’ Certificates).
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Limitation on Consolidation, Merger, Sale or Conveyance.
The Company 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 (other than a direct or indirect Subsidiary of Petrobras) or permit any Person (other than a direct or indirect Subsidiary of the Company) to merge with or into it unless such consolidation, amalgamation, merger, lease, spin off or transfer of properties, assets or revenues does not violate any provision of Dutch financial regulatory laws, and:
(1) either the Company is the continuing entity or the Person (the “Successor Company”) formed by the consolidation or into which the Company is merged or that acquired (through a transfer of assets, a spin-off or otherwise) or leased the property or assets of the Company will assume (jointly and severally with the Company unless the Company will have ceased to exist as a result of that merger, consolidation or amalgamation), by a supplemental indenture, all of the Company’s obligations under this Indenture and the Securities;
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(2) the Successor Company (jointly and severally with the Company unless the Company will have ceased to exist as part of the merger, consolidation or amalgamation) agrees to indemnify each Holder against any tax, assessment or governmental charge thereafter imposed on the Holder solely as a consequence of the consolidation, merger, conveyance, spin-off, transfer or lease with respect to the payment of principal of, or interest on, the Securities;
(3) immediately after giving effect to the transaction, no Event of Default, and no Default has occurred and is continuing;
(4) the Company has delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that such transaction and the amendment and/or supplement to this Indenture relating to the transaction comply with the terms of this Indenture and that all conditions precedent provided for herein and relating to such transaction have been complied with; and
(5) the Company has delivered notice of any such transaction to the Trustee.
Notwithstanding anything to the contrary in the foregoing, so long as no Default or Event of Default under this Indenture or the Securities shall have occurred and be continuing at the time of such proposed transaction or would result therefrom:
(1) the Company may merge, amalgamate or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of all or substantially all of its properties, assets or revenues to a direct or indirect Subsidiary of the Company or Petrobras in cases when the Company is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole, it being understood that if the Company is not the surviving entity, the Company shall be required to comply with the requirements set forth in the previous paragraph;
(2) any direct or indirect Subsidiary of the Company may merge or consolidate with or into, or convey, transfer, spin-off, lease or otherwise dispose of assets to, any Person (other than the Company or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole;
(3) any direct or indirect Subsidiary of the Company may merge or consolidate with or into, or convey, transfer, spin off, lease or otherwise dispose of assets to, any other direct or indirect Subsidiary of the Company or Petrobras; or
(4) any direct or indirect Subsidiary of the Company may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of Petrobras, and would not result in a Material Adverse Effect on the Company and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Company or Petrobras.
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Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to and be substituted for and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, as the case may be, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Article Nine
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when authorized by or pursuant to a Board Resolution, Petrobras and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities, to evidence the full and unconditional guarantee by another Person, as provided in Section 8.01 hereof;
(2) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default for the benefit of the Holders;
(4) to add to or change any of the provisions of this Indenture to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders in any material respect;
(5) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee; and
(6) (i) to cure any ambiguity, defect or inconsistency, (ii) to make any change to conform the provisions contained herein, in any supplemental indenture or in the Securities, to the description of the notes contained in the Offering Memorandum, or (iii) to make any change that does not adversely affect the rights of the Holders in any material respect.
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Section 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, Petrobras and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of or any installment of principal of or interest or premium on any Security or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 10.10 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1)), or the coin or currency in which, any Security or any premium or interest thereon is payable, or modify or affect in any manner adverse to the interests of the Holders the conversion or exchange rights of such Securities, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or of any such right of conversion or exchange, or
(2) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 10.03, or
(4) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this Clause shall not be deemed to require the consent of any Holder of a Security with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.09.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, a Directors’ Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent herein and in the Securities to such execution have been satisfied. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
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Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby, except as otherwise expressed therein.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and such securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities.
Article Ten
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal of and any premium and interest and other amounts (including any Additional Amounts) on the Securities in accordance with the terms of the Securities and this Indenture.
Section 10.02 Maintenance of Corporate Existence.
The Company will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Article Eight and (ii) take all reasonable actions to maintain all rights, privileges, titles to property, franchises, concessions and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this Section 10.02 shall not require the Company to maintain any such right, privilege, title to property, franchise, concession or the like, if the Company’s Board of Directors shall determine that the maintenance thereof is no longer desirable in the conduct of the business of the Company, and that the loss thereof is not disadvantageous in any material respect to the Holders.
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Section 10.03 Maintenance of Office or Agency.
So long as the Securities are Outstanding, the Company will maintain an office or agency in the United States where notices to and demands upon the Company in respect of this Indenture and the Securities may be served, and the Company will not change the designation of such office without prior notice to the Trustee and designation of a replacement office in the same general location. Initially, such office will be located at 10350 Richmond Ave., Suite 1400, Houston, TX 77042. If at any time the Company shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address thereof, all presentations, surrenders, notices and demands may be served at the Corporate Trust Office and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
Section 10.04 Ranking.
The Company will ensure that the Securities will at all times constitute general senior, unsecured and unsubordinated obligations of the Company and will rank pari passu, without any preferences among themselves, with all of its other present and future unsecured and unsubordinated obligations (other than obligations preferred by statute or by operation of law).
Section 10.05 Statement by Managing Directors as to Default.
The Company (and each other obligor on the Securities) will deliver to the Trustee, within 90 days after the end of each fiscal year of the Company ending after the date hereof (which, unless the Trustee is notified otherwise, shall be December 31), a Directors’ Certificate, stating whether or not to the best knowledge of the signers thereof there is an Event of Default in connection with the performance and observance of any of the terms, provisions and conditions of this Indenture or the Securities and, if there is such an Event of Default by the Company (or any such obligor), specifying all such Events of Default and the nature and status thereof of which they may have knowledge.
Section 10.06 Provision of Financial Statements and Reports.
In the event that the Company files any financial statements or reports with the Commission or publishes or otherwise makes such statements or reports publicly available in The Netherlands, the United States or elsewhere, the Company will furnish a copy of the statements or reports to the Trustee within 15 days of the date of filing or the date the information is published or otherwise made publicly available. For purposes of this Section 10.06, 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 Company’s obligation to deliver such statements and reports to the Trustee hereunder. The Company shall provide the Trustee with prompt written notification at such time that the Company becomes or ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Company’s financial statements or reports are publicly available and accessible electronically.
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The Company will provide, together with each of the financial statements delivered pursuant to this Section, a Directors’ Certificate stating (A) that a review of the Company’s activities has been made during the period covered by such financial statements with a view to determining whether the Company has kept, observed, performed and fulfilled its covenants and agreements under this Indenture and (B) that no 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 Event of Default.
Delivery of these reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of any of those will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Directors’ Certificates).
Section 10.07 Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint in the manner provided in Section 6.10, a successor Trustee, so that there shall at all times be a Trustee with respect to the Securities.
Section 10.08 Payments and Paying Agents.
Payment of principal and interest and other amounts on the Securities will be made at the Corporate Trust Office of the Trustee in New York City, or such other paying agent office in the United States as the Company appoints, as herein provided.
The Company will, prior to 3:00 p.m., New York City time, on the Business Day preceding any payment date of the principal of or interest on the Securities or other amounts (including Additional Amounts), deposit to the Payment Account with the Trustee immediately available funds in U.S. Dollars sufficient to pay such principal, interest or other amounts (including Additional Amounts) so becoming due.
All payments will be subject in all cases to any applicable tax, fiscal or other laws and regulations in any jurisdictions, but without prejudice to the provisions of Section 10.10. For the purposes of the preceding sentence, the phrase “applicable tax, fiscal or other laws and regulations” will include any obligation on the Company to withhold or deduct from a payment pursuant to Section 1471(b) of the Internal Revenue Code of 1986, as amended, or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, any regulations thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto (collectively, “FATCA”).
Whenever the Company shall appoint a Paying Agent other than the Trustee or the Luxembourg Agent with respect to the Securities, it will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, and the Luxembourg Agent, as Luxembourg paying agent, hereby agrees, subject to the provisions of this Section:
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(1) that it will hold all sums received by it as such agent for the payment of the principal of or interest on any Securities (whether such sums have been paid to it by or on behalf of the Company or by any other obligor on the Securities) in trust for the benefit of the Holders or of the Trustee;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities) to make any payment of the principal of or interest on the Securities (including Additional Amounts) and any other payments to be made by or on behalf of the Company under this Indenture or the Securities when the same shall be due and payable; and
(3) that it will pay any such sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure referred to in Clause (2) above.
The Trustee shall arrange with all such Paying Agents for the payment, from funds furnished by the Company to the Trustee pursuant to this Indenture, of the principal of and interest and other amounts due on the Securities (including Additional Amounts).
If the Company shall act as its own Paying Agent with respect to the Securities, it will, on or before each due date of the principal of or interest on the Securities, set aside, segregate and hold in trust for the benefit of the Holders of the Securities a sum sufficient to pay such principal or interest (including Additional Amounts) so becoming due. The Company will promptly notify the Trustee of any failure to take action.
Anything in this Section 10.08 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a satisfaction and discharge with respect to the Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for the Securities by the Company or any Paying Agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Subject to any applicable unclaimed property laws or regulations, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on its Order, or (if then held by the Company) shall be discharged from such trust and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
Anything in this Section 10.08, to the contrary notwithstanding, the agreements to hold sums in trust as provided in this Section are subject to the provisions of Section 4.02.
The Company agrees to indemnify the Holders against any failure on the part of any Paying Agent to pay, in accordance with the terms hereof, any sum due in respect of the Securities on the applicable payment date.
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The Company initially appoints The Bank of New York Mellon as Paying Agent, Security Registrar and transfer agent hereunder and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg Paying Agent hereunder. The parties hereto agree that in accepting such appointment and acting as such under this Indenture, any Paying Agent and the Luxembourg Agent shall be entitled to the rights, benefits, protections, immunities and indemnities afforded to the Trustee under this Indenture.
For so long as the Securities are listed on the Official List of the Luxembourg Stock Exchange and trade on the Euro MTF Market of the Luxembourg Stock Exchange, the Company shall also maintain a Paying Agent in Luxembourg.
Any corporation or association into which any agent appointed by the Company under this Indenture may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which any such agent shall be a party, or any corporation or association succeeding to all or substantially all the corporate trust business of any such agent, shall be the successor of any such agent hereunder, provided such corporation or association shall be otherwise qualified and eligible under this Indenture, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Notwithstanding and to the exclusion of any other term of this Indenture or any other agreements, arrangements, or understanding among the parties, each counterparty to the BRRD Party under this Indenture acknowledges and accepts that a BRRD Liability arising under this Indenture may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
| (i) | the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the BRRD Party to such counterparty under this Indenture, that (without limitation) may include and result in any of the following, or some combination thereof: |
| (a) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (b) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the BRRD Party or another person (and the issue to or conferral on such counterparty of such shares, securities or obligations); |
| (c) | the cancellation of the BRRD Liability; |
| (d) | the amendment or alteration of the amounts due in relation to the BRRD Liability, including any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (ii) | the variation of the terms of this Indenture, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority. |
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Section 10.09 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Sections 10.06, 10.11, 10.12, 10.13 or 10.14 for the benefit of the Holders or any term, provision or condition of this Indenture (except with respect to any provision hereof or of the Securities which by its terms cannot be amended or waived except by the consent of Holders of greater than a majority in principal amount of the Outstanding Securities), if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. The Company shall provide the Trustee with written notification upon the waiver of any covenant.
Section 10.10 Additional Amounts.
Except as provided below, the Company or Petrobras, as applicable, will make all payments of amounts due under the Securities and this Indenture and each other document entered into in connection with the Securities and this Indenture without withholding or deducting any present or future taxes, levies, deductions or other governmental charges of any nature imposed by Brazil, the jurisdiction of the Company’s incorporation or any jurisdiction in which the Company appoints a Paying Agent under this Indenture, or any political subdivision of such jurisdictions (the “Taxing Jurisdictions”). If the Company or Petrobras, as applicable, is required by law to withhold or deduct any taxes, levies, deductions or other governmental charges, the Company or Petrobras, as applicable, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay the Holders any additional amounts necessary to ensure that they receive the same amount as they would have received without such withholding or deduction (“Additional Amounts”). For the avoidance of doubt, the foregoing obligations shall extend to payments under the Guaranty.
The Company or Petrobras, as applicable, shall not, however, pay any Additional Amounts in connection with any tax, levy, deduction or other governmental charge that is imposed due to any of the following:
(1) the Holder has a connection with the Taxing Jurisdiction other than merely holding the Securities or receiving principal or interest payments on the Securities (such as citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management, present or deemed present within the Taxing Jurisdiction);
(2) any tax imposed on, or measured by, net income;
(3) the Holder fails to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if (i) such compliance is required by applicable Law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge, (ii) the Holder is able to comply with such requirements without undue hardship and (iii) at least 30 days prior to the first payment date with respect to which such requirements under the applicable Law, regulation, administrative practice or treaty will apply, the Company or Petrobras, as applicable, has notified all Holders or the Trustee that they will be required to comply with such requirements;
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(4) the Holder fails to present (where presentation is required) its Securities within 30 days after the Company has made available to the Holder a payment under the Securities and this Indenture, provided that the Company or Petrobras, as applicable, will pay Additional Amounts which a Holder would have been entitled to had the Securities owned by such Holder been presented on any day (including the last day) within such 30 day period;
(5) any estate, inheritance, gift, value added, Financial Transactions Tax, use or sales taxes or any similar taxes, assessments or other governmental charges;
(6) where the Holder would have been able to avoid the tax, levy, deduction or other governmental charge by taking reasonable measures available to such Holder; or
(7) any combination of items (1), (2), (3), (4), (5), and (6) above.
As provided in Section 10.08, all payments in respect of the Securities will be made subject to any withholding or deduction required pursuant to FATCA, and the Company will not be required to pay any Additional Amounts on account of any such deduction or withholding required pursuant to FATCA.
Subject to the foregoing provisions, whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security or the net proceeds received on the sale or exchange of any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
At least ten days prior to the first Interest Payment Date, and at least ten days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Directors’ Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with a Directors’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities shall be made to Holders of Securities without withholding for or on account of any tax, assessment or other governmental charge described in the Securities. If any such withholding shall be required, then such Directors’ Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts required by this Section. The Company covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any reasonable loss, liability or expense arising out of or in connection with actions taken or omitted by any of them in reliance on any Directors’ Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own negligence or bad faith.
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The Company shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that are imposed by a Taxing Jurisdiction from any payment under the Securities or under any other document or instrument referred to in this Indenture or in the Securities or from the execution, delivery, enforcement or registration of the Securities or any other document or instrument referred to in this Indenture or in the Securities. The Company shall indemnify and make whole the Holders of the Securities for any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies payable by the Company as provided in this paragraph paid by such Holder.
Section 10.11 Use of Proceeds.
The Company intends to use the net proceeds from the sale of the Securities for general corporate purposes, including to refinance upcoming maturities of its outstanding securities.
Section 10.12 Negative Pledge.
So long as any Security remains outstanding, the Company will not create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (i) any of its Indebtedness or (ii) the Indebtedness of any other Person, unless the Company contemporaneously creates or permits such Lien to secure equally and ratably its obligations under the Securities as is duly approved by a resolution of the Holders in accordance with this Indenture. In addition, the Company will not allow any of its Material Subsidiaries, if any, to create or permit any Lien, other than a Permitted Lien, on any of its assets to secure (i) any of its Indebtedness; (ii) any of the Material Subsidiary’s Indebtedness or (iii) the Indebtedness of any other Person, unless it contemporaneously creates or permits the Lien to secure equally and ratably its obligations under the Securities and this Indenture or the Company provides such other security for the Securities and this Indenture as is duly approved by a resolution of the Holders in accordance with this Indenture.
Section 10.13 Currency Rate Indemnity.
(a) The Company shall (to the extent lawful) indemnify the Trustee and the Holders of the Securities 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 Securities, under this Indenture any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Company; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under this Indenture or in respect of the Securities is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Company, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation.
The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Company agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than U.S. dollars (the “Denomination Currency”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
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(c) The above indemnities shall constitute separate and independent obligations of the Company from its other obligations under this Indenture, shall give rise to separate and independent causes of action, shall apply irrespective of any indulgence granted from time to time and shall continue in full force and effect notwithstanding any judgment, order 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 this Indenture or the Securities or under any judgment or order pursuant to this Section 10.13.
Section 10.14 Listing of the Securities.
Following the issuance of the Securities, the Company shall use its commercially reasonable efforts to obtain and maintain such admission to listing and trading; provided that if the Company is unable to list the Securities on the Official List of the Luxembourg Stock Exchange and/or the Securities do not trade on the Euro MTF Market of the Luxembourg Stock Exchange, or if as a result of any applicable rule, requirement or legislation, the Company would be required to publish financial information either more regularly than it otherwise would be required to or according to accounting principles which are materially different from the accounting principles which Petrobras would otherwise use to prepare its published financial information, the Company may delist the Securities in accordance with the rules of the Luxembourg Stock Exchange and it shall use its commercially reasonable efforts to list and maintain a listing of the Securities on a different section of the Luxembourg Stock Exchange or on such other listing authority, stock exchange and/or quotation system inside or outside the European Union as the Company may decide.
Article Eleven
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
The Securities shall be redeemable in accordance with their terms and in accordance with this Article. Holders shall not be entitled to require the Company to repurchase the Securities from Holders before the Stated Maturity.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem the Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of all or less than all the Securities (including any such redemption affecting only a single Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed. In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of the Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of the Securities, the Company shall furnish the Trustee with a Directors’ Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular Securities to be redeemed shall be selected less than 61 days prior to the Redemption Date by the Trustee, from the Outstanding Securities not previously called for redemption, by lot or on a pro rata basis, or any method deemed fair and appropriate to the Trustee (subject to the then current rules and procedures of the applicable Depositary), provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination which shall not be less than the minimum authorized denomination for such Security. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amounts thereof to be redeemed.
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The provisions of the preceding paragraph shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.06 to each Holder of Securities to be redeemed (with a copy to the Trustee) not less than 30 nor more than 60 days prior to the Redemption Date. Such notice may at the Company’s option be subject to the satisfaction of one or more conditions precedent, and such notice may be rescinded or the applicable Redemption Date delayed in the event that any or all such conditions shall not have been satisfied.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest and Additional Amounts, if any,
(3) if less than all the Outstanding Securities are to be redeemed, the identification (and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued interest, if any, will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security to be redeemed is to be surrendered for payment of the Redemption Price, plus accrued interest and Additional Amounts, if any,
(6) the conditions precedent, if any, to which such notice is subject, and
(7) the CUSIP or ISIN number or numbers, if any, with respect to such each Security to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need not identify particular Global Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, and shall be irrevocable.
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Section 11.05 Deposit of Redemption Price.
Prior to 3:00 p.m., New York City time, on the Business Day preceding any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.08) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest to the Redemption Date on, all the Securities which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities (or the applicable portion of any Securities) so to be redeemed shall, on the Redemption Date (subject to the satisfaction of any conditions precedent), become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities (or such portion of such Securities) shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided however, that unless otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, only in the case of Registered Securities, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transference satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
Section 11.08 Optional Redemption Due to Changes in Tax Treatment.
The Securities 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, execution of, or amendment to, any laws or regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which Petrobras or 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 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), the Company would be required to pay Additional Amounts pursuant to Section 10.10. For purposes of this Section 11.08, the reincorporation of the Company shall be treated as the adoption of a successor entity, provided, however, that redemption under this Section 11.08 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.
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Section 11.09 Optional Early Redemption.
The Securities are subject to redemption at the Company’s option before the Stated Maturity in whole or in part, at any time or from time to time, upon no less than 15 days’ but no more than 60 days’ notice, at a Redemption Price equal to, as calculated by the Company, the greater of (A) 100% of the principal amount of such Securities and (B) the sum of the present values of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, plus in each case, accrued interest on the principal amount of such Securities to (but not including) the Redemption Date.
Article
Twelve
SINKING FUNDS
Section 12.01 No Sinking Fund.
The Securities shall not be entitled to the benefit of any sinking fund.
Article
Thirteen
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders.
Section 13.02 Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders for any purpose specified in Section 13.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York as the Trustee shall determine. Notice of every meeting of Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities shall have requested the Trustee to call a meeting of the Holders for any purpose specified in Section 13.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders in the amount specified above, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (1) of this Section.
Section 13.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall be (i) a Holder on a record date established pursuant to Section 1.04(3) of one or more Outstanding Securities, or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
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Section 13.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities shall constitute a quorum for a meeting of Holders of Securities. In the absence of a quorum within 15 minutes (or such longer period not exceeding 30 minutes as the chairman may decide) of the time appointed for any such meeting, the meeting shall if convened upon the requisition of Holders be dissolved. In any other case it shall stand adjourned to the same day in the next week (or if such day is not a business day the next succeeding business day) at the same time and place. If within 15 minutes (or such longer period not exceeding 30 minutes as the chairman may decide) after the time appointed for any adjourned meeting a quorum is not present for the transaction of any particular business, then, subject and without prejudice to the transaction of the business (if any) for which a quorum is present, the chairman may either (with the approval of the Trustee) dissolve such meeting or adjourn the same for such period, being not less than ten days (but without any maximum number of days), and to such place as may be appointed by the chairman either at or subsequent to such adjourned meeting and approved by the Trustee, and the provisions of this sentence shall apply to all further adjourned such meetings.
Notice of the reconvening of any adjourned meeting shall be given as provided in Section 13.02(1), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of a reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities which shall constitute a quorum.
Any resolution passed or decision taken at any meeting of Holders duly held in accordance with this Section shall be binding on all the Holders, whether or not presented or represented at the meeting. However, for the avoidance of doubt, no actions taken at such meeting shall be binding on all Holders unless such actions were approved by the minimum percentage in principal amount of the Outstanding Securities as required elsewhere in this Indenture or under the Trust Indenture Act with respect to such actions.
Section 13.05 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to proof of the holding of Securities and the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 13.02(2), in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities represented at the meeting.
(3) At any meeting each Holder or proxy shall be entitled to one vote for each U.S.$1,000 principal amount of the Outstanding Securities held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder or proxy.
(4) Any meeting of Holders duly called pursuant to Section 13.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities represented at the meeting, and the meeting may be held as so adjourned without further notice.
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Section 13.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders shall be by written ballots on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 13.02 and, if applicable, Section 13.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Article
Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 14.02 or Section 14.03 applied to the Securities upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution.
Section 14.02 Defeasance and Discharge.
Upon the Company’s exercise of its option to have this Section applied to the Securities, the Company shall be deemed to have been discharged from its obligations with respect to the Securities as provided in this Section on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Securities and to have satisfied all its other obligations under the Securities and this Indenture insofar as the Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of the Securities to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on the Securities when payments are due, (ii) the Company’s obligations with respect to the Securities under Sections 3.04, 3.05, 3.06 and 10.03, (iii) the rights, powers, trusts, duties, protections, indemnities and immunities of the Trustee hereunder and (iv) this Article Fourteen. Subject to compliance with this Article, the Company may exercise its option to have this Section 14.02 applied to the Securities notwithstanding the prior exercise of its option to have Section 14.03 applied to the Securities.
Section 14.03 Covenant Defeasance.
Upon the Company’s exercise of its option to have this Section applied to the Securities, (i) the Company shall be released from Sections 10.05, 10.06, 10.11 and 10.12, and (ii) any omission or failure to comply with any Section specified in the preceding clause (i) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
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Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 14.02 or Section 14.03 to the Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities, (i) money in an amount, or (ii) non-callable U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, without reinvestment, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without reinvestment and which shall be applied by the Trustee to pay and discharge, the principal of and any premium, interest and Additional Amounts on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (A) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (B) an obligation of a Person controlled or supervised by and acting as any agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (A) or (B), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of any election to have Section 14.02 apply to the Securities, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has been a change in the applicable U.S. Federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 14.03 apply to the Securities, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit and Covenant Defeasance effected with respect to the Securities and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(6), 5.01(7), 5.01(8) and 5.01(9), at any time on or prior to the day which is 90 days after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such day which is 90 days after the date of such deposit).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
72
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 14.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the ninth paragraph of Section 10.08, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 14.04, or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Order any money or U.S. Government Obligations held by it as provided in Section 14.04 with respect to any Securities which, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 14.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order of judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 14.02 or 14.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed on their respective behalves, all as of the day and year first above written.
| PETROBRAS GLOBAL FINANCE B.V. | ||
| By: | /s/ Larry Carris Cardoso | |
| Name: Larry Carris Cardoso | ||
| Title: Attorney in Fact | ||
| PETRÓLEO BRASILEIRO S.A. - PETROBRAS | ||
| By: | /s/ Bianca Nasser Patrocinio | |
| Name: Bianca Nasser Patrocinio | ||
| Title: Executive Manager of Corporate Finance & Treasury | ||
WITNESSES:
| 1. | /s/ Renan Feuchard Pinto |
Name: Renan Feuchard Pinto
| 2. | /s/ Adriana Fernandes de Brito |
Name: Adriana Fernandes de Brito
[Signature Page to 2030 Global Notes Indenture]
| THE BANK OF NEW YORK MELLON, as | ||
| Trustee, Paying Agent, Security Registrar, and Transfer Agent | ||
| By: | /s/ Wanda Camacho | |
| Name: Wanda Camacho | ||
| Title: Vice President | ||
WITNESSES:
| 1. | /s/ Thomas Hacker |
Name: Thomas Hacker
Title: Vice President
| 2. | /s/ Stacey B. Pointdexter |
Name: Stacey B. Pointdexter
Title: Vice President
[Signature Page to 2030 Global Notes Indenture]
| STATE OF NEW YORK | ) | ||
| ) | ss: | ||
| COUNTY OF NEW YORK | ) | ||
On this 18th day of September, before me, a notary public within and for said county, personally appeared Wanda Camacho, to me personally known, who being duly sworn, did say that she is a Vice President of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.
On this 18th day of September, before me personally came Thomas Hacker, Vice President and Stacey B. Pointdexter, Vice President, to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.
[Notarial Seal]
| /s/ Bret S. Derman | ||
| Notary Public COMMISSION EXPIRES |
[Signature Page to 2030 Global Notes Indenture]
| THE BANK OF NEW YORK MELLON SA/NV, | ||
| LUXEMBOURG BRANCH, | ||
| as Luxembourg Paying Agent | ||
| By: | /s/ Wanda Camacho | |
| Name: Wanda Camacho | ||
| Title: Vice President | ||
WITNESSES:
| 1. | /s/ Thomas Hacker |
Name: Thomas Hacker
Title: Vice President
| 2. | /s/ Stacey B. Pointdexter |
Name: Stacey B. Pointdexter
Title: Vice President
[Signature Page to 2030 Global Notes Indenture]
| STATE OF NEW YORK | ) | |
| ) | ss: | |
| COUNTY OF NEW YORK | ) |
On this 18th day of September, before me, a notary public within and for said county, personally appeared Wanda Camacho, to me personally known, who being duly sworn, did say that she is a Vice President of The Bank of New York Mellon SA/NV, Luxembourg 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 18th day of September, before me personally came Thomas Hacker, Vice President and Stacey B. Pointdexter, Vice President, to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.
[Notarial Seal]
| /s/ Bret S. Derman | |
| Notary Public | |
| COMMISSION EXPIRES |
[Signature Page to 2030 Global Notes Indenture]
Exhibit A
FORM OF RESTRICTED GLOBAL NOTE
RESTRICTED GLOBAL NOTE
5.093% Global Note due 2030
THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT THIS GLOBAL NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO PETROBRAS GLOBAL FINANCE B.V., (2) SO LONG AS THIS GLOBAL NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, REPRESENTS AND AGREES THAT IT WILL NOTIFY ANY PURCHASER OF THIS GLOBAL NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS GLOBAL NOTE AS SET FORTH IN CLAUSE (4) ABOVE, PETROBRAS GLOBAL FINANCE B.V. MAY REQUIRE DELIVERY OF ANY DOCUMENTS OR OTHER EVIDENCE THAT IT, IN ITS ABSOLUTE DISCRETION, DEEMS NECESSARY OR APPROPRIATE TO EVIDENCE COMPLIANCE WITH SUCH EXEMPTION.
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF SEPTEMBER 18, 2019, AMONG PETROBRAS GLOBAL FINANCE B.V., PETROLEO BRASILEIRO S.A. AND THE OTHER PARTIES REFERRED TO THEREIN.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS GLOBAL NOTE ONLY WITH THE CONSENT OF PETROBRAS GLOBAL FINANCE B.V.
2
PETROBRAS GLOBAL FINANCE B.V.
5.093% Global Notes due 2030
No. R-[●]
CUSIP No.: 71647N BF5
ISIN No.: US71647NBF50
Principal Amount: U.S.$ [●], as revised by
Schedule of Increases and Decreases in Global Note
attached hereto
Initial Issuance Date: September 18, 2019
This Note is one of a duly authorized issue of notes of PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “Issuer”), designated as its 5.093% Global Notes due 2030 (the “Notes”), issued in an initial aggregate principal amount of (U.S.$ [●]), as revised by Schedule of Increases and Decreases in Global Note attached hereto, under the Indenture (the “Indenture”), dated as of September 18, 2019, by and among the Issuer, Petróleo Brasileiro S.A. – Petrobras, a mixed capital company (sociedade de economia mista) organized under the laws of Brazil (“Petrobras”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “Trustee”), paying agent, Security Registrar and transfer agent, and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co., or its registered assigns, as nominee of The Depository Trust Company (“DTC”), and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on January 15, 2030 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.
As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from the Closing Date, semi-annually in arrears on January 15 and July 15 of each year, (each such date, an “Interest Payment Date”), commencing January 15, 2020 at a rate equal to 5.093% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. The Issuer agrees to pay Additional Interest, if any, on the principal amount of this Note as and to the extent set forth in the registration rights agreement, dated September 18, 2019 (the “Registration Rights Agreement”), between the Issuer and the other parties named therein. In addition to the rights provided for herein, the Holder of this Note is entitled to the benefits of, and is bound by, the Registration Rights Agreement. Any reference herein or in the Indenture to interest on this Note shall be deemed also to refer to any Additional Interest (as defined in the Registration Rights Agreement) which may be payable on this Note under the undertakings referred to therein.
3
Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment. Any accrued and unpaid interest on this Note shall cease to be payable to the Holder hereof upon the issuance of an Exchange Security (as defined in the Registration Rights Agreement) in exchange for this Note, but such accrued and unpaid interest shall be payable on the next Interest Payment Date for such Exchange Security to the Holder thereof on the applicable Regular Record Date.
Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest shall accrue on the Notes at the rate of 5.093% per annum until all required amounts due in respect of the Notes have been paid. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.
The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.
This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.
The Indenture, the Guaranty or the Notes may be amended or supplemented as provided by the Indenture.
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. 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 minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.
Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.
4
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTIES.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| PETROBRAS GLOBAL FINANCE B.V. | |||
| By: | |||
| Name: | |||
| Title: | |||
| WITNESSES: | |||
| 1. | |||
| Name: | |||
| 2. | |||
| Name: | |||
[Signature Page –Global Note]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned Indenture.
Dated: September 18, 2019
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page –Global Note]
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 Security Registrar with full power of substitution in the premises.
| Date: | Your Signature: |
(Sign exactly as your name
appears on the face of this Note)
Signature Guaranty:
(Participant in a recognized signature guaranty medallion program)
Date:_______________________________________________________
Certifying Signature:
Exhibit A-8
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is U.S.$[Ÿ]. The following increases or decreases in this Global Note have been made:
|
Date of Exchange |
Amount
of decrease |
Amount
of increase |
Principal
amount of |
Signature
of | ||||
Exhibit A-9
Exhibit B
FORM OF REGULATION S GLOBAL NOTE
REGULATION S GLOBAL NOTE
5.093% Global Note due 2030
THIS CERTIFICATE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE ISSUER OR THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CEDE & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
THIS GLOBAL NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS GLOBAL NOTE, AGREES THAT NEITHER THIS GLOBAL NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS GLOBAL NOTE, PETROBRAS GLOBAL FINANCE B.V. MAY REQUIRE DELIVERY OF ANY DOCUMENTS OR OTHER EVIDENCE THAT IT, IN ITS ABSOLUTE DISCRETION, DEEMS NECESSARY OR APPROPRIATE TO EVIDENCE COMPLIANCE WITH EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY OTHER SECURITIES LAWS.
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF SEPTEMBER 18, 2019, AMONG PETROBRAS GLOBAL FINANCE B.V., PETROLEO BRASILEIRO S.A. AND THE OTHER PARTIES REFERRED TO THEREIN.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS GLOBAL NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (I) THE DATE ON WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (II) THE ORIGINAL ISSUE DATE OF THIS GLOBAL NOTE.
PETROBRAS GLOBAL FINANCE B.V.
5.093% Global Notes due 2030
No. S-[●]
CUSIP No.: N6945A AL1
ISIN No.: USN6945AAL19
Principal Amount: U.S.$ [●], as revised by
Schedule of Increases and Decreases in Global Note
attached hereto
Initial Issuance Date: September 18, 2019
This Note is one of a duly authorized issue of notes of PETROBRAS GLOBAL FINANCE B.V., a private company incorporated with limited liability under the laws of The Netherlands (the “Issuer”), designated as its 5.093% Global Notes due 2030 (the “Notes”), issued in an initial aggregate principal amount of (U.S.$ [●]), as revised by Schedule of Increases and Decreases in Global Note attached hereto, under the Indenture (the “Indenture”), dated as of September 18, 2019, by and among the Issuer, Petróleo Brasileiro S.A. – Petrobras, a mixed capital company (sociedade de economia mista) organized under the laws of Brazil (“Petrobras”), The Bank of New York Mellon, a New York banking corporation, as Trustee (the “Trustee”), paying agent, Security Registrar and transfer agent, and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co., or its registered assigns, as nominee of The Depository Trust Company (“DTC”), and as the Holder of record of this Note, the principal amount specified above in U.S. dollars on January 15, 2030 (or earlier as provided for in the Indenture) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below.
As provided for in the Indenture, the Issuer promises to pay interest on the outstanding principal amount hereof, from the Closing Date, semi-annually in arrears on January 15 and July 15 of each year, (each such date, an “Interest Payment Date”), commencing January 15, 2020 at a rate equal to 5.093% per annum, and will initially accrue from the date of issuance and thereafter from the last Interest Payment Date to which interest has been paid. The Issuer agrees to pay Additional Interest, if any, on the principal amount of this Note as and to the extent set forth in the registration rights agreement, dated September 18, 2019 (the “Registration Rights Agreement”), between the Issuer and the other parties named therein. In addition to the rights provided for herein, the Holder of this Note is entitled to the benefits of, and is bound by, the Registration Rights Agreement. Any reference herein or in the Indenture to interest on this Note shall be deemed also to refer to any Additional Interest (as defined in the Registration Rights Agreement) which may be payable on this Note under the undertakings referred to therein.
2
Interest payable, and punctually paid or duly provided for, on this Note on any Interest Payment Date will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Business Day preceding such interest payment. Any accrued and unpaid interest on this Note shall cease to be payable to the Holder hereof upon the issuance of an Exchange Security (as defined in the Registration Rights Agreement) in exchange for this Note, but such accrued and unpaid interest shall be payable on the next Interest Payment Date for such Exchange Security to the Holder thereof on the applicable Regular Record Date.
Payment of the principal of and interest on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Security Register of the Trustee. In the event the date for any payment of the principal of or interest on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest shall accrue on the Notes at the rate of 5.093% per annum until all required amounts due in respect of the Notes have been paid. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months.
The Notes are subject to redemption by the Issuer on the terms and conditions specified in the Indenture.
This Note does not purport to summarize the Indenture, and reference is made to the Indenture for information with respect to the respective rights, limitations of interests, benefits, obligations and duties thereunder of the Issuer, the Trustee and the Holders.
The Indenture, the Guaranty or the Notes may be amended or supplemented as provided by the Indenture.
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. 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 minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof.
Prior to and at the time of due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Issuer, the Trustee nor any agent thereof shall be affected by notice to the contrary.
3
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTIES.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
| PETROBRAS GLOBAL FINANCE B.V. | |||
| By: | |||
| Name: | |||
| Title: | |||
| WITNESSES: | |||
| 1. | |||
| Name: | |||
| 2. | |||
| Name: | |||
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned Indenture.
Dated: September 18, 2019
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page –Global Note]
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 Security Registrar with full power of substitution in the premises.
| Date: | Your Signature: |
(Sign exactly as your name
appears on the face of this Note)
Signature Guaranty: __________________________________________________________
(Participant in a recognized signature guaranty medallion program)
Date:_______________________________________________________
Certifying Signature:
Exhibit B-7
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is U.S.$[Ÿ]. The following increases or decreases in this Global Note have been made:
|
Date of Exchange |
Amount
of decrease |
Amount
of increase |
Principal amount of this Global Note following such decrease or increase |
Signature
of | ||||
Exhibit B-8
Exhibit C
Form of Guaranty
GUARANTY
Dated as of September 18, 2019
between
PETRÓLEO BRASILEIRO S.A.—PETROBRAS,
as Guarantor,
and
THE BANK OF NEW YORK MELLON, as
Trustee for the Noteholders
Referred to Herein
C-1
Table of Contents
Page
| SECTION 1. | Definitions | C-4 |
| SECTION 2. | Guaranty | C-8 |
| SECTION 3. | Guaranty Absolute | C-9 |
| SECTION 4. | Independent Obligation | C-10 |
| SECTION 5. | Waivers and Acknowledgments | C-10 |
| SECTION 6. | Claims Against the Issuer | C-11 |
| SECTION 7. | Covenants | C-12 |
| SECTION 8. | Amendments, Etc. | C-15 |
| SECTION 9. | Indemnity | C-15 |
| SECTION 10. | Notices, Etc | C-16 |
| SECTION 11. | Survival | C-16 |
| SECTION 12. | No Waiver; Remedies | C-16 |
| SECTION 13. | Continuing Agreement; Assignment of Rights Under the Indenture and the 2030 Notes | C-16 |
| SECTION 14. | Currency Rate Indemnity | C-17 |
| SECTION 15. | Governing Law; Jurisdiction; Waiver of Immunity, Etc. | C-18 |
| SECTION 16. | Execution in Counterparts | C-19 |
| SECTION 17. | Entire Agreement | C-19 |
| SECTION 18. | The Trustee | C-19 |
Exhibit C-2
GUARANTY
GUARANTY (this “Guaranty”), dated as of September 18, 2019 between PETRÓLEO BRASILEIRO S.A.—PETROBRAS (the “Guarantor”), a sociedade de economia mista organized and existing under the laws of the Federative Republic of Brazil (“Brazil”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee under the Indenture (as defined below) (the “Trustee”).
WITNESSETH:
WHEREAS, Petrobras Global Finance B.V., a private company incorporated with limited liability under the laws of The Netherlands and a wholly-owned Subsidiary of the Guarantor (the “Issuer”) and the Guarantor have entered into an Indenture dated as of September 18, 2019 with the Trustee and THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH (the “Luxembourg Agent”), as it may be amended or supplemented from time to time with respect to the Notes, is hereinafter referred to as the “Indenture”;
WHEREAS, the Issuer has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with the Indenture and is, on the date hereof, issuing U.S.$[●] aggregate principal amount of its 5.093% Global Notes due 2030 under the Indenture (the “Notes”);
WHEREAS, the Guarantor is willing to enter into this Guaranty in order to provide the holders of the Notes (the “Noteholders”) with an irrevocable and unconditional guaranty that, if the Issuer shall fail to make any required payments of principal, interest or other amounts due in respect of the Notes and the Indenture, the Guarantor will pay any such amounts whether at stated maturity, or earlier or later by acceleration or otherwise;
WHEREAS, the Guarantor agrees that it will derive substantial direct and indirect benefits from the issuance of the Notes by the Issuer;
WHEREAS, it is a condition precedent to the issuance of the Notes that the Guarantor shall have executed this Guaranty;
WHEREAS, the Guarantor agrees that this Guaranty’s obligations shall also extend to the Exchange Securities (as defined in the Indenture) if and when issued;
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.
Exhibit C-3
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 Indenture. All such definitions shall be read in a manner consistent with the terms of this Guaranty.
(b) As used herein, the following capitalized terms shall have the following meanings:
“Affiliate,” with respect to any Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person; it being understood that for purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”) of a Person shall mean the possession, direct or indirect, of the power to vote 25% or more of the equity or similar voting interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Representative” of the Guarantor or any other Person means the person or persons authorized to act on behalf of such entity by its chief executive officer, president, chief operating officer, chief financial officer or any vice president or its Board of Directors or any other governing body of such entity.
“Board of Directors”, when used with respect to a corporation, means either the board of directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them.
“Denomination Currency” has the meaning specified in Section 14(b).
“Guaranteed Obligations” has the meaning specified in Section 2.
“Indebtedness” means any obligation (whether present or future, actual or contingent and including, without limitation, any Guarantee) for the payment or repayment of money which has been borrowed or raised (including money raised by acceptances and all leases which, under generally accepted accounting principles in the country of incorporation of the relevant obligor, would constitute a capital lease obligation).
“Judgment Currency” has the meaning specified in Section 14(b).
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, assets, property, condition (financial or otherwise) or, results of operation, of the Guarantor together with its consolidated Subsidiaries, taken as a whole, (b) the validity or enforceability of this Guaranty or any other Transaction Document or (c) the ability of the Guarantor to perform its obligations under this Guaranty or any other Transaction Document, or (d) the material rights or benefits available to the Noteholders or the Trustee, as representative of the Noteholders under the Indenture, this Guaranty or any of the other Transaction Documents.
Exhibit C-4
“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 IFRS (or if Petrobras does not prepare financial statements in IFRS, consolidated financial statements prepared in accordance with Brazilian generally accepted accounting principles).
“Officer’s Certificate” means a certificate of an Authorized Representative of the Guarantor.
“Opinion of Counsel” means a written opinion of counsel from any Person either expressly referred to herein or otherwise reasonably satisfactory to the Trustee which may include, without limitation, counsel for the Guarantor, whether or not such counsel is an employee of the Guarantor.
“Permitted Lien” means a:
(i) Lien granted in respect of Indebtedness owed to the Brazilian government, Banco Nacional de Desenvolvimento Econômico e Social or any official government agency or department of the government of Brazil or of any state or region thereof;
(ii) Lien arising by operation of law, such as merchants’, maritime or other similar Liens arising in the Guarantor’s ordinary course of business or that of any Subsidiary or Lien in respect of taxes, assessments or other governmental charges that are not yet delinquent or that are being contested in good faith by appropriate proceedings;
(iii) Lien arising from the Guarantor’s obligations under performance bonds or surety bonds and appeal bonds or similar obligations incurred in the ordinary course of business and consistent with the Guarantor’s past practice;
(iv) Lien arising in the ordinary course of business in connection with Indebtedness maturing not more than one year after the date on which such Indebtedness was originally incurred and which is related to the financing of export, import or other trade transactions;
(v) Lien granted upon or with respect to any assets hereafter acquired by the Guarantor or any Subsidiary to secure the acquisition costs of such assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such assets, including any Lien existing at the time of the acquisition of such assets as long as the maximum amount so secured shall not exceed the aggregate acquisition costs of all such assets or the aggregate Indebtedness incurred solely for the acquisition of such assets, as the case may be;
Exhibit C-5
(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 original issuance of the Notes;
(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 IFRS) at any date as at which the Guarantor’s balance sheet is prepared and published in accordance with applicable Law.
“Process Agent” has the meaning specified in Section 15(c).
“Project Financing” of any project means the incurrence of Indebtedness relating to the exploration, development, expansion, renovation, upgrade or other modification or construction of such project pursuant to which the providers of such Indebtedness or any trustee or other intermediary on their behalf or beneficiaries designated by any such provider, trustee or other intermediary are granted security over one or more Qualifying Assets relating to such project for repayment of principal, premium and interest or any other amount in respect of such Indebtedness.
Exhibit C-6
“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).
“Termination Date” has the meaning specified in Section 6.
“Transaction Documents” means, collectively, the Indenture, the Notes and this Guaranty.
Exhibit C-7
(c) Construction. The parties agree that items (1) through (5) of Section 1.01 of the 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, the Notes and the Exchange Securities, 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, the Notes and the Exchange Securities 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, the Notes and the Exchange Securities. Such notice shall specify the amount or amounts under the Indenture, the Notes or the Exchange Securities that were not paid on the date that such amounts were required to be paid under the terms of the Indenture, the Notes and the Exchange Securities.
(c) The obligation of the Guarantor under this Guaranty shall be absolute and unconditional upon receipt by it of the notice contemplated herein absent manifest error. The Guarantor shall not be relieved of its obligations hereunder unless and until the Trustee shall have indefeasibly received all amounts required to be paid by the Guarantor hereunder (and any Event of Default under the Indenture has been cured, it being understood that the Guarantor’s obligations hereunder shall terminate following payment by the Issuer and/or the Guarantor of the entire principal, all accrued interest and all other amounts due and owing in respect of the Notes, the Exchange Securities and the Indenture. All amounts payable by the Guarantor hereunder shall be payable in U.S. dollars and in immediately available funds to the Trustee.
All payments actually received by the Trustee pursuant to this Section 2 after 12:00 p.m. (New York time) on any Business Day will be deemed, for purposes of this Guaranty, to have been received by the Trustee on the next succeeding Business Day.
Exhibit C-8
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 the Notes, the Exchange Securities 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, the Notes, the Exchange Securities 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, the Notes or the Exchange Securities;
(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, the Notes or the Exchange Securities as a result of any rescheduling of the Issuer’s obligations under the Notes, the Exchange Securities, 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, the Notes and the Exchange Securities;
(vi) any manner of sale or other disposition of any assets of any Noteholder;
(vii) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Guarantor or any Subsidiary thereof or any change in the name, purposes, business, capital stock (including ownership thereof) or constitutive documents of the Issuer or the Guarantor;
(viii) any failure of the Trustee to disclose to the Guarantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or any of its Subsidiaries (the Guarantor hereby waiving any duty on the part of the Trustee or any Noteholders to disclose such information);
Exhibit C-9
(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 Notes, the Exchange Securities and the Indenture. The Trustee, on behalf of the Noteholders, may neglect or forbear to enforce payment under the Indenture, the Notes or the Exchange Securities, without in any way affecting or impairing the liability of the Guarantor hereunder. The Trustee shall not be obligated to exhaust recourse or remedies against the Issuer to recover payments required to be made under the Indenture nor take any other action against the Issuer before being entitled to payment from the Guarantor of all amounts contemplated in Section 2 hereof owed hereunder or proceed against or have resort to any balance of any deposit account or credit on the books of the Trustee in favor of the Issuer or in favor of the Guarantor. Without limiting the generality of the foregoing, the Trustee shall have the right to bring a suit directly against the Guarantor, either prior or subsequent to or concurrently with any lawsuit against, or without bringing suit against, the Issuer.
SECTION 5. Waivers and Acknowledgments
(a) The Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Trustee, on behalf of the Noteholders, protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person.
Exhibit C-10
(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, the Notes or the Exchange Securities.
(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 794, caput, of the Brazilian Civil Procedure Code.
SECTION 6. Claims Against the Issuer
The Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other guarantor that arise from the existence, payment, performance or enforcement of the Guarantor’s obligations under or in respect of this Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification, or to participate in any claim or remedy of the Trustee, on behalf of the Noteholders, against the Issuer or any other person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer or any other person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the date on which all of the obligations of the Issuer under the Indenture, the Notes or the Exchange Securities 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.
Exhibit C-11
SECTION 7. Covenants
For so long as the Notes or the Exchange Securities remain outstanding or any amount remains unpaid on the Notes, the Exchange Securities or 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.
(b) Maintenance of Corporate Existence. The Guarantor will (i) maintain in effect its corporate existence and all registrations necessary therefor except as otherwise permitted by Section 7(e) and (ii) take all actions to maintain all rights, privileges, titles to property, franchises, concessions and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this Section 7(b) shall not require the Guarantor to maintain any such right, privilege, title to property or franchise if the failure to do so does not, and will not, have a Material Adverse Effect.
(c) Maintenance of Office or Agency. So long as any of the Notes are outstanding, the Guarantor will maintain an office or agency in the United States where notices to and demands upon the Guarantor in respect of this Guaranty may be served, and the Guarantor will not change the appointment of the agent without prior written notice to the Trustee and designation of a replacement agent or office in the United States.
Exhibit C-12
(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, with all other present and future senior unsecured and unsubordinated obligations of the Guarantor (other than obligations preferred by statute or by operation of law) that are not, by their terms, expressly subordinated in right of payment to the obligations of the Guarantor under this Guaranty.
(e) Limitation on Consolidation, Merger, Sale or Conveyance. (i) The Guarantor will not, in one or a series of transactions, consolidate or amalgamate with or merge into any corporation or convey, lease, spin-off or transfer substantially all of its properties, assets or revenues to any person or entity (other than a direct or indirect Subsidiary of the Guarantor) or permit any person or entity (other than a direct or indirect Subsidiary of the Guarantor) to merge with or into it, unless:
(A) either the Guarantor is the continuing entity or the person (the “Successor Company”) formed by such consolidation or into which the Guarantor is merged or that acquired or leased such property or assets of the Guarantor will assume (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as a result of such merger, consolidation or amalgamation), by an amendment to this Guaranty (the form and substance of which shall be previously approved by the Trustee), all of the Guarantor’s obligations under this Guaranty;
(B) the Successor Company (jointly and severally with the Guarantor unless the Guarantor shall have ceased to exist as part of such merger, consolidation or amalgamation) agrees to indemnify each Noteholder against any tax, assessment or governmental charge thereafter imposed on such Noteholder solely as a consequence of such consolidation, merger, conveyance, transfer or lease with respect to the payment of principal of, or interest on, the Notes or the Exchange Securities pursuant to this Guaranty;
(C) immediately after giving effect to such transaction, no Event of Default, and no Default has occurred and is continuing; and
(D) the Guarantor has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such merger consolidation, sale, transfer or other conveyance or disposition and the amendment to this Guaranty comply with the terms of this Guaranty and that all conditions precedent provided for herein and relating to such transaction have been complied with.
(ii) Notwithstanding anything to the contrary in the foregoing, so long as no Default or Event of Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom and the Guarantor has delivered written notice of any such transaction to the Trustee (which notice shall contain a description of such merger, consolidation or conveyance):
Exhibit C-13
(A) the Guarantor may merge, amalgamate or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of all or substantially all of its properties, assets or revenues to a direct or indirect Subsidiary of the Guarantor in cases when the Guarantor is the surviving entity in such transaction and such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole, it being understood that if the Guarantor is not the surviving entity, the Guarantor shall be required to comply with the requirements set forth in the previous paragraph; or
(B) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of assets to, any person (other than the Guarantor or any of its Subsidiaries or Affiliates) in cases when such transaction would not have a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole; or
(C) any direct or indirect Subsidiary of the Guarantor may merge or consolidate with or into, or convey, transfer, lease, spin-off or otherwise dispose of assets to, any direct or indirect Subsidiary of the Guarantor; or
(D) any direct or indirect Subsidiary of the Guarantor may liquidate or dissolve if the Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Guarantor, and would not result in a Material Adverse Effect on the Guarantor and its Subsidiaries taken as a whole and if such liquidation or dissolution is part of a corporate reorganization of the Guarantor.
(f) Negative Pledge. So long as any Notes remain outstanding, the Guarantor will not create or permit any Lien, other than a Permitted Lien, on any of the Guarantor’s assets to secure (i) any of the Guarantor’s Indebtedness or (ii) the Indebtedness of any other person, unless the Guarantor contemporaneously creates or permits such Lien to secure equally and ratably the Guarantor’s obligations under this Guaranty or the Guarantor provides such other security for the Notes or the Exchange Securities 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 Notes or the Exchange Securities 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 IFRS and (B) within 120 calendar days after the end of each fiscal year, its audited and consolidated balance sheet and statement of income calculated in accordance with IFRS. For purposes of this Section 7(g), as long as the financial statements or reports are publicly available and accessible electronically by the Trustee, the filing or electronic publication of such financial statements or reports shall comply with the Guarantor’s obligation to deliver such statements and reports to the Trustee hereunder. The Guarantor shall provide the Trustee with prompt written notification at such time that the Guarantor ceases to be a reporting company. The Trustee shall have no obligation to determine if and when the Guarantor’s financial statements or reports are publicly available and accessible electronically.
Exhibit C-14
(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(g)(iii), the Guarantor will provide annual and interim reports and other information to the Trustee within the same time periods that would be applicable if the Guarantor were required and permitted to file these reports with the SEC.
(iv) Delivery of the above reports to the Trustee is for informational purposes only and the Trustee's receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Guarantor's compliance with any of its covenants in the Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
SECTION 8. Amendments, Etc.
No amendment or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Trustee and the Guarantor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. For the avoidance of doubt, Article IX of the Indenture shall apply to an amendment to this Guaranty to determine whether the consent of Holders is required for an amendment and if so, the required percentage of Holders of the Notes or the Exchange Securities 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.
Exhibit C-15
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, 10th Floor, 20031-912 Rio de Janeiro - RJ, Brazil, Telephone: +55 (21) 3224-1510/3224-9947, Telecopier: +55 (21) 3224-1401, Attention: Larry Carris Cardoso, Finance Department, Loans and Financing Administration General Manager, if to the Trustee, to The Bank of New York Mellon, at 240 Greenwich Street, Floor 7 East, New York, New York, 10286, USA, Telephone: +1 (212) 815-4259, Telecopier: +1 (212) 815-5603, Attention: Corporate Trust Department or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such notices and other communications shall, when telecopied, be effective when transmitted. Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty shall be effective as delivery of an original executed counterpart thereof.
(b) All payments made by the Guarantor to the Trustee hereunder shall be made to the Payment Account (as defined in the Indenture).
SECTION 11. Survival
Without prejudice to the survival of any of the other agreements of the Guarantor under this Guaranty or any of the other Transaction Documents, the agreements and obligations of the Guarantor contained in Section 2 (with respect to the payment of all other amounts owed under the Indenture), Section 9 and Section 14 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under this Guaranty, the termination of this Guaranty and/or the resignation or removal of the Trustee.
SECTION 12. No Waiver; Remedies.
No failure on the part of the Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 13. Continuing Agreement; Assignment of Rights Under the Indenture and the Notes.
This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the repayment in full by the Issuer of all amounts due and owing under the Indenture with respect to the Notes and the Exchange Securities and (ii) the repayment in full of all Guaranteed Obligations and all other amounts payable under this Guaranty, (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Trustee, on behalf of Noteholders, and their successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, any Noteholder may assign or otherwise transfer its rights and obligations under the Indenture (including, without limitation, the Note or Exchange Security 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.
Exhibit C-16
SECTION 14. Currency Rate Indemnity.
(a) The Guarantor shall (to the extent lawful) indemnify the Trustee and the Noteholders and keep them indemnified against:
(i) in the case of nonpayment by the Guarantor of any amount due to the Trustee, on behalf of the Noteholders, under this Guaranty any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Guarantor; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (a) the date as of which the local currency equivalent of the amounts due or contingently due under this Guaranty or in respect of the Notes or the Exchange Securities is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Guarantor, and (b) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Guarantor agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than U.S. dollars (the “Denomination Currency”), it will indemnify the relevant Holder and the Trustee against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent obligations of the Guarantor from its obligations hereunder, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Guarantor for a liquidated sum or sums in respect of amounts due under this Guaranty, or under the Indenture, the Notes, the Exchange Securities or under any judgment or order.
Exhibit C-17
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 sitting in the Borough of Manhattan, City of New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party, or for recognition or enforcement of any judgment, and the Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding against the Issuer or the Guarantor, as the case may be, relating to this Guaranty or any other Transaction Document in the courts of any jurisdiction.
(c) The Guarantor hereby irrevocably appoints and empowers Petrobras America Inc. with offices at 10350 Richmond Ave., Suite 1400, Houston, TX 77042, 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 in the United States, 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.
Exhibit C-18
(d) The Guarantor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any of the other Transaction Documents to which it is or is to be a party in any New York State or federal court. The Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.
(e) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE TRANSACTION DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY NOTEHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
(f) This Guaranty and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Guarantor. The Guarantor irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself, the Issuer or any of their property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Guaranty, any of the Transaction Documents or any document delivered pursuant hereto, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdictions, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this subsection (f) shall have the fullest scope permitted under the United States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act.
SECTION 16. Execution in Counterparts
This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Guaranty by telecopier shall be effective as delivery of an original executed counterpart of this Guaranty.
SECTION 17. Entire Agreement
This Guaranty, together with the Indenture, the Notes and the Exchange Securities, 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]
Exhibit C-19
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.
| PETROBRAS GLOBAL FINANCE B.V. | ||
| By: | ||
| Name: | ||
| Title: | ||
| PETRÓLEO BRASILEIRO S.A. - PETROBRAS | ||
| By: | ||
| Name: | ||
| Title: | ||
| WITNESSES | |
| Name: | |
| Name: |
Exhibit C-20
ACKNOWLEDGED:
THE BANK OF NEW YORK MELLON, as Trustee and not
in its individual capacity
| By: | |||
| Name: | |||
| Title: | |||
| WITNESSES: | |||
| 1. | |||
| Name: | |||
| Title: | |||
| 2. | |||
| Name: | |||
| Title: | |||
Exhibit C-21
| STATE OF NEW YORK | ) | ||
| ) | ss: | ||
| COUNTY OF NEW YORK | ) | ||
On this day of 2019, before me, a notary public within and for said county, personally appeared , to me personally known, who being duly sworn, did say that is a of The Bank of New York Mellon, one of the persons described in and which executed the foregoing instrument, and acknowledges said instrument to be the free act and deed of said entity.
On this 18th day of September 2019, before me personally came and , to me personally known, who being duly sworn, did say that they signed their names to the foregoing instrument as witnesses.
[Notarial Seal]
| Notary Public | |
| COMMISSION EXPIRES |
Exhibit C-23
ANNEX A – Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 3.05(2)(a) of this Indenture)
THE BANK OF NEW YORK MELLON
240 Greenwich Street, Floor 7 East
New York, New York 10286
Attn: Global Trust Services - Americas
Re: 5.093% Global Notes due 2030 of Petrobras Global Finance B.V. (the “Securities”)
Reference is made to the Indenture, dated as of September 18, 2019 (the “Indenture”), among Petrobras Global Finance B.V. (the “Company”), The Bank of New York Mellon, as Trustee, and the other parties thereto. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined. This certificate relates to [U.S.$ ____________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s). ___________________________________________]
[COMMON CODE No(s). _____________________________________]
ISIN No(s). __________________________________________
CERTIFICATE No(s). ______________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Regulation S Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule 904 of Regulation S or Rule 144 under the Securities Act and with all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance with Rule 904 of Regulation S:
(A) the Owner is not a distributor of the Securities, an affiliate of the Company or any such distributor or a person acting on behalf of any of the foregoing;
Annex A-1
(B) the offer of the Specified Securities was not made to a person in the United States or for the account or benefit of a U.S. Person;
(C) either
(i) at the time the buy order was originated, the Transferee was outside the United States or the Owner and any person acting on its behalf reasonably believed that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the facilities of the Eurobond market, as regulated by the International Securities Market Association or another designated offshore securities market and neither the Owner nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling concession, fee or other remuneration in respect of the Specified Securities, and the transfer is to occur during the Restricted Period, then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date one year from date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after [insert date one year from date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers.
Dated: ______________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
Annex A-2
| By: | ||
| Name: | ||
| Title: |
(if the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
Annex A-3
ANNEX B – Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.05(2)(b) of this Indenture)
THE BANK OF NEW YORK MELLON
240 Greenwich Street, Floor 7 East
New York, New York 10286
Attn: Global Trust Services – Americas
Re: 5.093% Global Notes due 2030 of Petrobras Global Finance B.V. (the “Securities”)
Reference is made to the Indenture, dated as of September 18, 2019 (the “Indenture”), among Petrobras Global Finance B.V. (the “Company”), The Bank of New York Mellon, as Trustee, and the other parties thereto. Terms used herein and defined in the Indenture or in Relation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$_________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s). _____________________________________]
[COMMON CODE No(s). ________________________________]
ISIN No(s). ________________________________________
CERTIFICATE No(s). _________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Restricted Security. In connection with such transfer, the Owner hereby certifies or has certified that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule l44A or Rule 144 under the Securities Act and all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies or has certified that:
(1) Rule 144A Transfers. If the transfer is being effected in accordance with Rule 144A:
Annex B-1
(A) the Specified Securities are being transferred to a person that the Owner and any person acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken reasonable steps to ensure that the Transferee is aware that the Owner may be relying on Rule l44A in connection with the transfer.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after [insert date one year after initial date of issuance] and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144
(B) the transfer is occurring after [insert date one year after initial date of issuance] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers.
Dated: _________________________
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: | ||
| Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
Annex B-2
ANNEX C – Form of
Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act legends pursuant to Section 3.05(3)(d))
THE BANK OF NEW YORK MELLON
240 Greenwich Street, Floor 7 East
New York, New York 10286
Attn: Global Trust Services – Americas
Re: 5.093% Global Notes due 2030 of Petrobras Global Finance B.V. (the “Securities”) Reference is made to the Indenture, dated as of September 18, 2019 (the “Indenture”), among Petrobras Global Finance B.V. (the “Company”), The Bank of New York Mellon, as Trustee, and the other parties thereto. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to [U.S.$___________] principal amount of Securities, which are evidenced by the following certificate(s) (the “Specified Securities”):
[CUSIP No(s). _____________________________________]
[COMMON CODE No(s). ________________________________]
ISIN No(s). ________________________________________
CERTIFICATE No(s). _________________________________
The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities, (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so or (iii) it is the Holder of a Global Security and has received a certification to the effect set forth below. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for Securities bearing no Securities Act legend pursuant to Section 3.05(3)(d) of the Indenture. In connection with such exchange, the Owner hereby certifies or has certified that the exchange is occurring after [insert applicable date] and the Owner is not, and during the preceding three months has not been, an affiliate of the Company. The Owner also acknowledges or has acknowledged that any future transfers of the Specified Securities must comply with all applicable securities laws of the states of the United States and other jurisdictions.
This certificate and the statements contained herein we made for your benefit and the benefit of the Company and the Purchasers.
Dated: _________________
Annex C-1
(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.)
| By: | ||
| Name: | ||
| Title: |
(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
Annex C-2
Exhibit 4.76
REGISTRATION RIGHTS AGREEMENT
PETROBRAS GLOBAL FINANCE B.V.
A Wholly Owned Subsidiary of
Petróleo Brasileiro S.A. – Petrobras
September 18, 2019
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
United States of America
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas, 17th Floor
New York, NY 10019
United States of America
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, NY 10018
United States of America
Mizuho Securities USA LLC
320 Park Avenue, 12th Floor
New York, NY 10022
United States of America
Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036
United States of America
Santander Investment Securities Inc.
45 East 53rd Street
New York, NY 10022
United States of America
Ladies and Gentlemen:
Petrobras Global Finance B.V., incorporated under the laws of The Netherlands as a private company with limited liability (the “Issuer”) proposes to issue and sell to Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC, Morgan Stanley & Co. LLC and Santander Investment Securities Inc. as the initial purchasers (each an “Initial Purchaser” and, collectively, the “Initial Purchasers”) upon the terms set forth in the Purchase Agreement (as defined herein) its 5.093% Global Notes due 2030 (the “New Notes”) which are jointly and severally guaranteed by 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”) (such transaction, the “Offering”).
Concurrently with the Offering, the Issuer offered to exchange any and all of its outstanding 4.375% Global Notes due May 2023, 6.250% Global Notes due March 2024, 5.299% Global Notes due January 2025, 8.750% Global Notes due May 2026, 7.375% Global Notes due January 2027, 5.299% Global Notes due January 2028 and 5.750% Global Notes due February 2029 for its 5.093% Global Notes due 2030 (the “Exchange Offers”) upon the terms set forth in the Dealer Manager Agreement (as defined herein) by and among the Issuer, the Guarantor and Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC, Morgan Stanley & Co. LLC and Santander Investment Securities Inc. as the dealer managers (each a “Dealer Manager” and, collectively, the “Dealer Managers”).
The New Notes will be issued under an indenture (the “Indenture”), dated as of September 18, 2019, by and among the Issuer, the Guarantor, The Bank of New York Mellon, as trustee (the “Trustee”) and The Bank of New York (Luxembourg) S.A., as Luxembourg paying agent (the “Luxembourg Paying Agent”).
As an inducement to the Dealer Managers to enter into the Dealer Manager Agreement and in satisfaction of certain conditions to the obligations of the Dealer Managers thereunder, the Issuer agrees with the Dealer Managers for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Registration Rights Agreement, the following terms shall have the following respective meanings:
“A/B Exchange Offer Registration Statement” shall have the meaning assigned thereto in Section 2(a) hereof.
“A/B Exchange Offers” shall have the meaning assigned thereto in Section 2(a) hereof.
“A/B Exchange Registration” shall have the meaning assigned thereto in Section 3(c) hereof.
“A/B Exchange Securities” shall have the meaning assigned thereto in Section 2(a) hereof.
“Additional Interest” shall have the meaning assigned thereto in Section 2(c) hereof.
“Advice” shall have the meaning assigned thereto in Section 3(h) hereof.
“Agreement” shall mean this Registration Rights Agreement.
“Authorized Agent” shall have the meaning assigned thereto in Section 9(j) hereof.
“Brazil” shall have the meaning assigned thereto in the first paragraph hereof.
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“broker-dealer” shall mean any broker or dealer registered with the Commission under the Exchange Act.
“Commission” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.
“Dealer Managers” shall have the meaning assigned thereto in the second paragraph hereof.
“Dealer Manager Agreement” shall mean the Dealer Manager Agreement, dated as of September 9, 2019, among the Dealer Managers, the Issuer and the Guarantor relating to the Exchange Offers.
“Effective Time” in the case of (i) an A/B Exchange Registration, shall mean the time and date as of which the Commission declares the A/B Exchange Offer Registration Statement effective or as of which the A/B Exchange Offer Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.
“Electing Holder” shall mean any holder of Registrable Securities who has returned a completed and signed Notice and Questionnaire to the Issuer in accordance with Section 3(d)(ii) hereof.
“Event Date” shall have the meaning assigned thereto in Section 2(c) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, or any successor thereto, as the same shall be amended from time to time.
“Exchange Offers” shall have the meaning assigned thereto in the second paragraph hereof.
“Guaranty” shall have the meaning assigned thereto in the definition of “Securities” in this Section 1.
“Guarantor” shall have the meaning assigned thereto in the first paragraph hereof.
“holder” shall mean any person who beneficially owns Registrable Securities from time to time (including any successors or assigns).
“Issuer” shall have the meaning assigned thereto in the first paragraph hereof.
“Notice and Questionnaire” shall mean a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto.
“person” shall mean a corporation, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.
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“Registrable Securities” shall mean the Securities; provided, however, that a Security shall cease to be a Registrable Security when: (i) in the circumstances contemplated by Section 2(a) hereof, the Security has been exchanged for an Exchange Security in an Exchange Offer as contemplated in Section 2(a) hereof (provided further, however, that any Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a prospectus for use in connection with resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5, 6 and 9 until the earlier of the resale of such Registrable Security or the expiration of the 180-day period referred to in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b) hereof, a Shelf Registration Statement registering such Security under the Securities Act has been declared or becomes effective, and such Security has been sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in which any legend borne by such Security relating to restrictions on transferability thereof, under the Securities Act or otherwise, is removed by the Issuer or pursuant to the Indenture; (iv) such Security is freely transferable pursuant to Rule 144; or (v) such Security shall cease to be outstanding.
“Registration Default” shall have the meaning assigned thereto in Section 2(c) hereof.
“Registration Expenses” shall have the meaning assigned thereto in Section 4 hereof.
“Resale Period” shall have the meaning assigned thereto in Section 2(a) hereof.
“Restricted Holder” shall mean (i) a holder that is an affiliate of the Issuer within the meaning of Rule 405 that has not agreed that it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with the resale of the A/B Exchange Securities, (ii) a holder who acquires A/B Exchange Securities outside the ordinary course of such holder’s business or (iii) a holder who is engaged in, or intends to engage in, or has arrangements or understandings with any person to participate in, the A/B Exchange Offers for the purpose of distributing A/B Exchange Securities.
“Rule 144,” “Rule 405” and “Rule 415” shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.
“Securities” shall mean the New Notes (CUSIP Nos.: 71647N BF5 and N6945A AL1) to be issued in connection with the Exchange Offers pursuant to the Indenture. Each Security is entitled to the benefit of the guaranties provided for in the Guaranty for the New Notes, dated as of September 18, 2019, entered into by and among the Guarantor and the Trustee, and, unless the context otherwise requires, any reference herein to “Securities,” “A/B Exchange Securities” or “Registrable Securities” shall include a reference to the Guaranty.
“Securities Act” shall mean the Securities Act of 1933, or any successor thereto, as the same shall be amended from time to time.
“Settlement Date” shall mean the date on which the Registrable Securities are last issued.
“Shelf Registration” shall have the meaning assigned thereto in Section 2(b) hereof.
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“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b) hereof.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.
“Trustee” shall have the meaning assigned thereto in the third paragraph hereof.
Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Issuer agrees to use its commercially reasonable efforts to file or cause to be filed under the Securities Act, as soon as practicable, but no later than on or before July 31, 2020, a registration statement relating to offers to exchange (such registration statement, the “A/B Exchange Offer Registration Statement”, and such offers, the “A/B Exchange Offers”) any and all of the Registrable Securities for a like aggregate principal amount of debt securities issued by the Issuer and guaranteed by the Guarantor, which debt securities and guaranties will be substantially identical to the Securities and the Guaranty, respectively (and are entitled to the benefits of a trust indenture which is substantially identical to the Indenture or is the Indenture and which has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act, and do not contain provisions for the additional interest contemplated in Section 2(c) below (such new debt securities hereinafter called, collectively, the “A/B Exchange Securities”). The Issuer agrees to use its commercially reasonable efforts to cause the A/B Exchange Offer Registration Statement to become effective by the Commission under the Securities Act as soon as practicable, but no later than August 31, 2020. The A/B Exchange Offers will be registered under the Securities Act on the appropriate form and will comply with all applicable rules and regulations under the Exchange Act. The Issuer further agrees to use its commercially reasonable efforts to commence the A/B Exchange Offers promptly after such declaration of effectiveness, and in any case issue, on or before September 30, 2020, A/B Exchange Securities in exchange for all Registrable Securities that have been properly tendered and not withdrawn on or prior to the expiration of the A/B Exchange Offers. Each holder of Registrable Securities who wishes to exchange such Registrable Securities for A/B Exchange Securities in, and in accordance with the terms of, the A/B Exchange Offers will be required to make certain customary representations in connection therewith, including representations that such holder is not a Restricted Holder. Upon the effectiveness of the A/B Exchange Offer Registration Statement, the Issuer shall promptly commence the A/B Exchange Offers, it being the objective of such A/B Exchange Offers that each holder (other than a Restricted Holder) electing to participate in the A/B Exchange Offers will receive A/B Exchange Securities that are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and without material restrictions under the blue sky or securities laws of a substantial majority of the states of the United States of America. The A/B Exchange Offers shall be deemed to have been completed upon the earlier to occur of (i) the Issuer having exchanged the A/B Exchange Securities for all outstanding Registrable Securities pursuant to the A/B Exchange Offers and (ii) the Issuer having exchanged, pursuant to the A/B Exchange Offers, A/B Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the expiration of the A/B Exchange Offers, which shall be on a date that is at least 30 days following the commencement of the A/B Exchange Offers. The Issuer agrees (x) to include in the A/B Exchange Offer Registration Statement a prospectus for use in any resales by any holder of A/B Exchange Securities that is a broker-dealer and (y) to keep such A/B Exchange Offer Registration Statement effective for a period (the “Resale Period”) beginning when A/B Exchange Securities are first issued in the A/B Exchange Offers and ending upon the earlier of the expiration of the 180th day after the A/B Exchange Offers have been completed or such time as such broker-dealers no longer own any Registrable Securities. With respect to such A/B Exchange Offer Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (c), (d) and (e) hereof.
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(b) If (i) on or prior to the time the A/B Exchange Offers are completed, existing Commission interpretations are changed such that the debt securities or the related guaranties received by holders other than Restricted Holders in the A/B Exchange Offers for Registrable Securities are not or would not be, upon receipt, transferable by each such holder without restriction under the Securities Act, (ii) the A/B Exchange Offers have not been completed on or before September 30, 2020 or (iii) any holder notifies the Issuer prior to 20 days after the consummation of the A/B Exchange Offers that (A) based on the advice of counsel, due to a change in law or Commission policy it may not resell the A/B Exchange Securities acquired by it in the A/B Exchange Offers to the public without delivering a prospectus and the prospectus contained in the A/B Exchange Offer Registration Statement is not appropriate or available for such resales by such holder or (B) it is a purchaser and owns Registrable Securities acquired directly from the Issuer or an affiliate of the Issuer or (C) on or prior to the consummation of the A/B Exchange Offers existing laws, regulations and/or applicable Commission interpretations have been changed such that the holders of at least a majority in aggregate principal amount of the Registrable Securities would not be able to resell the A/B Exchange Securities acquired by them in, and in accordance with the terms of, the A/B Exchange Offers to the public without restriction under the Securities Act and without restriction under applicable blue sky or state securities laws, the Issuer shall, in lieu of (or, in the case of clause (iii), in addition to) conducting the A/B Exchange Offers contemplated by Section 2(a), use its commercially reasonable efforts to file or cause to be filed or amend or supplement an existing “shelf” registration statement under the Securities Act providing for the registration of, and the sale on a continuous or delayed basis by the holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf Registration Statement”) no later than September 30, 2020 or 30 days after such obligation to file arises; provided, however, that the Issuer shall not be required to file a Shelf Registration Statement or amend or supplement an existing Shelf Registration Statement during any statutory or self-imposed blackout period.
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The Issuer agrees to use its commercially reasonable efforts (x) to cause the Shelf Registration Statement to become or be declared effective on or prior to 60 days after such filing was required to be made hereunder and (y) to keep such Shelf Registration Statement continuously effective for a period of one year (or, if shorter, the period after which Rule 144(d) generally becomes available to non-affiliates of the Issuer) from the effective date of the Shelf Registration Statement (subject to extension pursuant to Sections 2(d) and 3(h)); provided, however, that the Issuer shall not be obligated to keep the Shelf Registration Statement effective during any statutory or self-imposed blackout period; provided further, however, that no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of Registrable Securities unless such holder is an Electing Holder. The Issuer further agrees to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Issuer for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Issuer agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly after its being used or promptly following its filing with the Commission.
(c) If (i) the A/B Exchange Offer Registration Statement (or a Shelf Registration Statement in lieu thereof) is not filed on or before July 31, 2020, (ii) the A/B Exchange Offer Registration Statement (or a Shelf Registration Statement in lieu thereof) is not declared effective by the Commission on or before August 31, 2020, (iii) the A/B Exchange Offers are not completed on or before September 30, 2020, (iv) a Shelf Registration Statement, or an amendment or supplement thereof, required to be filed is not filed on or before the date specified above for such filing, (v) a Shelf Registration Statement, or an amendment or supplement thereof, otherwise required to be filed is not declared effective on or before the date specified above for effectiveness thereof or (vi) a Shelf Registration Statement, or an amendment or supplement thereof, is declared effective but thereafter, subject to certain exceptions, ceases to be effective or usable (whether due to a stop order or otherwise) in connection with resales of Registrable Securities during the period specified in Section 2(b) above (each such event referred to in clauses (i) through (vi) above, a “Registration Default”), then, in the case of a Registration Default referred to in clause (i), (ii) or (iii) above, the interest rate on all Registrable Securities or, in the case of a Registration Default referred to in clause (iv), (v) or (vi) above, the interest rate on the Registrable Securities to which such Registration Default relates, will increase by 0.25% per annum with respect to each 90-day period that passes until all such Registration Defaults have been cured, up to a maximum amount of 1.00% per annum (“Additional Interest”); provided, however, that such Additional Interest will cease to accrue at the later of (i) the date on which the Securities become freely transferable pursuant to Rule 144 and (ii) the date on which the J.P. Morgan Corporate Emerging Markets Bond Index (CEMBI) is modified to permit the inclusion of freely transferable securities that have not been registered under the Securities Act. Upon the cure of any such Registration Default, the interest rate borne by the Registrable Securities shall be reduced thereafter by the full amount of any such increase or increases that resulted from such Registration Default.
The Issuer shall notify the Trustee within three business days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “Event Date”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the holders, on or before the applicable semiannual interest payment date, immediately available funds in sums sufficient to pay the Additional Interest then due. The Additional Interest due shall be payable on each interest payment date to the record holder entitled to receive the interest payment to be paid on such date as set forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the applicable Event Date.
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(d) Any A/B Exchange Offer Registration Statement pursuant to Section 2(a) and any Shelf Registration Statement pursuant to Section 2(b) will not be deemed to have become effective unless it has been declared effective by the Commission; provided, however, that, if after it has been declared effective, the offering of Securities pursuant to a Shelf Registration Statement is subject to any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Registration Statement will be deemed not to have been effective for such Securities during the period it was so subject, until the offering of such Securities pursuant to such Registration Statement may legally resume.
In no event shall the Issuer be deemed to be in breach of its obligations under the second paragraph of Section 2(b) nor shall a Registration Default described in Section 2(c)(vi) be deemed to have occurred (i) as a result of any action required by applicable law which renders the Issuer unable to comply with the Commission disclosure requirements or (ii) if compliance with its obligations under this Agreement to maintain the effectiveness of, supplement or amend any Registration Statement, upon advice of U.S. counsel to the Issuer, would require additional disclosure of material non-public information by the Issuer or its subsidiaries as to which, and so long as, the Issuer or its subsidiaries has a bona fide business purpose in preserving its confidentiality; provided, however, that the maximum period of time during which the Issuer shall be entitled to postpone the effectiveness, supplementing or amending of any Registration Statement pursuant to clause (ii) of this paragraph shall be 45 calendar days; provided, further, that (x) upon the exercise of its right under clause (ii) of this paragraph to postpone the effectiveness, supplementing or amending of any such Registration Statement, the Issuer shall give the holders prompt written notice of such exercise and an approximation of the anticipated length of such postponement and (y) after the exercise of its right under clause (ii) of this paragraph to postpone the effectiveness, supplementing or amending of any such Registration Statement, the Issuer shall not, within six months of the expiration of any such postponement, exercise again its right of postponement under clause (ii) of this paragraph. The holders hereby acknowledge that any notice given by the Issuer pursuant to this paragraph may constitute material non-public information and that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of the company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
(e) The Issuer shall take all actions necessary or advisable to cause the Guaranty to be registered under the registration statement contemplated in Section 2(a) or 2(b) hereof, as applicable.
(f) Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
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3. Registration Procedures.
If the Issuer files a registration statement pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the A/B Exchange Offers or the Shelf Registration, as the case may be, the Issuer shall cause the Indenture to be qualified under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee under the Indenture, the Issuer shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Issuer’s obligations with respect to the registration of A/B Exchange Securities as contemplated by Section 2(a) (the “A/B Exchange Registration”), if applicable, the Issuer shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but no later than July 31, 2020, an A/B Exchange Offer Registration Statement on any form which may be utilized by the Issuer and which shall permit the A/B Exchange Offers and use its commercially reasonable efforts to cause such A/B Exchange Offer Registration Statement to become effective as soon as practicable thereafter, but no later than August 31, 2020;
(ii) prepare and file with the Commission such amendments and supplements to such A/B Exchange Offer Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such A/B Exchange Offer Registration Statement for the periods and purposes contemplated in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such A/B Exchange Offer Registration Statement, and promptly provide each broker-dealer holding A/B Exchange Securities that has identified itself to the Issuer as such with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of A/B Exchange Securities;
(iii) promptly notify each broker-dealer that has identified itself to the Issuer as such and requested copies of the prospectus included in such registration statement, and confirm such advice in writing, (A) when such A/B Exchange Offer Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such A/B Exchange Offer Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission or by the blue sky or securities commissioner or regulator of any state for amendments or supplements to such A/B Exchange Offer Registration Statement or prospectus or for additional information after such A/B Exchange Offer Registration Statement has become effective, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such A/B Exchange Offer Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) if at any time the representations and warranties of the Issuer contemplated by Section 5 cease to be true and correct in all material respects, (E) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the A/B Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (F) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such A/B Exchange Offer Registration Statement, prospectus, prospectus amendment or supplement or post-effective prospectus amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing; and each such broker-dealer agrees to suspend use of such prospectus, prospectus amendment or supplement or post-effective amendment until the Issuer has amended or supplemented the prospectus to correct such misstatement or omission;
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(iv) in the event that the Issuer would be required, pursuant to Section 3(c)(iii)(F) above, to notify each broker-dealer holding A/B Exchange Securities that has identified itself to the Issuer as such, without delay prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such A/B Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(v) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such A/B Exchange Offer Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(vi) use its commercially reasonable efforts to (A) register or qualify the A/B Exchange Securities under the securities laws or blue sky laws of such jurisdictions as are contemplated by Section 2(a) no later than the commencement of the A/B Exchange Offers, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary or advisable to enable each broker-dealer holding A/B Exchange Securities that has identified itself to the Issuer as such to consummate the disposition thereof in such jurisdictions; provided, however, that the Issuer shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or any agreement between it and its stockholders; and
(vii) comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders, as soon as practicable but no later than 24 months after the effective date of such A/B Exchange Offer Registration Statement, an earnings statement of the Issuer and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Issuer, Rule 158 thereunder) (it being understood that the Issuer may satisfy its obligations under this clause through the filing of its annual report on Form 20-F after such effective date).
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(d) In connection with the Issuer’s obligations with respect to the Shelf Registration, if applicable, the Issuer shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but in any case within the time periods specified in Section 2(b), a Shelf Registration Statement or an amendment or supplement to an existing Shelf Registration Statement, on any form which may be utilized by the Issuer and which shall register all of the Registrable Securities for resale by the Electing Holders in accordance with such method or methods of disposition as may be specified by such Electing Holders and use its commercially reasonable efforts to cause such Shelf Registration Statement, or such amended or supplemented Shelf Registration Statement, to become effective as soon as practicable but in any case within the time periods specified in Section 2(b);
(ii) not less than 15 calendar days prior to the Effective Time of the Shelf Registration Statement or an amendment or supplement to an existing Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Issuer by the deadline for response set forth therein (each such holder and “Electing Holder”); provided, however, that holders of Registrable Securities shall have at least 15 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Issuer;
(iii) prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment simultaneously with or promptly after its being used or filed with the Commission;
(iv) before filing any Shelf Registration Statement or prospectus and each amendment or supplement thereto, provide (A) the Electing Holders, (B) the managing underwriters (which term, for purposes of this Agreement, shall include a person deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act), if any, thereof, (C) counsel for any such managing underwriter or agent and (D) not more than one counsel for all Electing Holders or managing underwriters, the opportunity to participate in the preparation of such Shelf Registration Statement, each prospectus included therein filed with the Commission and each amendment or supplement thereto;
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(v) for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(b), make available at reasonable times at the Issuer’s principal place of business or such other reasonable place for inspection by the persons referred to in Section 3(d)(iv) above who shall certify to the Issuer that they have a current intention to sell the Registrable Securities pursuant to the Shelf Registration such financial and other information and books and records of the Issuer, and cause the officers, employees, counsel and independent certified public accountants of the Issuer to respond to such inquiries, as shall be reasonably necessary, in the reasonable judgment of the respective counsel referred to in such Section, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that each such party shall be required to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Issuer as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise), (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Issuer prompt prior written notice of such requirement) unless such release is against Brazilian law, or (C) in an opinion addressed to the Issuer of counsel experienced in such matters and approved by the Issuer, such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment or supplement to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(vi) promptly notify each of the Electing Holders, any sales or placement agent therefor and any underwriter thereof (which notification may be made through any managing underwriter that is a representative of such underwriter for such purpose) and confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission and by the blue sky or securities commissioner or regulator of any state for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information after such Shelf Registration has become effective, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) if at any time the representations and warranties of the Issuer contemplated by Section 3(d)(xiii) or Section 5 or contained in any underwriting agreement or similar agreement relating to the offering cease to be true and correct in all material respects, (E) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (F) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
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(vii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement or any amendment or supplement thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, or any Electing Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such managing underwriter or underwriters, or such Electing Holder specifies should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the principal amount of Registrable Securities being sold by such Electing Holder or to any underwriters, the name and description of such Electing Holder or underwriter, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by such Electing Holder or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(ix) furnish to each Electing Holder, therefor, each underwriter, if any, thereof and the respective counsel referred to in Section 3(d)(iv) an executed copy (or, in the case of an Electing Holder, a conformed copy) of such Shelf Registration Statement, each such amendment and supplement thereto (in each case including all exhibits thereto (in the case of an Electing Holder of Registrable Securities, upon request) and documents incorporated by reference therein) and such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein unless reasonably so requested by such Electing Holder, agent or underwriter, as the case may be) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus and any summary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, and such other documents, as such Electing Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder, offered or sold by such agent or underwritten by such underwriter and to permit such Electing Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act; and the Issuer hereby consents (subject to Section 3(h)) to the use of such prospectus (including such preliminary and summary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Issuer, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary and summary prospectus) or any supplement or amendment thereto;
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(x) use commercially reasonable efforts to (A) register or qualify the Registrable Securities to be included in such Shelf Registration Statement under such securities laws or blue sky laws of such jurisdictions as any Electing Holder and each underwriter, if any, thereof shall reasonably request, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions during the period the Shelf Registration is required to remain effective under Section 2(b) and (C) take any and all other actions as may be reasonably necessary or advisable to enable each such Electing Holder, agent, if any, and underwriter, if any, to consummate the disposition in such jurisdictions of such Registrable Securities; provided, however, that the Issuer shall not be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(d)(x), (2) consent to general service of process in any such jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or any agreement between it and its stockholders;
(xi) unless any Registrable Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, and, in the case of an underwritten offering, enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of the Registrable Securities;
(xii) enter into one or more underwriting agreements, engagement letters, agency agreements, “best efforts” underwriting agreements or similar agreements, as appropriate, including customary provisions relating to indemnification and contribution, and take such other actions in connection therewith as any Electing Holders aggregating at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding shall request in order to expedite or facilitate the disposition of such Registrable Securities;
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(xiii) whether or not an agreement of the type referred to in Section 3(d)(xii) hereof is entered into and whether or not any portion of the offering contemplated by the Shelf Registration is an underwritten offering or is made through a placement or sales agent or any other entity, (A) make such representations and warranties to the Electing Holders and the underwriters, if any, thereof in form, substance and scope as are customarily made in connection with an offering of debt securities pursuant to any appropriate agreement or to a registration statement filed on the form applicable to the Shelf Registration; (B) obtain opinions of counsel customary for a public offering of Securities of the Issuer in customary form and covering such matters, of the type customarily covered by such an opinion, as the managing underwriters, if any, or, in the event there are no managing underwriters, the Electing Holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding may reasonably request, addressed to the managing underwriters (if any) or such Electing Holder or Electing Holders and dated the effective date of such Shelf Registration Statement; (C) obtain a “cold comfort” letter or letters from the independent certified public accountants of the Issuer addressed to the managing underwriters (if any) or, in the event there are no managing underwriters, use reasonable efforts to have such letters addressed to the selling Electing Holders, dated (i) the effective date of such Shelf Registration Statement or (ii) the effective date of any prospectus supplement to the prospectus included in such Shelf Registration Statement or post-effective amendment to such Shelf Registration Statement which includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus, such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type, provided that such letters need not be addressed to any Electing Holders to whom, in the reasonable opinion of the Company’s independent public accountants, addressing such letter is not permissible under applicable accounting standards; (D) deliver such documents and certificates, including officers' certificates, as may be reasonably requested by any Electing Holders of at least 20% in aggregate principal amount of the Registrable Securities at the time outstanding or the managing underwriters, if any, thereof to evidence the accuracy of the representations and warranties made pursuant to clause (A) above or those contained in Section 5 hereof and the compliance with or satisfaction of any agreements or conditions contained in the underwriting agreement or other agreement entered into by the Issuer; and (E) undertake such obligations relating to expense reimbursement, indemnification and contribution as are provided in Section 6 hereof;
(xiv) notify in writing the Trustee of any proposal by the Issuer to amend or waive any provision of this Agreement pursuant to Section 9(g) hereof and of any amendment or waiver effected pursuant thereto, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be;
(xv) in the event that any broker-dealer registered under the Exchange Act shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of the Conduct Rules (the “Conduct Rules”) of the Financial Industry Regulatory Authority (“FINRA”) or any successor thereto, as amended from time to time) thereof, whether as a holder of such Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, assist such broker-dealer in complying with the requirements of such Conduct Rules, including by (A) if such Conduct Rules shall so require, engaging a “qualified independent underwriter” (as defined in such Conduct Rules) to participate in the preparation of the Shelf Registration Statement relating to such Registrable Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Shelf Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Registrable Securities, (B) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof (or to such other customary extent as may be requested by such underwriter), and (C) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Conduct Rules; and
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(xvi) comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but, in any event, not later than 24 months after the effective date of such Shelf Registration Statement, an earnings statement of the Issuer and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Issuer, Rule 158 thereunder) (it being understood that the Issuer may satisfy its obligations under this clause through the filing of its annual report on Form 20-F after such effective date).
(e) In the event that the Issuer would be required, pursuant to Section 3(d)(vi)(F) above, to notify the Electing Holders and the managing underwriters, if any, thereof, the Issuer shall without delay prepare and furnish to each of the Electing Holders and to each such underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each Electing Holder agrees that upon receipt of any notice from the Issuer pursuant to Section 3(d)(vi)(F) above, such Electing Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to the Shelf Registration Statement applicable to such Registrable Securities until such Electing Holder shall have received copies of such amended or supplemented prospectus, and if so directed by the Issuer, such Electing Holder shall deliver to the Issuer (at the Issuer’s expense) all copies, other than permanent file copies, then in such Electing Holder’s possession of the prospectus covering such Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice Questionnaire, the Issuer may require such Electing Holder to furnish to the Issuer such additional information regarding such Electing Holder and such Electing Holder’s intended method of distribution of Registrable Securities as the Issuer may, after consulting with counsel, determine is required in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Issuer as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Issuer or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Issuer any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
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(g) Until the expiration of one year after the Settlement Date, the Issuer will not, and will not permit any of the Issuer’s direct and indirect subsidiaries or the Guarantor to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act or in accordance with Regulation S.
(h) In the case of a Shelf Registration Statement or the notification of the Issuer by broker-dealers seeking to sell A/B Exchange Securities and required to deliver prospectuses that will be utilizing the prospectus contained in the A/B Exchange Offer Registration Statement, each holder agrees that, upon receipt of any notice from the Issuer of (i) the happening of any event of the kind described in any of clauses (B) – (F) of Section 3(d)(vi) or (ii) the exercise of the Issuer’s right, under clause (ii) of the second paragraph of Section 2(d), to postpone the effectiveness, supplementing or amending of any such Registration Statement, such holder will forthwith discontinue disposition of Securities pursuant to the applicable Registration Statement until such holder receives the copies of the supplemented or amended prospectus contemplated by Section 3(c)(iv) or Section 3(e) or until such holder is advised in writing (the “Advice”) by the Issuer that the use of the applicable prospectus may be resumed, and, if so directed by the Issuer, such holder will deliver to the Issuer (at the Issuer’s expense) all copies in such holder’s possession, other than permanent file copies, of the prospectus covering such Securities current at the time of receipt of such notice. If the Issuer shall give any such notice to suspend the disposition of any Securities pursuant to a Registration Statement, the Issuer shall use its commercially reasonable efforts to file a supplement or an amendment to the Registration Statement and, in the case of an amendment, have such amendment declared effective as soon as practicable and shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days in the period from and including the date of the giving of such notice to and including the date when the Issuer shall have made available to the holders (i) copies of the supplemented or amended prospectus necessary to resume such dispositions or (ii) the Advice.
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4. Registration Expenses.
The Issuer and the Guarantor agree to pay all costs and expenses relating to the their performance of or compliance with this Registration Rights Agreement, including, without limitation, (a) the fees and expenses of the Issuer’s and the Guarantor’s accountants and counsel (including Brazilian, Dutch and United States counsel); (b) all Commission and any FINRA registration, filing and review fees and other expenses in connection with the registration of the Securities with the Commission in connection with such registration, filing and review; (c) all expenses relating to the preparation, printing, production, distribution and reproduction of each registration statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing (including the cost of preparing such registration statement, prospectus, amendment or supplement for filing with the Commission in electronic format), the expenses of preparing the Securities for delivery and the expenses of printing or producing any underwriting agreements, agreements among underwriters, selling agreements and blue sky or legal investment memoranda and all other documents in connection with the offering, sale or delivery of Securities to be disposed of (including certificates representing the Securities); (d) all fees and expenses in connection with the qualification of the Securities for offering and sale under the state securities and blue sky laws referred to in Section 3(d)(x) hereof and determination of their eligibility for investment under the laws of such jurisdictions as any managing underwriters or the Electing Holders may designate, including any fees and disbursements of counsel for the Electing Holders or underwriters in connection with such qualification; (e) fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent or custodian; (f) fees, expenses and disbursements of any other persons, including special experts, retained by the Issuer in connection with such registration; (g) reasonable and documented fees and disbursements and expenses of any “qualified independent underwriter” engaged pursuant to Section 3(d)(xv) hereof; (h) any fees charged by securities rating services for rating the Securities; and (i) all other reasonable and documented costs and expenses incident to the performance by the Issuer and the Guarantor of their obligations hereunder and under any of the various transaction documents entered into in connection with this Registration Rights Agreement (collectively, the “Registration Expenses”); it being understood and agreed that all amounts payable hereunder shall be paid in U.S. dollars and free and clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied in any jurisdiction from or through which payment is made, unless such deduction or withholding is required by applicable law, in which event the Issuer and the Guarantor will pay additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received but for such deduction or withholding. To the extent that any Registration Expenses are incurred, assumed or paid by any holder of Registrable Securities therefor or underwriter thereof, the Issuer and the Guarantor shall reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor. Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay all agency fees and commissions and underwriting discounts and commissions attributable to the sale of such Registrable Securities and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Issuer represents and warrants to, and agrees with, the Initial Purchasers, the Dealer Managers and each of the holders from time to time of Registrable Securities that:
(a) The compliance by the Issuer with the provisions of this Agreement, and the consummation of the transactions herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material agreement or material instrument to which the Issuer or the Guarantor is a party or by which the Issuer or the Guarantor is bound or to which any of the property or assets of the Issuer or the Guarantor is subject, nor will such action result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Issuer or the Guarantor or any of its or their respective properties;
(b) This Agreement has been duly authorized, executed and delivered by the Issuer.
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6. Indemnification.
(a) Indemnification by the Issuer. The Issuer will indemnify and hold harmless (i) each holder of Registrable Securities seeking to sell A/B Exchange Securities and required to deliver prospectuses that will be utilizing the prospectus contained in the A/B Exchange Offer Registration Statement, (ii) each of the Electing Holders of Registrable Securities included in a Shelf Registration Statement and (iii) each person who participates as an underwriter in any offering or sale of such Registrable Securities against any losses, claims, damages or liabilities, joint or several, to which such holder or underwriter may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any A/B Exchange Offer Registration Statement or Shelf Registration Statement, as the case may be (or any amendment or supplement thereto), under which such Registrable Securities were registered under the Securities Act, including all exhibits therein and documents incorporated by reference thereto, or any preliminary or final prospectus contained therein or furnished by the Issuer to any such holder, Electing Holder or underwriter, or any amendment or supplement thereto, or any free writing prospectus (as defined in Rule 405) prepared by or on behalf of the Issuer or used or referred to by the Issuer in connection with the A/B Exchange Offers or the Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse such holder, Electing Holder and such underwriter for any reasonable and duly documented legal or other expenses incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Issuer shall not be liable to any such person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, or preliminary, final or summary prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Issuer by such person expressly for use therein.
(b) Indemnification by the Holders and Underwriters. The Issuer may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2(b) hereof and to entering into any underwriting agreement with respect thereto, that the Issuer shall have received an undertaking reasonably satisfactory to it from the Electing Holder of such Registrable Securities and from each underwriter named in any such underwriting agreement, severally and not jointly, to (i) indemnify and hold harmless the Issuer and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Issuer or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Issuer to any such Electing Holder or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer by such Electing Holder or underwriter expressly for use therein, and (ii) reimburse the Issuer for any reasonable and duly documented legal or other expenses incurred by the Issuer in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that no such Electing Holder shall be required to undertake liability to any person under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder’s Registrable Securities pursuant to such registration.
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(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under Section 6(a) or Section 6(b) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 6, notify such indemnifying party in writing of the commencement of such action; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless (x) such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or any failure to act, by or on behalf of the indemnified party, and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.
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(d) Contribution. If for any reason the indemnification provisions contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein although applicable in accordance with their terms, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 6(d) were determined by pro rata allocation (even if the holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6(d), no holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages which such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The holders' and any underwriters' obligations in this Section 6(d) to contribute shall be several in proportion to the principal amount of Registrable Securities registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Issuer under this Section 6 shall be in addition to any liability which the Issuer may otherwise have and shall extend, upon the same terms and conditions, to each officer, director and partner of each holder and underwriter and each person, if any, who controls any holder, agent or underwriter within the meaning of the Securities Act, and the obligations of the holders and any agents or underwriters contemplated by this Section 6 shall be in addition to any liability which the respective holder, agent or underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Issuer (including any person who, with his consent, is named in any registration statement as about to become a director of the Issuer) and to each person, if any, who controls the Issuer within the meaning of the Securities Act.
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7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities to be included in such offering, provided, however, that such designated managing underwriter or underwriters is or are acceptable to the Issuer.
(b) Participation by Holders. Each holder of Registrable Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
8. Rule 144.
The Issuer covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Issuer shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act) and the rules and regulations adopted by the Commission thereunder, and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities in connection with that holder’s sale pursuant to Rule 144, the Issuer shall deliver to such holder a written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer represents, warrants, covenants and agrees that it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities which would be inconsistent with the rights granted to the holders of the Registrable Securities in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, as follows: If to the Issuer, to it at Weena 762, 3014 DA Rotterdam, The Netherlands, Attn: Alexandre Quintão, and if to a holder, to the address of such holder set forth in the security register or other records of the Issuer, or to such other address as the Issuer or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
22
(c) Parties in Interest. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes, and such Registrable Securities shall be held subject to all of the terms of this Agreement; and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by, all of the applicable terms and provisions of this Agreement. If the Issuer shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.
(d) Survival. The respective indemnities, agreements, representations, warranties and each other provision set forth in this Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, the Issuer, any director, officer or partner of such holder or the Issuer, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive the transfer and registration of Registrable Securities by such holder and the consummation of an Exchange Offer.
(e) Governing Law. This Agreement, and any claim, controversy or dispute relating to or arising out of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and paragraphs of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Issuer and the Trustee acting on behalf of a majority in aggregate principal amount of Registrable Securities then outstanding; provided, however, that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser or Dealer Manager hereunder in their capacity as such, the Issuer shall obtain the written consent of each such Initial Purchaser or Dealer Manager with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective. Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 9(g), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.
(h) Counterparts. This Agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
23
(i) Waiver of Immunity. This Agreement and any other documents delivered pursuant hereto or thereto, and any actions taken hereunder or thereunder, constitute commercial acts by each of the Issuer and the Guarantor. Each of the Issuer and 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 or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself or any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement or any 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 jurisdiction, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 9(i) 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.
(j) Jurisdiction. Each of the Issuer, the Guarantor, the Initial Purchasers and the Dealer Managers agrees that any suit, action or proceeding against them, arising out of or based upon this Registration Rights Agreement or the transactions contemplated hereby, may be instituted in any state or federal court in the Borough of Manhattan, City of New York, New York, or in the competent courts of their own corporate domiciles with respect to actions brought against any of them as a defendant, and waive any objection which they may now or hereafter have to the laying of venue of any such proceeding and any right to which any of them may be entitled on account of places of residence or domicile, and irrevocably submit to the jurisdiction of such courts in any suit, action or proceeding. The Issuer and the Guarantor have appointed Petrobras America Inc., with offices located at 10350 Richmond Ave., Suite 1400, Houston, TX 77042 as its authorized agent (the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Registration Rights Agreement or the transactions contemplated herein which may be instituted in any state or federal court in the City of New York, New York, by any Initial Purchaser or Dealer Manager, the directors, officers, employees and agents of any Initial Purchaser or Dealer Manager, or by any person who controls any Initial Purchaser or Dealer Manager, and expressly accepts the jurisdiction of any such court in respect of any such suit, action or proceeding. The Issuer and the Guarantor hereby jointly and severally represent and warrant that the Authorized Agent has accepted such appointments and has agreed to act as said agent for service of process, and the Issuer and the Guarantor agree to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Subject to applicable law, service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon each of the Issuer and the Guarantor.
(k) Currency. Each reference in this Agreement to U.S. dollars is of the essence. To the fullest extent permitted by law, the obligation of the Issuer or the Guarantor in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in U.S. dollars that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day on which such party receives such payment. If the amount in U.S. dollars that may be so purchased for any reason falls short of the amount originally due, the Issuer and the Guarantor will pay such additional amounts, in U.S. dollars as may be necessary to compensate for the shortfall. Any obligation of the Issuer or the Guarantor not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
[Remainder of page intentionally left blank]
24
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Registration Rights Agreement and your acceptance shall represent a binding agreement among the Issuer, the Guarantor, the Initial Purchasers and the Dealer Managers.
| Very truly yours, | ||
| PETROBRAS GLOBAL FINANCE B.V. | ||
| By: | /s/ Larry Carris Cardoso | |
| Name: Larry Carris Cardoso | ||
| Title: Attorney in Fact | ||
| PETRÓLEO BRASILEIRO S.A. - PETROBRAS | ||
| By: | /s/ Bianca Nasser Patrocinio | |
| Name: Bianca Nasser Patrocinio | ||
| Title: Executive Manager of Corporate Finance & Treasury | ||
| WITNESSES | ||
| /s/ Renan Feuchard Pinto | ||
| Name: Renan Feuchard Pinto | ||
| /s/ Adriana Fernandes de Brito | ||
| Name: Adriana Fernandes de Brito | ||
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
CITIGROUP GLOBAL MARKETS INC.
| By: | /s/ Adam D. Bordner | |
| Name: Adam D. Bordner | ||
| Title: Director |
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
CREDIT AGRICOLE SECURITIES (USA) INC.
| By: | /s/ Gordon S. Kingsley, Jr. | |
| Name: Gordon S. Kingsley, Jr. | ||
| Title: Managing Director |
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
HSBC SECURITIES (USA) INC.
| By: | /s/ Diane Kenna | |
| Name: Diane Kenna | ||
| Title: Managing Director |
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
MIZUHO SECURITIES USA LLC
| By: | /s/ Mark A. Tuttle | |
| Name: Mark A. Tuttle | ||
| Title: Managing Director |
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
MORGAN STANLEY & CO. LLC
| By: | /s/ Adnan Riaz | |
| Name: Adnan Riaz | ||
| Title: Executive Director |
[Signature Page – Registration Rights Agreement]
Accepted as of the date first set forth above:
SANTANDER INVESTMENT SECURITIES INC.
| By: | /s/ Richard N. Zobkiw, Jr. | |
| Name: Richard N. Zobkiw, Jr. | ||
| Title: Executive Director |
| By: | /s/ Hugo Tran | |
| Name: Hugo Tran | ||
| Title: Vice President |
[Signature Page – Registration Rights Agreement]
Exhibit A
Petrobras Global Finance B.V.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company (“DTC”) has identified you as a DTC Participant through which beneficial interests in the 5.093% Global Notes due 2030 (CUSIP Nos.: 71647N BF5 and N6945A AL1) (the “Securities”) of Petrobras Global Finance B.V. (the “Issuer”) are held.
The Issuer is in the process of registering the Securities under the Securities Act of 1933 for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact:
Investor Relations Department
Petróleo Brasileiro S.A.-Petrobras
Avenida República do Chile, 65 — 13th Floor
20031-912 — Rio de Janeiro — RJ, Brazil
Attn: Larry Carris Cardoso, Loans and Financing Administration General Manager
Telephone: +55 (21) 3224-1510/3224-9947
Fax: +55 (21) 3224-1401
E-mail: petroinvest@petrobras.com.br
* Not less than 28 calendar days from date of mailing.
Petrobras Global Finance B.V.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement dated September 18, 2019 (the “Registration Rights Agreement”) among Petrobras Global Finance B.V. (the “Issuer”), Petróleo Brasileiro S.A. – Petrobras (the “Guarantor”), the Initial Purchasers and the Dealer Managers named therein. Pursuant to the Registration Rights Agreement, the Issuer intends to file with the United States Securities and Exchange Commission (the “Commission”) a registration statement on Form [__] (the “Shelf Registration Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Issuer’s 5.093% Global Notes due 2030 (CUSIP Nos.: 71647N BF5 and N6945A AL1) (the “Securities”). A copy of the Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (“Notice and Questionnaire”) must be completed, executed and delivered to the Issuer’s counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related prospectus.
ELECTION
The undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement. Such holder agrees severally and not jointly, to (i) indemnify and hold harmless the Issuer and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Issuer or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Issuer to any such holder or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Issuer by such holder expressly for use therein, and (ii) reimburse the Issuer for any reasonable and duly documented legal or other expenses incurred by the Issuer in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that no such holder shall be required to undertake liability to any person hereunder for any amounts in excess of the dollar amount of the proceeds to be received by such holder from the sale of such holder’s Registrable Securities pursuant to such registration.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Issuer and the Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and as Exhibit B to the Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the Issuer and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable Securities Listed in Item (3) below:
________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held:
________________________
(2) Address for Notices to Selling Securityholder:
| Telephone: | ||
| Fax: | ||
| Contact Person: |
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.
(a)
Principal amount of Registrable Securities beneficially owned: ____________
CUSIP No(s). of such Registrable Securities: ____________________________
(b) Principal amount of Securities other than Registrable Securities beneficially owned: ______________________________________
CUSIP No(s). of such other Securities: _________________________________
(c)
Principal amount of Registrable Securities that the undersigned wishes to be included in the Shelf Registration Statement: _________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement: ____________________________________________
(4) Beneficial Ownership of Other Securities of the Issuer and Guarantor:
Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Issuer or the Guarantor other than the Securities listed above in Item (3).
| State any exceptions here: |
(5) Relationships with the Issuer and Guarantor:
Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Issuer or the Guarantor (or their respective predecessors or affiliates) during the past three years.
| State any exceptions here: |
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities.
| State any exceptions here: |
By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Issuer, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in the Shelf Registration Statement and related prospectus. The Selling Securityholder understands that such information will be relied upon by the Issuer in connection with the preparation of the Shelf Registration Statement and related prospectus.
In accordance with the Selling Securityholder’s obligation under Section 3(e) of the Registration Rights Agreement to provide such information as may be required by law for inclusion in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Issuer of any inaccuracies or changes in the information provided herein which may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery or air courier guarantying overnight delivery as follows:
To the Issuer:
[Investor Relations Department
Petróleo Brasileiro S.A.-Petrobras
Avenida República do Chile, 65 — 13th Floor
20031-912 — Rio de Janeiro — RJ, Brazil
Attn: Larry Carris Cardoso, Finance Department, General Manager of Corporate Finance
Telephone: +55 (21) 3224-1510/3224-9947
Fax: +55 (21) 3224-1401
E-mail: petroinvest@petrobras.com.br]
Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the Issuer’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Issuer and the Selling Securityholder (with respect to the Registrable Securities beneficially owned by such Selling Securityholder and listed in Item (3) above). This Agreement shall be governed in all respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated: ______________
______________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By: __________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE ISSUER'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York Mellon, as Trustee
240 Greenwich Street, Floor 7 East
New York, New York 10286
Attention: Global Finance Americas
| Re: | Petrobras Global Finance B.V. (the “Issuer”) |
5.093% Global Notes due 2030 (CUSIP Nos.: 71647N BF5 and N6945A AL1)
Ladies and Gentlemen:
Please be advised that _________________ has transferred U.S.$_________________ aggregate principal amount of the above referenced Securities pursuant to an effective Registration Statement on Form [_____] (File No. 333- ______) filed by the Issuer and the guarantor named therein.
We hereby certify that the prospectus delivery requirements, if any, of the U.S. Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Securities is named as a “Selling Holder” in the Prospectus dated [date] or in supplements thereto, and that the aggregate principal amount of the Securities transferred are the Securities listed in such prospectus opposite such owner's name.
Dated:
| Very truly yours, | ||
| (Name) | ||
| By: | ||
| (Authorized Signature) |
Exhibit 5.1
July 6, 2020
Petróleo Brasileiro S.A.—Petrobras
Avenida República do Chile, 65
20035-900 Rio de Janeiro – RJ
Brazil
Petrobras Global Finance B.V.
Weena 762
3014 DA Rotterdam
The Netherlands
Ladies and Gentlemen:
We have acted as special United States counsel to Petróleo Brasileiro S.A. – Petrobras, a Brazilian corporation (sociedade de economia mista) (“Petrobras”), and Petrobras Global Finance B.V., a Dutch private company (“PGF” and, together with Petrobras, the “Companies”), in connection with the registration statements on Form F-4 (such registration statements, including the documents incorporated by reference therein, the “Registration Statements”) filed on the date hereof with the U.S. Securities and Exchange Commission (the “Commission”) pursuant to the U.S. Securities Act of 1933, as amended (the “Securities Act”), in connection with the proposed offer by the Companies to exchange up to U.S.$4,115,281,000 aggregate principal amount of PGF’s newly issued 5.093% Global Notes due 2030 (the “New Notes”) to be registered under the Securities Act, for an equal principal amount of PGF’s issued and outstanding 5.093% Global Notes due 2030 (the “Old Notes”).
The New Notes are to be issued under an indenture dated September 18, 2019 (the “Indenture”) among the Companies, The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), and The Bank of New York Mellon SA/NV, Luxembourg Branch. The New Notes will have the benefit of a guaranty, the “Guaranty” and, together with the New Notes, the “Securities”), between Petrobras and the Trustee.
Petróleo Brasileiro S.A. – Petrobras
Petrobras Global Finance B.V., p. 2
Branch. The New Notes will have the benefit of a guaranty, the “Guaranty” and, together with the New Notes, the “Securities”), between Petrobras and the Trustee.
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) | the Registration Statements; |
| (b) | an executed copy of the Indenture; |
| (c) | the form of the New Notes attached as an exhibit to the Registration Statements; and |
| (d) | an executed copy of the Guaranty. |
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 (i) the accuracy as to factual matters of each document we have reviewed and (ii) that the New Notes will conform to the forms thereof that we have reviewed and will be duly authenticated in accordance with the Indenture.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that, when the New Notes have been duly executed by PGF and authenticated by the Trustee in accordance with the Indenture, and duly issued and delivered by PGF in exchange for an equal principal amount of Old Notes, (a) the New Notes will be valid, binding and enforceable obligations of PGF, entitled to the benefits of the Indenture, and (b) the Guaranty will be a valid, binding and enforceable obligation 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 PGF or Petrobras 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 New Notes), (b) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, and (c) such opinion is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
Petróleo Brasileiro S.A. – Petrobras
Petrobras Global Finance B.V., p. 3
We express no opinion as to the subject matter jurisdiction of any U.S. federal court to adjudicate any action relating to the Guaranty, the Indenture or the New Notes where jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 does not exist.
We note that the enforceability of the waiver in Section 15 of the Guaranty and Section 1.15 of the Indenture, as the case may be, 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.
We note that the designation in Section 15 of the Guaranty and Section 1.15 of the Indenture of any federal court in the Borough of Manhattan, the City of New York, State of New York, as the venue for actions or proceedings relating to the Guaranty, the Indenture and the New Notes, are (notwithstanding the waiver in Section 15 of the Guaranty and Section 1.15 of the Indenture) subject to the power of such courts to transfer actions pursuant to 28 U.S.C. §1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such actions or proceedings.
We express no opinion as to the enforceability of Section 14 of the Guaranty and Section 10.13 of the Indenture relating to currency indemnity.
We note that the waiver of defenses in Sections 3 and 5 of the Guaranty may be ineffective to the extent that any such defense involves a matter of public policy in the State of New York.
The foregoing opinions are limited to the federal law of the United States of America and the law of the state of New York.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statements and to the reference to this firm in the prospectus constituting a part of the Registration Statements under the heading “Validity of Securities”. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
| Very truly yours, | ||
| CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: | /s/ Francesca L. Odell | |
| Francesca L. Odell, a Partner | ||
Petróleo Brasileiro S.A. – Petrobras
Petrobras Global Finance B.V., p. 4
Exhibit 5.2
July 6, 2020
Petróleo Brasileiro S.A.— Petrobras
Avenida República do Chile, 65
20031-912 Rio de Janeiro – RJ
Brazil
Petrobras Global Finance B.V.
Weena 762
3014 DA Rotterdam
The Netherlands
Ladies and Gentlemen:
I am the General Counsel of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”), a sociedade de economia mista organized under the laws of the Federative Republic of Brazil (“Brazil”). This opinion is being furnished to you in connection with the preparation and filing by Petrobras and its wholly-owned subsidiary, Petrobras Global Finance B.V., a company incorporated with limited liability under the laws of The Netherlands (“PGF”), of a registration statement on Form F-4 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), with the U.S. Securities and Exchange Commission (the “SEC”) with respect to the guaranty (the “Guaranty”) for the 5.093% Global Notes due 2030 (the “Notes”) dated September 18, 2019, by and between Petrobras, as the guarantor, and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”). The Notes are to be issued by PGF on the settlement date of the exchange offer described in the prospectus constituting a part of the Registration Statement (the “Exchange Offer”) under the indenture, dated September 18, 2019, by and among PGF, Petrobras, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch (the “Indenture” and, together with the Guaranty, 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 Indenture; |
| (ii) | the Guaranty; |
| (iii) | the Estatuto Social of Petrobras; |
| (iv) | resolution of the board of directors of Petrobras authorizing the signing of each Transaction Document to which Petrobras is a party; and |
| (v) | such other documents, records and matters of law as I have deemed necessary; |
In rendering the foregoing opinions, I have assumed the authenticity of all documents represented to me to be originals, the conformity to original documents of all copies of documents submitted to me, the accuracy and completeness of all corporate records made available to me and the genuineness of all signatures that purport to have been made in a corporate, governmental, fiduciary or other capacity, and that the persons who affixed such signatures had authority to do so.
Based on the foregoing and subject to the qualifications and limitations hereinafter specified, I am of the opinion that:
| (i) | Petrobras has been duly incorporated and is validly existing as a corporation (sociedade de economiamista) under the laws of Brazil. |
| (ii) | Petrobras has all power and authority to enter into and perform its obligations under the Guaranty. |
| (iii) | The execution, delivery and performance of the Guaranty has been duly authorized by the board of directors of Petrobras and, when the Notes have been duly executed by PGF and authenticated by the Trustee in accordance with the Indenture, and duly issued and delivered by PGF in exchange for the securities subject to the Exchange Offer, the Guaranty will be valid, binding and enforceable obligations 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 amendments and prospectus supplements related thereto, under the heading “Validity of Securities” as counsel who has passed on specific opinions based on Brazilian law and relating to the Notes, the Indenture and the Guaranty, 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 SEC thereunder.
| Very Truly Yours, | |
| /s/ Taisa Oliveira Maciel | |
| Taisa Oliveira Maciel | |
| General Counsel | |
| General Counsel of Petrobras |
Exhibit 5.3
| ATTORNEYS • CIVIL LAW NOTARIES • TAX ADVISERS |  |
| P.O. Box 7113 | |
| 1007 JC Amsterdam | |
| Beethovenstraat 400 | Amsterdam, July 6, 2020 |
| 1082 PR Amsterdam | |
| T +31 20 71 71 000 | Petrobras Global Finance B.V. |
| Weena 762 | |
| 3014 DA Rotterdam | |
| The Netherlands | |
| Petróleo Brasileiro S.A.— Petrobras | |
| Avenida República do Chile, 65 | |
| 20031-912 Rio de Janeiro—RJ | |
| Brazil | |
| Dear addressees: | |
| This opinion letter is rendered at your request. | |
| We have acted as legal counsel as to Dutch law to the Issuer, in connection with the Registration Statement filed on the date hereof with the U.S. Securities and Exchange Commission pursuant to the Securities Act of 1933, as may be amended (“Securities Act”), in connection with the proposed offer to exchange by the Issuer and the Guarantor up to U.S.$4,115,281,000 aggregate principal amount of the New Notes, to be registered under the Securities Act, for an equal principal amount of the Issuer’s outstanding Old Notes. | |
| Capitalised terms used in this opinion letter have the meanings set forth in Exhibit A. The section headings used in this opinion letter are for convenience of reference only and are not to affect its construction or to be taken into consideration in its interpretation. | |
| This opinion letter may only be relied upon in connection with the Indenture, the Registration Statement and the New Notes. It does not purport to address all matters of Dutch law that may be of relevance to you with respect to the Indenture, the Registration Statement or the New Notes. This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in the Indenture, the Registration Statement, the New Notes or any other document reviewed in connection with this opinion letter, except as expressly confirmed in this opinion letter. Except as set forth herein, its contents may not be quoted, otherwise included, summarised or referred to in any publication or document or disclosed to any other party, in whole or in part, for any purpose, without our prior written consent. | |
Amsterdam
Brussels
London
Luxemburg
New York
Rotterdam |
This communication is confidential and may be subject to professional privilege. All legal relationships are subject to NautaDutilh N.V.'s general terms and conditions (see https://www.nautadutilh.com/terms), which apply mutatis mutandis to our relationship with third parties relying on statements of NautaDutilh N.V., include a limitation of liability clause, have been filed with the Rotterdam District Court and will be provided free of charge upon request. NautaDutilh N.V.; corporate seat Rotterdam; trade register no. 24338323.
|
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| We 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 any amendments or prospectus supplements related thereto as special counsel for the Issuer who has passed on certain matters under Dutch law relating to the New Notes being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.In rendering the opinions expressed in this opinion letter, we have exclusively reviewed and relied upon pdf copies of the Indenture, the Registration Statement, the form of New Note and the Corporate Documents and we have assumed that the Indenture has been entered into, the Old Notes were issued and the New Notes are to be issued, for bona fide commercial reasons. We have not investigated or verified any factual matter disclosed to us in the course of our review. We have not been involved with structuring, drafting or negotiating the Indenture. | |
| This opinion letter sets out our opinion on certain matters of the laws with general applicability of the Netherlands, and, insofar as they are directly applicable in the Netherlands, of the European Union, as at today's date and as presently interpreted under published authoritative case law of the Dutch courts, the General Court and the Court of Justice of the European Union. For purposes of the opinions expressed in paragraph 5 (No Violation of Law) and paragraph 6 (No Authorisations, Consents or Approvals) we have given regard only to those laws that we, having exercised customary professional diligence, would reasonably be expected to recognise as being applicable to an entity, transaction or agreement to which this opinion letter relates. We do not express any opinion on tax law, regulatory law (except for the opinion expressed in paragraph 6 (No Authorisations, Consents or Approvals)), Dutch or European competition law or data protection law. No undertaking is assumed on our part to revise, update or amend this opinion letter in connection with or to notify or inform you of, any developments and/or changes of Dutch law subsequent to today's date. | |
| The opinions expressed in this opinion letter are to be construed and interpreted in accordance with Dutch law. Our willingness to render this opinion letter is based on the condition that (i) the competent courts at Amsterdam, the Netherlands have exclusive jurisdiction to settle any issues of interpretation or liability arising out of or in connection with this opinion letter, (ii) any legal relationship arising out of or in connection with this opinion letter (whether contractual or non-contractual), including the above submission to jurisdiction, is governed by Dutch law and (iii) no person other than NautaDutilh may be held liable in connection with this opinion letter. |
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| In this opinion letter, legal concepts are expressed in English terms. The Dutch legal concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Dutch legal concepts described by the English terms. | |
| For the purposes of this opinion letter, we have assumed that: |
| a. | each copy of a document conforms to the original, each original is authentic, and each signature is the genuine authentic or electronic signature of the individual purported to have placed that signature; |
| b. | the Deed of Incorporation is a valid notarial deed; |
| c. | (i) no regulations (reglementen) have been adopted by any corporate body of the Issuer and (ii) the Articles of Association are the Issuer's articles of association currently in force. The Extract supports item (ii) of this assumption on the date of this opinion letter; |
| d. | the Issuer has not (i) been dissolved (ontbonden), (ii) ceased to exist pursuant to a merger (fusie) or a division (splitsing), (iii) been converted (omgezet) into another legal form, either national or foreign, (iv) had its assets placed under administration (onder bewind gesteld), (v) been declared bankrupt (failliet verklaard) or granted a suspension of payments (surseance van betaling verleend), (vi) been subjected to the appointment of an administrator (curator) in respect of any of its bodies or representatives on the basis of Article 1:76 DFSA, (vii) been subjected to any intervention, recovery or resolution measure pursuant to the BRRD, the SRM Regulation or the DFSA, as applicable or (viii) been made subject to similar proceedings in any jurisdiction or otherwise been limited in its power to dispose of its assets. The Extract and our inquiries of today with the Insolvency Registers support the items (i) through (v) of this assumption on the date of this opinion letter. However, this information does not constitute conclusive evidence that the events set out in items (i) through (v) have not occurred; |
| e. | the resolutions recorded in the Resolutions are in full force and effect, the factual statements made and the confirmations given in the Resolutions are complete and correct. The resolutions recorded in the 2019 Resolutions were in full force and effect on the date the Indenture was entered into by the Issuer; |
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| f. | each Power of Attorney (i) is in full force and effect, and (ii) under any applicable law other than Dutch law, validly authorises the person or persons purported to be granted power of attorney, to represent and bind the Issuer for the purposes stated therein; |
| g. | no works council (ondernemingsraad) has been established or is in the process of being established with respect to the business of the Issuer. This assumption is supported by the confirmation in this respect as included in the Resolutions of the management board of the Issuer; |
| h. | under any applicable law (other than, in relation to the Issuer, Dutch law): |
| i. | the Indenture constitutes the legal, valid and binding obligations of the persons expressed to be a party thereto, enforceable against them in accordance with its terms; |
| ii. | the choice of law clause in the Indenture constitutes a legal, valid and binding choice of law; and |
| iii. | the agreement conferring jurisdiction in the Indenture constitutes a legal, valid and binding agreement conferring jurisdiction; |
| i. | the Old Notes have been validly issued; |
| j. | the issuance and offer of the New Notes will be, and the distribution and filing of the Registration Statement is being, made in conformity with the Prospectus Regulation, the DFSA and any rules promulgated thereunder; |
| k. | at the time of the offering of the New Notes, the Issuer will not be in possession of inside information (voorwetenschap) nor will it act in breach of the prohibitions of insider dealing (handel met voorwetenschap) and unlawful disclosure of inside information contained in Article 14 of the MAR or the prohibition on market manipulation contained in Article 15 of the MAR; |
| l. | the Indenture has not been terminated, recinded (ontbonden), cancelled (opzeggen), or amended or supplemented in a way that would affect the ability of the Issuer to issue the New Notes thereunder, and remains in full force and effect (van kracht); |
| m. | each New Note will be duly executed, authenticated and delivered in accordance with the Indenture; and |
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| n. | the assumptions above under a. through d. and f. through i. were true and correct on the date the Indenture was entered into by the Issuer. |
| Based upon and subject to the foregoing and subject to the qualifications set forth in this opinion letter and to any matters, documents or events not disclosed to us, we express the following opinions: |
Incorporation and Corporate Status
| 1. | The Issuer has been duly incorporated and is validly existing as a legal entity in the form of a besloten vennootschap met beperkte aansprakelijkheid (a private company with limited liability) under Dutch law. |
Corporate Power
| 2. | The Issuer had the corporate power to enter into the Indenture and has the corporate power to perform its obligations thereunder, to publish the Registration Statement and to issue the New Notes and to perform its obligations thereunder. The Issuer did not and does not violate any provision of its Articles of Association by entering into the Indenture or performing its obligations thereunder, by the publication of the Registration Statement or the issuance of the New Notes and performance of its obligations thereunder. |
Corporate Action
| 3. | The Issuer has taken all corporate action required by its Articles of Association and Dutch law in connection with its entering into the Indenture, the publication of the Registration Statement and the issuance of the New Notes and the performance of its obligatons thereunder. |
Choice of Law / Enforceability
| 4. | The choice of the laws of the State of New York to govern the obligations of the Issuer under the Indenture is recognised under Dutch law, and accordingly the enforceability of those obligations is determined under Dutch law by reference to the laws of the State of New York. |
No Violation of Law
| 5. | The entering into of the Indenture, the publication of the Registration Statement and the issuance of the New Notes by the Issuer and the performance of its obligations thereunder do not in themselves result in a violation of Dutch law which would affect the enforceability of the Issuer's obligations thereunder. |
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No Authorisations, Consents or Approvals
| 6. | No authorisation, consent, approval, licence or order from or notice to or filing with any regulatory or other authority or governmental body of the Netherlands is required by the Issuer in connection with its entering into the Indenture or the performance of its obligations thereunder, the publication of the Registration Statement, or the issuance of the New Notes or the performance of its obligations thereunder, the absence of which would affect the enforceability of the Issuer's obligations thereunder. |
Jurisdiction
| 7. | The agreements conferring jurisdiction in the Indenture to the non-exclusive jurisdiction of any federal court in the Borough of Manhattan, the City of New York, State of New York are recognised under Dutch law and will be given effect to by the Dutch courts. |
No Immunity
| 8. | The Issuer does not enjoy any right of immunity from legal proceedings in the Netherlands in relation to the Indenture, it cannot claim immunity from the enforcement of judgments of Dutch courts and its assets located in the Netherlands do not enjoy immunity from attachment or enforcement in the Netherlands. |
The opinions expressed above are subject to the following qualifications:
| A. | As Dutch lawyers we are not qualified or able to assess the true meaning and purport of the terms of the Indenture, the Registration Statement or the New Notes under the applicable law and the obligations of the parties to the Indenture, the Registration Statement and the New Notes and we have made no investigation of that meaning and purport. Our review of the Indenture, the Registration Statement and the form of New Notes and of any other documents subject or expressed to be subject to any law other than Dutch law has therefore been limited to the terms of these documents as they appear to us on their face. |
| B. | The opinion expressed in paragraph 1 (Incorporation and Corporate Status) of this opinion letter must not be read to imply that the Issuer cannot be dissolved (ontbonden). A company such as the Issuer may be dissolved, inter alia by the competent court at the request of the company's management board, any interested party (belanghebbende) or the public prosecution office in certain circumstances, such as when there are certain defects in the incorporation of the company. Any such dissolution will not have retro-active effect. |
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| C. | The information contained in the Extract does not constitute conclusive evidence of the facts reflected in it. |
| D. | Pursuant to Article 2:7 DCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings (curator) if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation (wist of zonder eigen onderzoek moest weten). The Dutch Supreme Court (Hoge Raad der Nederlanden) has ruled that in determining whether the objects of a legal entity are transgressed, not only the description of the objects in that legal entity's articles of association (statuten) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity were served by the transaction. |
| E. | A power of attorney granted by the Issuer: |
| a. | shall as between the principal and the third party be governed by the law determined pursuant to the Convention on the Law Applicable to Agency (het Haags Vertegenwoordigingsverdrag) to the extent it concerns the existence and extent of the attorney's authority and the effects of the attorney's exercise or purported exercise of his or her authority; and |
| b. | to the extent governed by the laws of the Netherlands, (i) unless otherwise provided, may only be used to perform a legal act with the attorney as counterparty, if the content of such act is so precisely determined that any conflict between the interests of the principal and the attorney is excluded, and (ii) can only be made irrevocable to the extent its purpose is the performance of legal acts in the interest of the attorney or a third party (it being noted that the competent Dutch court may, at the request of the principal, cancel the irrevocability for compelling reasons). |
| F. | Despite any generally recognised choice of law clause contained in the Indenture a court in the Netherlands (a) may apply overriding mandatory provisions of (i) Dutch law and (ii) the law of the country where the obligations arising out of the agreement have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the agreement unlawful, (b) may refuse application of a provision of the chosen law if application thereof is manifestly incompatible with the public policy ("ordre public") of the Netherlands or the European Union, (c) may, in relation to the manner of performance of an agreement and the steps to be taken in the event of defective performance, have regard to the law of the country where performance of the agreement takes place and (d) will ignore the choice of law clause to the extent it relates to (i) an act of unfair competition or an act restricting free competition, or (ii) infringement of an intellectual property right. |
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| G. | The opinions expressed in this opinion letter may be limited or affected by: |
| a. | rules relating to Insolvency Proceedings or similar proceedings under a foreign law and other rules affecting creditors' rights generally; |
| b. | the provisions of fraudulent preference and fraudulent conveyance (Actio Pauliana) and similar rights available in other jurisdictions to insolvency practitioners and insolvency office holders in bankruptcy proceedings or creditors; |
| c. | claims based on tort (onrechtmatige daad); |
| d. | sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Sanctions Act 1977 (Sanctiewet 1977) or other legislation; |
| e. | the Anti-Boycott Regulation and related legislation; and |
| f. | any intervention, recovery or resolution measure by any regulatory or other authority or governmental body in relation to financial enterprises or their affiliated entities. |
| H. | An agreement conferring jurisdiction may be ignored pursuant to the Recast Enforcement Regulation, the Lugano II Convention, any instrument or national legislation referred to in Article 67 of the Recast Enforcement Regulation or the Lugano II Convention, or limited exceptions contained in the DCCP. |
| I. | The attachment of or enforcement against assets located in the Netherlands is subject to limited restrictions, including that assets located in the Netherlands that are destined for the public service (goederen bestemd voor de openbare dienst) and the books and records of a company may not be attached whether by pre-judgment attachment or attachment for the purpose of a foreclosure sale. |
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| J. | The Rome I Regulation will not apply to obligations arising under the New Notes to the extent that (i) these obligations arise out of the negotiable character of the New Notes or, (ii) the New Notes constitute a "promissory note", "bill of exchange" or "cheque" within the meaning of the 1930 Convention on the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes or the 1931 Convention on the Settlement of Certain Conflicts of Laws in Connection with Cheques. Consequently we do not express an opinion regarding the choice of law with respect to obligations arising under the New Notes to the extent that (i) these obligations arise out of the negotiable character of the New Notes and/or, (ii) the New Notes qualify as promissory note, bill of exchange or cheque within the meaning of the respective conventions. |
| K. | With respect to any trust to be created under the Indenture pursuant to which the Issuer shall hold monies or other assets on trust, it should be noted that any assets held by the Issuer pursuant to any such provision may form part of the Issuer's estate and therefore be subject to recourse by any creditor of the Issuer. However, the Netherlands have ratified the Hague Convention on the Law Applicable to Trusts and their Recognition of 1985 (the "Hague Trust Convention") and consequently, if a trust purported to be created under the Indenture has the characteristics of a trust under the Hague Trust Convention, the recognition of that trust by the courts of the Netherlands will be subject to the requirements and limitations of the Hague Trust Convention. |
| Sincerely yours, | |
| /s/ NautaDutilh N.V. | |
| NautaDutilh N.V. |
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EXHIBIT A
LIST OF DEFINITIONS
|
"Anti-Boycott Regulation"
|
the Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom
| |
|
"Articles of Association"
|
the articles of association contained in the Deed of Incorporation
| |
|
"Bankruptcy Code"
|
the Dutch Bankruptcy Code (Faillissementswet)
| |
|
"BRRD"
|
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, as transposed into Dutch law, and the rules and regulations promulgated pursuant thereto
| |
|
"Commercial Register"
|
the Dutch Chamber of Commerce Commercial Register
| |
|
"Corporate Documents"
|
the documents listed in Exhibit B
| |
|
"DCC"
|
the Dutch Civil Code (Burgerlijk Wetboek)
| |
|
"DCCP"
|
the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)
| |
|
"Deed of Incorporation"
|
the deed of incorporation (akte van oprichting) of the Issuer, dated 2 August 2012
|
11
|
"DFSA"
|
the Dutch Financial Supervision Act (Wet op het financieel toezicht)
| |
|
"Exhibit"
|
an exhibit to this opinion letter
| |
|
"Extract"
|
a pdf copy of an extract from the Commercial Register, received by us by email and dated the date of this opinion letter with respect to the Issuer
| |
|
"New Notes"
|
the new, registered 5.093% global notes due 2030, in an aggregate principal amount of up to U.S.$4,115,281,000, to be issued in exchange for the Old Notes
| |
| "Guarantor" |
Petróleo Brasileiro S.A.— Petrobras
| |
| "Indenture" |
an indenture, dated September 18, 2019, among PGF, Petrobras, The Bank of New York Mellon, a New York banking corporation, as trustee, and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Luxembourg transfer agent and paying agent
| |
|
"Insolvency Proceedings"
|
any insolvency proceedings within the meaning of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) listed in Annex A thereto and the appointment of an administrator (curator) in respect of any bodies or representatives on the basis of Article 1:76 DFSA and any intervention, recovery or resolution measure on the basis of the BRRD, the SRM Regulation or the DFSA
| |
|
"Insolvency Registers"
|
the online central insolvency register (Centraal Insolventie Register) and the online EU Insolvency Register (Centraal Insolventie Register-EU Registraties) held by the Council for the Administration of Justice (Raad voor de Rechtspraak)
|
12
|
"Issuer"
|
Petrobras Global Finance B.V. | |
|
"Lugano II Convention"
|
the Convention of 30 October 2007 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters
| |
| "MAR" |
Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, and the rules and regulations promulgated pursuant thereto
| |
|
"NautaDutilh"
|
NautaDutilh N.V.
| |
|
"the Netherlands"
|
the European territory of the Kingdom of the Netherlands
| |
|
"Old Notes"
|
the U.S.$4,115,281,000 5.093% global notes due 2030, issued by the Issuer on September 18, 2019
| |
|
"Power of Attorney"
|
the power of attorney dated 26 May 2020 granted by the Issuer in respect of the entering into the transactions contemplated by the documents as described therein
| |
| "Prospectus Regulation" |
Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC
| |
|
"Recast Enforcement Regulation"
|
the Council Regulation (EC) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast) and the rules and regulations promulgated pursuant thereto
|
13
| "Registration Statement" |
the registration statement of the Issuer and the Guarantor as registrants on form F-4 under the Securities Act, dated as of the date hereof, as may be amended
| |
|
"Resolutions"
|
the 2019 Resolutions and the 2020 Resolutions
| |
|
"Rome I Regulation"
|
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)
| |
| "SRM Regulation" |
Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010, and the rules and regulations promulgated pursuant thereto
| |
| "2019 Resolutions" |
a. the document or documents containing the resolutions of the management board (bestuur) of the Issuer dated September 6, 2019, in connection with the entering into the Indenture by the Issuer; and b. the document or documents containing the resolutions of the general meeting (algemene vergadering) of the Issuer
dated
| |
| "2020 Resolutions" |
a. the document or documents containing the resolutions of the management board (bestuur) of the Issuer dated June 30, 2020, in connection with the issue of the New Notes by the Issuer; and b. the document or documents containing the resolutions of the general meeting (algemene vergadering) of the Issuer
dated
|
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EXHIBIT B
LIST OF CORPORATE DOCUMENTS
| 1. | the Deed of Incorporation; |
| 2. | the Extract; |
| 3. | the Resolutions; and |
| 4. | the Power of Attorney. |
Exhibit 15.1
KPMG Auditores Independentes
Rua do Passeio, 38 - Setor 2 - 17º andar - Centro
20021-290 - Rio de Janeiro/RJ - Brasil
Caixa Postal 2888 - CEP 20001-970 - Rio de Janeiro/RJ - Brasil
Telefone +55 (21) 2207-9400
kpmg.com.br
July 6, 2020
Petróleo Brasileiro S.A. - Petrobras
Avenida República do Chile 65
Rio de Janeiro – RJ
Petrobras Global Finance B.V. – PGF
Weena 762, 3014 DA
Rotterdam, The Netherlands
Re: registration statements on Form F-4, dated July 6, 2020 (the “Registration Statements”)
With respect to the Registration Statements of Petróleo Brasileiro S.A. – Petrobras and Petrobras Global Finance B.V., we acknowledge our awareness of the use and incorporation by reference therein of our report dated May 14, 2020 related to our review of the interim financial information of Petróleo Brasileiro S.A. – Petrobras as of March 31, 2020 and for the three month periods ended March 31, 2020 and 2019.
Pursuant to Rule 436 under the U.S. Securities Act of 1933 (the “Act”), such report is not considered part of a registration statement prepared or certified by an independent registered public accounting firm, or a report prepared or certified by an independent registered public accounting firm within the meaning of Sections 7 and 11 of the Act.
| /s/ KPMG Auditores Independentes | |
| KPMG Auditores Independentes |
Rio de Janeiro, Brazil
Exhibit 23.1
KPMG Auditores Independentes
Rua do Passeio, 38 - Setor 2 - 17º andar
– Centro
20021-290 Rio de Janeiro/RJ - Brasil
Caixa Postal 2888 - CEP 20001-970 - Rio de
Janeiro/RJ - Brasil
Telefone +55 (21) 2207-9400
kpmg.com.br
July 6, 2020
Consent of Independent Registered Public Accounting Firm
The Board of Directors of:
Petróleo Brasileiro S.A. – Petrobras (“Petrobras”)
and
Petrobras Global Finance B.V. (“PGF”)
We consent to the use of our reports dated March 20, 2020, with respect to the consolidated statement of financial position of Petrobras as of December 31, 2019 and 2018, and the related consolidated statements of income, comprehensive income, changes in shareholders’ equity and cash flows for each of the years in the three-year period ended December 31, 2019, and the related notes (collectively the “consolidated financial statements”), and the effectiveness of internal control over financial reporting as of December 31, 2019, incorporated by reference in the registration statements on Form F-4 of Petrobras and PGF filed with the Securities and Exchange Commission (“SEC”) on the date hereof, by reference to the 2019 annual report on Form 20-F/A of Petróleo Brasileiro S.A. – Petrobras , filed with the SEC on April 21, 2020. We also consent to the reference to our firm under the heading “Experts” in the prospectus.
Our report on the consolidated financial statements refers to a change in the method of accounting for lease arrangements as of January 1, 2019 due to the adoption of IFRS 16 “Leases”.
| /s/ KPMG Auditores Independentes | |
| KPMG Auditores Independentes | |
Rio de Janeiro, Brazil
Exhibit 23.6
DeGolyer and MacNaughton
5001 Spring Valley Road
Suite 800 East
Dallas, Texas 75244
July 6, 2020
Petróleo Brasileiro S.A.—Petrobras
Av. República do Chile, 65
Rio de Janeiro, RJ 20031-912
Brazil
Ladies and Gentlemen:
We hereby consent to the references to DeGolyer and MacNaughton as set forth in the Registration Statement on Form F-4, filed on the date hereof by Petróleo Brasileiro S.A.—Petrobras and Petrobras Global Finance B.V. (together, the Registrants), under the heading “Experts,” to the incorporation by reference of the other references to our firm contained under the headings “Glossary—Glossary of certain terms used in this Annual Report,” “Our Business—Exploration and Production—Reserves,” and “Additional Information,” and to the inclusion of our report of third party dated February 6, 2020, as Exhibit No. 99.1 in the Annual Report on Form 20-F of the Registrants for the year ended December 31, 2019.
| Very truly yours, | ||
| By: | /s/ DeGolyer and MacNaughton | |
| DeGOLYER and MacNAUGHTON | ||
| Texas Registered Engineering Firm F-716 | ||
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
| New York | 13-5160382 | |
|
(Jurisdiction of incorporation if not a U.S. national bank)
|
(I.R.S. Employer Identification No.)
| |
|
240 Greenwich Street New York, New York |
10286 | |
| (Address of principal executive offices) | (Zip code) | |
Legal Department
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent for service)
Petróleo Brasileiro S.A. – Petrobras
(Exact name of obligor as specified in its charter)
| The Federative Republic of Brazil | N/A/ | |
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
| |
|
Avenida República do Chile, 65 20031-912 – Rio de Janeiro – RJ 700 Brazil |
N/A | |
| (Address of principal executive offices) | (Zip code) | |
Petrobras Global Finance B.V.
(Exact name of obligor as specified in its charter)
| The Netherlands | N/A/ | |
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
| |
|
Weena 762 3014 DA – Rotterdam - The Netherlands |
N/A | |
| (Address of principal executive offices) | (Zip code) |
5.093% Global Notes Due 2030
Guaranty of 5.093% Global Notes Due 2030
(Title of the indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the Trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
|
Superintendent of Banks of the State of New York Federal Reserve Bank of New York Federal Deposit Insurance Corporation New York Clearing House Association |
One State Street, New York, N.Y. 10004-1417 and Albany, N.Y. 12203 33 Liberty Plaza, New York, N.Y. 10045 550 17th Street, N.W., Washington, D.C. 20429 New York, N.Y. 10005 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| Item 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| Item 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
| 1. | - | A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735.) | ||
| 4. | - | A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 with Registration Statement No. 333-207042.) | ||
| 6. | - | The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382.) | ||
| 7. | - | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. | ||
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 2nd day of July, 2020.
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Francine Kincaid | ||
| Name: | Francine Kincaid | ||
| Title: | Vice President | ||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y.
10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | ||
| Cash and balances due from depository institutions: | |||
| Noninterest-bearing balances and currency and coin | 4,072,000 | ||
| Interest-bearing balances | 165,889,000 | ||
| Securities: | |||
| Held-to-maturity securities | 37,050,000 | ||
| Available-for-sale securities | 99,180,000 | ||
| Equity securities with readily determinable fair values not held for trading | 56,000 | ||
| Federal funds sold and securities purchased under agreements to resell: | |||
| Federal funds sold in domestic offices | 0 | ||
| Securities purchased under agreements to resell | 13,340,000 | ||
| Loans and lease financing receivables: | |||
| Loans and leases held for sale | 0 | ||
| Loans and leases held for investment | 32,279,000 | ||
| LESS: Allowance for loan and lease losses | 124,000 | ||
| Loans and leases held for investment, net of allowance | 32,155,000 | ||
| Trading assets | 6,612,000 | ||
| Premises and fixed assets (including capitalized leases) | 2,967,000 | ||
| Other real estate owned | 1,000 | ||
| Investments in unconsolidated subsidiaries and associated companies | 1,680,000 | ||
| Direct and indirect investments in real estate ventures | 0 | ||
| Intangible assets: | 6,963,000 | ||
| Other assets | 17,072,000 | ||
| Total assets | 387,037,000 | ||
| LIABILITIES | |||
| Deposits: | |||
| In domestic offices | 207,668,000 | ||
| Noninterest-bearing | 96,706,000 | ||
| Interest-bearing | 110,962,000 | ||
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | 130,088,000 | ||
| Noninterest-bearing | 3,997,000 | ||
| Interest-bearing | 126,091,000 | ||
| Federal funds purchased and securities sold under agreements to repurchase: | |||
| Federal funds purchased in domestic offices | 524,000 | ||
| Securities sold under agreements to repurchase | 3,654,000 | ||
| Trading liabilities | 5,061,000 | ||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) | 3,415,000 | ||
| Not applicable | |||
| Not applicable | |||
| Subordinated notes and debentures | 0 | ||
| Other liabilities | 9,664,000 | ||
| Total liabilities | 360,074,000 | ||
| EQUITY CAPITAL | |||
| Perpetual preferred stock and related surplus | 0 | ||
| Common stock | 1,135,000 | ||
| Surplus (exclude all surplus related to preferred stock) | 11,489,000 | ||
| Retained earnings | 15,814,000 | ||
| Accumulated other comprehensive income | -1,475,000 | ||
| Other equity capital components | 0 | ||
| Total bank equity capital | 26,963,000 | ||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | ||
| Total equity capital | 26,963,000 | ||
| Total liabilities and equity capital | 387,037,000 |
I, Michael Santomassimo, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Michael Santomassimo
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
| Thomas P. Gibbons Samuel C. Scott Joseph J. Echevarria |
Directors |
Exhibit 99.1
PETROBRAS GLOBAL FINANCE B.V. - PGF
Offer
to Exchange Securities
which have been
Registered under the Securities Act of 1933, as amended,
and which are
Guaranteed by
Petróleo Brasileiro S.A. — Petrobras
for any and all of its Corresponding Outstanding Securities
| CUSIP of Old Notes | ISIN of Old Notes | Old Notes | CUSIP of New Notes |
ISIN of New Notes | New Notes |
| 71647N BF5 (Rule 144A) US716647NBF50 (Reg. S) |
N6945A
AL1 (Rule 144A) USN6945AAL19 (Reg S) |
U.S.$4,115,281,000
5.093% Notes due 2030 |
71647N BE8 | US71647NBE85 | Up to U.S.$4,115,281,000 5.093% Notes due 2030 |
Pursuant to the Prospectus dated , 2020
| To: | Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: |
Upon and subject to the terms and conditions set forth in the prospectus, dated , 2020 (the “Prospectus”), Petrobras Global Finance B.V. (the “Issuer”), a wholly-owned subsidiary of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”), incorporated under the laws of The Netherlands as a private company with limited liability, and Petrobras, a sociedade de economia mista organized under the laws of Brazil, are making an offer to exchange (the “Exchange Offer”) registered 5.093% Global Notes due 2030 (the “New Securities”) for any and all outstanding 5.093% Global Notes due 2030 (the “Old Securities”) of the Issuer. The Exchange Offer is being made in order to satisfy certain of the Issuer’s obligations under the Registration Rights Agreement referred to in the Prospectus.
We are requesting that you contact your clients for whom you hold any Old Securities regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Securities registered in your name or in the name of your nominee, or who hold any Old Securities registered in their own names, we are enclosing the following documents:
1. Prospectus dated , 2020.
2. A form letter that may be sent to your clients for whose account you hold any Old Securities registered in your name or the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Exchange Offer.
Your prompt action is requested. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2020 (the “Expiration Date”), unless extended by the Issuer. Any Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date, unless previously accepted by the Issuer.
Tenders of any Old Securities for exchange pursuant to the Exchange Offer may be made only by book-entry transfer of the Old Securities to the account established by the Exchange Agent referred to below at the Book-Entry Transfer Facility maintained by The Depository Trust Company (“DTC”), together with a computer generated message, transmitted by means of DTC’s Automated Tender Offer Program system and received by the Exchange Agent, in which the tendering holder agrees to be bound by the terms and conditions of the Exchange Offer as set forth in the Prospectus.
Additional copies of the enclosed materials may be obtained from The Bank of New York Mellon, as Exchange Agent, 111 Sanders Creek Parkway, East Syracuse, New York 13057, Telephone: 315-414-3034.
2
Exhibit 99.2
PETROBRAS GLOBAL FINANCE B.V. - PGF
Offer
to Exchange Securities
which have been
Registered under the Securities Act of 1933, as amended,
and which are
Guaranteed by
Petróleo Brasileiro S.A. — Petrobras
for any and all of its Corresponding Outstanding Securities
| CUSIP of Old Notes | ISIN of Old Notes | Old Notes | CUSIP of New Notes |
ISIN of New Notes | New Notes |
| 71647N BF5 (Rule 144A) US71647NBF50 (Reg. S) |
N6945A
AL1 (Rule 144A) USN6945AAL19 (Reg S) |
U.S.$4,115,281,000 5.093% Notes due 2030 |
71647N BE8 | US71647NBE85 | Up
to U.S.$4,115,281,000 5.093% Notes due 2030 |
To Our Clients:
Enclosed for your consideration is a prospectus of Petrobras Global Finance B.V. (the “Issuer”), a wholly-owned subsidiary of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”), incorporated under the laws of The Netherlands as a private company with limited liability, and Petrobras, a sociedade de economia mista organized under the laws of Brazil, dated , 2020 (the “Prospectus”), relating to the offer to exchange (the “Exchange Offer”) registered 5.093% Global Notes due 2030 (the “New Securities”) for any and all outstanding 5.093% Global Notes due 2030 (the “Old Securities”) of the Issuer, upon the terms and subject to the conditions described in the Prospectus. The Exchange Offer is being made in order to satisfy certain of the Issuer’s obligations under the Registration Rights Agreement referred to in the Prospectus.
The material is being forwarded to you as the beneficial owner of the Old Securities carried by us in your account but not registered in your name. A tender of such Old Securities may only be made by us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on your behalf any Old Securities held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus. We also request that you confirm that we may, on your behalf, make the representations and warranties contained in the Prospectus in the section captioned “The Exchange Offer—Holders’ Deemed Representations, Warranties and Undertakings.”
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Securities on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m., New York City time, on , 2020 (the “Expiration Date”), unless extended by the Issuer. The Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date, unless previously accepted by the Issuer.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Securities.
2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned “The Exchange Offer—Conditions to the Exchange Offer.”
3. Any transfer taxes incident to the transfer of Old Securities from the holder to the Issuer will be paid by the Issuer, except as otherwise provided in the Prospectus in the section captioned “The Exchange Offer—Transfer Taxes.”
4. The Exchange Offer expires at 5:00 p.m., New York City time, on the Expiration Date, unless extended by the Issuer.
If you wish to have us tender any of your Old Securities, please so instruct us by completing, executing and returning to us the instruction set forth below.
* * * *
2
Instructions with Respect to the Exchange Offer
The undersigned acknowledge(s) receipt of your letter enclosing the Prospectus, dated , 2020, of Petrobras Global Finance B.V., a wholly-owned subsidiary of Petróleo Brasileiro S.A. — Petrobras (“Petrobras”), incorporated under the laws of The Netherlands as a private company with limited liability, and Petrobras, a sociedade de economia mista organized under the laws of Brazil.
This will instruct you to tender the principal amount of Old Securities indicated below held by you for the account of the undersigned, pursuant to the terms and conditions set forth in the Prospectus. (Check one).
| Box 1 | ¨ | Please tender the Old Securities held by you for my account. If I do not wish to tender all of the Old Securities held by you for my account, I have identified on a signed schedule attached hereto the principal amount of Old Securities that I do not wish tendered. |
| Box 2 | ¨ | Please do not tender any Old Securities held by you for my account. |
| Date: | |
| Signature | |
| Please print name(s) here | |
| Area Code and Telephone No. |
Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all Old Securities.
3